Women in Homicide Cases

  Volonaki, Eleni. 2023. “Women in Homicide Cases.” In “Γέρα: Studies in honor of Professor Menelaos Christopoulos,” ed. Athina Papachrysostomou, Andreas P. Antonopoulos, Alexandros-Fotios Mitsis, Fay Papadimitriou, and Panagiota Taktikou, special issue, Classics@ 25. https://nrs.harvard.edu/URN-3:HLNC.ESSAY:103900192.

Introduction: Legal status of Athenian women

Athenian women had considerable restrictions concerning their engagement with the public life, such as legal, social and political activity. In law, an Athenian woman had no independent existence. She was incorporated into the oikos under the protection of her kyrios and she depended on him on a legal, social and financial level. Until a woman was married, she was under the guardianship of her father or, in case her father had died, of the male next-of-kin. After her marriage, her husband took over the role of her kyrios, and if she became a widow, her first adult son would take up that role. Consequently, an Athenian woman was never an adult before the law and she did not have a position in the public life of Athens, except for her participation in religious mysteries, rituals and funerals. [1]
The kyrios was obliged to provide the necessities for the house and the family. He was legally the representative of the minor members of the family, i.e. women, children and slaves. He was also obliged to give in marriage the unmarried daughters or sisters who were under his dominion. He was expected and had the legal authority to maintain order and discipline among the members of his household. The function of a woman’s kyrios was that of protection, and he acted as an intermediary between the oikos, where the woman belonged and the city where from she was generally excluded. Thus, a woman’s kyrios was responsible for her in legal disputes, and he was the one who was acting as a defendant or a witness. [2] Whatever the dispute, a kyrios, usually her son (Antiphon Speech 1, Isaeus 3) or her husband ([Demosthenes] 43.9, Isaeus 3.2, 5.9, 7.43–44) represented a woman in court. [3] Women in law courts are mentioned to have appeared as mourning dependents and possibly only if they were young children or aged. [4]
An issue of dispute involves the women’s right to be witnesses in homicide trials. It is true that in the speeches preserved to us from homicide trials, only two Athenian women are mentioned, the stepmother in Antiphon 1 and the adulterous wife of the defendant in Lysias 1. It appears that these two women could not be witnesses in any case. [5] The absence of distinct instances where women actually did testify in homicide cases may indicate that women would rarely participate in such cases involving violence. Just (1989:34–36) and Blundell (1995:114) argue that a woman’s evidence had to be given through her guardian. Lysias Against Diogeiton 32.11–18 presents a woman to offer to take oaths on the lives of her children in a temple. According to Demosthenes Against Callicles 55.27, an Athenian woman could testify if she were free and took an oath on the heads of her children. There is a controversy, however, on this point and it might be that free women could take an oath on the heads of their children. [6] It has been considered that it was unlikely for women to give evidence as witnesses on the grounds that they were not allowed to speak in public and that their evidence might be taken to be inherently weak. Nevertheless, as Kapparis (2021:128–129) has recently argued, women were not unable to testify, and their testimony did not need to be given under certain conditions, nor were their statements invalid. Women could not testify as witnesses in court, but their testimony could be given outside court before an arbitrator or a magistrate, which would then be sealed with other documents to be presented at the trial. Therefore, it was a matter of social principle and ideology, rather than a real legal rule. As Kapparis (2021:128) notes, “It was not the law that kept women away from appearing as witnesses in the courts, but rather custom and social convention, and this is why in less pressurized environments, where a woman’s sense of respectability would not be compromised in a small circle of people, her testimony was acceptable.”
Family life in classical Athens was legally regulated by ancient rules dating back to the legislation of Solon, at the beginning of the sixth BCE century, and from a set of unwritten traditions that remained stable and unchanged even in the classical era. The legislative changes in the Athenian oikos follow the slow course of the evolution of changes in public life. The first change occurs in 451 BCE, when Pericles’ law on Athenian citizenship was introduced. An Athenian citizen –male or female– could only be anyone who was born of two Athenian parents. [7] This law significantly changed the structure of the Athenian family, because mixed marriages would have no meaning in the future, since they could not produce legitimate children, and foreign women cohabiting with Athenian citizens would end up in the position of concubines. The effect of Pericles’ law of citizenship was strengthened at the beginning of the fourth-century BCE, by the introduction of another law, which expressly forbade the marriage or intention of marriage between citizens and non-citizens. [8]
Athenian women were “Athenian” and their origin was decisive after Pericles’ citizenship law of 451/50, according to which a male Athenian and hence his legal personality depended upon his being the son of a mother who was “Athenian.” However, women were hardly citizens proper, since the word used for them was aste (woman of the city), referring to their participation in civil and economic rights and religious functions, not politis, feminine of polites, who shared in judicial functions and in office (Aristotle Politics 1276a.20). [9] In terms of law, the social status of the women presents an internal contradiction, their position is “outside” society, but, at the same time, they are essential to it; their status derives from males but theirs, in turn, from the women who are their mothers. This contradiction is also reflected in the depiction of women in courts; they are represented by male relatives through male perspectives and ideology.

Homicide Trials: The cases of Antiphon 1 and Lysias 1

Homicide trials were mainly private cases, [10] and were distinct from other private trials in many aspects, considering the procedure and the punishment. They were tried in special courts manned by the ephetae, who were members of the Areopagus, and the cases were divided in categories of homicide according to the circumstances of the murder. [11] The homicide law was first established by Draco (621 BCE) and remained unchanged until the middle fourth-century; [12] thus, an ideology developed in Athenian society concerning firstly the perfection and the sanctity of Draco’s homicide law and secondly the courts which were viewed within their foundation myths. [13] As Kapparis (2021:127) points out, “homicide courts culturally and legally belonged to the archaic period.” Even though from a legal point of view pollution was not a procedural matter in homicide trials, it played a significant role in terms of social and religious customs. [14]
Litigants and witnesses had to swear an oath for their positions and testimonies respectively and a trial took place in the open air. Another restriction involving homicide was that litigants ought to speak only in relevance with the crime and were not allowed to say anything irrelevant to it (ἔξω τοῦ πράγματος), which was usually the practice in trials at the heliastic courts. [15] As in all private trials, in homicide cases two speeches were delivered by each side with one difference: after the first set of the speeches by the prosecutor and the defendant, the defendant could choose to leave Athens and go to exile before the decision of the case was made, avoiding thus the risk to face the death penalty. Finally, there was a restriction of time in the procedure of a dike phonou; it was prescribed that the accusation had to be made before the basileus and after the accused was deprived of his citizen rights, three pre-trials, one in each month, followed by the final one in the fourth month. Therefore, an accusation of homicide could not be made after the ninth month of a basileus’ office, since he was appointed to his position only for twelve months. [16] It becomes obvious that such a restriction brought delays and complications to homicide charges. [17]
Antiphon 1, Against the Stepmother for poisoning, was written for the prosecution of a woman accused of planning and causing the death of her husband by poisoning. The prosecution case is constructed upon the story that the dead man’s wife tricked another female, a slave, into administering the poison. The prosecutor is his son by another marriage and the accused is his stepmother, whereas the defendant is her son by the dead man, presumably half-brother to the accuser. There is a dispute among scholars about the charge of homicide involved in this case, whether it is premeditated murder tried by the Areopagus and punished by the death penalty, or it is a homicide from bouleusis, tried in the Palladion, with the punishment of exile. [18] Given that the prosecution line emphasizes the stepmother’s invention of the plan and responsibility for murder rather than premeditation, it is plausible that we are dealing with a charge of bouleusis.
Lysias 1, On the murder of Eratosthenes, was composed in defence of Euphiletus, the husband who killed his wife’s adulterer (moichos), named Eratosthenes, after he had caught him in the act (ep’ autophoroi). Euphiletus is accused of intentional homicide for entrapping Eratosthenes by force and deceit (§§27, 37, 43). Euphiletus, on the other hand, argues that he simply applied the Athenian law on adultery and killed Eratosthenes after catching him on the act (ep’ autophoroi). His rhetorical strategy aims at presenting the homicide as lawful in accordance with the Athenian law of adultery (moicheia) and the defendant as a servant of the city who enforced its laws. [19] Consequently, the case involves an accusation against a justifiable homicide and it is tried in the Delphinion.

Female figures in Antiphon 1

Logographers regularly create words for women that are designed to support their clients’ cases, even though the women’s words were actually spoken long before the trial. It is rather unlikely that women could actually use the forensic language and it is possible that logographers create whole scenes and speeches for women, which never happened in reality. [20]
In the context of creating imaginary female personae and voices in court, two female characters from Antiphon 1, Against the Stepmother for poisoning, are portrayed as distinct tragic heroines involved in the poisoning and cruel murder of two Athenian men: the stepmother, who plotted her husband’s murder, and the mistress, who following the stepmother’s advice in order to win back the love of her man, ended up murdering both the stepmother’s husband and her lover. The story narrated in court is based on the words exchanged between these two female figures to persuade for the motivation and execution of murder.
The prosecution case is weak in terms of evidence and argumentation, and it is therefore constructed upon the story that the wife tricked another female, most probably a slave, into administering the poison. The dead man was most probably married twice or had an affair during his marriage with the accused. The prosecutor is his son by another woman, whereas the defendant is her son by the dead man. If the prosecutor were younger than the defendant, which seems very likely, he must have been the son of a free woman or a concubine, with whom the dead man had an affair while he was married to the stepmother. Gagarin argues for this view, although with some reservation, and he also assumes that Philoneus’ pallake (concubine) could have been the prosecutor’s mother. [21] On this ground, one might also explain the injustice that befell on the stepmother and why she wished to take revenge by poisoning him repeatedly. Nevertheless, there is no solid ground to confirm the identity or age of the prosecutor. The assumption that the prosecutor was a son of a pallake might be problematic concerning his non-civic status and consequently his right of prosecution in a homicide case. [22] The prosecutor is a young man, as he himself states in the opening of the speech, mentioning his inexperience in court cases (§1), and he faces a dilemma being in a difficult position toward his half-brothers (δεινῶς δὲ καὶ ἀπόρως), since they have become enemies and murderers (§2: ἀντίδικοι καὶ φονῆς). The speaker also declares his motivation which derives from the instructions given to him by the father just before he died (§1: ἐπισκήψαντος τοῦ πατρὸς ἐπεξελθεῖν τοῖς αὑτοῦ φονεῦσι). The trial would have been easily avoided if the half-brothers had accepted the speaker’s challenge to offer the slaves for evidence under torture concerning the stepmother’s actions in the house (§§6–13).
The speaker accuses his stepmother for intent and premeditation of murder and for having been caught in the act of contriving her husband’s death not just once but many times before (1.3: ἐὰν ἐπιδείξω ἐξ ἐπιβουλῆς καὶ προβουλῆς τὴν τούτων μητέρα φονέα οὖσαν τοῦ ἡμετέρου πατρός, καὶ μὴ ἅπαξ ἀλλὰ καὶ πολλάκις ἤδη ληφθεῖσαν τὸν θάνατον τὸν ἐκείνου ἐπ᾽ αὐτοφώρῳ μηχανωμένην). Modern scholars have posed the question whether the stepmother intended to give her husband’s a love portion or intended to poison him. Gagarin has very convincingly argued that Antiphon’s concern is rather to show that the stepmother planned the whole matter, that she was the responsible and the primary agent in a plot to give her husband a drug. [23] Her motivation does not really matter to most of the judges, whether it was her love or her intention to cause his death, knowing well that it was not a love philter but poison. [24]
Two substantial episodes are depicted in the narrative, [25] the first scene unfolds the events leading up to murder (§§14–15) and the second one describes the scene of the men’s death (§§16–20). It is “the longest uninterrupted narrative in Antiphon.” [26] The speaker’s father had a close friend, a merchant named Philoneus, who used to live in an upstairs room in their house, whenever he was in Athens. Philoneus had a pallake (concubine), whom he intended to put in a brothel. The stepmother discovered this and became friend with her (§14: ἐποιήσατο φίλην). Having ascertained that Philoneus intended to treat the pallake badly (§14: ἀδικεῖσθαι ἔμελλεν ὑπὸ τοῦ Φιλόνεω), the stepmother summoned Philoneus’ pallake and told her that she too was being badly treated by our father (§15: ὅτι καὶ αὐτὴ ἀδικοῖ το ὑπὸ τοῦ πατρὸς τοῦ ἡμετέρου). The verb ἀδικεῖσθαι has a legal connotation implying that revenge and punishment should be enforced. Obviously, this is not the language the two women had spoken when referring most probably to the men’s betrayal or lack of love. The context aims at the justification of the planning; thus the stepmother attempts to persuade the pallake (πείθεσθαι) with the promise that she was able to regain both Philoneus’ affection for the woman and her husband’s for herself. She appears as ἱκανὴ, an adjective implying that she had the skills to bring this result. Then the stepmother said that she herself would plan (εὕρημα), and the slave would obey (ὑπηρέτημα). The antithesis between the mother and the pallake, which is stylistically emphasized, aims to stress that the stepmother was the agent. [27] She then asked the slave if she was willing to carry out her instructions and the slave promised, straight away, to do so. The pallake’s consent is necessary here to make this look like a planning scheme, but also to show how the stepmother tricked her into something she was not aware of from the beginning. Thus, the woman is portrayed as evil and devious, scheming with philters and poisons. No evidence, however, is provided from the particular scene as reflected in the speaker’s speculative tone, “as I think” (ὡς οἶμαι), and it could be a fictional fabrication of what actually happened. [28]
Subsequently, the story narrates the dinner that took place after the speaker’s father and Philoneus had completed the sacrifice. The pallake was in a dilemma, when to give the drug to the men, before or after the dinner, and she decided that it would be better to give it to them, after the dinner, “acting on the instructions of this Clytaemestra, my brother’s mother,” as the speaker states (§17: τῆς Κλυταιμνήστρας ταύτης [τῆς τούτου μητρὸς] ταῖς ὑποθήκαις ἅμα διακονοῦσαν).The identification of the stepmother with Clytaemestra has a mythical but also a tragic dimension. If the stepmother is a Clytaemestra, it is particularly important that the son, the speaker should assume his proper role to imitate Orestes and take revenge upon his father’s death.
Modern scholars have extensively discussed and demonstrated the uniqueness of the speech in displaying many mythic and tragic analogies from Aeschylus Oresteia, Sophocles Trachiniae and Euripides Orestes. The speaker is closely associated with Orestes’ loyalty toward his father and avenge against his murder. The stepmother can be seen either as a Clytaemestra in planning and executing her husband’s poisoning or as a Deianira in a defence line of giving an aphrodisiac to regain her husband’s love or as a Creusa in instructing the concubine to give the phrarmakon to unsuspected men after dinner. The dramatic tone in Antiphon’s speech concerning the broadness and vividness of the narrative was noted long ago by Gernet, Barigazzi and Due, [29] as being reminiscent of tragedy. Gagarin also noted that “Antiphon here produces a vivid account which has been likened to a messenger speech in tragedy.” [30] Apostolakis has discussed the tragic analogies between the stepmother, the concubine and the speaker on the one hand and the heroines and heroes from the Odyssey (Homeric Clytaemestra), Aeschylus Oresteia, Sophocles Trachiniae and Euripides Ion, on the other, based on characteristics of tragic sections, such as the peripeteia or the messenger speech, and also the vocabulary and language. [31] Wohl has clearly and in detail demonstrated that the Oresteia is used here as a legal precedent; [32] she thoroughly analyzes the dramatic use of Clytaemestra as well as Sophocles’ Deianirain the speech, and draws parallels in plot, language, style and dramatic effect upon the same Athenian audience who had attended the Aeschylean trilogy in the dramatic festivals. Wohl states characteristically that “the speaker uses the Aeschylean model in order to prejudge the issue of his stepmother’s intent and to preempt it, to rule it inadmissible.” [33] Finally, Edwards has presented a number of features of the narrative which support the view of a clear use and analogy of tragedy with the characters involved in the homicide trial against the stepmother; [34] these include: (a) the metaphor in §20: τὸν ἑαυτῶν φονέα μεταχειριζόμενοι (“taking hold of their own killer”), (b) the metaphor of naming the stepmother Clytaemestra in §17, (c) poetic vocabulary and phraseology, (d) dramatic features in the narrative, such as longer cola used at the crucial points of the narrative, vivid historic present tense.
There is no doubt that the story of the narrative can be identified with analogies with the myth and tragic story of Clytaemestra and Orestes. There is the sacrifice before the dinner, just before the moment of poisoning the men which is reminiscent of Agamemnon’s sacrifice when murdered by a knife, trapped in a net. The polar antithesis between the stepmother’s son who defends her and the speaker who has been instructed by his father, when very young, to avenge his death recalls the contrast between the Erinyes who defended Clytaemestra, the mother, and Apollo with Orestes who defended Agamemnon, the father. Following the Eumenides, the speaker should be given justice whereas the stepmother should be punished. Of course, as has been indicated by scholars, [35] from the point of defense, the stepmother should be also identified with Deianira, who in despair of losing Hercules’ love uses a love charm, which turns out to be a deadly poison and when she realizes that she has murdered her husband, she kills herself. [36]
My interest focuses on the question why Antiphon draws on these specific stereotypes of the two heroines, Clytaemestra and Deianira, to portray Athenian women and slaves involved in a homicide trial. One evident reason is to distract the judges’ attention from the factual case, since no evidence is presented. The second reason is to influence the judges for the death penalty, since death was also the result in the scheming of the two tragic women. The third reason involves Antiphon’s rhetorical strategy to go beyond the dramatic effect of the tragic stories and depict two real female prototypes of Athenian society. The use of tragic figures in a forensic context is a paradox and the insinuations drawn for the jurors influence their vote, by creating illusions in many contrasts. The analogies stressed between tragedy and the speech may blur the judges’ understanding of reality and fiction, public and private, forensic and law, hamartia and revenge/justice, female and male, an aste and a pallake. Thus, the stepmother in the eyes of the Athenian judges obtains the dimension of a typical stepmother who may have treated badly her stepson –here the speaker, and as such is capable of plotting, scheming and conspiring against his father and subsequently him as well. As Levick (2012) notes: “Women, who were in charge of the kitchen cupboard and its drugs, were particularly vulnerable to such charges, and stepmothers were the worse equivalents of modern stepmother were the worse equivalents of modern mother-in-law.” Kapparis also discusses the stereotypes of strong and threatening women who could harm not only the men they came in contact with, but the whole city as well, since they possessed dangerous skills with philtres, potions and witchcraft. [37]
Thus, Antiphon’ rhetorical strategy aims at representing these dangerous and skillful women must have been exceptional and must be put to death for aggravating the anxieties of Athenian men and citizen, since their function was in contrast to the common and widely spread view of the vulnerable Athenian women. The tragic stereotype is drawn in order to bring on the surface of the story of the case a dreadful woman who uses her magical skills to kill her husband. Appealing on the Athenians’ anxieties and realities, Antiphon uses the tragic stereotypes to exaggerate the scheming and evil personality of the stepmother but also to represent a real devious Athenian wife threatening the safety of her oikos and the city.
The pallake, on the other hand, gets a sympathetic depiction. She is the victim; out of her despair and naivety, “she gave more poison to Philoneus in the belief perhaps that if she gave him more she would win more affection from him –she had no idea that she was my stepmother’s dupe until disaster struck” (§19: οὔπω γὰρ ᾔδει ὑπὸ τῆς μητρυιᾶς τῆς ἐμῆς ἐξαπατωμένη, πρὶν ἐν τῷ κακῷ ἤδη ἦν· τῷ δὲ πατρὶ τῷ ἡμετέρῳ ἔλασσον ἐνέχει). Not only was she deceived by the stepmother but she was also tortured and subsequently killed. Her alleged innocence is deliberately overstated to contrast with the stepmother’s liability, with the implication that the stepmother as the main agent of the murder ought to die. Thus, Antiphon represents a positive portrayal of the slave, reflecting from the loyalty and obedience of slaves in real life, but goes beyond that to make the pallake a friend of the stepmother who eventually fell a victim since she crossed the lines in the socially acceptable relationship between free women and slaves.
On balance, Antiphon combines tragic models with real female personae of the Athenian society, appealing to the jurors’ emotions of hate, fear and vindictiveness on account of the stepmother, and sympathy for the dead men and the dead pallake. Antiphon’s rhetorical strategy may have also been dictated by the view that Athenian free women were not expected to be involved in such a horrible crime; moreover, even more paradox would have been the charge for plotting and planning by a respectful Athenian woman.

Female women and slaves in Lysias 1, On the murder of Eratosthenes

In Speech 1, On the murder of Eratosthenes, Lysias establishes the defence line of argumentation on the allegation that it was a justifiable homicide and that Euphiletus observed the Athenian law of adultery (moicheia); thus, the speaker is depicted as a servant of the city who enforced its laws. [38]
The speech is unique in terms of the use of narrative for the portrayal of the speaker as well as all the other persons involved in the story and it has been, therefore, broadly discussed by modern scholars concerning the narrative techniques, Lysias’ ethopoiia, dramatic characterization, etc. [39] The narrative occupies a bit more than half of the speech and is mixed including the story incorporated with arguments from probability or prejudice; it aims at establishing the case of an adultery and proving therefore the justifiable homicide, since the speaker allegedly caught the adulterer in the act in the presence of witnesses, whom he managed to gather randomly and without premeditation the same night of the murder. Lysias focuses on the portrayal of Euphiletus, the wife, Eratosthenes and all other figures for the rhetorical purposes of his case. [40] The story starts with the family background (§§6–7) from the beginning of the marriage, the birth of the child, and the funeral of Euphiletus’ mother, where Eratosthenes saw Euphiletus’ wife, and approached her slave girl for shopping to act as a go-between (§§8–9). Euphiletus, as a caring husband and father, made arrangements so that the men would sleep on the upper floor and the women downstairs with the child (§§9–10). The speaker then describes an incident, when he had returned unexpectedly home, and he was locked up in his room while his wife went downstairs to meet her lover (§§11–14). Following that episode, a slave sent by another Athenian woman approached Euphiletus and revealed the adultery giving the name of Eratosthenes and saying that the slave who was going to the market place knew everything (§§15–17). Euphiletus took the slave girl to a friend’s house and, after interrogating her, he was informed about the adultery and demanded from the slave to help him catch Eratoshenes in the act (§§18–21). The night of the murder, Euphiletus had accidentally invited a friend for dinner, named Sostratus, and went to sleep after his friend had left; meanwhile Eratosthenes came in the house and the slave girl woke Euphiletus up, who ran out to find witnesses (§§22–24). The narrative concludes with the scene of the murder, where Euphiletus with the witnesses caught Eratosthenes in the act, who confessed but begged for his life, but Euphiletus enforced the Athenian law and killed him (§§25–28).
The female figures involved in the story are Euphiletus’ wife, another Athenian married woman with whom Eratosthenes had an affair, Euphiletus’ dead mother, Eratosthenes’ mother, the slave going for shopping and the old slave sent by the other Athenian woman. All these female figures, free women and slaves, play a fundamental role in the story narrated by the speaker because their alleged involvement and their voices in the exchanges of direct speech with the speaker constitute the only available evidence to support Euphiletus’ case of adultery. Moreover, the slaves who could have been tortured to give evidence are simply mentioned as party to the series of events leading to the murder of Eratosthenes, but are never offered for testimony to be presented in court.
The speech presents some peculiarities concerning its structure and length. [41] Even though it consists of all the parts of a forensic speech, i.e. proem, narrative, pisteis and epilogue, it is a rather brief speech for a homicide trial. With regards to the establishment of the case, this is mostly accomplished through the narrative, since the testimonies presented are very limited, whereas there could have been produced more essential evidence from the slave under torture, the friend in whose house the slave was interrogated by Euphiletus, and Sostratus, the friend who came for dinner at the night of the murder.
Lysias’ art in composing a diegesis and ethos, the personality and character of his client or his opponent, has been praised in the antiquity, [42] and it may be assumed that the specific speech reflects exactly his artful composition of a telling story at a homicide court. Thus, the focus has been placed upon the dramatic characterization of all the persons involved in the adultery case, and it is developed in the narrative by repetition, direct speech, use of women’s voices, and detail of time and space for vividness and plausibility; [43] elements of performance, ridicule and irony are coherently incorporated in the narrative to appeal for emotions of sympathy, frustration, anger and prejudice, and thus to approve for the revenge and punishment fοr justifiable homicide.
Porter has lucidly and thoroughly illustrated the association of Euphiletus’ account with comedy, and regards that the story composed by Lysias constitutes a “comic adultery scenario”; he moreover cites examples from comedy, tragedy and other poetic parallels to stress the similarities between the figures of Euphiletus’ story and the comic archetypal figures, such as the young lover who sees a wife at a religious ritual, the slave intermediary and accomplice, the old slave spy and informer, the rejected former mistress, the foolish and ignorant husband and the cunning and resourceful wife. [44]
Adultery was a very common theme of mockery in the Aristophanic comedy, [45] and in that sense it reflected reality but on an exaggerative level. From a legal point of view, adultery (moicheia) constituted a serious sexual offence, since it threatened the continuity of the Athenian oikos. The Athenian law prescribed a variety of penalties to punish adultery outside and inside court. [46] It may not be a coincidence that in the second half of the fourth-century adultery was prosecuted by the severe procedure of eisangelia, on the grounds that it was threatening the oikos of an Athenian citizen and could be therefore considered as treason. [47]
Why does Lysias draw on a “comic adultery scenario” for his client who is the defendant in a homicide trial, facing possible the death penalty? There is certainly a risk of ridicule and confusion for the judges who might recognize the comic stereotypes so that they could reject the whole story by the gullible husband. The exaggeration from comic parallels firstly evades the absence of solid evidence and creates the illusion of a real adultery scenario. Secondly, the details of deceit and cunning within an Athenian oikos appeal to the Athenians’ anxieties concerning threats against one’s oikos and the whole city; the seriousness of the sexual offence is magnified to such an extent that it may have persuaded the judges for the justifiable homicide. Finally, the comic stereotypes are used to bring before the judges’ eyes adulterous wives of Athenian oikoi, portraying them from a negative point of view, and they may not be far from reality. The artful depiction of the dramatic personae reflects the characteristics of the contrasted loyal and disloyal wives and slaves with their changes and challenges within Athenian society. Moreover, the depiction of aggressive sexuality appeals to the emotions of fear and anger, since such a contrasted view from the widespread passive role of Athenian women could be a constant threat for the Athenian citizens.
Euphiletus’ wife is represented as cunning and manipulative, particularly in the episode of locking Euphiletus in the bedroom upstairs in order to go downstairs and meet with her lover. The slave is her accomplice by making the child crying so that she will need to go and feed him (§§11–13):

[11] προϊόντος δὲ τοῦ χρόνου, ὦ ἄνδρες, ἧκον μὲν ἀπροσδοκήτως ἐξ ἀγροῦ, μετὰ δὲ τὸ δεῖπνον τὸ παιδίον ἐβόα καὶ ἐδυσκόλαινεν ὑπὸ τῆς θεραπαίνης ἐπίτηδες λυπούμενον, ἵνα ταῦτα ποιῇ: ὁ γὰρ ἄνθρωπος ἔνδον ἦν· [12] ὕστερον γὰρ ἅπαντα ἐπυθόμην. καὶ ἐγὼ τὴν γυναῖκα ἀπιέναι ἐκέλευον καὶ δοῦναι τῷ παιδίῳ τὸν τιτθόν, ἵνα παύσηται κλᾶον. ἡ δὲ τὸ μὲν πρῶτον οὐκ ἤθελεν, ὡς ἂν ἀσμένη με ἑωρακυῖα ἥκοντα διὰ χρόνου· ἐπειδὴ δὲ ἐγὼ ὠργιζόμην καὶ ἐκέλευον αὐτὴν ἀπιέναι, “ἵνα σύ γε” ἔφη “πειρᾷς ἐνταῦθα τὴν παιδίσκην· καὶ πρότερον δὲ μεθύων εἷλκες αὐτήν.” κἀγὼ μὲν ἐγέλων, [13] ἐκείνη δὲ ἀναστᾶσα καὶ ἀπιοῦσα προστίθησι τὴν θύραν, προσποιουμένη παίζειν, καὶ τὴν κλεῖν ἐφέλκεται. κἀγὼ τούτων οὐδὲν ἐνθυμούμενος οὐδ᾽ ὑπονοῶν ἐκάθευδον ἄσμενος, ἥκων ἐξ ἀγροῦ.
[11] Some time later, gentlemen, I returned unexpectedly from the country. After dinner, the baby began to cry and was restless. (He was being deliberately teased by the slave girl, to make him do this, because the man was inside the house: I later found out everything.) [12] So I told my wife to go down and feed the baby, to stop it crying. At first she refused, as if glad to see me home after so long. When I became angry and ordered her to go, she said, “You just want to stay here and have a go at the slave girl. You had a grab at her once before when you were drunk.”[13] I laughed at this, and she got up and left. She closed the door behind her, pretending to make a joke out of it, and bolted it. I had no suspicions and thought no more of it, but gladly went to bed, since I had just returned from the country.
Trans. Todd 2000

The portrayal of the adulterous wife who is using all means to meet with Eratosthenes, even though her husband has come unexpectedly home from the fields shows the influence of comedy with the reversal of the roles. The woman becomes an “active agent” and uses “feminine poneria” and the man is passive and fool. [48] She even had the audacity of appearing with make-up the following morning and when the speaker asked “why the doors had creaked during the night, she claimed that the baby’s lamp had gone out, so she had to get it relit at their neighbours” (§14). The comic role of an Athenian woman who hides her lover in her husband’s oikos is rhetorically used to appeal for a well-known attitude and consequently a negative depiction of the Athenian wife.

Nevertheless, the positive portrayal of the wife has also been presented when she was considered as the best of all in the city for her “prudent household management” (§7: πασῶν ἦν βελτίστη· καὶ γὰρ οἰκονόμος δεινὴ καὶ φειδωλὸς [ἀγαθὴ] καὶ ἀκριβῶς πάντα διοικοῦσα), an essential expected and praised quality of an Athenian woman. [49] Euphiletus had the impression of her as being the most modest of all Athenian women, even after she had been seduced by Eratosthenes (§10: καὶ ταῦτα πολὺν χρόνον οὕτως ἐγίγνετο, καὶ ἐγὼ οὐδέποτε ὑπώπτευσα, ἀλλ᾽ οὕτως ἠλιθίως διεκείμην, ὥστε ᾤμην τὴν ἐμαυτοῦ γυναῖκα πασῶν σωφρονεστάτην εἶναι τῶν ἐν τῇ πόλει).The change from a positive to a negative portrayal aims at emphasizing Eratosthenes’ guilt rather than his wife’s; the view that the adulterer is responsible for many crimes is also stated in the explanation of the law inflicting more severe punishment on adulterers than rapists (§33):

τοὺς δὲ πείσαντας οὕτως αὐτῶν τὰς ψυχὰς διαφθείρειν, ὥστ᾽ οἰκειοτέρας αὑτοῖς ποιεῖν τὰς ἀλλοτρίας γυναῖκας ἢ τοῖς ἀνδράσι, καὶ πᾶσαν ἐπ᾽ ἐκείνοις τὴν οἰκίαν γεγονέναι, καὶ τοὺς παῖδας ἀδήλους εἶναι ὁποτέρων τυγχάνουσιν ὄντες, τῶν ἀνδρῶν ἢ τῶν μοιχῶν. ἀνθ᾽ ὧν ὁ τὸν νόμον τιθεὶς θάνατον αὐτοῖς ἐποίησε τὴν ζημίαν.
[33] whereas those who seduce corrupt the minds of their victims in such a way that they make other people’s wives into members of their own families rather than of their husbands’. The victim’s whole household becomes the adulterer’s, and as for the children, it is unclear whose they are, the husband’s or the seducer’s. Because of this the lawgiver laid down the death penalty for them.
Trans. Todd 2000

Similarly to the depiction of the wife, the slave who was going for the shopping changes sides from being loyal to her mistress and her accomplice into becoming disloyal to her and loyal to her master, since she agreed not to tell anyone that Euphiletus knew about the adultery and to help him catch Eratosthenes in the act (§21). The slave girl woke Euphiletus up to say that he was inside the night of the murder and took care of the doors to be open when he would be back with witnesses (§§23, 24). The slave’s change was imposed through threat and blackmail by her master due to the discovery of the adultery, a sexual offence in which she had been also involved.

Adultery is also depicted as a negative consequence from the death of Euphiletus’ mother; there is the implication that Euphiletus’ mother was the model of protection, keeping an eye on Euphiletus’ wife and securing the safety of the oikos. On the other hand, Eratosthenes’ mother is said to have accompanied her son’s mistress at the Thesmophoria, implying a silent acceptance and conspiracy to the adultery (§20: καὶ ὡς Θεσμοφορίοις ἐμοῦ ἐν ἀγρῷ ὄντος ᾤχετο εἰς τὸ ἱερὸν μετὰ τῆς μητρὸς τῆς ἐκείνου), and thus her role toward an Athenian oikos is negative. Of course, it is to be noted that no evidence is provided for the actions deriving from adultery apart from the slave’s voice as represented in court by the speaker. [50]
The final female figures do not belong to Euphiletus’ oikos but are rhetorically used to demonstrate and persuade for the illegal affair which was going on in his house. The rejected mistress does not play an active role in the narrative apart from the fact that she appears to have been rejected by Eratosthenes and has sent her elder slave to find out with whom Eratosthenes had a new affair. Lysias aims to show that Eratosthenes is a professional seducer (§16: ὃς οὐ μόνον τὴν σὴν γυναῖκα διέφθαρκεν ἀλλὰ καὶ ἄλλας πολλάς· ταύτην γὰρ [τὴν] τέχνην ἔχει), who has seduced many other Athenian wives; for his rhetorical purpose Lysias possibly invents this female figure to suggest that this was a common situation in the city of Athens, the adulterous affairs. The statement that Eratosthenes had many other affairs shows that Lysias may employ comic stereotypes and scenarios in order to represent real persons and affairs in every day Athenian life so that punishment is exacted. The old slave represents the loyal model of an accomplice and the type of the informer, who reveals the truth and intermingles in other persons’ lives, even though she claims that she does not (§15: προσελθοῦσα οὖν μοι ἐγγὺς ἡ ἄνθρωπος τῆς οἰκίας τῆς ἐμῆς ἐπιτηροῦσα, “Eὐφίλητε” ἔφη “μηδεμιᾷ πολυπραγμοσύνῃ προσεληλυθέναι με νόμιζε πρὸς σέ”).


Portrayals of female figures, both free women and slaves, in homicide trials are designed on the canvas of tragic and comic heroines. Many insinuations in language, plot, style and characterization between drama (tragedy and comedy) and forensic oratory are used in speeches composed for homicide trials, both for prosecution and defence. Athenian judges may have showed prejudice toward a particularly educated speaker, but they surely admired and appreciated the poets and their work. [51] Oratory relied on poetry and, therefore, the style of the first orators, as Antiphon for example, was highly poetical and influenced by the example of tragedy. Lysias may have gone to the other extreme but his oratory draws prototypes from everyday life, language and characters, and in this context comic figures and themes would easily find their way in his stories in court. [52] The narratives of the speeches examined in this paper may be seen as fictitious and even as belonging to rhetorical exercises with elements from the genre of novel rather than to actual speeches composed for homicide cases. Nevertheless, the rhetorical strategy to create an imaginative narrative story with tragic and comic elements in order to appeal to the judges in the absence of solid evidence and argumentation is not uncommon in the Attic orators, with the most representative example of Apollodorus.
Homicide trials have peculiarities, among which was to speak only in relative terms with the crime of murder and nothing else than that; therefore, the use of tragic and comic insinuations in many aspects would blur and confuse the judges or amuse and distract from the actual evidentiary case, especially when it was a weak one to establish. The rhetorical exaggeration created by the tragic and comic figures and themes magnifies the offence of homicide or adultery so that the punishment of the accused would be considered as authoritative. Moreover, the dramatic scenario emphatically differentiates the particular female figures of the narratives, mostly negatively portrayed, from the broadly passive accepted role of women in Athenian society. The reversal of the roles from a passive object to a manipulative wife in an extramarital affair or a cunning witch who uses poison and philtres to kill her husband was enhanced by the analogies drawn from tragic and comic figures.
As has been demonstrated, orators go beyond the dramatic figures to reflect reality and represent Athenian wives from everyday common scenes in their oikos. The exaggeration serves to magnify the offence of homicide or adultery and justify the role attributed to women by the male standards. Athenian judges are familiar with the personae and attitudes presented in the homicide stories; orators appeal to their emotions of fear, anger, anxiety and rage. The sexual aggressive mistresses, the plotters, the slaves who betray their mistresses or remain loyal to them despite their old age are all real women, wives, stepmothers and slaves who might threat the well-being of the Athenian oikos and the whole society. Drama is not far from reality and it was used by orators to enlighten the negative side of reality in order to persuade for revenge and death, in accordance with the Draconian homicide law.


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[ back ] 1. There is contradicting evidence concerning in which activities Athenian women could participate. Thus, it appears that women could attend the City Dionysia and also that poorer Athenian women could work in the fields and sell their agricultural products in the market place. Also, they had social activities, such as visiting husbands or relatives in prison, attending the public funeral orations, wedding feasts, etc. For the status of women in classical Athens, cf. Cohen 1989:3–15. Generally, on women and their status, see Cantarella 1987; for the religious life of Athenian women, see MacLachlan 2012:115–130; Kapparis 2021.
[ back ] 2. On the role of a woman’s guardian, cf. Blundell 1995:114–124; for the economic rights of the kyrios, see Schaps 1979:48–60; for the women’s participation in the Athenian justice system, see Kapparis 2021:105–123.
[ back ] 3. The normal way to refer to a woman in court was to call her the relative of such-and-such a man; in these contexts the woman has no personality and exists only as an extension of her male guardian. For a discussion on women’s names as reflecting their dependence on male guardians, cf. Schaps 1977:323–330 and Gould 1980:38–59.
[ back ] 4. Cf. Demosthenes Against Aristogeiton 25.84 with Just 1989:12.
[ back ] 5. On the issue whether women did testify in homicide cases at Athens, cf. Bonner 1906:127–132.
[ back ] 6. For the controversy on this matter, see Levick 2012:102–103.
[ back ] 7. For Pericles’ citizenship law, see Athenaion Politeia 26.3; Demosthenes 43.51; Kapparis 2021:230.
[ back ] 8. For the law forbidding mixed marriages, see [Demosthenes] 59.16; Kapparis 2021:231.
[ back ] 9. For the aspects of the social position of women in classical Athens with respect to Athenian law, cf. Gould 1980:38–59; Levick 2012:96–106; Kapparis 2021:187–216.
[ back ] 10. The usual procedure for homicide was the dike phonou, which was initiated by the victim’s relatives, but there was also an alternative procedure of a public procedure, the apagoge, which was introduced in mid-fifth century and involved homicide as a kind of kakourgema, tried by a heliastic court; for the apagoge, see Volonaki 2000:147–176. Generally on homicide, see MacDowell 1963; Gagarin 1979:301–323, 1981; Hansen 1981:11–30; Carawan 1998; Phillips 2008.
[ back ] 11. For the Athenian homicide courts, see Sealey 1983:275–296; Lanni 2000:311–330.
[ back ] 12. For the republication of Athenian homicide law in 409, see Volonaki 2000, 2001.
[ back ] 13. For the ideology of homicide, see Plastow 2020:21–49.
[ back ] 14. For the pollution in homicide cases as a matter of religion, ritual, and rhetoric, see Arnaoutoglou 1993:109–137; Harris 2015:11–35; Plastow 2020:50–88.
[ back ] 15. For relevance in homicide trials, see Lanni 2005:112–128; Plastow 2020:89–113.
[ back ] 16. For the procedural rules of a homicide trial, see Tulin 1996. For the role of basileus in homicide trials, see Gagarin 2000:569–579.
[ back ] 17. A representative example of such a case from delay can be seen in Antiphon 6.
[ back ] 18. For a discussion about bouleusis and promelete or pronoia, see Gagarin 1988:81–99; Plastow 2020:119–125.
[ back ] 19. For Lysias’ use of law in Speech 1, On the murder of Eratosthenes and generally on the law of adultery, see Carey 1995:407–417; Todd 2007:46–49.
[ back ] 20. On women’s voice in Attic oratory, cf. Gagarin 2001:161–176.
[ back ] 21. Gagarin 1997:106, 2002:15; Wohl 2010:63; Carawan 1998:220–221, 228–229. For the status of the children of pallakai, see Wohl 2010:63–64 with notes 54, 55.
[ back ] 22. For the view that he could have a claim of shared inheritance with his half-brothers and also that he could have a civic status due to the loosen situation toward the end of the Peloponnesian War concerning the issue of citizenship, see Wohl 2010:64n54.
[ back ] 23. Gagarin 2002:150.
[ back ] 24. It is likely, therefore, that the charge is bouleusis of homicide, though it is contentious. Bouleusis literally means “planning” and is used more broadly in the Athenian system to mean “encompassing,” including perhaps incitement, and accordingly can be applied both to intentional and to unintentional homicide. The accuser in the present case alleges bouleusis of intentional homicide. On this view, cf. Carey 2012:35.
[ back ] 25. For a discussion on the narrative levels in Antiphon 1, see Edwards 2004:51–63.
[ back ] 26. Gagarin 2002:147.
[ back ] 27. The word, εὕρημα, portrays the stepmother as a scheming woman with the solution to the problem.
[ back ] 28. The vivid narrative, however, succeeds in depicting the stepmother as the “criminal mastermind” behind the plan; further on the portrayal of the stepmother, see Wohl 2010:43–44.
[ back ] 29. Gernet 1923:42n1; Barigazzi 1955:87; Due 1980:20.
[ back ] 30. Gagarin 1997:114.
[ back ] 31. Apostolakis 2007:179–192.
[ back ] 32. Wohl 2010:33–70.
[ back ] 33. Wohl 2010:50.
[ back ] 34. Edwards 2017:243–250.
[ back ] 35. Gagarin 2002:150; Wohl 2010:51.
[ back ] 36. For the narrative techniques and characterization, and particularly in Antiphon 1, among other forensic speeches, see Volonaki 2019:55–72.
[ back ] 37. Kapparis 2021:169–172.
[ back ] 38. For Lysias’ use of law in the speech and generally on the law of adultery, see Carey 1995:407–417; Todd 2007:46–49.
[ back ] 39. Editions and commentaries of the speech include: Bizos 1967; Randazzo 1974; Vianello de Córdova 1980; Hansen 2002; Edwards and Usher 1985; Carey 1989; Wӧhrle 1995; Edwards 1999; Rydberg-Cox 2003.
[ back ] 40. For the narrative and dramatic characterization, see Volonaki 2019:61–67.
[ back ] 41. For a thorough discussion about the problematic length and whole structure of the speech, which was delivered on behalf of the defence in a homicide trial, see Porter 2007:72–88.
[ back ] 42. Dionysius of Halicarnassus Lysias 8, 9.
[ back ] 43. For a detailed analysis of the dramatic characterization, see Carey 1989:60–64; Edwards & Usher 1985:220–221; Todd 2007:49–54.
[ back ] 44. Porter 2007:60–72.
[ back ] 45. Aristophanes Thesmophoriazusae 395–397, 410–413, 498–501; see also Porter 2007:62n8.
[ back ] 46. Generally, on the sexual offence of adultery, see MacDowell 1978:124–126; Todd 1993:276–279; for the punishment of adultery, see Carey 1995:407–417; Lanni 2016:37–41; for the laws on adultery, see Kaparis 2019:182–206;
[ back ] 47. On the abuse of eisangelia in the second half of the fourth century, see Volonaki 2018:293–314.
[ back ] 48. For the motif of the sexual role reversal found in comedy and used in Euphiletus’ narrative, see Porter 2007:69–72.
[ back ] 49. For the quality of management, see Kapparis 2021:162.
[ back ] 50. For women’s voices obtaining male authority and forensic language, see Gagarin 2001:161–176.
[ back ] 51. For the interrelation between drama and oratory, with particular reference to the function of the audience and judges, see Hall 1995:39–58. Aristotle speaks of the Athenians’ general knowledge of the mythological stories, which intensifies the enjoyment of the audience (Rhetoric 3.1.9; 1404a). Aristotle draws examples and citations from Homer and the tragic poets in his Rhetoric, assuming that logographers should have had a wide knowledge of poetry.
[ back ] 52. For poetry in oratory with an analysis of Lycurgus Against Leocrates, particularly the inclusion of the prologue from Euripides Erechtheus, see Volonaki 2018:251–268.