'The rule of love': wife beating as prerogative and privacy.

• Author: Siegel, Reva B.

CONTENTS

INTRODUCTION

1. NINETEENTH-CENTURY ABOLITION OF

   MARITAL CHASTISEMENT

   A. The Right of Chastisement and Its Critics

   B. Formal Repudiation of the Right of Chastisement

   1. Relief for Battered Wives: Separation and Divorce

   2. Race and Class Bias in the Criminal Prosecution of

   Wife Beaters

2. REGULATING MARITAL VIOLENCE IN AN ERA OF

   COMPANIONATE MARRIAGE

3. THE DISCOURSE OF AFFECTIVE PRIVACY IN DOMESTIC

   ASSAULT LAW

   A. Marital Violence and Marital Privacy in

   the Criminal Law

   B. Affective Privacy in the Emerging Law of Interspousal

   Tort Immunity

   C. A Brief Reprise: Marital Privacy in the Criminal Law

   of the Twentieth Century

4. CIVIL RIGHTS REFORM AND THE MODERNIZATION OF STATUS DISCOURSE

   A. Historical Perspectives

   B. Contemporary Perspectives

   C. Discourses of Affective Privacy Today: Interpreting the Violence Against Women Act

   1. VAWA's Civil Rights Remedy for

      Gender-Motivated Violence

   2. VAWA: Rule of Love Redux

      CONCLUSION

      INTRODUCTION

      The Anglo-American common law originally provided that a husband, as master of his household, could subject his wife to corporal punishment or "chastisement" so long as he did not inflict permanent injury upon her.(1) During the nineteenth century, an era of feminist agitation for reform of marriage law, authorities in England and the United States declared that a husband no longer had the right to chastise his wife. Yet, for a century after courts repudiated the right of chastisement, the American legal system continued to treat wife beating differently from other cases of assault and battery. While authorities denied that a husband had the right to beat his wife, they intervened only intermittently in cases of marital violence: Men who assaulted their wives were often granted formal and informal immunities from prosecution, in order to protect the privacy of the family and to promote "domestic harmony."(3) In the late 1970s, the feminist movement began to challenge the concept of family privacy that shielded wife abuse, and since then, it has secured many reforms designed to protect women from marital violence.(4) Yet violence in the household persists. The U.S. Surgeon General recently found that "battering of women by husbands, ex-husbands or lovers `[is] the single largest cause of injury to women in the United States.'"(5)

      "[T]hirty-one percent of all women murdered in America are killed by their husbands, ex-husbands, or lovers."(6)

      The persistence of domestic violence raises important questions about the nature of the legal reforms that abrogated the chastisement prerogative. By examining how regulation of marital violence evolved after the state denied men the privilege of beating their wives, we can learn much about the ways in which civil rights reform changes a body of status law. In the nineteenth century, and again in the twentieth century, the American feminist movement has attempted to reform the law of marriage to secure for wives equality with their husbands. Its efforts in each century have produced significant changes in the law of marriage. The status of married women has improved, but wives still have not attained equality with their husbands--if we measure equality as the dignitary and material "goods" associated with the wealth wives control, or the kinds of work they perform, or the degree of physical security they enjoy. Despite the efforts of the feminist movement, the legal system continues to play an important role in perpetuating these status differences, although, over time, the role law plays in enforcing status relations has become increasingly less visible.

      As this Article will show, efforts to reform a status regime do bring about change--but not always the kind of change advocates seek. When the legitimacy of a status regime is successfully contested, lawmakers and jurists will both cede and defend status privileges--gradually relinquishing the original rules and justificatory rhetoric of the contested regime and finding new rules and reasons to protect such status privileges as they choose to defend. Thus, civil rights reform can breathe new life into a body of status law, by pressuring legal elites to translate it into a more contemporary, and less controversial, social idiom.(7) I call this kind of change in the rules and rhetoric of a status regime "preservation through transformation," and illustrate this modernization dynamic in a case study of domestic assault law as it evolved in rule structure and rationale from a law of marital prerogative to a law of marital privacy.

      Parts I-III of this Article illustrate that as the nineteenth-century feminist movement protested a husband's marital prerogatives, the movement helped bring about the repudiation of chastisement doctrine; but, in so doing, the movement also precipitated changes in the regulation of marital violence that "modernized" this body of status law. A survey of criminal and tort law regulating marital violence during the Reconstruction Era reveals that the American legal system did not simply internalize norms of sex equality espoused by feminist critics of the chastisement prerogative; instead, during the Reconstruction Era, chastisement law was supplanted by a new body of marital violence policies that were premised on a variety of gender-, race-, and class-based assumptions. This new body of common law differed from chastisement doctrine, both in rule structure and rhetoric. Judges no longer insisted that a husband had the legal prerogative to beat his wife; instead, they often asserted that the legal system should not interfere in cases of wife beating, in order to protect the privacy of the marriage relationship and to promote domestic harmony. Judges most often invoked considerations of marital privacy when contemplating the prosecution of middle- and upper-class men for wife beating. Thus, as I show, the body of formal and informal immunity rules that sprang up in criminal and tort law during the Reconstruction Era was both gender-and class-salient: It functioned to preserve authority relations between husband and wife, and among men of different social classes as well.(8)

      These changes in the rule structure of marital status law were justified in a distinctive rhetoric: one that diverged from the traditional idiom of chastisement doctrine. Instead of reasoning about marriage in the older, hierarchy-based norms of the common law, jurists began to justify the regulation of domestic violence in the language of privacy and love associated with companionate marriage in the industrial era. Jurists reasoning in this discourse of "affective privacy" progressively abandoned tropes of hierarchy and began to employ tropes of interiority to describe the marriage relationship, justifying the new regime of common law immunity rules in languages that invoked the feelings and spaces of domesticity. Once translated from an antiquated to a more contemporary gender idiom, the state's justification for treating wife beating differently from other kinds of assault seemed reasonable in ways the law of chastisement did not.(9)

      As the history of domestic violence law illustrates, political opposition to a status regime may bring about changes that improve the welfare of subordinated groups. With the demise of chastisement law, the situation of married women improved--certainly, in dignitary terms, and perhaps materially as well. At the same time, the story of chastisement's demise suggests that there is a price for such dignitary and material gains as civil rights reform may bring. If a reform movement is at all successful in advancing its justice claims, it will bring pressure to bear on lawmakers to rationalize status-enforcing state action in new and less socially controversial terms. This process of adaptation can actually revitalize a body of status law, enhancing its capacity to legitimate social inequalities that remain among status-differentiated groups. Examined from this perspective, the reform of chastisement doctrine can teach us much about the dilemmas confronting movements for social justice in America today.

      With these concerns in mind, Part IV of this Article offers some reflections on the ways in which civil rights reform modernizes the structure of a status regime. Drawing on the account of chastisement's demise explored in the main body of the Article, I first explore the question from a historical standpoint, and then briefly examine the implications of this analysis for understanding the civil rights revolutions of the 1960s and 1970s." Finally, I bring the substantive and methodological concerns of the Article to bear on the most recent civil rights reform affecting the regulation of domestic violence today: the Violence Against Women Act,(11) which provides a civil rights cause of action for victims of gender-motivated violence. The new federal statute treats intimate assaults such as rape and domestic violence as a problem of sex discrimination. But its scope has been sharply contested, raising questions about which acts of rape and domestic violence will be deemed "gender-motivated" within the meaning of the Act. By exploring conflicts over the new civil rights cause of action, I offer contemporary evidence that the rules and rhetoric governing intimate assaults are continuing to evolve in the face of recent civil rights initiatives.(12) In this analysis of the Violence Against Women Act, as throughout the Article, I seek to demonstrate why, if civil rights reform is to be effective, civil rights law must remain in critical dialogue with the evolving discourse of any status regime it aspires to disestablish.

   1. NINETEENTH-CENTURY ABOLITION OF MARITAL CHASTISEMENT

      By the old law, a husband might give his wife moderate correction ... but it is declared in black and white that he may not beat her black and blue, though the civil law allowed any man on whom a woman had bestowed her hand, to bestow his fists upon her at his own discretion. The common people...