Original scientific paper
Crimen adulterii - Postclassical innovations
Ivana Jaramaz Reskušić
Abstract
On the basis of the analysis of the relevant emperors’ constitutions, the author presents and explains the content and objective of changes which occurred during the period from Constantine until Justinian in relation to the Augustinian, i.e. classical legal regulation of crimen adulterii.
The fist part of the paper deals with the changes of the right to take action against the criminal offence of adultery (accusatio adulterii). Starting from Constantine’s constitution announced on 25 April 326 as a basic legal source, it is established that the Emperor proclaimed the injured husband as a main protector of marriage (genialis tori vindex), and granted him the right to primary accusation for adultery in the case of his wife’s flagrant adultery (accusation adulterii iure mariti), at the same time restricting the right of making subsidiary accusation (accusation adulterii) to the narrow circle of the adulteress’s close relatives (proximis necessariisquae personis). Constantine even went a step further in his innovativeness and introduced into Roman criminal law for the first time the accusation ex suspicione by granting the husband the privileged right to, in the case of the suspicion of committing the criminal offence of adultery, accuse his wife, free from not only the procedural obligation of submitting a written and grounded accusation (inscriptio) and responsibility for defamation (calumnia) in the case of acquittal, but also the existing legal (Augustinian) obligation to previous divorce (divortium). Such penal policy was also confirmed by Constantine five years later, when he, by the constitution announced on an undetermined day in 331, regulated justified reasons for one-sided dissolution of marriage (repudium ex iusta causa). Conditioning the husband’s right to one-sided dissolution of marriage by his wife’s conviction for adultery, the Emperor additionally motivated the accusatory activity of the deceived husband by granting him the right to, in the case of the procedural success of the accusation of adultery, retain the entire wife’s dowry and avoid the danger of property sanctions in the case of re-marrying. Furthermore, in this part of the paper some new changes are presented by which Justinian finally completed the initiated reforms and abolished the Augustinian regime accusatio adulterii. Thus by Amendment 117 (of 542) he definitely established the rule according to which the accusation of adultery did not dissolve marriage, but the right to take accusatio adulteri against the wife-adulteress was left to the husband’s free will, the same as the right – granted to him by Amendment 134 (of 556) – to forgive her two years after the conviction for adultery and continue their marital union with her. Emphasizing the need to make marriages as stable as possible, by Amendment 134 Justinian on the one hand conditioned the husband’s privileged right to accusatio ex suspicione by having to deliver three written (certified by evidence) warnings to the alleged partner in adultery, and on the other hand prescribed that the fact of not convicted adulterers living together would be enough evidence for convicting their continuous adulterous behaviour in new (expedient) proceedings.
In the second part, changes in the sphere of repression of the criminal offence of adultery are presented. It is established that Constantine, most probably before the year of 313, introduced the death penalty by decapitation with a sword (gladio puniri) for the perpetrators of the definitely proved criminal offence of adultery. Later emperors – prescribing the ancient poena cullei or burning at the stake - completed such penal policy by the deterrent-dissuasive increase of cruelty and exemplariness of public execution of the penalty. Taking into account Maiorian’s Amendment 9 (of 459), it is established that the extreme severity of legal punishment for adultery was accompanied by the extension of limits of the husband’s right to non-punishable murder (ius occidendi) of both partners in adultery. The final but completely new – distinguished by sex and individualized by penalty – regulation of punishment was established by Justinian’s Amendment 134. By distinguishing the criminal law status of the male and female partners in adultery, the Emperor confirmed the Constantinian death penalty by decapitation with a sword for the man-adulterer and introduced captivity in a convent (accompanied by the loss of the entire property) for the woman-adulteress as a completely new form of punishment of the expiatory-emendatory character. By prescribing time limits to the possibility of the husband’s forgiveness as an additional element of alleviating punishment in favour of the convicted adulteress, on the one hand, and revivification of the husband’s right to non-punishable (committed by his own hand) murder of the partner found in the places most appropriate for committing adultery as an extra-judicial element of aggravating his or her punishment, on the other hand, Justinian showed that by the refined penal policy against adultery – based on general prevention which, besides retributive-vindictive traces, subsumed the function of deterring and reforming the perpetrator – endeavoured to achieve maximum protection of marital relations and public morality.
Keywords
crimen adulterii; accusatio adulterii; accusatio ex suspicione; ius occidendi; postclassical Roman criminal law, repudium; Constantine; Justinian
Hrčak ID:
5106
URI
Publication date:
20.6.2006.
Visits: 2.981 *