Erica Dominitz, In Flagrante Delicto (1995)

At common law, a man who killed his wife and her lover after seeing them in flagrante delicto --commiting adultery--could reduce the degree of his crime to manslaughter by claiming he acted in the heat of passion. Such mitigation acknowledged the killer's passionate response to provocative behavior holding him blameworthy while professing some sympathy with the motive of the slayer. In four states proof that the defendant saw hi wife in flagrante delicto was grounds for acquittal. In Georgia, for example, acquitting such a defendant was analogized to self-defense. Wives, the courts opined, embodied delicacy and chastity and husbands were their protectors. The doctrine came into existence in the mid-1800s and was not repealed until the late twentieth century. Though treating in flagrante delicto as a complete defense arose as a judicial construction, courts defended the rule as embodying the intent of the legislature. It demonstrated a tension between the judges' perceptions about their duty to interpret, not make, the law, and their desire to protect female virtue and Southern values.

In Biggs v. State (1860), Georgia's first in flagrante delicto case, the court reversed the defendant's conviction for attempted murder. Biggs had shot his houseguest at the breakfast table, the morning after he had seen and heard him seduce his wife. The opinion reflected the view that women were weak, chaste, and in need of men's protection, and that men were the protectors of women's virtue.

This patriarchal structure was necessary to maintenance of slavery. If traditional gender roles were upset, slaves might follow in women's footsteps and revolt against a society that kept them subordinate to their white masters. Antebellum Southern society also placed a high premium on female purity. Maintenance of the white race was dependent upon women's sexual partners. As a result, sexual indiscretions ruined women but not men. Women were seen as either ladies or whores: only white, chaste women qualified to be the former. Exploitation of female slaves by white men was justified as a means of protecting their delicate wives from their lust. The practice, of course, had the "fortuitous" consequence of expanding the slave work force. Southern men were concerned with maintaining the appearance of morality and propriety, maintaining white supremacy and making sure their wives only bore legitimate heirs. The result was that white men exerted sexual control over all women. Violence was accepted as a means of defending their honor if this appearance of propriety was disturbed. Biggs' shooting of his wife's lover was seen as a way of saving face.

Two decades later, in 1880, the Georgia courts decided Hill v. State . Mr. Hill, convicted for killing his wife's paramour thirteen days after she left her husband to stay with him, took an appeal. The court ruled that because of the long period of time between the adultery and the killing, Hill could not claim that he acted in the heat of passion. Implicitly the court also held that the homicide was not justifiable because Mrs. Hill was not chaste; she had no honor left to defend. Women were still blamed for men's wrongdoings. In several cases in the late 1800s and early 1900s, the judges in their opinions expressed outrage at the destruction of the defendants' homes and families by wayward women and claimed they would do all they could within the bounds of the law to allow men to protect the chastity of their wives and daughters.

From the 1920s through the 1950s, antebellum values crumbled as womens' suffrage, the erosion of Victorian values and the decline of traditional gender roles diminished the power of traditional Southern visions of gender. Women began to take control over their own sexuality. The in flagrante delicto doctrine was finally repudiated in 1977 in State v. Burger . The doctrine met its demise when the underlying values that originally justified it became obsolete.

 

Revised July 23, 2003 (MD)