"The Rule of Love": Wife Beating as Prerogative and Privacy

By Siegel, Reva B. | The Yale Law Journal, June 1996 | Go to article overview

"The Rule of Love": Wife Beating as Prerogative and Privacy


Siegel, Reva B., The Yale Law Journal


CONTENTS

INTRODUCTION

I. 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

II. REGULATING MARITAL VIOLENCE IN AN ERA OF

COMPANIONATE MARRIAGE

III. 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

IV. 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.

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