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VIOLENCE IN COURT: LAW AND RHETORIC IN ATHENIAN AND ENGLISH ASSAULT CASES*

Published online by Cambridge University Press:  12 March 2013

Brenda Griffith-Williams
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Extract

Street fights seem to have been as common in classical Athens as they are in modern cities. One incident, which probably took place a few years after 394 bc, involved two rivals for the attentions of a young Plataian, Theodotos, apparently a slave and a rent boy. There was a history of violent disagreement between the opponents, one of whom was a wealthy, middle-aged Athenian citizen whose name we do not know. The other, a (probably) younger man named Simon, claimed to have had a contract with Theodotos for sexual services, which was breached when the older man enticed him away. For the sake of a quiet life, the older man left Athens for a time, taking Theodotos with him, and did not come back until he thought Simon would have forgotten about the boy. But not long after their return there was another fight, accounts of which conflicted sharply. According to Simon, the older man went to his house threatening to kill him, and attacked him with some broken pottery, causing a serious head wound. The older man's story was that Simon and his friends got drunk over lunch, then lay in wait near the house where he and Theodotos were inside, and jumped on them as they came out. After a chase through the streets, the incident developed into a general mêlée in which everyone ended up with a broken head. The older man claimed that he had considered prosecuting Simon for assault, but had been too embarrassed and fearful of damaging his reputation. Four years later, though, Simon prosecuted him for trauma ek pronoias, which we may tentatively translate as ‘intentional wounding’.

Type
Articles
Information
Greece & Rome , Volume 60 , Issue 1 , April 2013 , pp. 89 - 100
Copyright
Copyright © The Classical Association 2013

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Footnotes

*

This is an expanded version of a paper originally presented at the annual conference of the Classical Association, Durham, April 2011.

References

1 As discussed below, the exact definition of trauma ek pronoias has been the subject of modern scholarly debate. The most recent and comprehensive contribution is Phillips, D. D., ‘Trauma ek pronoias in Athenian Law’, JHS 127 (2007), 74–105CrossRefGoogle Scholar.

2 The others are Dem. 54, Isoc. 20 (prosecutions for aikeia [common assault]), and Lys. 4 (defence on a charge of trauma ek pronoias).

3 See Hunter, V. J., Policing Athens. Social Control in the Attic Lawsuits, 420–320 b.c. (Princeton, NJ, 1994), 145–9Google Scholar.

4 ‘It was not entirely unknown for public officials to bring prosecutions, although typically these were for offences committed against them in their capacity of officials.’ Todd, S. C., The Shape of Athenian Law (Oxford, 1993), 92Google Scholar. For the wider role of public officials in law enforcement, see Harris, E., ‘Who Enforced the Law in Classical Athens?’, in Cantarella, E. (ed.), Symposion 2005 (Vienna, 2007), 159–76Google Scholar.

5 For the full range of procedures available under Athenian law (of which dikai and graphai were the most usual), see Todd (n. 4), 98–122.

6 For example, an offence of ‘causing grievous bodily harm with intent’, under section 18 of the Offences Against the Person Act 1861, requires a specific intention to cause serious harm, whereas in a case of ‘inflicting grievous bodily harm’, under section 20 of the 1861 Act, the defendant need only have intended or foreseen that the assault might cause physical harm, not necessarily serious. There is no statutory definition of the degree of harm caused by the various offences. The CPS follows standard guidelines in the initial charging decision, but it is for the court to decide whether the injuries inflicted in a particular case amount to ‘grievous’ harm. Full details may be found at <http://www.cps.gov.uk/legal/l_to_o/offences_against_the_person/>, accessed 25 June 2011.

7 An alternative procedure, in cases such as highway robbery where the offender was caught in the act, was apagōgē or summary arrest (literally ‘dragging away’): the offender was immediately brought before the arkhōn (magistrate) for summary trial and, if he admitted guilt, execution. See Hansen, M. H., Apagoge, Endeixis and Ephegesis against Kakourgoi, Atimoi and Pheugontes: A Study in the Athenian Administration of Justice in the Fourth Century b.c. (Odense, 1976)Google Scholar.

8 It has sometimes been argued that the procedure in a case of trauma was a dikē, not a graphē, or that both procedures existed as alternatives. For a review of the primary evidence and a summary of the scholarly debate, see Phillips (n. 1).

9 See, e.g., MacDowell, D. M., ‘“Hybris” in Athens’, G&R 23 (1976), 14–31Google Scholar; Fisher, N. E. R., ‘The Law of Hubris in Athens’, in Cartledge, P., Millett, P., and Todd, S. (eds.), Nomos. Essays in Athenian Law, Politics and Society (Cambridge, 1990), 123–38Google Scholar; Cairns, D. L., ‘Hybris, Dishonour and Thinking Big’, JHS 116 (1996), 1–32CrossRefGoogle Scholar; and cf. Carey, C., ‘Offence and Procedure in Athenian law’, in Harris, E. M. and Rubinstein, L. (eds.), The Law and the Courts in Ancient Greece (London, 2004), 133, n. 20Google Scholar: ‘I consider it wasted ingenuity to strive for a firm distinction between the state of mind of the perpetrator and the affront to the honour of the victim…. The enterprise betrays an approach to legal terminology more at home in modern jurisdictions than in Classical Athens.’

10 Phillips (n. 1), 85, takes pronoia as simply the intention to commit wounding, whereas Todd, S. C., A Commentary on Lysias, Speeches 1–11 (Oxford, 2007)Google Scholar, translates it as ‘premeditation’.

11 The arkhōn had to decide whether to accept the case submitted by a prosecutor, but it appears that criteria of admissibility were basic and that officials were reluctant to reject cases provided the offence and procedure chosen by the prosecutor ‘arguably covered the actions committed by the defendant’. Harris, E. M., ‘Open texture in Athenian law’, Dike 3 (2000), 77Google Scholar.

12 Relevant factors may have included the difficulty of proving the ‘subjective’ element of hubris, the prospect of compensation in a dikē, or the risk of a fine to the prosecutor in a graphē who withdrew the case or failed to secure at least twenty per cent of the jurors' votes. See, e.g., MacDowell (n. 9), 29; Carey (n. 9), 117–18.

13 The Crown Court deals with serious criminal offences. Defended cases are tried by jury.

14 See Fielding, N., Courting Violence. Offences against the Person Cases in Court (Oxford, 2006), 112CrossRefGoogle Scholar: ‘The defence task is to dismantle a story that trial conventions enable to be told as a self-contained whole (a device that can divert attention from weak components).’

15 See, e.g., Dem. 18.7; Hyp. 1.8–10.

16 ‘Perhaps the most important step is to decide whether the story is acceptable to the listener; does it “fit” with the listener's idea of how the world and humankind work? Everyone who sits in court to adjudicate on competing versions of the “facts” in a case brings with them some prior knowledge and beliefs about how things work, what makes people act in certain ways or what they mean when they say certain things. If your client's story fits better into that wealth of knowledge and beliefs than your opponent's story, you have the advantage in persuading the audience to find the facts as you allege them to be.’ Inns of Court School of Law, Advocacy (Oxford, 2006), 97Google Scholar.

17 All citations from Lys. 3 are translated by Todd (n. 10).

18 Fielding (n. 14), 192.

19 See Johnstone, S., Disputes and Democracy. The Consequences of Litigation in Ancient Athens (Austin, TX, 1999), 56Google Scholar: ‘Because Athenian litigation was starkly adversarial, jurors judged between competing presentations. More than this, although the events of life do not always…obey the logic of stories, accounts of events may be most persuasive…when they follow familiar narrative lines. Athenian defendants, like many American defendants, found that providing a competing narrative increased their chances of persuading the jurors. Rather than simply denying the story of the prosecutor, then, most Athenian defendants provided an alternative story of their own, a counternarrative.’

20 See Calhoun, G. M., ‘Oral and Written Pleading in Athenian Courts’, TAPhA 50 (1919), 177–93Google Scholar.

21 Section 76.3 of the Criminal Justice and Immigration Act 2008.

22 Fielding (n. 14), 102–3.

23 At Wood Green Crown Court centre on 3 March 2011.

24 As argued by, e.g., Cohen, D., Law, Violence and Community in Classical Athens (Cambridge, 1995), 122CrossRefGoogle Scholar: ‘At Athens the trial was conceptualized not as a forum for judging competing versions of a transaction completed in the past, but rather as an agōn between two persons, where the outcome was determined by all the social resources (status, friends, allies, wealth, symbolic capital, etc.) which each could bring to bear’ (emphasis in original).