It is a truism of modern discussions of Athenian law and oratory that the Athenians regarded adultery as a more heinous offence than rape. This consensus has been challenged in a valuable paper by E. M. Harris. But although Harris has successfully placed in question a number of assumptions about this area of Athenian law and ethics, I wish to argue that the traditional position is in its broad outlines correct. In this as in so many aspects of Athenian law (...) it is difficult to make firm statements. Firstly, for the Athenian system as a whole we lack evidence for many issues of legal prescription and procedure for the period before the restoration of the democracy, and our evidence is frequently lacunose even for the period after the restoration. As a result we are presented with a ‘snapshot’ of the Athenian system at a particular stage in its development and are rarely able to trace chronological developments in detail and frequently unable to trace them in broad outline. A further result of this ‘snapshot’ effect is a false impression of coherence. Legislative measures belonging to different periods are likely to present themselves as the result of an integrated design rather than the product of accretion. Finally, and most importantly, our sources distort. Occasionally they provide information on the laws and on legal procedure in passing, in order to contextualize an argument or narrative; but in general they are presenting us with information in an attempt to persuade. (shrink)

A reiteration of the main details of the case may be helpful. Euphiletus killed Eratosthenes and was prosecuted for premeditated homicide by Eratosthenes' relatives. The present speech, our sole source of information concerning the case, was written for the defendant, partially or totally, by a professional speechwriter, presumably Lysias. In this speech Euphiletus admits killing Eratosthenes. He pleads, however, that, since he killed Eratosthenes after catching him in the act of adultery with his own wife, this was a case of (...) justified homicide. At the same time, he denies a charge of the prosecution that he had killed Eratosthenes for reasons unrelated to the adultery. The speech was delivered before a court of fifty-one judges especially set up to judge such cases, as is attested elsewhere:T1Arist. Ath. Pol. 57.3: ‘If…a person admits that he has killed someone but claims that he had a right to do so, as, for instance, when he has surprised an adulterer in the act,… then the trial takes place in the Delphinion’. (shrink)