"The Rule of Love": Wife Beating as Prerogative
Reva B. Siegel
n1. See infra Section I.A.
n2. See infra Section I.B. For some accounts of law reform in England during the
late nineteenth century, see A. James Hammerton, Cruelty and Companionship:
Conflict in Nineteenth-Century Married Life 52-67 (1992); Carol Bauer
& Lawrence Ritt,
"A Husband is a Beating Animal": Frances Power Cobbe Confronts the Wife-Abuse Problem in Victorian England, 6
Int'l J. Women's Stud. 99 (1983); Carol Bauer
& Lawrence Ritt, Wife-Abuse, Late-Victorian English Feminists, and the Legacy of
Frances Power Cobbe, 6 Int'l J. Women's Stud. 195 (1983).
n3. See infra Part III.
n4. See, e.g., Elizabeth M. Schneider, The Violence of Privacy,
23 Conn. L. Rev. 973 (1991).
n5. Joan Zorza, The Criminal Law of Misdemeanor Domestic Violence, 1970-1990,
83 J. Crim. L. & Criminology 46, 46 (1992) (quoting Nikki R. Van Hightower
& Susan A. McManus, Limits of State Constitutional Guarantees: Lessons from
Efforts to Implement Domestic Violence Policies, 49 Pub. Admin. Rev. 269, 269
n6. Zorza, supra note 5, at 46. For a more extended account of recent domestic
violence statistics, see infra text accompanying notes 199-211.
n7. See infra Section IV.A.
n8. See infra Subsection I.B.2 and Section III.A.
n9. See infra Sections III.A-B.
n10. See infra Sections IV.A-B.
42 U.S.C.A. 13981 (West 1995).
n12. See infra Section IV.C.
n13. Gilbert Abbott
<grav A> Beckett, The Comic Blackstone 121-22 (Chicago, Callaghan
& Cockroft 1869) (1846).
46 Ala. 143, 146-47 (1871) (emphasis added).
n15. See Frances Power Cobbe, Wife-Torture in England, 32 Contemp. Rev. 55, 56-57
(1878) ("[Wife-beating] seems to be surrounded by a certain halo of jocosity which
inclines people to smile whenever they hear of a case of it (terminating
anywhere short of actual murder), and causes the mention of the subject to
conduce rather than otherwise to the hilarity of a dinner party. The occult fun
thus connected with wife-beating forms by no means indeed the least curious
part of the subject.").
n16. 1 William Blackstone, Commentaries *442 ("By marriage, the husband and wife are one person in law: that is, the very
being or legal existence of the woman is suspended during the marriage, or at
least is incorporated and consolidated into that of the husband: under whose
wing, protection, and cover, she performs everything...." (citations omitted)). For a more skeptical account of marital unity doctrine,
see Tapping Reeve, The Law of Baron and Femme; of Parent and Child; of Guardian
and Ward; of Master and Servant; and of the Powers of Courts of Chancery 129-30
(New Haven, Oliver Steele 1816).
n17. See 1 William Blackstone, Commentaries *430-33 (citations omitted); 2 James
Kent, Commentaries on American Law 109 (New York, O. Halstead 1827) ("The general rule is, that the husband becomes entitled, upon the marriage, to
all the goods and chattels of the wife, and to the rents and profits of her
lands, and he becomes liable to pay her debts, and perform her contracts."). See generally Norma Basch, In the Eyes of the Law: Women, Marriage, and
Property in Nineteenth-Century New York 51-54 (1982) (summarizing analysis of
Blackstone's Commentaries); Marylynn Salmon, Women and the Law of Property in
Early America 15-18, 41-44 (1986) (discussing doctrine of marital unity as it
applied to conveyances and contracts).
n18. 1 William Blackstone, Commentaries *444 (citations omitted). Blackstone quoted
the Latin pleading of the writ of supplicavit. See Henry Ansgar Kelly, Rule of
Thumb and the Folklaw of the Husband's Stick,
44 J. Legal Educ. 341, 353 (1994).
n19. Kelly, supra note 18, at 351 (citation omitted) (discussing Fitzherbert's
account of writ of supplicavit). Kelly notes:
Here it is stated that
"if the husband threaten his wife to beat or to kill her, she shall have this
writ," which begins,
"Supplicavit nobis A, uxor B, quod cum ipsa de vita sua et mutilatione membrorum
suorum per praedictum B graviter et manifeste comminata existat" (A, the wife of B, supplicated us that, since she is under grave and manifest
threat of her life and the mutilation of her limbs because of the aforesaid B),
and so on. Under terms of the writ, the husband is to be summoned and required
"quod ipse praefatam A bene et honeste tractabit et gubernabit; et dampnum et
malum aliquod eidem de corpore suo, aliter quam ad virum suum ex causa
regiminis et castigationis uxoris suae licite et rationabiliter pertinent, non
faciet, nec fieri procurabit" (that he will not do, or cause to be done, any harm or evil to her body, other
than licitly and reasonably pertains to a husband for ruling and chastising his
Id. at 353; see also Lawrence Stone, Road to Divorce: England, 1530-1987, at
201 (1990) (discussing writ of supplicavit as one form of recourse available to
battered wives in seventeenth century).
n20. 1 William Blackstone, Commentaries *445 (citations omitted).
n21. See Basch, supra note 17, at 43-54 (discussing Blackstone's significance in
American marital status law); see also Daniel J. Boorstin, The Mysterious
Science of the Law: An Essay on Blackstone's Commentaries 3-8 (1941); Lawrence
M. Friedman, A History of American Law 112 (2d ed. 1985) ("Ordinary lawyers referred to Blackstone constantly; they used his book as a
shortcut to the law...."); cf. Dennis R. Nolan, Sir William Blackstone and the New American Republic,
51 N.Y.U. L. Rev. 731, 732 (1976) (analyzing Blackstone's
"diffuse" influence in America).
n22. See 2 Kent, supra note 17, at 180 ("As the husband is the guardian of the wife, and bound to protect and maintain
her, the law has given him a reasonable superiority and control over her
person, and he may even put gentle restraints upon her liberty, if her conduct
be such as to require it."); Francis Wharton, A Treatise on the Criminal Law of the United States 314-15
(Philadelphia, James Kay, Jr.
& Brother 1846) (observing that
"by the ancient common law, the husband possessed the power of chastising his
wife, though the tendency of criminal courts in the present day is to regard
the marital relation as no defence to a battery," and discussing Mississippi case allowing exercise of prerogative). See
generally 1 Joel Prentiss Bishop, Commentaries on the Criminal Law 520-26
(Boston, Little, Brown
& Co. 1872) (discussing chastisement prerogative in various status relations of
household: parent and child, guardian and ward, teacher and pupil, master and
servant, and husband and wife).
n23. Reeve, supra note 16, at 65.
n24. For a social history of wife beating gleaned from a variety of cultural
sources, see Jerome Nadelhaft, Wife Torture: A Known Phenomenon in
Nineteenth-Century America, 10 J. Am. Culture 39, 42 (1987):
Throughout the nineteenth century wife abuse appeared in poems, songs, and
jokes, in temperance stories and novels which blanketed the country, in
almanacs, in children's books, in illustrations, and even in at least one card
game. Wife abuse was a constant topic in woman's rights conventions and in the
literature of the movement....
n25. For American cases recognizing the right of chastisement during the nineteenth
Bradley v. State, 1 Miss. (1 Walker) 156, 158 (1824) (permitting husband
"to exercise the right of moderate chastisement, in cases of great emergency,
and use salutary restraints in every case of misbehaviour, without being
subjected to vexatious prosecutions, resulting in the mutual discredit and
shame of all parties concerned");
State v. Black, 60 N.C. (Win.) 262, 262 (1864) (permitting husband
"to use towards his wife such a degree of force as is necessary to control an
unruly temper and make her behave herself; and unless some permanent injury be
inflicted to gratify his own bad passions, the law will not invade the domestic
forum or go behind the curtain"). Cf.
Robbins v. State, 20 Ala. 36, 39 (1852) (wife's provocation can be shown in mitigation of husband's fine for assault;
"if the husband was at the time... provoked to this unmanly act by the bad
behaviour and misconduct of his wife, he should not be visited with the same
punishment as if he had without provocation wantonly and brutally injured one
whom it was his duty to nourish and protect");
State v. Buckley, 2 Del. (2 Harr.) 552, 552 (1838) (husband indicted for striking his pregnant wife, over his objection that he
had right to chastise her;
"We know of no law that will authorize a husband to strike his pregnant wife a
blow with his fist, such as has been inflicted on this woman.... Any undue or
excessive battery by a husband of his wife either in degree, or with improper
means, [is] indictable." (emphasis added)); People v. Winters, 2 Parker's Crim. Cas. 10 (N.Y. 1823)
(declaring that while husband has no right to inflict corporal punishment on
his wife, he may defend himself against her; holding that husband who struck
his wife on head and bruised her severely when she attempted to prevent him
from striking one of their children was not guilty of assault and battery
because jury found prisoner
"had done nothing more than was necessary to defend himself in this case");
State v. Hussey, 44 N.C. (Busb.) 123 (1852) (ruling wife's testimony against her husband incompetent in all cases of
assault and battery, except where permanent injury or great bodily harm is
either threatened or inflicted);
Richards v. Richards, 1 Grant's Cas. 389, 392-93 (Pa. 1856) (denying petition for divorce; suggesting that
"it is a sickly sensibility which holds that a man may not lay hands on his
wife, even rudely if necessary, to prevent the commission of some unlawful or
criminal purpose" and further that
"some allowance should be made for the frailties of human nature" that
"betray[ ]" a man
"into the commission of an act, or a harsh expression, for which, in a moment
after, he might be repentant and sorrowful").
Early American cases discussing the writ of supplicavit, whose ancient language
recognizes and circumscribes a husband's right to chastise his wife, see supra
text accompanying note 19, include:
Helms v. Franciscus, 2 Bland 544, 562 n.l (Md. Ch. 1840) (quoting Bread's Case, decided in 1681, in which court
granted petition for writ of supplicavit; where wife was threatened with death
and mutilation by her husband, court ordered husband to give security under
penalty to treat his wife well, and enjoined him from doing
"any damage or evil to the said Jane of her body, otherwise than what to a
husband, by cause of government and chastisement of his own wife, lawfully and
Adams v. Adams, 100 Mass. 365, 369-70 (1868) (declining to issue writ as substitute for divorce for petitioner who sought
alimony but was religiously precluded from obtaining divorce);
Codd v. Codd, 2 Johns. Ch. 141 (N.Y. Ch. 1816) (holding that writ is unavailable where injuries occurred eight years before
Prather v. Prather, 4 S.C. Eq. (4 Des.) 33 (1809) (granting petition for writ).
n26. See Myra C. Glenn, Campaigns Against Corporal Punishment: Prisoners, Sailors,
Women, and Children in Antebellum America (1984).
n27. See, e.g., id. at 12-13, 85-147.
n28. See, e.g., Richard H. Brodhead, Cultures of Letters: Scenes of Reading and
Writing in Nineteenth-Century America 13-15 (1993); cf. Karen Sanchez-Eppler,
Touching Liberty: Abolition, Feminism, and the Politics of the Body (1993)
(analyzing antislavery discourse).
n29. See Brodhead, supra note 28, at 18-27.
n30. Id. at 18-19. The brilliant analysis of
"disciplinary intimacy" that Brodhead offers in Cultures of Letters has also been published
separately. See Richard H. Brodhead, Sparing the Rod: Discipline and Fiction in
Antebellum America, 21 Representations 67 (1988). For a similar account of this
shift in social conceptions of discipline, see G.M. Goshgarian, To Kiss the
Chastening Rod: Domestic Fiction and Sexual Ideology in the American
Renaissance 39-40 (1992).
n31. See, e.g., Nancy F. Cott, The Bonds of Womanhood:
"Woman's Sphere" in New England, 1780-1835 (1977); Mary P. Ryan, The Empire of the Mother:
American Writing About Domesticity 1830-1860 (1982); Barbara Welter, Dimity
Convictions: The American Woman in the Nineteenth Century (1976).
n32. For a discussion of the shifting understandings of the marriage relationship
that contributed to reform of marital chastisement doctrine, see especially
infra Part II.
The relationship between changing social mores and law reform is obviously a
complex one, explored in Part IV of this Article. For now, it suffices to
observe that, during the nineteenth century, reformers sought to persuade
parents and teachers to abandon corporal punishment of children and organized
the first societies for the prevention of cruelty to children, but did not seek
reform of the parent's legal prerogative to chastise a child. By contrast,
discussion of wife beating during the antebellum era was relatively
circumspect, see infra note 33, yet resulted in repudiation of the marital
n33. See Glenn, supra note 26, at 80-82. Myra Glenn's history of corporal
punishment observes that
"in comparison with reform efforts on behalf of chastised seamen, convicts,
slaves, and children, there was relatively little public criticism of wife
beating during the antebellum period. Idealized views of marriage and women
imposed a crucial ideological barrier to widespread public discussion of wife
beating." Id. at 80. Even after the repudiation of marital chastisement, public
discussion of wife beating remained muted. For example, by the 1880s most urban
areas had begun to organize societies for prevention of cruelty to children;
yet only one city had a society for prevention of cruelty to wives. See
Elizabeth Pleck, Domestic Tyranny: The Making of American Social Policy Against
Family Violence from Colonial Times to the Present 88 (1987) [hereinafter
Pleck, Domestic Tyranny]. As Linda Gordon has shown, societies for prevention
of cruelty to children served as clearinghouses for problems of marital
violence as well. See Linda Gordon, Heroes of their Own Lives: The Politics and
History of Family Violence 252-64, 280-85, 288, 298 (1988) [hereinafter Gordon,
n34. See Barbara L. Epstein, The Politics of Domesticity: Women, Evangelism, and
Temperance in Nineteenth-Century America 109-10 (1981); Pleck, Domestic
Tyranny, supra note 33, at 98-101. See generally Ruth Bordin, Woman and
Temperance: The Quest for Power and Liberty, 1873-1900 (1981) (recounting
history of Woman's Christian Temperance Union).
n35. See Nadelhaft, supra note 24, at 42-44.
n36. For a general discussion of the nineteenth-century woman's rights movement,
see Steven M. Buechler, The Transformation of the Woman Suffrage Movement: The
Case of Illinois, 1850-1920 (1986); Ellen Carol DuBois, Feminism and Suffrage:
The Emergence of an Independent Women's Movement in America, 1848-69 (1978);
Eleanor Flexner, Century of Struggle: The Woman's Rights Movement in the United
States (rev. ed. 1975); Aileen S. Kraditor, The Ideas of the Woman Suffrage
Movement, 1890-1920 (W.W. Norton
& Co. 1981) (1965).
n37. Report of the Woman's Rights Convention, Held at Seneca Falls, N.Y., July 19th
& 20th, 1848, at 6 (Rochester, John Dick 1848) [hereinafter Seneca Falls
Convention Report] (emphasis added).
n38. For an illustration of the slow progress of common law reform, see Reva B.
Siegel, The Modernization of Marital Status Law: Adjudicating Wives' Rights to
82 Geo. L.J. 2127, 2149-57 (1994) [hereinafter Siegel, Modernization] (describing interaction of legislature and
courts in New York state in late nineteenth century); see also Reva B. Siegel,
Home As Work: The First Woman's Rights Claims Concerning Wives' Household
103 Yale L.J. 1073, 1167-77 (1994) [hereinafter Siegel, Home As Work] (describing legislative responses to
feminist demands for suffrage, inheritance reforms, and rights to earnings
n39. See Seneca Falls Convention Report, supra note 37, at 5-7.
n40. See Pleck, Domestic Tyranny, supra note 33, at 57-62. For examples of how the
divorce question was addressed in early feminist debates, see Proceedings of
the Tenth National Woman's Rights Convention, Held at the Cooper Institute, New
York City, May 10th and 11th, 1860, at 88-90, 95-97 (Boston, Yerrinton
& Garrison 1860). See also 1 History of Woman Suffrage 723-37 (Ayar Co. 1985)
(Elizabeth C. Stanton et al. eds., New York, Fowler
& Wells 1881). For an example of how marital violence figured in Elizabeth
Stanton's arguments for divorce, see infra text accompanying note 117.
n41. See DuBois, supra note 36, at 46-47; Kraditor, supra note 36, at 112, 121.
n42. Crimes Against Women, Woman's J., Dec. 25, 1875, at 413, 413 (column signed
C.C.H. of East Orange, New Jersey).
n43. Crimes of a Single Day, Woman's J., Jan. 29, 1876, at 34, 34 (column signed
n44. See, e.g.,
Fulgham v. State, 46 Ala. 143, 147 (1871);
Richardson v. Lawhon, 4 Ky. L. Rptr. 998, 999 (1883) (abstract) (action for unlawful arrest) ("The husband has no right to inflict personal chastisement upon his wife. She is
entitled to the same protection from violence at the hands of her husband that
a stranger is entitled to.");
Commonwealth v. McAfee, 108 Mass. 458, 461 (1871) (husband indicted for manslaughter after beating his wife and causing her
death) ("Beating or striking a wife violently with the open hand is not one of the
rights conferred on a husband by the marriage, even if the wife be drunk or
Harris v. State, 14 So. 266 (Miss. 1894) ("The blind adherence shown in [a prior Mississippi chastisement case] to
revolting precedent has long been utterly repudiated.");
Gorman v. State, 42 Tex. 221, 223 (1875).
n45. Elizabeth Pleck, The Whipping Post for Wife Beaters, 1876-1906, in Essays on
the Family and Historical Change 127 (David Levine et al. eds., 1983)
[hereinafter Pleck, The Whipping Post]; see infra text accompanying note 75.
n46. In selecting these cases for discussion, I suggest some regional factors that
may have shaped the repudiation of chastisement (e.g., woman's rights activism,
disestablishment of slavery) without drawing definitive conclusions about the
role regional factors played in the regulation of marital violence. At present,
the sources available are too scant to support this kind of analysis. Treatise
discussions of the period refer to a relatively small body of appellate
opinions, see supra notes 25, 44, and records of local law enforcement
authorities are also sparse, see infra note 50 (discussing archival problems).
108 Mass. 458 (1871).
Id. at 459.
Id. at 461.
n50. For common law restrictions on the right of
"moderate correction," see supra text accompanying notes 18-20 (discussing writ of supplicavit as
restraint on chastisement). See also Kelly, supra note 18, at 353 (discussing
old English law governing manslaughter charges in circumstances in which
""a man corrects his wife, his servant, or child, or his pupil reasonably,
without intending to kill her or him, and he or she dies of it'"). For a discussion of customary restraints on marital chastisement, see
Russell P. Dobash
& R. Emerson Dobash, Community Response to Violence Against Wives: Charivari,
Abstract Justice and Patriarchy, 28 Soc. Probs. 563 (1981).
For criminal cases decided after the repudiation of chastisement that involve
severe cases of spousal assault, see, e.g.,
Carpenter v. Commonwealth, 92 Ky. 452, 453 (1892) (husband convicted of maliciously and unlawfully cutting his wife's throat,
with intent to take her life);
State v. Mabrey, 64 N.C. 592, 593 (1870) (husband guilty of assault where he wielded knife and threatened to kill his
wife, until deterred by bystander;
"the courts will not invade the domestic forum, to take cognizance of trifling
cases of violence in family government; but there is no relation which can
shield a party who is guilty of malicious outrage or dangerous violence
committed or threatened.").
Because published opinions in such cases are scarce and much primary research
remains to be done on the operations of the police courts that handled cases of
marital violence among the poor, it is difficult to gauge the types of injury
that elicited regular police response. See Elizabeth Pleck, Criminal Approaches
to Family Violence, 1640-1980, in 11 Family Violence 19, 30 (Michael Tonry
& Norval Morris eds., 1989) [hereinafter Pleck, Criminal Approaches]. Elizabeth
Pleck observes that
"the operation of police courts up to the 1870's has not been studied, largely
because of the lack of available documents," and notes only one study of police courts from 1870 to 1920 (examining the
records of the Oakland, California police courts). Id. She concludes that
"we do not know whether the conviction rate was lower in cases of family
violence than it was in other crimes against the public order," id. at 31, but she surmises that it was, with lower arrest and prosecution
rates, see id. For an interesting study of local enforcement activity, see
Pamela Haag, The
"Ill-Use of a Wife": Patterns of Working-Class Violence in Domestic and Public New York City,
1860-1880, 25 J. Soc. Hist. 447 (1992) (examining dockets of Court of General
Sessions for New York City, which heard cases that city police courts
recommended for trial).
n51. See Elizabeth Pleck, Feminist Responses to
"Crimes Against Women," 1868-1896, 8 Signs 451, 458-59 (1983) [hereinafter Pleck,
"Crimes Against Women"].
n52. See Lucy Stone, Cruelty to Wives, Woman's J., Jan. 11, 1879, at 12, 12; Legal
Relief For Assaulted Wives, Woman's J., Jan. 11, 1879, at 12, 12.
n53. Henry B. Blackwell, Legal Redress for Assaulted Wives, Woman's J., Jan. 18,
1879, at 20, 20.
n54. Id. (quoting report of House Committee on the Judiciary).
n55. An Act for the Protection of Married Women, 1879 Mass. Acts 444.
Bailey v. Bailey, 97 Mass. 373, 380 (1867).
Id. at 379 (quoting Shelford's treatise on marriage and divorce) (asserting that
""[a] blow between parties in the lower conditions and in the higher stations of
life bears a very different aspect'" and affirming jury decision denying divorce petition of woman who alleged her
husband shut her arm in a door and bit her arm, deprived his wife and children
of furniture and food for close to a month, and after they reconciled again
beat her); see also
Ford v. Ford, 104 Mass. 198, 205-06 (1870) (upholding jury verdict that husband's violence on one occasion does not meet
"extreme cruelty"; excluding evidence of other assaultive conduct).
Massachusetts divorce law was not atypical in its attention to the class status
of the petitioners. See
Goodrich v. Goodrich, 44 Ala. 670, 682 (1870) (that husband provided his wife expensive clothing does not mitigate the fact
he battered her;
"to a refined and educated woman, accustomed to be caressed and admired, as
ladies in her station in society usually are, what are baubles such as these in
comparison to the love and sympathy of her husband?").
n58. See Glenn, supra note 26, at 68-70; Robert L. Griswold, The Evolution of the
Doctrine of Mental Cruelty in Victorian American Divorce, 1790-1900, 19 J. Soc.
Hist. 127, 132-35 (1986) [hereinafter Griswold, Mental Cruelty]; Robert L.
Griswold, Law, Sex, Cruelty, and Divorce in Victorian America, 1840-1900, 38
Am. Q. 721, 723 (1986) [hereinafter Griswold, Divorce in Victorian America];
Robert L. Griswold, Sexual Cruelty and the Case for Divorce in Victorian
America, 11 Signs 529, 529-32 (1986) [hereinafter Griswold, Sexual Cruelty].
For statistics on the divorce rate in this era, as well as the frequency with
which divorce was granted on grounds of cruelty, see Glenn, supra note 26, at
65; Griswold, Divorce in Victorian America, supra, at 722:
By today's standards, the figures on divorce in the late nineteenth and early
twentieth centuries are quite low, but they seemed alarmingly high to
contemporaries. From 1867 to 1886, United States courts granted 328,716
divorces; in the next twenty years, the number jumped to 945,625, far
outstripping the proportionate rise in population.
At the center of this increase was a giant rise in the number of cases brought
on the grounds of cruelty. From 1867 to 1906, wives received 218,520 divorces
because of cruelty and husbands 39,300. Next to nonsupport, cruelty cases rose
more sharply than cases based on any other cause in these years. Comparing the
years 1902-1906 with 1867-1871, divorces granted to wives on the ground of
cruelty jumped 960 percent, and to husbands 1,610 percent. Between 1867 and
1871, 18 percent of divorces granted to wives were on the ground of cruelty;
that figure for the years 1902-1906 was 29 percent. The same comparison for
husbands reveals a jump from 4 percent to 12.5 percent.
n59. See, e.g., 2 Chester G. Vernier, American Family Laws 66 (1932) (quoting, by
state, statutory definitions of cruelty as ground for divorce); see also
State v. Rhodes, 61 N.C. (Phil. Law) 453, 455 (1868):
Our divorce laws do not compel a separation of husband and wife, unless the
conduct of the husband be so cruel as to render the wife's condition
intolerable.... In some cases it has been held that actual and repeated
violence to the person, was not sufficient. In others that insults, indignities
and neglect without any actual violence, were quite sufficient.
n60. On the defense of provocation, see, e.g.,
Knight v. Knight, 31 Iowa 451, 458 (1871):
"If what is complained of as cruelty is the result of the complainant's own
misconduct, it will not furnish ground for the proceeding. The remedy is in her
own power; she has only to change her conduct; otherwise the wife would have
nothing to do but misconduct herself, provoke the ill treatment and then
Id. at 458 (quoting Bishop's treatise on marriage and divorce). See generally Annotation,
Conduct Amounting to Treatment Endangering Life Within Statute Defining Grounds
5 A.L.R. 712, 719-22 (1920) (discussing defense of provocation).
On the defense of condonation, see, e.g.,
Davies v. Davies, 37 N.Y. 45, 46, 48 (1869) (where husband
"choked [wife]; committed severe personal violence upon her, and struck her a
blow with his fist upon the left temple, severing the temporal artery, and
endangering [her] life" but wife continued to cohabit with husband for about 15 months thereafter,
"implies a forgiveness of such treatment" and
"court would not grant a divorce for such ill treatment, if in the interval, the
defendant had treated his wife kindly and given her no further cause of
complaint."). See also
Barber v. Barber, 62 U.S. 582, 593-94 (1858) (discussing doctrine of condonation as it bears on domicile of woman seeking
divorce). See generally Annotation, Condonation of Cruel Treatment as Defense
in Divorce Action,
14 A.L.R. 931 (1921) (discussing defense of condonation).
n61. See, e.g.,
Bailey v. Bailey, 97 Mass. 373, 379 (1867) (quoting Shelford's treatise on marriage and divorce:
""A blow between parties in the lower conditions and in the higher stations of
life bears a very different aspect.'") (affirming jury decision denying divorce petition of woman who alleged her
husband shut her arm in door and bit her arm, deprived her and their children
of furniture and food for close to a month, and, after they reconciled, again
beat her). See generally Griswold, Mental Cruelty, supra note 58, at 134-35
(discussing class-conscious application of mental cruelty doctrines,
illustrated by quotations drawn from numerous contemporary commentators).
46 Ala. 143 (1871).
Id. at 146.
Id. at 146-47 (emphasis added) (citations omitted).
n65. The appellate opinion in the Fulgham case was written by Associate Justice
Thomas M. Peters. Id. at 3, 145. Peters was a slaveowner before and during the
war; he later became a prominent Southern Unionist and was active after the war
in Alabama's constitutional convention. See Malcolm C. McMillan, Constitutional
Development in Alabama, 1798-1901: A Study in Politics, the Negro, and
Sectionalism 121 n.57 (1955). McMillan notes:
Peters was a lawyer, graduate of the University of Alabama, an old-line Whig in
politics, supporter of Douglas in 1860, and bitter opponent of secession in
1861. Prior to the war he had been state representative and senator. Although
he lost more than twenty slaves during the war and was frequently hanged in
effigy by his neighbors, his house became the center for Union sentiment in his
North Alabama Congressional district. He was a man of much culture, a botanist,
could read French and Latin, and during the convention of 1867 was most
interested in education and penal reform.
n66. Before the war, masters forbade slaves to beat their partners, and the
Freedmen's Bureau continued to regulate such conduct in the aftermath of the
war. See Catherine Clinton, Bloody Terrain: Freedwomen, Sexuality and Violence
During Reconstruction, 76 Ga. Hist. Q. 313, 319 (1992) ("White observers condemned husbands who considered wifebeating a
"right' and resisted bureau intervention. Ex-slaves reported that before
emancipation masters prohibited slave men from striking their wives - and
agents revealed that they assumed this paternalistic role after abolition."); see also Sara Rapport, The Freedmen's Bureau as a Legal Agent for Black Men
and Women in Georgia: 1865-1868, 73 Ga. Hist. Q. 26, 39-41 (1989) (describing
efforts of Freedmen's Bureau to prosecute wife beating among emancipated slaves
in aftermath of Civil War).
14 So. 266 (Miss. 1894).
Id. at 266. For a discussion of the Bradley case to which the opinion refers, see infra
notes 129-31 and accompanying text.
n69. Cf. Martha Hodes, The Sexualization of Reconstruction Politics: White Women
and Black Men in the South after the Civil War, 3 J. Hist. Sexuality 402, 403
"white anxiety and alarm about black male sexuality" in the Reconstruction South).
n70. Klan attacks on black and white men said to have beaten their wives first came
to light in 1871, when Congress embarked upon an extensive investigation of the
Klan's activities in the states of the former Confederacy. Although it is
difficult to discern at this distance precisely how widespread this practice
ultimately became, the testimony of numerous witnesses who appeared before the
Joint Select Committee suggests that wife beating often served as a
justification for assaults on the freedmen and their supporters. Testifying to
the circumstances surrounding the shooting death of an African-American man in
rural Mississippi, one witness explained,
"it was supposed that he was killed for whipping his wife." 11 U.S. Congress, Report of the Joint Select Committee to Inquire into the
Condition of Affairs in the Late Insurrectionary States 361 (1872) [hereinafter
KKK Report]. Similarly, an Alabama witness - when asked to characterize the
nature of the
"offenses" likely to provoke Klan attacks - immediately recalled the ordeal of a local
man who had been
"charged with whipping and maltreating his wife." As a result, he explained,
"a body of men," all of whom were apparently
"went there and took him out and gave him a whipping on his bare back, and
admonished him to more proper customs in his domestic habits...." 8 id. at 611. Speaking more generally about Klan practices in the state,
another witness asserted that
"where a man whipped his wife these Klansmen were apt to deal with it." 9 id. at 987.
White Republicans were also vulnerable to Klan attack where domestic discord
was supposed to have been present. In one of the more oblique references to
spousal abuse contained in the report, a white man was allegedly subjected to
"he and his wife had a little falling out." 13 id. at 48. For similar cases of Klan violence, see 10 id. at 1808; 12 id.
at 502; and 13 id. at 13. In addition to the public posture they assumed
against wife beating, members of white-supremacist organizations such as the Ku
Klux Klan leveled a number of more overtly sexual charges, notably incest,
abortion, miscegenation, and cohabitation, as warrant for their attacks.
Indeed, Reconstruction-era Klansmen were given to inflicting outrages on the
bodies of their victims that were themselves highly sexualized - including
everything from the whipping, burning, and mutilation of genitals to complete
I am indebted to Lisa Cardyn for this account of Klan involvement in
"prosecuting" wife beaters. See Lisa Cardyn, Sexualized Racism and Gendered Violence:
Outraging the Body Politic in the Reconstruction-Era South (Apr. 9, 1996)
(unpublished manuscript, on file with author); see also Hodes, supra note 69
(exploring white Southern preoccupation with black male sexuality during
Reconstruction Era); Pleck, The Whipping Post, supra note 45, at 137 ("The campaign to reintroduce the whipping post also coincided with a resurgence
of mob violence, of vigilantes in the West, lynch mobs in the South, and White
Caps in the Middle West.").
As Bertram Wyatt-Brown has observed, there is some resemblance between the
vigilante attacks undertaken by Reconstruction-era white-supremacist groups and
the generally more benign activities of the European charivari. Bertram
Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South 436-38,
442-47 (1982). On early-modern European mob actions against suspected wife
beaters, see, e.g., E.P. Thompson, Customs in Common 492, 505, 510, 512 (1991);
& Dobash, supra note 50, at 565-69.
n71. Cobbe, supra note 15.
n72. See supra text accompanying notes 51-55 (discussing Lucy Stone's campaign in
n73. See Cobbe, supra note 15, at 79-82.
n74. See Pleck, Domestic Tyranny, supra note 33, at 111-21. On the deliberations of
the ABA, see American Bar Ass'n, Report of the Ninth Annual Meeting of the
American Bar Association 286-93 (Philadelphia, Dando 1886); American Bar Ass'n,
Report of the Tenth Annual Meeting of the American Bar Association 57-59, 69
& J.W. Johnson
& Co. 1887).
n75. Pleck, Domestic Tyranny, supra note 33, at 109 n.4 (listing jurisdictions that
considered adopting whipping-post legislation); Pleck, Criminal Approaches,
supra note 50, at 40.
n76. Clark Bell, Wife Beaters and Their Punishment, 8 Medico-Legal Stud. 165, 168
(1906) [hereinafter Bell, Wife Beaters] (paper read before Medico-Legal Society
and Psychological Section in October, 1903, reporting remarks of Chief Justice
Charles B. Lore of Delaware, at 1899 meeting).
n77. Id. at 169 (remarks of Judge Ignatius C. Grubb of the Delaware Supreme Court
at 1899 meeting of Medico-Legal Society).
n78. Id. at 169-70 (remarks of Hon. John G. Shortall, president of Humanitarian
Society of Chicago, at 1899 meeting of Medico-Legal Society).
n79. Rev. Phebe A. Hanaford, The Whipping Post for Wife-Beaters, 17 Medico-Legal J.
108, 109 (1899) (paper read before the Medico-Legal Society (Psychological
Section) in New York, May 17, 1899) (emphasis added).
n80. Bell, Wife Beaters, supra note 76, at 172. For similar claims, see Simeon E.
Baldwin, Whipping and Castration as Punishments for Crime,
8 Yale L.J. 371, 377 (1899); Clark Bell, The Whipping Post and the Wife Beater, 7 Medico-Legal Stud. 113,
113 (1902) [hereinafter Bell, Whipping Post] (attributing similar observation
to Governor of Delaware, a state that still used whipping post for various
crimes, including wife beating). See also supra note 70.
"Crimes Against Women," supra note 51, at 452-53. Stanton spoke out about many cases of aggravated
cruelty among the Dutch aristocracy in New York, and, with Anthony, called for
the conviction of attorney Albert McFarland, a wife beater who murdered his
ex-wife's fiance; Stanton also aided the abused ex-wife of a Massachusetts
Id. at 453. By the postwar era, however, some woman's rights advocates were beginning to
describe violence against women in class-based or ethnicized terms. For
example, when Henry Blackwell condemned wife beating in 1875, he asserted that
"these outrages are confined to no class or nationality," yet then proceeded to observe that
"a large majority of them are committed by foreigners - probably because women
are less esteemed and respected in foreign countries than in our own." Henry B. Blackwell, Maltreating Women, Woman's J., May 15, 1875, at 156, 156.
A number of suffragists (including Lucy Stone) ultimately endorsed the whipping
post as a punishment for wife beaters, although many others in the woman's
movement condemned the proposal. See Pleck, The Whipping Post, supra note 45,
n82. For an account of domestic violence among the elite in the antebellum South,
see Wyatt-Brown, supra note 70, at 282 ("In 1855 David Gavin listed four local wife-beaters in a very small radius of
his plantation. Two of the husbands were physicians, all four belonged to the
gentry set, and their wives all had excellent pedigrees."). The practice was visible in the North as well. See Glenn, supra note 26, at
64-65 (observing that, during 1860s, New York Times reported incidents of
domestic violence among the lower classes and the
"respectable"). Glenn notes, for example, that in 1866,
"the Times reported that the Second United Presbyterian Church of Pittsburgh,
Pennsylvania had excommunicated its minister... because he had committed
adultery and had behaved in an
"unkind, cruel, and violent' manner towards his family. Dr. Priestley regularly
kicked, choked, and spat at his wife...." Id. See generally Nadelhaft, supra note 24 (discussing variety of cultural
sources suggesting that wife beating was
"known phenomenon" in nineteenth-century America).
n83. See Pleck, Criminal Approaches, supra note 50, at 36.
n84. See Elizabeth Pleck, Wife Beating in Nineteenth-Century America, 4 Victimology
60, 65 (1979) [hereinafter Pleck, Wife Beating] ("The wifebeater, according to police records, was generally an immigrant or a
black. In Pennsylvania most of the men arrested for wifebeating were
immigrants: Germans, Irish, English, Hungarians, and Italians." (citation omitted)); supra note 81 (quoting Henry Blackwell on ethnicity of
wife beaters); see also 40 Cong. Rec. 2446-47 (1906) (remarks of Rep. Adams)
(advocating bill to punish wife beaters in District of Columbia with flogging
at whipping post; introducing chart identifying wife beaters prosecuted in
"nationality of the condemned"; and observing:
"Wife beating exists to a greater extent, though not exclusively, among the
foreign population, and it is certainly desirable that the baneful influence of
the practice should be promptly checked before contaminating our native-born
n85. See, e.g., Pleck, The Whipping Post, supra note 45, at 135-37 (discussing
racially disproportionate enforcement of wife-beating statutes, particularly in
South, where black men were far more likely than whites to be prosecuted for
physically abusing their wives); Pleck, Wife Beating, supra note 84, at 65 ("Between 1889 and 1894, fifty-eight out of sixty men arrested for wifebeating in
Charleston, South Carolina were black." (citation omitted)). For contemporary discussions of the racial incidence of
punishment, see 40 Cong. Rec. 2444, 2449 (1906) (remarks of Rep. Sims)
(debating bill to punish wife beaters in District of Columbia by flogging at
whipping post and discussing committee report in support of bill that indicated
"in the fourth precinct there were 14 white and 72 colored out of a total of 86
arrests for wife beating, and in the sixth precinct there were 23 white and 73
colored out of a total of 96 arrests for this offense"); Baldwin, supra note 80, at 377 (discussing criminalization of wife beating
"In 1884 there were one hundred and thirty-one arrests upon this charge in the
city of Baltimore. Early in 1885 a man, and the first white man, was sentenced
under the new law to twenty lashes, besides a year in jail." (emphasis added)).
n86. Cf. Pleck, The Whipping Post, supra note 45, at 141-42. It is difficult, if
not impossible, to determine the frequency of wife beating during the
nineteenth century, or to ascertain its incidence by class or race. Records of
local law enforcement are scant, see supra note 50, and no public or private
entities monitored the problem in a systematic fashion. Even if better records
existed, a problem would remain: Class- and race-based beliefs about the
"degraded" character of men who beat their wives could well bias law enforcement and
monitoring practices. Cf. Haag, supra note 50, at 449 (discussing distortions
in nineteenth-century New York City court records, due to selective dismissals
of assault cases
"along racist and sexist lines").
Some sociologists and historians speculate that violence may well be more
prevalent in households of the poor. In this view, married men who lack other
resources to assert their authority in the family (e.g. money, prestige) may be
more prone to assert authority through physical force. See, e.g., David
Peterson, Physically Violent Husbands of the 1890s and Their Resources, 6 J.
Fam. Violence 1 (1991). But cf. Gordon, Heroes, supra note 33, at 287 (noting
"this theory would explain why poor and low-status men, who lack other
resources, may use violence more readily than rich and prestigious men" but also noting that
"the fact being explained... has been challenged: as with all family violence,
it is difficult to distinguish reported incidents from actual incidence").
To summarize: The nonstatistical evidence gathered in this section demonstrates
that legal elites regularly invoked class- and race-based stereotypes in
reasoning about domestic violence. These social biases shaped law enforcement
efforts, resulting perhaps most prominently in advocacy of the whipping post
for wife beaters. My observations about the social biases informing law
enforcement efforts do not rest on the claim that wife beating was equally
distributed throughout the population - though it may have been. Class and
racial bias could have motivated and shaped law enforcement efforts, even if
marital violence were more prevalent in households of the poor.
Historian David Peterson subscribes to the latter view. In a case study from
the 1890s, Peterson argues that wife beating was more prevalent in households
in which low-status men lacked other resources to assert their authority, see
Peterson, supra, but Peterson also contends that efforts to regulate wife
beating have commonly been shaped by diverse forms of social bias, see David
Peterson del Mar, Violence Against Wives in the United States: History's
Contribution to Feminist Theory 11 (Mar. 28, 1996) (unpublished manuscript
delivered at the Annual Meeting of the Organization of American Historians,
Mar. 28, 1996, on file with author) ("When men have condemned wife beating, that rhetoric has most commonly
functioned not to protect wives from male brutality but rather to identify the
wife beater as a highly recognizable and deviant type.").
n87. See Andrew L. Shapiro, Note, Challenging Criminal Disenfranchisement Under the
Voting Rights Act: A New Strategy,
103 Yale L.J. 537, 541 (1993); see also
Allen v. Ellisor, 664 F.2d 391, 404-05 (4th Cir.) (en banc) (Winter, J., dissenting in part and concurring in part)
(discussing racist genesis of South Carolina statute disenfranchising wife
454 U.S. 807 (1981).
n88. Jimmie Frank Gross, Alabama Politics and the Negro, 1874-1901, at 244 (1969)
(quoting John F. Burns), quoted in Shapiro, supra note 87, at 541.
n89. See Rapport, supra note 66, at 39-41 (discussing records of Freedmen's Bureau
in postwar Georgia):
By comparison, cases stemming from gender conflict between black women and men
appeared infrequently in the [Freedmen's] bureau record books. There are two
possible explanations for this difference. The first is that freedpeople simply
did not experience a great deal of sex antagonism. An alternative explanation,
consistent with the hypothesis that freedpeople selectively invoked bureau
protection, is that they perceived all whites, both southern and northern, as
members of the oppressing class, and preferred not to
"air their dirty laundry' before them.
... On the one hand, freedwomen sought bureau intervention to gain leverage in
disputes with their men; on the other hand, they could not have agreed with the
agents that their troubles stemmed from some proclivity toward infidelity
innate to blacks. To protect their men (and themselves) from such an
assessment, they brought fewer cases of domestic disputes than they did cases
of wage disputes and kidnappings.
Id.; cf. Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity
Politics, and Violence Against Women of Color,
43 Stan. L. Rev. 1241, 1257 (1991):
Women of color are often reluctant to call the police, a hesitancy likely due
to a general unwillingness among people of color to subject their private lives
to the scrutiny and control of a police force that is frequently hostile. There
is also a more generalized community ethic against public intervention, the
product of a desire to create a private world free from the diverse assaults on
the public lives of racially subordinated people. The home is not simply a
man's castle in the patriarchal sense, but may also function as a safe haven
from the indignities of life in a racist society.
Carpenter v. Commonwealth, 92 Ky. 452, 456-57 (1892) (emphasis added) (affirming conviction of husband for cutting his wife's
throat with knife, with intent to take her life).
n91. See supra text accompanying notes 64, 68.
n92. See supra note 38 and accompanying text.
n93. See supra text accompanying notes 18-23.
n94. For one analysis of how feminist conceptions of equality draw on the gender
norms they criticize, see Siegel, Home As Work, supra note 38, at 1110-12,
1132-34, 1205, 1213-15.
n95. See supra text accompanying notes 16-21.
n96. Reeve, supra note 16, at 65.
n97. Id. (emphasis added).
n98. James Schouler, A Treatise on the Law of the Domestic Relations 59 (Boston,
& Co. 1870) [hereinafter Schouler, Domestic Relations] (emphasis added). This
language appeared in subsequent editions of the treatise until 1882 when it was
amended to read,
"The rule of persuasion has superseded the rule of force." James Schouler, A Treatise on the Law of the Domestic Relations 102 (Boston,
& Co. 3d ed. 1882) (emphasis added).
n99. Schouler, Domestic Relations, supra note 98, at 59.
n100. Cf. Siegel, Home As Work, supra note 38, at 1103-08 (examining how movement's
understanding of equality transformed cultural traditions it drew upon).
n101. Duncan Kennedy, The Structure of Blackstone's Commentaries,
28 Buff. L. Rev. 205, 283 (1979).
n102. Cf. John Demos, A Little Commonwealth: Family Life in Plymouth Colony 59-125
(1970) (describing social relationships in seventeenth-century Plymouth,
n103. The rise of companionate marriage is the subject of considerable
historiographical dispute, with commentators dividing over the formal
characteristics of the change and its proper periodization. The English
historian Lawrence Stone was among the first scholars to chart the development
of this new style in marital relations. See Lawrence Stone, The Family, Sex and
Marriage in England, 1500-1800, at 217-18, 239-44 (1977). Since that time,
American historians of women, gender, and the family have found the concept
useful in depicting a range of ideological and sociological changes occurring
at various points in American history, from the Early Republic through the
early decades of the twentieth century. See, e.g., Nancy F. Cott, The Grounding
of Modern Feminism 156-61 (1987) (discussing 1920s); Steven Mintz
& Susan Kellogg, Domestic Revolutions: A Social History of American Family Life
(1988) (discussing late nineteenth and early twentieth centuries); Myra C.
Glenn, Wife-Beating: The Darker Side of Victorian Domesticity, 15 Canadian Rev.
Am. Stud. 17, 22-23 (1984) (discussing changing marriage patterns in
post-Revolutionary period); Griswold, Mental Cruelty, supra note 58, at 139
(discussing Victorian period); Christina Simmons, Companionate Marriage and the
Lesbian Threat, Frontiers, Fall 1979, at 54, 54-55, 57 (1979) (discussing
1920s); Daniel Scott Smith, Parental Power and Marriage Patterns: Analysis of
Historical Trends in Hingham, Massachusetts, 35 J. Marriage
& Fam. 419 (1973) (discussing late eighteenth century). Occupying the middle
ground in this debate is Suzanne Lebsock, who sees companionate marriage as a
phenomenon that might describe
"the general direction in which marriages were moving" over several centuries, thus making the concept resistant to precise
temporalization. See Suzanne Lebsock, The Free Women of Petersburg: Status and
Culture in a Southern Town, 1784-1860, at 17-18 (1984).
n104. William A. Alcott, The Young Wife, or Duties of Woman in the Marriage Relation
30-31 (Boston, George W. Light 1837). In describing a woman's duty of
submission, Alcott remarked that he did not intend to
"imply an intellectual and moral inferiority on the part of woman" or to
"preclude the idea that in morals she may even be the superior. The concession
is that of physical prowess, rather than of moral influence." Id. at 27. Alcott then proceeded to develop his account of marital status, as
divinely and socially ordained, in this physiological framework.
n105. See Catherine E. Beecher, A Treatise on Domestic Economy, for the Use of Young
Ladies at Home, and at School 26 (Boston, Thomas H. Webb,
& Co. rev. ed. 1842) (describing
"the relations of husband and wife" as
"involving the relative duties of subordination"); L.H. Sigourney, Letters to Young Ladies 37 (Hartford, William Watson 2d ed.
"duty of submission" that is
"imposed both by the nature of our station and the ordinances of God").
n106. William A. Alcott, Gift Book for Young Ladies 85 (Buffalo, Derby, Orton
& Mulligan 1853).
n107. Mrs. Henry Ward Beecher, The Home: How to Make and Keep It 246 (Minneapolis,
Buckeye Publishing Co. 1883).
n108. Id. at 247.
n109. Id. at 248-49.
n110. See Siegel, Modernization, supra note 38, at 2133-41 (criticizing
"status to contract" story as account of modernization of marital status law); cf. Mark Kelman, A
Guide to Critical Legal Studies 224 (1987) (criticizing
"status to contract" story as account of development of liberal social institutions, but suggesting
it might have some explanatory power with respect to family).
n111. Cf. Zillah R. Eisenstein, The Radical Future of Liberal Feminism 47-49, 201-19
(1993) (describing relationship between liberal individualism and family);
Susan Moller Okin, Justice, Gender, and the Family 25-40 (1989) (analyzing how
various theories of justice address the family); Carole Pateman, The Sexual
Contract (1988) (analyzing social contract theory in feminist light); Frances
E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform,
96 Harv. L. Rev. 1497 (1983) (arguing that assumptions about the market/family dichotomy have impeded
reform of family relations).
n112. Kirk Jeffrey, The Family as Utopian Retreat from the City: The
Nineteenth-Century Contribution, 55 Soundings 21, 28 (1972) (emphasis added)
(quoting Home, Ladies' Mag., May 1830, at 218). Home was depicted as a place
"seeks a refuge from the vexations and embarrassments of business, an enchanting
repose from exertion, a relaxation from care by the interchange of affection:
where some of his finest sympathies, tastes, and moral and religious feelings
are formed and nourished; - where is the treasury of pure disinterested love,
such as is seldom found in the busy walks of a selfish and calculating world."
Charles Burroughs, Address on Female Education (Oct. 26, 1827) (emphasis
added), quoted in Cott, supra note 31, at 64.
n113. See Stephanie Coontz, The Social Origins of Private Life: A History of
American Families 1600-1900, at 210 (1988). For an elaboration of this
argument, see Stephanie Coontz, The Way We Never Were 52-67 (1992). See also
Olsen, supra note 111, at 1499 ("The home was said to provide a haven from the anxieties of modern life -
"a shelter for those moral and spiritual values which the commercial spirit and
the critical spirit were threatening to destroy.'" (quoting Walter E. Houghton, The Victorian Frame of Mind, 1830-1870, at 343
(1957) (emphasis omitted))). For variations on this theme, see John Demos,
Past, Present, and Personal: The Family and the Life Course in American History
32 (1986) (arguing that men
"would retreat periodically [to the family] for repose, renewal, and inner
fortification against the dangers [they] encountered elsewhere"); see also Jeffrey, supra note 112, at 28-29 (analyzing how urban Americans
sentimentalized the family in attempt to recapture ideals of rural life);
Barbara Laslett, The Family as a Public and Private Institution: An Historical
Perspective, 35 J. Marriage
& Fam. 480 (1973) (characterizing institution of private family as modern
twentieth-century development, resulting from separation of familial and work
n114. See supra text accompanying notes 37-43.
n115. Seneca Falls Convention Report, supra note 37, at 6 (emphasis added).
n116. Sarah M. Grimke, Marriage (1852-57) (unpublished manuscript), in The Female
Experience: An American Documentary 87, 96 (Gerda Lerner ed., 1977).
N117. Address of Elizabeth Cady Stanton, on the Divorce Bill, Before the Judiciary
Committee of the New York Senate, in the Assembly Chamber, Feb. 8, 1861, at 8
(Albany, Weed, Parsons
& Co. 1861) (emphasis added); see also 1 History of Woman Suffrage, supra note
40, at 719 (similar address to Tenth National Woman's Rights Convention, 1860).
n118. The movement's rank appeal to sentimental conceptions of marriage and family
can be understood as a shrewd tactic to present the movement's radical demands
in a politically palatable form. See Glenn, supra note 26, at 78-79 (discussing
Stanton speech quoted supra text accompanying note 117). But it also seems
reasonable to assume that the cultural norms to which the movement appealed
also played a role in shaping its conceptions of equality. See supra note 94
and accompanying text.
n119. The nineteenth-century woman's rights movement used the term
"legalized prostitution" to criticize marriage as a relation of sexual coercion and compulsory
maternity; in this period, the movement's demands for
"voluntary motherhood" were focused on issues of marital rape, rather than abortion. For an account
of how the
"legalized prostitution" polemic figured in the movement's demand for sexual and reproductive autonomy
in marriage, see Reva Siegel, Reasoning from the Body: A Historical Perspective
on Abortion Regulation and Questions of Equal Protection,
44 Stan. L. Rev. 261, 306-10 (1992) [hereinafter Siegel, Reasoning from the Body].
n120. The movement also argued that violence in marriage proved women's need for the
vote. See supra text accompanying notes 41-43.
n121. Beecher, supra note 107, at 249.
61 N.C. (Phil. Law) 453, 457 (1868).
244 S.E.2d 338, 343-44 (W. Va. 1978).
46 Ala. 143 (1871); see supra text accompanying notes 62-65.
Id. at 146-47; see also
id. at 147 (noting that state constitution protects all citizens
"without distinction of rank, caste or sex").
Id. at 147 (quoting Schouler, Domestic Relations, supra note 98, at 59).
n127. Id. at 148 (quoting Schouler, Domestic Relations, supra note 98, at 59).
n128. See supra Subsection I.B.2.
1 Miss. (1 Walker) 156 (1824). There is evidence that the legal status of chastisement was in doubt in
Mississippi during the 1820s. The defendant in Bradley requested the circuit
judge to instruct the jury that if they found that the victim was the
defendant's wife, they could not find the defendant guilty of assault and
battery; the circuit judge refused this request, and the defendant appealed
this decision to the state's supreme court, which affirmed. See
id. at 157; see also Wyatt-Brown, supra note 70, at 281-82 (noting growing social
discomfiture with wife beating despite minimal legal recourse).
Bradley, 1 Miss. (1 Walker) at 158 (emphasis added).
n131. Citing Blackstone and other authorities, the judge in Bradley invoked the
doctrine of chastisement, which allowed husbands to use
"a whip or rattan, no bigger than [their] thumb, in order to inforce the
salutary restraints of domestic discipline."
Id. at 157. Not surprisingly, a continuing commitment to authority-based conceptions of
marriage undergirds the opinion, manifested in the court's concluding
"Let the husband be permitted to exercise the right of moderate chastisement, in
cases of great emergency, and use salutary restraints in every case of
misbehaviour, without being subjected to vexatious prosecutions, resulting in
the mutual discredit and shame of all parties concerned."
Id. at 158.
The claim that it would be unseemly to consider questions of domestic violence
in a court of law makes an appearance in an 1838 Delaware case of a man fined
for striking his pregnant wife; the defendant's counsel argued
"that a husband had the right to chastise his wife; and it would not be politic
to encourage these complaints in a court of justice, between persons bearing
the relation of husband and wife."
State v. Buckley, 2 Del. (2 Harr.) 552, 552 (1838) (emphasis added). In Buckley, the court allowed the prosecution, over the
husband's objection that he had the right to chastise his wife, on the grounds
that the chastisement administered in this case was excessive:
"We know of no law that will authorize a husband to strike his pregnant wife a
blow with his fist, such as has been inflicted on this woman.... Any undue or
excessive battery by a husband of his wife either in degree, or with improper
means, [is] indictable." Id. (emphasis added).
When the North Carolina Supreme Court upheld the right of chastisement in the
1864 case of
State v. Black, 60 N.C. (Win.) 262 (1864), the court justified the prerogative on two grounds: the husband's authority
over his wife ("[a] husband is responsible for the acts of his wife, and he is required to
govern his household," id.) and the need to shield domestic conflicts from public scrutiny ("the law will not invade the domestic forum or go behind the curtain," id.). In Black, the traditional hierarchy-based rationale for chastisement law
was intermingled with the new privacy-based rationale:
Certainly the exposure of a scene like that set out in this case can do no
good. In respect to the parties, a public exhibition in the court-house of such
quarrels and fights between man and wife widens the breach, makes
reconciliation almost impossible, and encourages insubordination; and in
respect to the public, it has a pernicious tendency; so, pro bono publico, such
matters are excluded from the courts, unless there is a permanent injury or
excessive violence or cruelty indicating malignity or vindictiveness.
Id. at 262 (emphasis added).
State v. Hussey, 44 N.C. (Busb.) 123, 126-27 (1852) (emphasis added) (holding wives incompetent to testify against husbands in all
cases of assault and battery, except where permanent injury or great bodily
harm is inflicted).
61 N.C. (Phil. Law) 453 (1868).
Id. at 454.
n136. Id. (emphasis added).
Id. at 456.
Id. at 457.
n139. See supra text accompanying notes 103-13.
n140. Alcott, supra note 104, at 30-31.
State v. Black, 60 N.C. (Win.) 262, 262 (1864):
In respect to the parties, a public exhibition in the court-house of such
quarrels and fights between man and wife widens the breach, makes
reconciliation almost impossible, and encourages insubordination; and in
respect to the public, it has a pernicious tendency; so, pro bono publico, such
matters are excluded from the courts, unless there is a permanent injury or
excessive violence or cruelty indicating malignity or vindictiveness.
Rhodes, 61 N.C. (Phil. Law) at 459 (emphasis added).
n143. The North Carolina Supreme Court reiterated this analysis of the criminal law
governing assault and battery in marriage in
State v. Edens, 95 N.C. 693, 696 (1886) (finding husband not indictable for slandering his wife).
Rhodes, 61 N.C. (Phil. Law) at 458-59 (emphasis added).
n145. See supra text accompanying note 132 (quoting
State v. Hussey, 44 N.C. (Busb.) 123, 126-27 (1852)).
State v. Oliver, 70 N.C. 60, 61-62 (1874) (emphasis added).
n147. As we have seen in the divorce context, claims about marital cruelty were
articulated in a similarly class-conscious manner. See supra notes 56-61 and
accompanying text. See generally Griswold, Mental Cruelty, supra note 58, at
By the last decades of the nineteenth century, neurasthenia had become part of
the modern medical landscape, a symbol of civilization and a perverse badge of
respectability among the middle class.... Thus, claims to happiness and
complaints of cruelty had to be judged in light of the character and class of
the individuals engaged in the suit.
n148. John F. Kasson, Rudeness
& Civility: Manners in Nineteenth-Century Urban America 115 (1990) (footnote
n149. Id. at 67; see id. at 62 ("Apostles of civility battled for far bigger stakes than how best to eat
asparagus.... Seeking to avoid overt conflict [in a rapidly industrializing
democracy], they turned issues of class and social grievance back upon the
individual. They redefined issues of social conflict to questions of personal
governance, social propriety, and
n150. Id. at 148 (quoting Robert De Valcourt, The Illustrated Manners Book: A Manual
of Good Behavior and Polite Accomplishments 205 (New York, Leland, Clay 1855)).
n151. Id. at 157; see also id. at 157-61. Popular fiction of the era also emphasized
the necessity of controlling anger, especially in the domestic context. See
Carol Zisowitz Stearns
& Peter N. Stearns, Anger: The Struggle for Emotional Control in America's
Readers of domestic tales were constantly advised that angry people were people
of bad character and therefore could be viewed as alien or different from
"bad character" approach led to popular stories and even scientific accounts, well into the
twentieth century, that stressed the distinctive physical features of angry
people - red faced, with swollen veins, trembling - because these features
denoted the destructiveness of angry behavior and its otherness, its location
not in people in general but in bad people.
Id. at 45 (footnote omitted).
n152. Samuel R. Wells, New Physiognomy, or, Signs of Character at iii (New York,
American Book Co. 1871), quoted in Kasson, supra note 148, at 149.
n153. See Kasson, supra note 148, at 198:
Because such tastes and practices are so habitual and because they are
literally embodied in the individuals who share them, they take on the
character of natural categories. It becomes easy for the socially privileged to
regard their class position and prestige as the product of their natural
attributes, including their superior
"breeding," rather than the cause, and for those lower on the social scale to accept their
domination and to see the rich (in Scott Fitzgerald's famous phrase) as
"different from you and me," set apart by nature rather than class and culture.
State v. Rhodes, 61 N.C. (Phil. Law) 453, 458 (1868).
n156. Bell, Wife Beaters, supra note 76, at 168 (quoting Charles B. Lore, chief
justice of Delaware) (emphasis added).
n157. Hanaford, supra note 79, at 110; see id. at 109.
n158. See supra notes 81-89 and accompanying text.
Rhodes, 61 N.C. (Phil. Law) at 457.
n160. See Joseph Story, Commentaries on Equity Pleadings, and the Incidents Thereof,
According to the Practice of the Courts of Equity, of England and America 54-55
(Boston, Little, Brown
& Co. 7th ed. 1865) (1857):
[A] feme covert cannot, at law, sue except jointly with her husband; for she is
deemed to be under the protection of her husband; and a suit respecting her
rights or interests must be with the assent and co<um o>peration of her husband. The rule in suits in equity is, in ordinary cases, the
same as at law; and the husband must join in the suit.
Id. (citations omitted). But see id. at 56-58
& n.3 (discussing exceptions at equity allowing wife to maintain suit against
her husband under name of male third party respecting her separate property or
other rights secured by settlement).
n161. See, e.g., infra notes 164, 177 and accompanying text (quoting New York and
District of Columbia statutes).
n162. Single women suffering sexual assault in this era generally lacked remedies in
tort. See Lea VanderVelde, The Ways of Seduction,
48 Stan. L. Rev. 601 (1996) (tracing various common law doctrines that precluded single women from
bringing tort suits in cases of sexual assault and analyzing enactment of laws
in Reconstruction Era that gave women standing to sue). As VanderVelde notes,
only one nineteenth-century woman's rights activist seems to have addressed the
problem. See Caroline Healey Dall, Woman's Rights Under the Law, in Three
Lectures Delivered in Boston, January, 1861, at 43 (Boston, Walker, Wise
& Co. 1861) ("No single woman, having been seduced, has any remedy at common law; neither has
her mother nor next friend. If her father can prove service rendered, he may
sue for loss of service."), quoted in VanderVelde, supra, at 674 n.356. Reform of the common law seems
to have occurred quietly, through code pleading reform rather than political
activism of the sort that prompted passage of the married women's property
acts. See VanderVelde, supra, at 673 ("With almost no public pressure and little public recognition of a need for
reform of [the writ of seduction], the Field codes specifically advocated the
ability of women to sue in their own rights and recover damages for seduction.").
n163. See Carl Tobias, Interspousal Tort Immunity in America,
23 Ga. L. Rev. 359, 383 (1989) ("Between 1863 and 1913, judges unanimously rejected interspousal personal injury
claims.... From 1914 until 1920, jurists in seven states allowed such actions,
and a comparable number denied them. During the ensuing half century, immunity
Today, the doctrine of interspousal tort immunity still bars claims of
intentional torts, either in whole or in part, in nine states. Interspousal
immunity doctrine has been abrogated in 41 states. See, e.g.,
Shook v. Crabb, 281 N.W.2d 616, 619 (Iowa 1979) ("While the state has an interest in encouraging marital harmony, to deny a forum
for the redress of a wrong would do little to advance the compatibility of a
married couple. It is difficult to see how denying access to the legal process
could be said with any certainty to encourage domestic tranquillity.");
Burns v. Burns, 518 So. 2d 1205, 1210 (Miss. 1988) ("The idea that maintenance of interspousal immunity will promote the public
interest in domestic tranquillity is wholly illusory. If one spouse commits
against the other an act which, but for the immunity, would constitute a tort,
the desired state of matrimonial tranquility is necessarily destroyed."); see also
Klein v. Klein, 376 P.2d 70 (Cal. 1962);
State Farm Mut. Auto Ins. Co. v. Westlake, 324 N.E.2d 137, 139 (N.Y. 1974). Given that many states have abrogated the tort immunity doctrine quite
recently, it remains to be seen how the legacy of the immunity rule will shape
the law of interspousal torts. For example, in the course of abrogating the
immunity rule, the Missouri Supreme Court dismissed concerns that
"removal of the bar will lead to a rash of claims of the
"unwanted kiss' and
"rolling pin' variety." The court pointed out that such conduct (which it defined as
"minor physical abuse, possibly constituting trivial torts") could be handled by courts on a
"case-by-case basis" by
"adjusting the duty of care required between married persons to accommodate the
"give-and-take' of married life."
S.A.V. v. K.G.V., 708 S.W.2d 651, 653 & n.3 (Mo. 1986).
One state, Georgia, has determined that the question of interspousal tort
immunity should be abrogated where there is no marital harmony to be protected
by application of the immunity rule. See
Smith v. Rowell, 335 S.E.2d 461 (Ga. 1985);
Harris v. Harris, 313 S.E.2d 88 (Ga. 1984).
One state, Utah, has abrogated the interspousal immunity doctrine with respect
to intentional torts only. See
Stoker v. Stoker, 616 P.2d 590 (Utah 1980).
Six other states have abrogated the doctrine, in whole or in part, as to
negligent torts only. See, e.g.,
Lewis v. Lewis, 351 N.E.2d 526, 532 (Mass. 1976) ("Conduct, tortious between two strangers, may not be tortious between spouses
because of the mutual concessions implied in the marital relationship. For this
reason we limit our holding today to claims arising out of motor vehicle
Two states still retain the doctrine of interspousal tort immunity in its
Raisen v. Raisen, 379 So.2d 352, 354 (Fla. 1979) (interspousal tort actions
"disturb domestic tranquility; cause marital discord and divorce");
Smith v. Southern Farm Bureau Casualty Ins. Co., 174 So. 2d 122, 124 (La. 1965) ("This immunity exists, commendably, to maintain domestic tranquility and promote
the stability of the family unit.").
For an inventory of state positions on interspousal tort immunity as of
November 1995, see Leonard Karp
& Cheryl L. Karp, Domestic Torts: Family Violence, Conflict and Sexual Abuse
app. B at 383-85 (Supp. 1996).
n164. 1860 N.Y. Laws, ch. 90, 7 (1860) ("And the money received upon the settlement of any such action or recovered upon
a judgment, shall be her sole and separate property."); see also Basch, supra note 17, at 164, 194-95 (discussing enactment of 1860
Longendyke v. Longendyke, 44 Barb. 366, 366-67 (N.Y. Sup. Ct. 1863).
Id. at 368.
Id. at 369.
n168. See supra text accompanying note 104.
n169. Note that the plaintiff in this case was married for 30 years. Under the
doctrine of marital service, her husband had property rights in the value of
her labor for the entirety of this period, and, given judicial construction of
the 1860 statute, most likely for the remainder of their married life as well.
See Siegel, Modernization, supra note 38, at 2149-68.
n170. For an exceptionally close reading of the New York cases, see F.A. Erwin,
Assault and Battery (Wife vs. Husband), 3 Univ. L. Rev. 67 (1897).
67 Me. 304 (1877).
Id. at 304.
Id. at 307.
n174. Id. (quoting
State v. Oliver, 70 N.C. 60, 61-62 (1874)) (emphasis added).
n175. Id. at 308 (emphasis added).
Thompson v. Thompson, 218 U.S. 611 (1910).
Id. at 615-16 (quoting District of Columbia Code, 1155, 31 Stat. 1189, 1374 (1901)); see
id. at 617. Justices Harlan, Holmes, and Hughes dissented. See
id. at 619-24 (Harlan, J., dissenting).
Id. at 617-18.
Drake v. Drake, 177 N.W. 624, 625 (Minn. 1920) (emphasis added); see also
Lillienkamp v. Rippetoe, 179 S.W. 628, 629 (Tenn. 1915) (stating that marriage reform legislation not intended
"to empower a wife to bring an action against her husband for injuries to her
person occurring during the coverture, thereby making public scandal of family
discord, to the hurt of the reputation of husband and wife... unless such
purpose clearly appears by the express terms of the act").
Fiedeer v. Fiedeer, 140 P. 1022, 1023 (Okla. 1914) (allowing wife's tort suit against husband who shot her in head). For a
similar review of the case law, see
Steele v. Steele, 65 F. Supp. 329, 330 (D.D.C. 1946) (allowing wife to bring tort suit against ex-husband for assault that occurred
before divorce was finalized).
n181. See Siegel, Modernization, supra note 38, at 2181-96.
n182. See id. at 2199-206.
42 N.W. 641 (Iowa 1889).
Id. at 642. The Iowa Supreme Court asserted that
"it is of the genius of our laws, as well as of our civilization, that matters
pertaining so directly and exclusively to the home... are not to become matters
of public concern or inquiry. This thought has vindication throughout our
system of jurisprudence." Id.
Foxworthy v. Adams, 124 S.W. 381, 383 (Ky. 1910).
Crowell v. Crowell, 105 S.E. 206, 210 (N.C. 1920) (allowing wife to sue husband for infecting her with venereal disease). In
Crowell, the North Carolina Supreme Court indicated that the
"true ground" for exempting a husband from liability to his wife
"was because by the marriage she became his chattel";
"the fanciful ground assigned for this doctrine... is stated by some of the old
writers to be the words in Genesis ii, 23, 24:
"And Adam said,
"This is now bone of my bones, and flesh of my flesh," adding that a man and wife
"shall be one flesh."'" Id.
n187. During the nineteenth century, the mechanization of textile production
resulted in a dramatic decrease in the cost of fabrics, and middle-class
Americans began to use fabrics in a variety of ways in decorating their homes.
See Katherine C. Grier, Culture and Comfort: People, Parlors, and Upholstery,
1850-1900, at 237-61 (1988).
"Between 1850 and 1900, decorative window draperies became an increasingly
important element of parlor decor in ordinary homes."
Id. at 237. The authors of interior-decorating guides offered a variety of reasons for
curtaining windows. As Janet E. Ruutz-Rees, author of Home Decoration,
explained in 1881:
""So many delightful possibilities are concealed by a curtain; not to mention the
skillful hiding of defects made feasible with such means, or the softening of
angles and happy obliteration of corners.'" Id. The authors of Beautiful Homes noted in 1878 that curtains could protect
""prying eyes, or... the feeling of fear at imagining some outside spectator
gazing into our apartments during the evening hours.'"
Id. at 245 (quoting interior-decorating guide of 1870s). Another decorator recommended
using curtains to block out aspects of the
"outer world" that inhabitants found distasteful. Id. (advising that
""if the outer world does not happen to be agreeable in that particular locality,
it is well to employ ingenious devices for shutting it out'"); see also Kasson, supra note 148, at 175 (describing how
"the use of fabrics spread... until by the late nineteenth century some parlors
became virtual cocoons of gentility. Families covered the floor with carpets,
shrouded the windows with thick draperies, hung curtains called portieres
across the entrance, swathed center tables, mantel tops, and pianos with
hangings and skirts....").
Abbott v. Abbott, 67 Me. 304, 307 (1877) (quoting
State v. Oliver, 70 N.C. 60, 61-62 (1874)); see also
Miller v. Miller, 42 N.W. 641, 642 (Iowa 1889) (holding that court will not enforce husband's promise to compensate his wife
"public policy dictates that the door of such inquires shall be closed").
n189. See Note, Litigation Between Husband and Wife,
79 Harv. L. Rev. 1650, 1655-59 (1966) (discussing judicial view that
"family matters simply are not justiciable in the sense of being properly
resolvable in a judicial forum" in wide range of legal contexts).
State v. Fulton, 63 S.E. 145, 145 (N.C. 1908) (quoting
State v. Edens, 95 N.C. 693 (1886)) (upholding spousal tort immunity for slander).
n191. Schouler, supra note 98, at 59.
n192. Pleck, Domestic Tyranny, supra note 33, at 136.
n193. Id. at 137 (quoting Judge Bernhard Rabbino of the New York City court of
n194. Id. at 136-42; see Pleck, Criminal Approaches, supra note 50, at 44-45:
By the early twentieth century, judges of family courts... came to view
criminal prosecution and police-like methods as unprofessional and outmoded.
They believed that social casework methods were more efficient, humane, and
better suited to handling the complicated dynamics of abusing families.
Ironically, the greater the scrutiny in the family character of domestic
violence, the lower the interest in its criminal side.
n195. International Ass'n of Police Chiefs, Training Key No. 16, Handling
Disturbance Calls 94-95 (1968-69), quoted in Sue E. Eisenberg
& Patricia L. Micklow, The Assaulted Wife:
"Catch 22" Revisited,
3 Women's Rts. L. Rep. 138, 156 (1977) (omissions in original) (emphasis added).
n196. Del Martin, Battered Wives 93-94 (1976) (quoting Oakland Police Department's
training bulletin) (emphasis added).
n197. See, e.g., Violence Against Women Act, Pub. L. No. 103-322, 108 Stat. 1796
(1994) (codified at
42 U.S.C.A. 13981 (West 1995)) (providing grants to help prevent sexual assault and to support
battered women's shelters). See generally Developments in the Law - Legal
Responses to Domestic Violence,
106 Harv. L. Rev. 1498, 1528-51 (1993) [hereinafter Developments in the Law] (discussing new state and federal
responses to domestic violence).
n198. See supra text accompanying note 5.
n199. Bureau of Justice Statistics, U.S. Dep't of Justice, Violence Against Women:
Estimates from the Redesigned Survey 1 (1995) [hereinafter Bureau of Justice
n202. Laws Mandating Reporting of Domestic Violence: Do They Promote Patient
273 JAMA 1781 (1995) [hereinafter Laws Mandating Reporting of Domestic Violence] (citing Bureau of
Justice Statistics, U.S. Dep't of Justice, Violence Between Intimates (1994)).
Bureau of Justice Statistics, supra note 199, at 1.
n204. See id. at 4.
n205. Cf. Council on Scientific Affairs, Am. Medical Ass'n, Violence Against Women:
Relevance for Medical Practitioners,
267 JAMA 3184 (1992) [hereinafter Violence Against Women], which observes that while
some surveys suggest nearly equal participation rates (ie, that about as many
women as men have perpetrated at least one act of aggression), there is no
measure of acts that are undertaken in self-defense. In general, men perpetrate
more aggressive actions against their female partners than women do against
their male partners, and men perpetrate more severe actions and are more likely
to perpetrate multiple aggressive actions against their partner during a single
incident than are women against male partners.
Id. at 3185-86 (citations omitted). See generally Angela Browne, When Battered Women Kill
(1987) (discussing women who killed their batterers); Ann Jones, Next Time,
She'll Be Dead: Battering
& How to Stop It (1994); Ann Jones, Women Who Kill (1980) (describing patterns
that prevail when women kill their batterers); Joan Zorza, Women Rarely Batter
Men Except When Abused Themselves, N.Y. Times, Feb. 17, 1994, at A22
(emphasizing importance of context in evaluating domestic violence statistics).
n206. Joseph R. Biden, Domestic Violence: A Crime, Not a Quarrel, Trial, June 1993,
at 56, 56 (quoting National Inst. of Justice, U.S. Dep't of Justice, Civil
Protection Orders: Legislation, Current Court Practice, and Enforcement 4
n207. Violence Against Women, supra note 205, at 3184, 3186.
n208. Id. at 3185.
n209. Laws Mandating Reporting of Domestic Violence, supra note 202, at 1781
(reporting, also, that prevalence of domestic violence among patients in
ambulatory care settings has been estimated to be between 20% and 30%).
n210. Violence Against Women, supra note 205, at 3186-87.
n211. Angela Browne, Violence Against Women by Male Partners: Prevalence, Outcomes,
and Policy Implications, 48 Am. Psychologist 1077, 1077 (1993); see also id. at
1078 (observing that rape by male partners seems to occur most frequently in
relationships in which male partner practices other forms of physical
aggression; reviewing recent studies of the correlation).
n212. Josh Meyer, Police Records Detail 1989 Beating that Led to Charge: A Bloodied
Nicole Simpson, Hiding in Bushes After 911 Call, Told Officers:
"He's Going to Kill Me." Judge Overruled Prosecutors' Request that Simpson Serve Jail Time, L.A. Times,
June 17, 1994, at A24 (emphasis added).
n213. See supra note 163.
n214. Model Penal Code 213.1 cmt. 8(c) (1980) (emphasis added); see Robin West,
Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment,
42 Fla. L. Rev. 45, 64 (1990) ("Proponents of the marital rape exemption typically assert that the state's
important interest in promoting marital harmony and intimacy, or,
alternatively, its interest in encouraging reconciliation of warring spouses,
justifies the statute.").
n215. Pub. L. No. 103-322, 108 Stat. 1796 (1994) (codified at
42 U.S.C.A. 13981 (West 1995)).
n216. William Rehnquist, Chief Justice's 1991 Year-End Report on the Federal
Judiciary, Third Branch, Jan. 1992, at 1, 3 (emphasis added). For more extended
discussion of the Violence Against Women Act, and Chief Justice Rehnquist's
remarks in particular, see infra Section IV.C.
n217. Blanche Crozier, Constitutionality of Discrimination Based on Sex,
15 B.U. L. Rev. 723, 748-49 (1935).
252 N.E.2d 800, 803-04 (Ind. 1969).
n219. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity 16
n220. As I have observed in a recent study examining reform of the common law rules
giving husbands property rights in their wives' labor:
The long history of the doctrine of marital service suggests that caste regimes
do not survive by their rigidity, but instead through their malleability and
adaptability. The law of marital status was able to survive premature news of
its death in part because status discourse has this chameleon-like quality. In
short, status talk is not always detectible as status talk. Frequently, it may
disguise itself - even by masquerading in the language of love.
Siegel, Modernization, supra note 38, at 2210-11.
n221. See Leon F. Litwack, Been in the Storm So Long: The Aftermath of Slavery
366-71, 375 (1979) (discussing Black Codes); Julie Saville, The Work of
Reconstruction: From Slave to Wage Labor in South Carolina, 1860-1870 (1994);
C. Vann Woodward, The Strange Career of Jim Crow 22-23 (3d rev. ed. 1974)
(discussing transition in regimes). See generally William Cohen, Negro
Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis, 42 J.S.
Hist. 31 (1976) (discussing emergence of peonage, sharecropping, and
particulars of labor abuses).
n222. For example, in 1867, when the Pennsylvania Supreme Court ruled that a
railroad could segregate its passengers by race, it asserted:
The natural separation of the races is... an undeniable fact, and all social
organizations which lead to their amalgamation are repugnant to the law of
nature. From social amalgamation it is but a step to illicit intercourse, and
but another to intermarriage. But to assert separateness is not to declare
inferiority in either; it is not to declare one a slave and the other a freeman
- that would be to draw the illogical sequence of inferiority from difference
only.... When, therefore, we declare a right to maintain separate relations, as
far as is reasonably practicable, but in a spirit of kindness and charity, and
with due regard to equality of rights, it is not prejudice, nor caste, nor
injustice of any kind, but simply to suffer men to follow the law of races
established by the Creator himself, and not to compel them to intermix contrary
to their instincts.
West Chester & Phila. R.R. v. Miles, 55 Pa. 209, 213-14 (1867) (emphasis added); see also
id. at 212 (upholding regulation requiring racial segregation in seating
"to prevent contacts and collisions arising from natural or well-known customary
"a proper use of the right of private property").
The Supreme Court employed similar reasoning in the
Civil Rights Cases, 109 U.S. 3 (1883), when it struck down the Civil Rights Act of 1875, which prohibited race
discrimination in transportation, inns, and theaters, on the grounds that the
statute exceeded Congress's powers under the Reconstruction Amendments. The
Court denied that race discrimination in accommodations reflected the
white-supremacist values of chattel slavery, and instead depicted such
discrimination as an exercise of discernment in personal associations. The
Thirteenth Amendment did not authorize the accommodations statute, because
it would be running the slavery argument into the ground to make it apply to
every act of discrimination which a person may see fit to make as to the guests
he will entertain, or as to the people he will take into his coach or cab or
car, or admit to his concert or theatre, or deal with in other matters of
intercourse or business.
Id. at 24-25. To explain why the Fourteenth Amendment did not authorize the accommodations
statute, the Court also invoked concepts of privacy, here in the form of a
federalism argument. The Court held that Section 1 of the Fourteenth Amendment
"not authorize Congress to create a code of municipal law for the regulation of
private rights" but instead provided
"modes of redress against [state action] subversive of the fundamental rights
specified in the amendment."
Id. at 11. Federal legislation under the Fourteenth Amendment
cannot properly cover the whole domain of rights appertaining to life, liberty
and property, defining them and providing for their vindication. That would be
to establish a code of municipal law regulative of all private rights between
man and man in society. It would be to make Congress take the place of the
State legislatures and to supersede them.
Id. at 13. (Gendered discourses of the private also supported federalism arguments in the
nineteenth century, especially concerning family law. See infra text
accompanying notes 311-15.)
Joseph Singer is writing a detailed and provocative account of the ways in
which racial concerns shaped conceptions of public accommodations and private
property during the Reconstruction Era. See Joseph William Singer, No Right to
Exclude: Public Accommodations and Private Property (1996) (unpublished
manuscript, on file with author). For a fascinating account of the ways in
which gender, class, and race interacted in producing the law of racial
separation, see Barbara Y. Welke, When All the Women Were White, and All the
Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855-1914,
13 Law & Hist. Rev. 261 (1995).
163 U.S. 537, 551 (1896) (rejecting proposition that
"social prejudices may be overcome by legislation, and that equal rights cannot
be secured to the negro except by an enforced commingling of the two races").
Id. at 544, 551.
n225. Litwack, supra note 221, at 265. For an expression of this concern, see
Miles, 55 Pa. at 213-14, quoted supra note 222.
n226. Judges called upon to reconcile Jim Crow with the Fourteenth Amendment
disclaimed that they were enforcing a legal system predicated on values of
white supremacy. By narrowly circumscribing the boundaries of law's
"proper domain," legal elites defined an arena in which they could say that formal equality of
citizenship prevailed between
"the two races." Privacy talk, not hierarchy talk, was invoked to justify this restriction on
the ambit of equal protection; thus, Plessy held that the Constitution would
protect equality in
"civil and political rights," but would not enforce equality in
"social" rights, i.e., the
"enforced commingling of the two races."
Plessy, 163 U.S. at 551-52.
Over 60 years after Plessy was decided, Herbert Wechsler still viewed
"freedom of association" as a
"neutral principle" that justified a regime of separate-but-equal, and called into question the
Court's decision in Brown. See Herbert Wechsler, Toward Neutral Principles of
73 Harv. L. Rev. 1, 34 (1959):
But if the freedom of association is denied by segregation, integration forces
an association upon those for whom it is unpleasant or repugnant.... Given a
situation where the state must practically choose between denying the
association to those individuals who wish it or imposing it on those who would
avoid it, is there a basis in neutral principles for holding that the
Constitution demands that the claims for association should prevail?
Plessy, 163 U.S. at 543 ("A statute which implies merely a legal distinction between the white and
colored races - a distinction which is founded in the color of the two races,
and which must always exist so long as white men are distinguished from the
other race by color - has no tendency to destroy the legal equality of the two
races, or re<um e>stablish a state of involuntary servitude."); see also
Miles, 55 Pa. at 213-14 ("But to assert separateness is not to declare inferiority in either; it is not
to declare one a slave and the other a freeman - that would be to draw the
illogical sequence of inferiority from difference only.").
n228. See, e.g., Litwack, supra note 221, at 376-79 (explaining that post-Civil War
labor regimes perpetuated dependence of freedmen on former masters).
n229. See Bryan S. Turner, Status 2-8 (1988) (discussing literature on status, with
particular attention to sociology of ascriptive status groups, which are
organized on basis of attributes over which individuals have little or no
control, such as gender or race).
n230. For examples of the emergent interest in rule-equality, see supra note 222
(upholding racial segregation in accommodations) and supra text accompanying
note 142 (announcing immunity for interspousal assault). See also Siegel, Home
As Work, supra note 38, at 1170-73 (tracing emergence of rule-equality in
marital inheritance rights during postbellum period). In this period, judges
who engaged in justifying laws that tended to preserve race and gender
stratification began expressly to disavow caste-based justifications for the
rules. This was especially true in matters of race, because segregative
practices had to be reconciled with federal antidiscrimination law, see supra
notes 222-28 and accompanying text. Reform of gender status law through the
married women's property acts proceeded more incrementally, with judges
continuing to invoke the hierarchical tenets of marital unity doctrine as they
interpreted the reform statutes throughout the nineteenth century; but, as
reform progressed, judges began to repudiate overtly caste-based rationales and
seek other reasons of
"public policy" to justify status-enforcing features of the body of marriage law that emerged
from reform, see, e.g., supra text accompanying notes 181-91.
n231. Some courts expressed a continuing commitment to the unity concepts of the
common law; others expressed their concerns in the course of interpreting the
married women's property acts, asserting that statutes in derogation of the
common law were to be construed narrowly. See supra text accompanying notes
n232. Paul Brest, The Supreme Court, 1975 Term - Foreword: In Defense of the
90 Harv. L. Rev. 1, 7-8 (1976) (discussing race discrimination).
n233. In reflecting on this question, it is helpful to consider the distinction that
Austin Sarat and Thomas Kearns draw between
"constitutive" perspectives on the law-and-society relationship. See Austin Sarat
& Thomas R. Kearns, Beyond the Great Divide: Forms of Legal Scholarship and
Everyday Life, in Law in Everyday Life 21 (Austin Sarat
& Thomas R. Kearns eds., 1993). Of the instrumentalist view, Sarat and Kearns
Law, in the instrumentalist account, mirrors society. Changes in law tend to
follow social changes and often intend to do no more than make those changes
permanent. Legal rules are used to maintain, reproduce, and alter the everyday
in conscious, rational, and planned ways. Instrumentalism denies that law is
already an integral part of that which it regulates.
Id. at 25 (footnote omitted). While instrumentalism
"conceives of law as largely external to the social practices it regulates," the constitutive conception of law detects its effects
"in meanings and self-understandings rather than in the results of sanctions."
Id. at 27.
Those who adopt the constitutive perspective believe that law permeates social
life and that its influence is not adequately grasped when law is treated as an
external, normative missile launched at independent, ongoing activities.... We
are not, as instrumentalists suggest, merely pushed and pulled by laws that
impinge on us from the outside. Rather, we have internalized law's meanings and
its representations of us, so much so that our own purposes and understandings
can no longer be extricated from them.
Id. at 29; Reva B. Siegel, In the Eyes of the Law: Reflections on the Authority of Legal
Discourse, in Law's Stories 225, 226 (Paul Gewirtz
& Peter Brooks eds., 1996) [hereinafter Siegel, In the Eyes of the Law] ("We are not always conscious of how legal discourse exerts authority in our
lives, for the simple reason that we understand important aspects of our social
universe through the language of the law"; law thus
"plays a more pervasive and less perceptible role in ordering social
relationships" than is often appreciated.).
n234. Cf. Robert W. Gordon, Critical Legal Histories,
36 Stan. L. Rev. 57, 59-60, 102-13 (1984) (analyzing and deconstructing relationship between
n235. The few accounts we have of domestic assault cases from the late nineteenth
century report that men reasoned about their wives in the language of
prerogative and property. See Cobbe, supra note 15:
Every brutal-minded man, and many a man who in other relations of life is not
brutal, entertains more or less vaguely the notion that his wife is his thing,
and is ready to ask with indignation (as we read again and again in the police
reports), of any one who interferes with his treatment of her,
"May I not do what I will with my own?' It is even sometimes pleaded on behalf
of poor men, that they possess nothing else but their wives, and that,
consequently, it seems doubly hard to meddle with the exercise of their power
in that narrow sphere!
Id. at 62-63; see also Haag, supra note 50, at 462 ("The right of men to the property of their wives surfaces most perniciously in
the language of possession and almost annihilistic sense of prerogative that
color testimonies of domestic assault.").
n236. Cf. supra notes 129-32 and accompanying text.
n237. See Michael Grossberg, Governing the Hearth: Law and the Family in
Nineteenth-Century America 120-26, 155-95 (1985) (discussing nineteenth-century
attempts to regulate polygamy, contraception, and abortion); see also Siegel,
Reasoning from the Body, supra note 119, at 282 (exploring nineteenth-century
campaign to criminalize abortion and contraception); Sarah Barringer Gordon,
"The Twin Relic of Barbarism": A Legal History of Anti-Polygamy in Nineteenth-Century America (1995)
(unpublished Ph.D. dissertation, Princeton University) (offering in-depth
account of campaign against polygamy).
Roe v. Wade, 410 U.S. 113 (1973) (concluding that right to privacy protects abortion decision) with
Harris v. McRae, 448 U.S. 297 (1980) (finding that government program that pays for childbirth but not abortion
expenses of poor women does not interfere with exercise of their
constitutionally protected privacy right to make decisions about abortion). The
gender-, class-, and race-salience of privacy discourses is also apparent in
contemporary proposals for birth-deterring regulation of poor women (e.g.,
drug-dependent pregnant women and welfare recipients). See Reva B. Siegel,
Abortion as a Sex Equality Right: Its Basis in Feminist Theory, in Mothers in
Law: Feminist Theory and the Legal Regulation of Motherhood 43, 56-57 (Martha
& Isabel Karpin eds., 1995) [hereinafter Siegel, Abortion as a Sex Equality
Right] (comparing and distinguishing birth-compelling and birth-deterring
regulation of women's conduct); Siegel, Reasoning from the Body, supra note
119, at 344 ("Would this society so readily contemplate criminal prosecution,
"protective' incarceration, or custody-deprivation as responses to maternal
addiction if the policies were to be applied to privileged women rather than
the poor?... Today as in the past, judgments about motherhood in this society
are delineated by class and race, as well as by sex."). See generally Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies:
Women of Color, Equality, and the Right of Privacy,
104 Harv. L. Rev. 1419, 1419-82 (1991) (demonstrating that constitutional privacy doctrines are applied in race- and
class-salient fashion, and proposing new legal protections for women of color).
n239. It was for this reason that values of
"privacy" came to play such a significant role in justifying racial and gender status
law during the Reconstruction Era, explaining legal rules that might have been
justified in hierarchy-based rhetoric during the antebellum era. See supra note
230 and accompanying text.
n240. Of all legal elites, judges are perhaps the most subject to the imperative to
rationalize their action with
"split-the-difference" approach to compromise that characterizes legislative activity does not
suffice to justify the act of judging. Finally, judges are trained in the art
"translation": They regularly apply old doctrines to new fact situations, seeking to do so
in a fashion that has fidelity to the past. Cf. Lawrence Lessig, Understanding
Changed Readings: Fidelity and Theory,
47 Stan. L. Rev. 395, 443 (1995) ("Translation yields different readings of what went on before only to make what
went before understandable to the reader today. Its aim is not to change the
past, but to recover it, as if (for we can always act as if) we can recover
n241. See supra text accompanying notes 227-31.
n242. To date, few scholars have explored the common law roots of constitutional
privacy doctrines. An exception is Barbara Woodhouse, who has provided a rich
account of the diverse social forces shaping the Supreme Court's first family
Meyer v. Nebraska, 262 U.S. 390 (1923), and
Pierce v. Society of Sisters, 268 U.S. 510 (1925). See Barbara B. Woodhouse,
"Who Owns the Child?": Meyer and Pierce and the Child as Property,
33 Wm. & Mary L. Rev. 995 (1992). Woodhouse demonstrates how the parental liberty interest recognized in Meyer
and Pierce drew upon parental property interests in children of the sort long
recognized in the Anglo-American common law tradition. See
id. at 1036-50, 1064-68, 1089-91. On the common law tradition giving the male head of the household mastery over
its members, see supra text accompanying notes 18, 102.
n243. For a skeptical evaluation of the emancipatory potential of privacy
discourses, see Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life
and Law 101-02 (1987) (observing that there is something problematic in
"seeking protection [for abortion] behind a right to... privacy" when
"the legal concept of privacy... has shielded the place of battery, marital
rape, and women's exploited labor; has preserved the central institutions
whereby women are deprived of identity, autonomy, control and self-definition"); Roberts, supra note 238, at 1463-71 (analyzing ways in which privacy
discourses have failed to protect women of color). For a skeptical evaluation
of the values of racial assimilation embraced by Brown, see Jerome M. Culp,
Jr., Black People in White Face: Assimilation, Culture, and the Brown Case,
36 Wm. & Mary L. Rev. 665, 675-82 (1995) (arguing that Brown and cases following it replaced a regime of racial
segregation with a regime of putatively race-neutral policies that tacitly
privilege white over African-American culture). See also Anthony E. Cook, The
Spiritual Movement Towards Justice,
1992 U. Ill. L. Rev. 1007, 1012 (remarking of Brown that
"what was promised to be a program of integration has turned out to be one of
assimilation in which the racist assumption of White superiority was left
unchecked"); cf. Steven A. Holmes, Look Who's Saying Separate is Equal, N.Y. Times, Oct.
1, 1995, 4, at 1 (describing various forces in African-American community that
have recently expressed support for new forms of racial separatism).
n244. See Siegel, In the Eyes of the Law, supra note 233, at 228-31 (tracing life of
"colorblindness" trope in postslavery discourses of citizenship); see also J.M. Balkin,
Ideological Drift and the Struggle Over Meaning,
25 Conn. L. Rev. 869, 872-73 (1993) (tracing
"ideological drift" of colorblindness trope).
Arguments against affirmative action do not simply employ the language of
colorblindness and formal equality; they often explicitly invoke the mantle of
the civil rights movement of the 1950s and 1960s. So, for example, when Senator
Robert Dole announced his support for California legislation prohibiting
affirmative action, he asserted that
"the voters of California can strike a blow for the principle of equal
opportunity by passing the California Civil Rights Initiative," explaining that
"the initiative is a direct descendant of the Civil Rights Act of 1964." Bob Dole, End of Quotas, Discrimination Deserves Vote, Ariz. Republic, Nov.
27, 1995, at B7. Opponents of affirmative action programs draw upon the
language of the civil rights tradition in diverse ways. For instance, see
Michelle A. McManus, End the Discrimination of Affirmative Action, Detroit
News, Oct. 27, 1995, at A9:
Continued affirmative action quotas relegate women and minorities to
second-class citizen status. The message it sends declares them inferior to men
and whites and in need of government regulation to get a job, gain entrance to
college or earn a scholarship. America makes victims of more than half its
citizens with the sham of affirmative action.
See also Paul C. Roberts, The Rise of the New Inequality, Wall St. J., Dec. 6,
1995, at A20 ("Over the past two decades we have inadvertently created a caste society in
which there are two classes of citizens: those who are protected by civil
rights laws and white males, who are not."). In these arguments, affirmative action and other forms of race-conscious
remedies are equated with the racism the civil rights movement fought. See,
e.g., Jonathan J. King, Affirmative Action Serves to Destroy and Divide Nation,
Fresno Bee, Sept. 23, 1995, at B5 ("Liberals.... are locked into an orthodoxy that requires human beings to be
classified by race by government authorities; a practice as evil as anything
they are fighting."); Joseph Neff, Future of Race-Based Districting May Ride On N.C. Case, Raleigh
& Observer, Dec. 5, 1995, at A1 (""There should not be racial quotas for any political office, and districts
should not be drawn with the view of getting racial results.... If we have this
sort of thing, we might as well go back to the era when we had separate
entrances to buildings and separate seating in theaters.'" (quoting plaintiff in voting rights case)); Richard Rorty, Color-Blind in the
Marketplace, N.Y. Times, Sept. 24, 1995, 7 (Book Review), at 9 (quoting author
Dinesh D'Souza as arguing that
""today the most formidable ideological barrier facing blacks... is not racism
Of course, this dynamic extends well beyond the affirmative action context. In
a forthcoming account of the attack on
"political correctness," Jamie Boyle, Mark Hager, and Jamie Raskin argue that
the most remarkable shift in conservative rhetoric in the nineteen nineties was
the wholesale - rather than retail - adoption of the language of formal
equality, and its use to attack everything from speech codes and affirmative
action, to communications policy and product liability law. This shift has been
going on for a long time, but it is at its clearest and most conscious in the
remarkable linkages that a group of conservative intellectuals drew between the
regulation of speech on campuses, minority scholarships, affirmative action
hiring and feminist or Afrocentrist teaching. To put it bluntly, the PC debate
is the historical moment when the language of formal equality - the lingua
franca of the early civil rights movement - passes from liberals to
James Boyle et al.,
"Politically Correct": Conservative Mythologies in Higher Education 4 (1995) (unpublished
manuscript, on file with author).
n245. Feminist and antiracist arguments about
"essentialism" are now being appropriated and transformed by opponents of race-conscious
remedies, much as the colorblindness argument was. Initially, scholars
analyzing gender and race stratification described how an observer's social
status or position could influence her perception of social relationships,
arguing that this kind of positional bias often results in
"essentialist" claims - generalizations about a group that reflect the experience of certain,
socially privileged group members rather than the experience of all group
members. See, e.g., Feminist Legal Theory: Readings in Law and Gender 201-80
(Katharine T. Bartlett
& Rosanne Kennedy eds., 1991) (group of essays by Robin West, Angela Harris, and
Patricia Cain written between 1988 and 1990 that expose, respectively, gendered
assumptions of male legal theorists, racial assumptions of white feminist legal
theorists, and sexual assumptions of heterosexual feminist legal theorists);
Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist
Thought (1988) (analyzing ways in which feminist claims about
"women" often reflect experience and concerns of white and otherwise privileged
members of group). By the late 1980s, the critique of essentialism was
appropriated by critics who were not interested in problems of positional bias,
but instead objected to the possibility of making any general claims about the
distinctive situation, experience, or
"voice" of groups that have suffered discrimination. See generally Angela P. Harris,
Foreword: The Jurisprudence of Reconstruction,
82 Cal. L. Rev. 741, 754-55 (1994) (describing
With this new focus, the critique made its way into Supreme Court
jurisprudence, supplying a new basis for objecting to
"benign," race-conscious civil rights measures (e.g., race-based preferences in the
award of radio-broadcast licenses; race-conscious design of voting districts).
Not only did such race-based programs discriminate against white people; now
they were also said to discriminate against people of color by making
"stereotypical" assumptions about the perspectives or opinions of people of color. See, e.g.,
Miller v. Johnson, 115 S. Ct. 2475, 2486 (1995) ("When the State assigns voters on the basis of race, it engages in the offensive
and demeaning assumption that voters of a particular race, because of their
"think alike, share the same political interests, and will prefer the same
candidates at the polls.'" (quoting
Shaw v. Reno, 113 S. Ct. 2816, 2827 (1993)));
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 604 (1990) (O'Connor, J., dissenting) ("Such [race-based] policies may embody stereotypes that treat individuals as the
product of their race, evaluating their thoughts and efforts - their very worth
as citizens - according to a criterion barred to the Government by history and
n246. See Balkin, supra note 244.
n247. See supra text accompanying notes 227-31.
n248. One might oppose affirmative action because it is against the interests of
white males, but such a reason could be characterized as an interest in
preserving race and gender stratification itself. Cf. Robert Pear, Report to
Clinton Has a Mixed View on Minority Plans, N.Y. Times, May 31, 1995, at A1 ("A confidential report prepared for the President... analyzes the reasons for
"white male resentment' of [affirmative action]"; during recent speech to California Democratic party, the President declared,
""This is psychologically a difficult time for a lot of... so-called angry white
males,' who feel they have been treated unfairly."). If instead one opposes affirmative action out of fidelity to principles of
equality that Martin Luther King espoused, one stands on moral high ground.
Thus, when the President recently attributed opposition to affirmative action
to the resentment of
"angry white males," see Pear, supra, the editor of the New Republic publicly chastised him,
"Mr. Clinton can only understand the opposition as a response of
"white males.' He doesn't seem to have noticed that there are other principles
involved, such as those of fairness and liberty." Andrew Sullivan, Let Affirmative Action Die, N.Y. Times, July 23, 1995, 4, at
n249. See infra text accompanying notes 254-75; see also Siegel, In the Eyes of the
Law, supra note 233, at 230.
n250. See supra note 245.
n251. Of course, nothing in the account of modernization I offer requires that new
status discourses be generated out of coopted protest discourses. For example,
the discourse of affective privacy was only tangentially related to the
advocacy of the woman's rights movement, which embraced companionate marriage
concepts, but generally deployed them in more egalitarian terms. On the other
hand, my account of the modernization of status regimes does explain why old
protest discourses are especially attractive candidates for cooptation into
status discourses. As I indicate in the text, old protest discourses provide
seemingly unimpeachable grounds for defending the structure of a status regime
when its legitimacy is under attack.
n252. See supra text accompanying note 220.
n253. See Siegel, Abortion as a Sex Equality Right, supra note 238; Siegel,
Modernization, supra note 38; Siegel, Reasoning From the Body, supra note 119.
n254. See, e.g.,
Craig v. Boren, 429 U.S. 190, 197 (1976) (applying intermediate standard of scrutiny which requires
"that classifications by gender must serve important governmental objectives and
must be substantially related to achievement of those objectives");
Loving v. Virginia, 388 U.S. 1 (1967) (applying
"strict scrutiny" to race-based state action).
n255. See infra text accompanying notes 260-80 (discussing impact on domestic
n256. For a popular expression of this conviction, see King, supra note 244, at B5:
From the creed that pervasive racism defines America has developed an equally
destructive axiom: The wrongs done to individuals in the past must be remedied
by ensuring that the victims' ethnic or racial groups are proportionally
represented in every institution and endeavor. It does not matter if we are
generations removed from the wrongs.
Id. (emphasis added). See also Pamela Newkirk, At Lunch with Bebe Moore
Campbell, N.Y. Times, Nov. 15, 1995, at C1 ("Take affirmative action and the rage of the white male.
"I understand where they're coming from,' [Campbell] said.
"My parents didn't own slaves. Let's get on with it."'"); Noel R. Wood, What Next? Ban Old Glory?, Roanoke Times
& World News, July 31, 1993, at A9 (arguing that Senators who voted to end
patent protection for Daughters of Confederacy seal wronged
"[author's] great grandfathers... who did not own slaves").
The view that social stratification by race and gender is the result of overtly
classificatory practices of the past (rather than facially neutral practices of
the present) is expressed in diverse ways by actors in the legal system. See,
Fullilove v. Klutznick, 448 U.S. 448, 465 (1980) (""The effects of past inequities stemming from racial prejudice have not remained
in the past. The Congress has recognized the reality that past discriminatory
practices have, to some degree, adversely affected our present economic system.'" (quoting H.R. Rep. No. 468, 94th Cong., 1st Sess. 1-2 (1975)));
Podberesky v. Kirwan, 956 F.2d 52, 57 (4th Cir. 1992) (refusing to award race-based remedy absent showing of
"some present effect" of past discrimination where
"identifiable discrimination [as distinct from facially neutral policies]
occurred a number of years in the past"), cert. denied,
115 S. Ct. 2001 (1995); Paul Gewirtz, Remedies and Resistance,
92 Yale L.J. 585, 675 n.245 (1983) (terming attempts to
"reduce[ ] an underrepresentation of blacks in the employer's workforce
attributable to past discrimination"
"the more traditional justification for affirmative action"). But cf. Charles R. Lawrence III, The Id, the Ego, and Equal Protection:
Reckoning with Unconscious Racism,
39 Stan. L. Rev. 317, 322 (1987) (challenging
"false dichotomy" shaping Supreme Court's view
"of facially neutral actions as either intentionally and unconstitutionally or
unintentionally and constitutionally discriminatory").
Washington v. Davis, 426 U.S. 229 (1976) (requiring plaintiffs who challenge facially neutral state action as violating
equal protection to demonstrate that challenged practice was animated by
Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979) (""Discriminatory purpose'... implies more than intent as volition or intent as
awareness of consequences.... It implies that the decisionmaker... selected or
reaffirmed a particular course of action at least in part,
"because of,' not merely
"in spite of,' its adverse effects." (citation omitted)).
n259. In a recent voting rights decision, the Court bluntly observed that
"the distinction between being aware of racial considerations and being
motivated by them may be difficult to make."
Miller v. Johnson, 115 S. Ct. 2475, 2488 (1995). Because it is so hard to prove discriminatory purpose under the Equal
Protection Clause, most institutions, practices, and values are
constitutionally characterized as race-neutral. For example, in Miller the
Court characterized the practice of drawing voting-district lines to reflect
"compactness, contiguity, respect for political subdivisions or communities
defined by actual shared interests" as an expression of
"traditional race-neutral districting principles." Id.
n260. See, e.g., supra notes 49, 55, 196 and accompanying text.
429 U.S. 190 (1976).
n262. Cf. Barbara Hart, State Codes on Domestic Violence: Analysis, Commentary and
Recommendation, 43 Fam. Ct. Juv.
& J. 3, 3 n.5 (1992) ("While it is true that as many as 5% of those harmed by domestic violence are
men, the use of gender neutral language masked the reality that those most at
risk for life-imperiling violence are women."); Margaret Thornton, Feminism and the Contradictions of Law Reform, 19 Int'l
J. Soc. L. 453, 460 (1991) (observing that
""spousal abuse' suggests a non-existent neutrality" and
"domestic violence' itself disguises which sex is responsible for the
preponderance of the battering").
n263. See supra text accompanying note 88.
Hobson v. Pow, 434 F. Supp. 362, 367 (N.D. Ala. 1977) ("No compelling, or even rational, state policy has been suggested to explain why
conviction of men for assault and battery against the spouse is a cause for
disqualification while the conviction of women for the same offense is not
n265. Equal protection litigation prompted (but did not require) the California
legislature to revise the statute, codified at Cal. Penal Code 273.5 (West
People v. Cameron, 53 Cal. App. 3d 786, 797 (1975) (upholding constitutionality of wife-beating statute but suggesting that
California legislature might consider making statute
"applicable to both spouses" and suggesting that recommended change might
"afford[ ] some additional protection to the marital state"). See generally
People v. Gutierrez, 217 Cal. Rptr. 616, 618 (Ct. App. 1985) (describing interaction between courts and legislature prompting
transformation of gender-specific wife-beating statute into legislation
regulating assault between spouses or cohabitants).
n266. See Ga. Code Ann. 26-13 (Harrison 1977); 1979 Md. Laws 307, 11F; 1976 Tenn.
Pub. Acts 565 (codified at Tenn. Code Ann. 39-602 (1981)).
n267. See Pleck, Domestic Tyranny, supra note 33, at 194.
n268. Cf. Susan Brownmiller, Against Our Will: Men, Women and Rape 424-25 (1975)
(recommending gender-neutral sexual assault laws). This advocacy of formally
gender-neutral laws reflects the comparative logic that marked 1970s feminism.
See Catharine A. MacKinnon, Reflections on Sex Equality Under Law,
100 Yale L.J. 1281, 1286 (1991); Nadine Taub
& Wendy W. Williams, Will Equality Require More Than Assimilation, Accommodation
or Separation from the Existing Social Structure?,
37 Rutgers L. Rev. 825, 827 (1985); Joan C. Williams, Deconstructing Gender,
87 Mich. L. Rev. 797, 798-99 (1989). But feminist litigators sought to reform the substance, as well as the form,
of domestic violence policies. Reforming only the language of the policies
while leaving their underlying norms intact would not protect women from their
partners' abuse. As Carrie Menkel-Meadow observes,
"gender bias' by neutralizing husbands and wives and mothers and fathers into
more equal spouses and parents (that ignored the situated differences of these
roles) helped expose how formal and rhetorical equality was not entirely
responsive to women's needs for substantive, actual or outcome equality." Carrie Menkel-Meadow, Mainstreaming Feminist Legal Theory,
23 Pac. L.J. 1493, 1506 (1992) (citation omitted). Indeed, some feminist activists are now concerned that
policymakers' use of gender-neutral language in dealing with issues of domestic
violence actually aggravates the problem by providing the appearance of reform
while masking the continuing gender-specificity of the problem. In view of this
"many feminists [now] insist on using
"battered woman' in preference to terms such as
"spouse abuse' which are not gender specific in order to emphasize that women,
not men, are almost always the target of intraspousal [sic] abuse." Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of
90 Mich. L. Rev, 1, 25 (1991); see Wini Breines
& Linda Gordon, The New Scholarship on Family Violence, 8 Signs 490, 510-13
(1983) (criticizing ways in which language of
"family violence" obscures gendered differences in manifestations of violence).
n269. See supra text accompanying notes 202-05.
n270. The leading case in this area is
Hynson v. City of Chester Legal Dep't, 864 F.2d 1026, 1031 (3d Cir. 1988) ("If the categories used by the police in administering the law are domestic
violence and nondomestic violence, this is not sufficient to raise a claim for
gender-based discrimination absent a showing of an intent, purpose or effect of
discriminating against women."). For other examples of circuit court decisions following Hynson, see
Navarro v. Block, 72 F.3d 712 (9th Cir. 1996) (reversing district court's dismissal of equal protection claim on summary
judgment because issues of material fact remained as to whether county had
custom of not classifying domestic violence 911 calls as emergencies, in which
case policy might fail even rational basis test);
Eagleston v. Guido, 41 F.3d 865, 878 (2d Cir. 1994);
Ricketts v. City of Columbia, 36 F.3d 775, 779 (8th Cir. 1994);
Brown v. Grabowski, 922 F.2d 1097, 1101 (3d Cir. 1990);
Watson v. City of Kansas City, 857 F.2d 690 (10th Cir. 1988). An early case that stimulated public awareness of the sexually discriminatory
implications of traditional domestic violence policies,
Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984), assumed for the purpose of denying a motion to dismiss that plaintiff's
allegations of gender-based discrimination were true, noting that in the vast
number of cases, it is the husband who has abused his wife; but the court did
"it may develop that the classification in the instant case is not one based on
gender, but instead consists of all spouses who are victims of domestic
violence - male and female."
Id. at 1528 n.1; see also
Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990) (where complaint alleged that responding police officer
"stated that he did not blame plaintiff's husband for hitting her, because of
the way she was
"carrying on.'... such remarks strongly suggest an intention to treat domestic
abuse cases less seriously than other assaults, as well as an animus against
abused women"), distinguished in
Navarro, 72 F.3d at 717 (stating that Navarros had failed to offer any evidence of the sort of
"invidious intent or motive" found in Balistreri).
Thus, a municipality defending a domestic violence policy couched in
"gender neutral" terms need only show that it meets the
"rational relation" test. See infra text accompanying notes 277-80.
Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979) (""Discriminatory purpose'... implies more than intent as volition or intent as
awareness of consequences. It implies that the decisionmaker... selected or
reaffirmed a particular course of action at least in part
"because of,' not merely
"in spite of,' its adverse effects...."). In general, courts evaluating equal protection challenges to facially
neutral domestic violence policies have reasoned that plaintiffs seeking to
prove sex discrimination would have to show that state actors acted in
accordance with Feeney's definition of discriminatory purpose. For circuit
court opinions setting forth this framework, see
Navarro, 72 F.3d at 712;
Eagleston, 41 F.3d at 878;
Ricketts, 36 F.3d at 781;
Hynson, 864 F.2d at 1031;
Watson, 857 F.2d at 696-97. See also
Soto v. Carrasquillo, 878 F. Supp. 324, 329 (D.P.R. 1995);
Smith v. City of Elyria, 857 F. Supp. 1203, 1211 (N.D. Ohio 1994); cf.
Pinder v. Commissioners of Cambridge, 821 F. Supp. 376, 385 (D. Md. 1993) ("Policies that are facially neutral may trigger intermediate scrutiny when the
policy has a disproportionate impact on women that results from purposeful or
n272. Most courts that have abrogated the doctrine of interspousal immunity, in
whole or in part, have done so on common law grounds. See supra note 163
(discussing current state of interspousal tort immunity law). A number of
courts have explicitly rejected claims that the doctrine of interspousal
immunity should be abrogated on equal protection grounds. In
Alfree v. Alfree, 410 A.2d 161 (Del. 1979), the Delaware Supreme Court stated that
"based on current precedent, there appears to be no Federal constitutional
limitation on the interspousal immunity doctrine."
Id. at 163. Although Alfree was overruled in
Beattie v. Beattie, 630 A.2d 1096, 1100 (Del. 1993), the Beattie court abrogated the doctrine on common law grounds only. In
Nicpon ex rel. Urbanski v. Nicpon, 495 N.E.2d 1193 (Ill. App. Ct. 1986), the court rejected plaintiff's argument that the Illinois interspousal
immunity statute (applicable to negligent torts only) should be analyzed under
doctrines of intermediate scrutiny, and held that the statute survived equal
protection challenge under standards of
Id. at 1196; see also
Locklair v. Locklair, 256 F. Supp. 530, 533 (D.S.C. 1966) (upholding doctrine and reasoning that
"there is no discrimination nor denial of equal protection of the laws...
inasmuch as the Georgia law applies equally to husbands as well as to wives");
State Farm Mut. Auto. Ins. Co. v. Palmer, 463 N.E.2d 129, 131 (Ill. App. Ct. 1984) (holding that interspousal immunity doctrine is abrogated as to intentional
torts only, and that interspousal immunity is not unconstitutional on either
due process or equal protection grounds); cf.
Paiewonsky v. Paiewonsky, 446 F.2d 178, 182 (3d Cir. 1971) (holding that
"legislative interest in promoting domestic tranquility is sufficiently
compelling" and that
"the immunity doctrine... has a reasonable relationship to the interest sought
to be furthered by it").
Several courts have held that interspousal immunity fails even the rational
basis test. See, e.g.,
Moran v. Beyer, 734 F.2d 1245, 1248 (7th Cir. 1984);
Jones v. Jones, 376 S.E.2d 674, 675 (Ga. 1989). Some courts, in abrogating the doctrine on common law grounds, have added a
single-sentence comment about equal protection considerations. See, e.g.,
Burns v. Burns, 518 So. 2d 1205, 1211 (Miss. 1988);
Price v. Price, 732 S.W.2d 316, 320 (Tex. 1987).
n273. See Robin West, Progressive Constitutionalism: Reconstructing the Fourteenth
Amendment 62 (1994) ("[A] court conceivably could decide that, ancient history notwithstanding, a
[marital rape] statute recently cleansed of gender-specific language is freed
of its misogynistic heritage and that its recent legislative history provides
the sole source of its constitutionality.");
West, supra note 214, at 46-48, 63-68 (reviewing arguments for and against
constitutionality of marital rape laws, and discussing difficulty of
challenging marital rape laws, especially when they are redrafted in
gender-neutral terms). For an argument that both gender-specific and
gender-neutral marital rape laws discriminate against women and violate the
Equal Protection Clause, see Note, To Have and to Hold: The Marital Rape
Exemption and the Fourteenth Amendment,
99 Harv. L. Rev. 1255, 1267-72 (1986).
Borelli v. Brusseau, 16 Cal. Rptr. 2d 16 (Ct. App. 1993), an equal protection challenge to a gender-neutral version of the old common
law doctrine of marital service was summarily rejected on the grounds that the
gender neutrality of the rule cleansed it of any historical taint:
We agree with the dissent that no rule of law becomes sacrosanct by virtue of
its duration, but we are not persuaded that the well-established rule that
governs this case deserves to be discarded. If the rule denying compensation
for support originated from considerations peculiar to women, this has no
bearing on the rule's gender-neutral application today.
Id. at 20; see also Siegel, Modernization, supra note 38, at 2196-99 (discussing Borelli).
n275. Obviously, domestic violence policies were not the only aspects of family law
affected by the emerging sex discrimination case law of the 1970s. For example,
even before the Court held in
Orr v. Orr, 440 U.S. 268, 283 (1979), that gender-based alimony statutes violated the Equal Protection Clause,
"about 40 states had already
"desexed' alimony and authorized its award, under appropriate circumstances, to
either spouse." Doris Jonas Freed
& Henry H. Foster, Jr., Divorce in the Fifty States: An Overview,
14 Fam. L.Q. 229, 252 (1981). In the years after Orr, the remaining states followed suit. See
id. at 253.
In this period, some states adopted statutes that eliminated gender
distinctions from whole bodies of law. See, e.g., id. (describing New York
statute adopted in 1980 that removed gender distinctions from
"Domestic Relations Law, Family Court Act, and other existing statutes"); Note, The Significance of Stokes v. Stokes: An Examination of Property
Rights upon Divorce in Georgia,
16 Ga. L. Rev. 695, 705-06 n.55 (1982). The Note discusses 1979 Ga. Laws 466, which provided in pertinent part:
"It is the intent of this Act to revise and modernize certain laws of this State
which relate to intrafamilial duties, rights and obligations, including laws
relating to divorce, alimony, support of minors, husband and wife, parent and
child, enforcement of support, and related matters, so as to comply with those
standards of equal protection under the law announced in the United States
Supreme Court decision in the case of Orr v. Orr...."
n276. Making a race- or gender-specific law facially neutral may have very different
consequences, depending on a variety of factors, including: the nature of the
law, the nature of the social practice it regulates, and the ways in which the
regulated practice allocates dignitary and/or material privileges. While the
topic is far too vast to explore in the present context, several examples
should suffice to illustrate my point. Removing racial distinctions from a
school assignment policy may facilitate the integration of a school system, but
will have less of an integration effect if the policy endorses
"neighborhood" school assignments under conditions of residential segregation. Removing
gender distinctions from a law conscripting persons for military service will
facilitate the integration of the armed forces, but will have less of an
integration effect if the conscription policy specifies height, weight, and
strength requirements that relatively few women can meet. Removing gender
distinctions from the law of rape will not much alter the social conditions
under which rapes are practiced; nor will removing gender distinctions from
domestic violence law much alter the practice of
"spouse beating." Making such laws facially neutral does not alter the constraints on men who
assault women; rather, it extends the scope of the prohibition to include
women. Presumably this reform will have a marginal deterrent effect on women's
conduct, but none on men's conduct. Nor is it clear what
"symbolic" message is communicated by making gender-specific laws regulating
gender-salient practices into gender-neutral laws. To disrupt the subordinating
practice in these cases, it is necessary to alter the norms of the laws that
regulate it. In short, formal equality will disrupt certain subordinating
practices, and leave others relatively undisturbed - possibly even masking the
nature of the harm they are inflicting.
761 F. Supp. 503 (S.D. Ohio 1991).
Id. at 512 (emphasis added).
n279. See supra text accompanying notes 192-96 (discussing rise of criminal law
policies that treated marital violence in therapeutic paradigm premised on
"domestic trouble cases are not criminal in a legal sense").
n280. An early equal protection case,
Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984), prompted public awareness of the inadequate protections afforded women by
traditional domestic violence policies. See Carolyne R. Hathaway, Comment,
Gender Based Discrimination in Police Reluctance to Respond to Domestic Assault
75 Geo. L.J. 667, 669 (1986) ("Thurman v. City of Torrington was the first reported case in which a court held
that police conduct treating victims of domestic violence differently than
other assault victims constitutes gender based discrimination violative of the
equal protection clause."). In Torrington, the court assumed for the purpose of denying a motion to
dismiss that the plaintiff's allegations of sex discrimination were true, while
"it may develop that the classification in the instant case is not one based on
gender, but instead consists of all spouses who are victims of domestic
violence - male and female."
595 F. Supp. at 1528 n.1. In litigation after Torrington, municipalities have generally been able to
reduce their risk of adverse judgments by couching domestic violence policies
in gender-neutral terms. See supra note 270 and accompanying text.
n281. These criteria are formal, rather than historical or sociological. See, e.g.,
Personnel Adm'r v. Feeney, 442 U.S. 256 (1979) (characterizing veterans' preferences for civil service employment as
"facially neutral" policies);
Geduldig v. Aiello, 417 U.S. 484 (1974) (characterizing rules governing pregnancy-disability policy as
"facially neutral"); see also Siegel, Reasoning from the Body, supra note 119, at 354 n.373
(discussing question as it bears on equal protection challenges to abortion
policies); id. at 360 n.396.
n282. See, e.g., Laurence H. Tribe, American Constitutional Law 16-21, at 1514-15
(2d ed. 1988); Lawrence, supra note 256, at 317; David A. Strauss,
Discriminatory Intent and the Taming of Brown,
56 U. Chi. L. Rev. 935, 1014 (1989).
West, supra note 214, at 76-79 (proposing federal civil rights legislation that would,
inter alia, abolish marital rape exemption).
n284. Pub. L. No. 103-322, 40302, 108 Stat. 1941 (1994) (codified as amended at
42 U.S.C.A. 13981 (West 1995)).
n285. See S. Rep. No. 138, 103d Cong., 1st Sess. 48-50 (1993).
n286. The civil rights remedy appeared in Title III of the first version of VAWA, S.
2754, 101st Cong., 2d Sess. (1990), and remained in subsequent versions of the
bill until its enactment as Pub. L. No. 103-322, tit. IV, subtit. C., 40302,
108 Stat. 1941 (1994) (codified at
42 U.S.C.A. 13981 (West 1995)).
n287. See S. Rep. No. 138, supra note 285, at 51:
Title III's civil rights provision simply makes explicit what the Supreme Court
has already held: that violence motivated by gender is not an individual crime
or a personal injury, it is a form of discrimination. This country has been
using Federal civil rights laws to fight discriminatory violence for 120 years.
Title III is a logical extension of this tradition.
State laws do not provide, and by their nature cannot provide, a national
antidiscrimination standard. While traditional criminal charges and personal
injury suits focus on the harm to the individual, a civil rights claim
redresses an assault on a commonly shared ideal of equality. This was
Congress's understanding over 120 years ago when it passed the first civil
rights laws against violent discrimination; it remains true today.
Congress viewed the statute as an exercise of its powers under Section 5 of the
Fourteenth Amendment, as well as the Commerce Clause. See infra note 304 and
n288. See infra text accompanying notes 291-99.
n289. For example, S. 15 defined
"crime of violence motivated by gender" as
"any crime of violence, as defined in this section, including rape, sexual
assault, sexual abuse, abusive sexual contact, or any other crime of violence
committed because of gender or on the basis of gender." S. 15, 102d Cong., 1st Sess. 301(d)(1) (1991). After mark-up, the bill defined
""crime of violence motivated by gender'" as
""any crime of violence [as defined in
18 U.S.C. 16] committed because of gender or on the basis of gender.'" S. Rep. No. 197, 102d Cong., 1st Sess. 28 (1991) (quoting S. 15, 301(d)(1), as
amended). For the current language of the statute, see infra text accompanying
n290. S. Rep. No. 197, supra note 289, at 27-28 (quoting S. 15, 301(a), as amended);
see also S. Rep. No. 138, supra note 285, at 51 ("Violence motivated by gender is not an individual crime or a personal injury,
it is a form of discrimination.").
n291. While there were other constitutional concerns raised about the civil rights
remedy, during the 102d Congress criticism began
"to coalesce around the theme of federalization." Victoria Nourse, The Violence Against Women Act: A Legislative History 37
(Sept. 6, 1995) (unpublished manuscript, on file with author).
n292. Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil
and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong., 1st
Sess. 80 (1993) [hereinafter Crimes of Violence] (statement by Conference of
Chief Justices on S. 15, Violence Against Women Act of 1991, adopted by the
State-Federal Relations Committee of the Conference of Chief Justices at
meeting in Scottsdale, Arizona on Jan. 31, 1991).
n294. Id. at 80-81 (emphasis added).
n295. Id. at 83-84.
n296. Id. at 75 (quoting Report of the Proceedings of the Judicial Conference of the
United States, Sept. 23-24, 1991, at Asheville, North Carolina).
n297. Id. In 1993, after certain modifications were made to the civil rights remedy,
the Judicial Conference changed from a stance of opposition to one of taking
"no position" on the provision. See id. at 73 (Report of the Proceedings of the Judicial
Conference of the United States, Mar. 16, 1993, Washington, D.C.).
n298. See Rehnquist, supra note 216, at 1, 3.
n299. See Nourse, supra note 291, at 51-52; see also Sally F. Goldfarb,
Gender-Motivation and the Violence Against Women Act: A New Chapter in Federal
Civil Rights Law 23-24 (unpublished manuscript, on file with author).
42 U.S.C.A. 13981(b) (West 1995).
n301. Id. 13981(d)(1). Senate Report No. 138 observes:
For clarity, section 302(d)(1) has been revised from previous versions of the
act. Although discriminatory motivation has always been required by the act,
this section has been amended to require that crimes of violence be
"due, at least in part, to an animus based on the victim's gender." This new language elucidates the committee's intent that a victim alleging a
violation under this section must have been targeted on the basis of his or her
gender. The defendant must have had a specific intent or purpose, based on the
victim's gender, to injure the victim.
S. Rep. No. 138, supra note 285, at 64.
42 U.S.C.A. 13981(c) (West 1995).
n303. Id. 13981(e)(1).
n304. See id. 13981(a) (citing U.S. Const. amend. XIV, 5 and U.S. Const. art. I, 8).
n305. The inquiry presupposes that acts of rape and domestic violence can be
gender-motivated like acts of arson can be racially motivated: Some acts of
arson may result from discriminatory animus, while others may not. But a strong
case can be made that acts of rape and domestic violence are better analogized
to white-on-black lynching - a practice employed within a historically specific
status regime by status-superiors to dominate and subdue those they considered
their status-inferiors. If rape and domestic violence are more akin to lynching
than arson, then it makes little sense to attempt to determine which acts of
rape and domestic violence spring from a discriminatory or status-based animus
and which do not.
n306. Ruth Shalit, Caught in the Act, New Republic, July 12, 1993, at 12, 14
(emphasis added) (quoting Senator Orrin Hatch).
n307. See supra note 301 and accompanying text.
n308. See Rehnquist, supra note 216, at 1, 3 (emphasis added).
n309. Crimes of Violence, supra note 292, at 80-81 (emphasis added).
n310. See supra text accompanying notes 292-95. This tradition of reasoning about
intimate assault is so powerful that it also deflects attention from the many
forms of nonmarital assault the statute covers.
n311. While states regulated family law during the eighteenth century, the question
of the federal government's power to regulate the field was not, to my
knowledge, much discussed in this era. See Sylvia A. Law, The Founders on
39 U. Fla. L. Rev. 583, 586 (1987) ("Virtually nothing in the original constitutional debates directly addresses the
situation of women and families."). Michael Grossberg observes that state
"judicial dominance of domestic relations grew out of an abiding commitment to
local control that lay at the heart of nineteenth-century American family
law... [and] stemmed from the deep-seated republican aversion to centralized
government in general." Grossberg, supra note 237, at 295.
62 U.S. 582, 584 (1858) (announcing that
"we disclaim altogether any jurisdiction in the courts of the United States upon
the subject of divorce, or for the allowance of alimony"). Judith Resnik offers a detailed account of the domestic-relations exception
to federal diversity jurisdiction in her study of the gendered premises of
federal jurisdiction. See Judith Resnik,
"Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts,
66 N.Y.U. L. Rev. 1682, 1739-50 (1991).
62 U.S. at 592;
id. at 600-01 (Daniel, J., dissenting).
Id. at 602 (Daniel, J., dissenting) (emphasis added).
n315. See supra text accompanying notes 133-38. To recall, in Rhodes, the North
Carolina Supreme Court observed that
however great are the evils of ill temper, quarrels, and even personal
conflicts inflicting only temporary pain, they are not comparable with the
evils which would result from raising the curtain, and exposing to public
curiosity and criticism, the nursery and the bed chamber. Every household has
and must have, a government of its own, modelled to suit the temper,
disposition and condition of its inmates.
State v. Rhodes, 61 N.C. (Phil. Law) 453, 457 (1868).
n316. For a recent domestic-relations-exception case quoting the privacy language of
Barber's dissent, see
Ankenbrandt v. Richards, 504 U.S. 689, 702 (1992):
Enforcement of... validly obtained [divorce or alimony] orders does not
"regulate the domestic relations of society" and produce an
"inquisitorial authority" in which federal tribunals
"enter the habitations and even into the chambers and nurseries of private
families, and inquire into and pronounce upon the morals and habits and
affections or antipathies of the members of every household."
Barber, 62 U.S. at 602 (Daniel, J., dissenting)).
n317. Ellen DuBois has provided a detailed account of the controversies about woman
suffrage precipitated by the drafting of the Fourteenth Amendment. See DuBois,
supra note 36, at 53-78. Similarly, Amy Stanley has described the debates about
marital status law precipitated by enactment of the 1866 Civil Rights Act,
which barred discrimination on the basis of race in laws governing the right to
make and enforce contracts, the right to sue and to participate in litigation,
and laws concerning the security of persons and property. See Amy Dru Stanley,
Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation,
75 J. Am. Hist. 471, 477-81 (1988). Stanley observes:
Opponents of the radical program of Reconstruction challenged every assertion
that the link between freedom and contract justified federal interference with
local law. Not only did they raise the specter of black suffrage; they conjured
up equally dire images of federal regulation of marriage and sexuality.
Radicals like Sumner and Thaddeus Stevens took pains to dissociate the project
of emancipation from questions of gender. Yet the issues remained joined - not
only by the arguments of states' rights men and feminists but also by the legal
codes of southern states that classified master and slave and husband and wife
as parallel parts of the law of domestic relations.
Id. at 477. Opponents of Reconstruction argued that
"domestic relations'... both slavery and marriage were governed exclusively by
state law," and that the 1866 Civil Rights Act
"encroached on state codes that ordered relations between the races and fixed
the terms of the marriage contract." Id. at 479. Republican proponents of Reconstruction
responded by limiting the compass of emancipation, steadfastly denying that it
altered either the institution of marriage or the status of wives. Rather, they
drew a sharp line between race and gender distinctions at law and qualified the
"civil rights" to bar only discrimination based on
"race, color or previous condition of slavery."
Id. In this spirit, one Republican pointed out to Congress that the Act
permits the States to say that the wife may not testify, sue, or contract. It
makes no law as to this.... Your State may deprive women of the right to...
contract... but if you do so, or do not so as to one race, you shall treat the
other likewise.... If you do discriminate, it must not be
"account' of race, color, or former condition of slavery."
Cong. Globe, 39th Cong., 1st Sess. 1293 (1866) (statement of Rep.
Shellabarger); see also Stanley, supra, at 479-80 (quoting Shellabarger). See
generally Patricia Lucie, On Being a Free Person and a Citizen by
Constitutional Amendment, 12 Am. Stud. 343, 350, 349-56 (1978) (describing
efforts of Reconstruction Congress to change law of racial status without
changing law of gender status, and noting that in this period Republicans
"judged that when a measure went far enough to limit a state's freedom to
legislate on married women's property, family law, marriage, or divorce it went
too far in altering the balance between the federal government and the states"); Siegel, Home As Work, supra note 38, at 1148 n.271 (reviewing efforts of
Reconstruction Congress to assert federal authority over questions of race
discrimination, while leaving to the states prerogative to regulate matters
concerning questions of women's citizenship, such as suffrage and marital
Orr v. Orr, 440 U.S. 268 (1979) (striking down gender-based alimony statute on federal equal protection
grounds); see also supra note 275 and accompanying text (describing how equal
protection decisions during 1970s prompted states to replace gender-specific
family law rules with gender-neutral family law rules).
n319. Cf. Naomi R. Cahn, Family Law, Federalism, and the Federal Courts,
79 Iowa L. Rev. 1073, 1105 (1994) (noting similarity between Court's rhetoric confining family law to state
tribunals and rhetoric confining women to private sphere).
n320. See supra text accompanying note 306; see also Shalit, supra note 306, at 14
(reporting that Senator Dennis DeConcini, another Republican cosponsor of VAWA,
agreed with Senator Hatch's interpretation).
n321. Antidiscrimination law often refers to emotional or psychological states; but
the law plays a crucial role in constructing the states of mind to which it
refers. Our notions of discrimination are as importantly legal as they are
State v. Oliver, 70 N.C. 60, 61-62 (1874) (criminal immunity case), quoted in
Abbott v. Abbott, 67 Me. 304, 307 (1877) (tort immunity case).