Tess on Trial

If a book produces as much pleasure upon revisits as during the first read, you know you’ve stumbled across a rare treasure. Only a handful have earned the title in my (limited) experience; Tess of the D’Urbervilles was the first to do so. I was sixteen when I set foot into Thomas Hardy’s enchanting Wessex, which I blissfully rediscovered last week.

The tale, set against the backdrop of bucolic dairies, is not all May Day dances and plentiful harvests. It is a textbook example of nineteenth-century realism, and a necessary one at that. Hardy was not alone in depicting Victorian society’s ferocious reaction to the growing emancipation of women. Flaubert and Tolstoy preceded him; Fontane in Germany would follow suit with Effi Briest. Hardy’s treatment of Tess is cruel but cleverest of all. In taking their own lives, Emma Bovary and Anna Karenina reclaim agency over their respective destinies. They have the final word, and that’s that. Tess, on the other hand, has no say in her fate. Puzzlingly for Hardy, a borough magistrate in Dorchester, no details are given on Tess’s trial following her murder of Alec D’Urberville. The suggestion may even be that there was no trial at all.

The hazy circumstances of Tess’s fate invite speculation and debate. By my calculations, Tess was subjected to death by hanging at the age of twenty-two; in a way, she is my contemporary. Although I do not plan on marrying anytime soon, let alone stab my husband, this coincidence has set me thinking: how would Tess fare in a court of law today?

The obvious answer is: better than in 1891, for the abolition of the death penalty in 1965 improved our accused’s prospects. Yet Tess would have to wait until the landmark decision of R v Ahluwalia in 1993 to escape the inevitability of a life behind bars. Ms Ahluwalia, a woman similarly abused by her husband over several years, saw her conviction for murder reduced to one of voluntary manslaughter, earning her just under four years in prison. The court, finding provocation an unconvincing argument from the defence, nonetheless accepted Ms Ahluwalia’s plea of ‘diminished responsibility’, suffering as she was from ‘battered woman syndrome’.

This precedent of diminished responsibility was soon after cemented in the Coroners and Justice Act (CJA) 2009, where it appears alongside ‘loss of control’ as a partial defence to murder. If the defendant can prove either – or both – partial defences on the balance of probabilities (a significantly lower threshold than the typical ‘beyond reasonable doubt’), there is hope for them yet. Now to put theory into practice.

Let us start with diminished responsibility. To be successful in her plea, Tess must prove an abnormality of mental functioning. Tess stabs Alec in a surge of rage before running joyfully to Angel Clare, carefree and docile. The abnormality seems obvious enough.

The defence will also need to prove that the abnormality arose from a recognised medical condition. Hardy alludes to the ‘D’Urberville curse’ throughout his novel; while it is understood as a hereditary streak of madness, it would be rightly dismissed as a tenuous folkloric detail in court. Evidencing clinical depression would be a surer strategy. A psychiatrist would have to identify certain moments in Tess’s life, such as her manically snipping off her eyebrows, as symptomatic of this condition. Sadly, it is unlikely that this evidence would appear more than anecdotal to the jury.

Tess might have more luck if she can pass the three tests for loss of control.

Firstly, she must actually lose control during the murderous act. Clearly, she does.

Next, her loss of control must have been in response to a ‘qualifying trigger’. This can be an anger trigger, which requires a ‘justifiable sense of being wronged’. Considering her rape, the ensuing loss of her baby, and Alec’s persistent stalking, Tess checks all the boxes.

Lastly, it is necessary that a person of the defendant’s sex and age, possessing a normal degree of tolerance and self-restraint, and finding themselves in the same circumstances, might have reacted to the trigger in the same or similar way. Being myself of the same age and sex as Tess, this is where matters get most interesting…

Had I suffered through Tess’s life, causing grievous bodily harm to my aggressor would likely also have crossed my mind. As it is sufficient that I would have reacted in a similar way, I need not have shared the impulse to pierce Alec’s heart with a carving knife. An assault causing noticeable harm would probably have been enough.  

Frustratingly, the episode of Alec’s death is kept deliberately obscure. It unfolds in a disorientating rush, the reader being left firmly on the other side of a closed door. These blurry circumstances might deprive the accused of the ‘sufficient evidence’ required by the CJA 2009. Yet we’ve made it this far and I’m an optimist; aided by a sharp lawyer, a modern-day Tess would triumphantly prove that all three tests for loss of control can be passed. If Ms Ahluwalia’s case is anything to go by, she might walk out of court with a conviction for voluntary manslaughter and be a free woman by 2030. Not the ending Hardy had in mind, but I like to think he would be pleased.