Adulteresses and fornicatresses in Serbian law in the first half of the XIX century

Abstract

During the First and Second Uprising, under the influence of historic, social, cultural and ethnic processes which played a significant role in forming and development of the Serbian state, women were punished for the criminal acts of adultery and fornication, which is proven by a large number of verdicts, but also by custom and canonic rules which stipulated specific sanctions in these cases. It can be concluded from mentioned verdicts in cases of adultery that the penal policy enforced by Karadjordje (First Uprising) was milder compared to Grand duke Miloš’s (Second Uprising) penal policy. At the time of Grand duke Miloš’s rule, on the basis of preserved rulings, it can be seen that in the period between 1825 and 1828 punishing of adulteresses covered 50 to 100 whip lashes or the fine included exile in cases when women were committing adultery with Turks. The period between 1837 and 1843 is characterized by milder penal policy which is similar to the one from the time of Karadjordje’s rule (fines of 25 whip lashes), and even milder (10 whip lashes, 25 sticks), but with a one difference – aside from whipping punishments jail terms were also frequent, but only for a short periods. As for the punishing of fornicatresses, as opposed to punishing adulteresses, there is a discrepancy between canonic and custom rules on one side and legal regulations on the other side. Fornicators were most frequently awarded the sentence of whipping (12 to 50), but the several cases of fornicator deliberation were recorded regardless to the fact of committed fornication. If misbehavior of a girl had been discovered before her marriage, she would be exposed to a laughingstock (she and her entire family), chances for a regular marriage of such offender were minimal, and the most violent reaction of the village was to stone or exile offenders. Sanctions stipulated by two legal systems – clerical canons and customary law norms, when it comes to the criminal acts of adultery and fornication, were in their essence almost identical. Namely, the church and the village stipulated as the harshest fine for female transgressors – the excommunication. The basic sanctions imposed by the Orthodox Church against the “fallen” female members ranged from mild ones – denial of communion over a certain period of time, to those which, aside from the holy communion, also denied a female transgressor the presence during the second part of liturgy after prayer for non-christened, and the anathema – excommunication, which included exclusion from the church community (this was practiced in the most severe cases). These were not fines in the true sense of the word, but were more like categories of present spiritual state of a particular member of the church, regardless of the type of committed transgression. However, the “sinner” always had to repent and return back to the community. This was also the true purpose of all these penances. As far as the customary law is concerned, it is known that it has developed under a certain set of circumstances. Serbia, when it fell under the Turkish rule, lost its legislative continuity. In the absence of state regulations, the customary law, simultaneously with church law and under his significant influence, became the only orient in regulation of basic social relations and at the same time, its protector and guardian. All actions of individuals which differed from established social norms fell under the impact of public criticism and condemnation and were sanctioned in an appropriate way. Excommunication from the church or social community for these women was more severe than the death sentence which was sometimes levied for some of these criminal acts.