Excerpts from

"Contest and Consent: A Legal History of Marital Rape"

by Jill Elaine Hasday.  Footnotes listed on separate page.

Copyright (c) 2000 California Law Review California Law Review

California Law Review

October, 2000
88 Calif. L. Rev. 1373

Introduction

At common law, husbands were exempt from prosecution for raping their wives. Over the past quarter century, this law has been modified somewhat, but not entirely. A majority of states still retain some form of the common law regime: They criminalize a narrower range of offenses if committed within marriage, n1 subject the marital rape they do recognize to less serious sanctions, n2 and/or create special procedural hurdles for marital rape prosecutions. n3 The current state of the law represents a confusing mix of victory and defeat for the exemption's contemporary feminist critics. Virtually every state legislature has revisited the marital rape exemption over the last twenty-five years, but most have chosen to preserve the exemption in some substantial manifestation. With rare exception, moreover, courts have not invalidated state laws protecting marital rape. n4 Political protest and legislative action, rather than any clear judicial  [*1376]  statement of constitutional norms, has driven the partial and uneven modification of the common law rule.
 

If the modern opponents and defenders of the marital rape exemption agree on any question, it is that their dispute is a new one. The contemporary debate over the exemption operates on the assumption that the law's treatment of marital rape first became controversial in the late twentieth century. Supporters of the exemption frequently assert that women never saw the need to challenge a husband's conjugal rights until approximately twenty-five years ago. The drafters of the American Law Institute's Model Penal Code, who offer the most sophisticated contemporary defense of the exemption, explain that the rule--"so long an accepted feature of the law of rape"--has only "recently come under attack." n5 Judges similarly note that "until 1977 there was no serious challenge to the spousal exemption," n6 or observe that "until the late 1970's there was no real examination of" the subject whatsoever. n7 Prominent modern feminists, in turn, identify themselves as part of the first organized political opposition to marital rape, "a reality about which little systematic was known before 1970." n8 To the extent that participants on either side of the debate consider historical questions at all, they generally content themselves with a brief citation to Sir Matthew Hale, who wrote the most influential treatise defending the marital rape exemption at common law. n9

 [*1377]  This consensual account of the history of marital rape is founded on a massive historical erasure. As Parts I through IV of this Article reveal, a husband's conjugal rights became the focus of public controversy almost immediately after the first organized woman's rights movement coalesced in 1848. n10 Over the course of the next half century, feminists waged a vigorous, public, and extraordinarily frank campaign against a man's right to forced sex in marriage. This nineteenth-century debate over marital rape constitutes a powerful historical record that deserves to be examined in its own right. It also provides a useful framework from which to assess and understand the course of the modern debate over the exemption.

Public discussion and legal decision making about marital rape have proceeded without knowledge of this historical struggle. To some extent, this is because existing historical scholarship has not assimilated into the popular or legal consciousness. But the work that historians of the nineteenth century have done on the feminist call for sexual self-possession in marriage also remains very incomplete. The leading historical accounts do not analyze the feminist effort as a legal protest and a legal demand, made in an attempt to unseat a deeply rooted common law prerogative and denied. Instead, they discuss the feminist argument for a woman's control over her husband's sexual access as a chapter in the history of birth control n11 or a moral campaign to rationalize sexual desire. n12 This Article also  [*1378]  reveals nineteenth-century feminism's garrulousness about the supposedly unspeakable. Scholars have frequently assumed that marital rape was a private concern that nineteenth-century feminists feared discussing in any public or systematic way. n13 But the historical record makes clear that these advocates not only publicly demanded the right to sexual self-possession  [*1379]  in marriage, they pressed the issue constantly, at length, and in plain language.

Excavating the nineteenth-century contest over the law's treatment of marital rape restores a significant chapter in the history of the first woman's rights movement in the United States, offering a new perspective on the commitments and effectiveness of that movement. Historians have often characterized the first woman's rights movement as narrowly intent on securing gender-neutral rights of access to the public sphere, n14 with suffrage defined as the movement's overriding and most radical goal. n15 Yet leading nineteenth-century feminists argued--in public, vociferously, and systematically--that economic and political equality, including even the vote, would prove hollow, if women did not win the right to set the terms of marital intercourse. Indeed, feminists explained a woman's lack of control over her person as the key foundation of her subordination. This claim was acutely gender-specific, grounded in the argument that women needed to control the terms of marital intercourse in order to regulate the portion of their lives they would have to devote to raising children. Convinced that women's subordination was ultimately rooted in the structure of marital relations, feminists demanded both the right to refuse and viable socioeconomic alternatives to submission.

This agenda, admittedly radical, was neither dismissed nor ignored in the latter half of the nineteenth century, although it never fully transformed customary norms. The popular prescriptive (advice and instructional) literature on marriage contains strong evidence that the feminist critique of marital rape resonated with evolving societal understandings of desirable marital conduct. Very soon after nineteenth-century feminists began speaking about a wife's right to her own person, mainstream prescriptive authors began to offer extended analyses of the harm that marital rape inflicted. This prescriptive literature, however, did not challenge a husband's legal right to control marital intercourse. It marshaled, instead, an array of moral, physiological, and strategic arguments designed to convince husbands to voluntarily cede discretion over sex to their wives, promising that the concession would serve the interests of husbands as well as wives. In the hands of the popular prescriptive literature, the feminist demand for enforceable rights to protect women from subordination to their husbands was recast into a series of suggested strategies for marital mutuality, to be pursued in a husband's interest as he saw fit.

Ultimately, the law of marital rape changed only incrementally in the nineteenth century, and only in the context of divorce. As an episode of law reform, the course of the nineteenth-century feminist campaign against marital rape illuminates a deep cultural resistance to altering this  [*1380]  aspect of the law, at a time when other aspects of married women's legal status were beginning to evolve. States willing to augment the property rights of married women in the middle of the nineteenth century, n16 or to ratify woman suffrage in the early twentieth century, n17 were emphatically unwilling to subject husbands to prosecution for marital rape. At least in this arena where sexual and reproductive relations were so directly implicated, authoritative legal sources proved staunchly opposed to the notion of incorporating into the law a vision of marriage as a potentially disharmonious, abusive, even dangerous site of human interaction, in which wives might need and deserve legal rights against their husbands.

The progress of this nineteenth-century debate on marital rape sheds new light on the modern contest over the exemption and helps explain its trajectory. As Part V discusses, one of the most striking aspects of the modern defense of the marital rape exemption--not generally remarked on as such by modern commentators but clear in the light of history--is that it assumes the aligned interests of husband and wife. The exemption's contemporary defenders argue that the rule's continued existence protects marital privacy and promotes marital harmony and reconciliation, leaving both husband and wife better off. In fact, they go farther than that. In the vision of the modern defense of the marital rape exemption, the assumption of aligned interests between husband and wife is so strong that proponents do not acknowledge that a marital rape exemption might cause wives harm. The argument assumes that a wife's interests, like her husband's, are fully and consistently served in a marital relationship shielded from the possibility of criminal prosecution for rape.

This line of reasoning has proven extremely successful, despite contemporary feminist efforts to analyze the exemption as an instrument of women's legal subordination. To be sure, the marital rape exemption has undergone more adjustment in the late twentieth century than in the nineteenth. The only change in the law's treatment of marital rape that nineteenth-century feminists lived to see consisted of marginal alterations in the terms on which divorce was available. Over the past quarter century, in contrast, a minority of states have eliminated the exemption and the rest have reduced its scope. But the marital rape exemption still survives in considerable measure in most states, at a time when the repudiation of women's legal subordination that was just beginning in the middle of the nineteenth century has been virtually completed as at least a formal matter. Twentieth-century feminists, like the nineteenth-century woman's rights movement, have had an impact on the law of marital rape, but one that falls far short of their aspirations or their level of success in other legal contexts.

[*1381]  In part, the dominant consensual vision of the history of marital rape helps explain why this modern argument from aligned interests has been so powerful. When one starts with the assumption that women have long accepted the marital rape exemption without protest, the proposition that the exemption continues to operate to the mutual benefit of husbands and wives is more likely to seem plausible and even intuitively convincing. That position might be more difficult to sustain in light of a history of feminist argument and advocacy describing a husband's conjugal rights as a crucial constitutive element of women's oppression.

Yet it would be farfetched to suppose that the current legislative commitment to maintaining the marital rape exemption in substantial form, and the judicial decision not to intervene through equal protection doctrine, would suddenly dissipate if the record of struggle over marital rape were widely known. If the history of the nineteenth-century campaign against marital rape suggests anything, it is that the societal reluctance to acknowledge the possibility of antagonistic interests and hurtful behavior in marriage through the granting of legal rights to women is long-established, deeply embedded, and highly resistant to feminist challenge, particularly where questions of marital intercourse are at stake. On this view, it is hardly surprising that modern defenders of the exemption have been so inclined to assume and assert that the historical survival of a husband's conjugal privileges was uncontested; we have a tremendous cultural need to understand marital relations as consensual and harmonious, notwithstanding the contrary evidence we confront about the nature of some unions. The modern defense of the marital rape exemption is one of the most obvious, if odd, manifestations of that phenomenon. Never do we hear more about the joys of marital love, trust, and intimacy in a contemporary legal context than when courts, lawmakers, and commentators justify the preservation of a husband's legal right to rape his wife.

There is a highly relevant difference between the environment in which the first organized woman's rights movement campaigned against marital rape and present social and legal conditions, however, which suggests that the future course of the modern campaign against marital rape need not run parallel to that of its nineteenth-century predecessor. In the nineteenth century, the harm that a husband's right to marital rape inflicted upon wives was freely and explicitly acknowledged as a social matter. In an era still committed to a wide variety of legal structures subordinating women to men, that acknowledgment was not enough to convince mainstream writers or authoritative legal sources that the creation of legal rights protecting women against their husbands was an appropriate remedy. The modern defense of the marital rape exemption, in contrast, obscures and denies the harm that the rule inflicts upon women. This has been a crucial tactic because the injury that marital rape causes is far  [*1382]  harder to defend, and the absence of legal remediation far harder to justify, in a nation now explicitly committed to women's legal equality. The historical record of struggle over marital rape helps reveal this harm, making concrete what the marital rape exemption's contemporary champions have concealed. In the process, this history provides a foundation upon which the modern feminist campaign against marital rape can build.

I The Marital Rape Exemption as it was Articulated, Understood, and Defended in the Nineteenth Century

The notion that a husband's conjugal rights were not contested until the late twentieth century accords with a common mode of thinking about women's legal status. This consensual account of the history of marital rape does not draw on any factual record, and it would find no comfort there. As this Article demonstrates, a husband's conjugal rights generated profound controversy in the latter half of the nineteenth century, virtually from the moment that the first feminist movement was organized. The account operates, instead, on a presumption: that longstanding aspects of women's legal status must have survived to the modern age because they embody a set of shared norms, long agreed to by women and men alike.

The premise that women's legal status is the product of consensual agreement is prominent even in many historical examinations of the first woman's rights movement. This line of scholarship acknowledges, of course, that nineteenth-century feminists campaigned to overturn laws subordinating women to men. But it depicts the feminist protest as limited in scope, and ultimately successful in convincing legislatures to reform the law wherever feminists pushed forcefully for change. These narratives of the nineteenth-century woman's rights movement stress the passage of the married women's property acts in a number of state legislatures, starting in the 1840s. At common law, married women had little, or no, right to contract, own property, or sue. n18 Some of the first married women's property acts modified this common law regime by codifying court decisions that permitted married women to hold their own property in equitable trusts and by protecting a wife's real property from her  [*1383]  husband's debts. n19 Later statutes, enacted from the 1850s onwards, granted wives the right to keep their own earnings. n20 All of this legislation, however, focused on questions of property distribution between husbands and wives that were of immediate practical concern to relatively few women: Only a small subset of wives in the nineteenth century either owned real property or worked outside the home. n21 A number of historians nonetheless describe the married women's property acts as satisfying feminists' demands for the reform of marital status law. n22 In this vision, the passage of the married women's property acts left suffrage as the most important, controversial, and far-reaching claim of the woman's rights  [*1384]  movement. Suffrage became, these historians report, "the capstone of women's emancipation." n23 "Nineteenth-century feminists and anti-feminists alike perceived the demand for the vote as the most radical element in women's protest against their oppression;" n24 feminists were willing to "bypass[ ] women's oppression within the family." n25 This account explains the history of women's legal status in the nineteenth and early twentieth centuries as a story of steady liberalization and, ultimately, of consensualism. It suggests that the demands of the first feminist movement were all accommodated in turn, with the movement's agenda completed by the ratification of the Nineteenth Amendment in 1920. n26 On this view, feminists never seriously challenged what remained unchanged--every aspect of the law of marriage that the married women's property acts did not reach. n27

 [*1385]  The history of the struggle over marital rape complicates this picture. n28 It reveals that the legal demands of the nineteenth-century feminist movement were not limited to suffrage and the marginal property reforms at stake in the married women's property acts. The first organized woman's rights movement offered a much more systematic critique of women's legal status in marriage. Indeed, feminists repeatedly identified a woman's right to control the terms of marital intercourse as the predicate condition for women's equality, without which full property rights and even suffrage would be meaningless. Nevertheless, the law's treatment of marital rape hardly changed over the course of the nineteenth century, and the modest reform that did occur was limited to divorce law. The history of women's legal status in the nineteenth century did not follow just one path, of gradual progress and consistent success. Lawmakers willing to enact the married women's property acts or to ratify the Nineteenth Amendment apparently thought there was too much at stake in changing the marital rape exemption. The exemption's survival into the modern era is not evidence that the rule was never contested. The rule was maintained despite decades of feminist objection, because the exemption's defenders were far more powerful than its critics.

2. The Law of Marriage in the Nineteenth Century
 
To appreciate what the defenders of the marital rape exemption understood to be at issue requires a brief introduction to the law of marriage in the nineteenth century. The frequent identification of the married women's property acts as the culmination of the feminist campaign for the legal reform of marriage might suggest-- wrongly--that the law of marriage was somehow equalized in the middle of the nineteenth century. That was hardly the case. The marital rape exemption was explained and  [*1386]  defended amidst an elaborate legal regime that continued to explicitly subordinate wives to husbands.

In the nineteenth century, authoritative legal sources agreed that the rights and obligations of husbands and wives were most appropriately understood, explained, and regulated through the organizing rubric of a status/contract distinction. This distinction classified legal rules into two oppositional categories: status rules (like the marital rape exemption), which fixed marital rights and obligations in the law and made them unalterable by private agreement, and contract rules, which permitted husbands and wives, or couples contemplating marriage, to structure their own legal relationship if they preferred not to rely on the default rules set by the state. The marital relation was governed by both types of rules, mainly at alternate parts of its life cycle.

By the first half of the nineteenth century, individuals had a large measure of control over decisions about whether, when, how, and whom to marry. Nineteenth-century treatises stressed, for instance, that parental consent was not a legal prerequisite to marriage in the United States. n29 Most states also held that valid marriage ceremonies did not need to take any particular form. n30 Indeed, over the course of the nineteenth century, a majority of American jurisdictions recognized the legal validity of common law marriages, where the couple had not necessarily participated in a ceremony of any sort. n31

Status rules were much more consequential and prominent in controlling ongoing marital relationships. A couple could choose whether to marry, but could rarely modify the legal nature of their union. The legal terms regulating married couples in the nineteenth century differed from contracts in multiple respects. First, and by definition, the status rules governing marriage provided that it was legally impossible for a husband and wife to circumvent their requirements by mutual decision. n32 These  [*1387]  rules did not depend on securing actual consent from any particular couple; rather, they conclusively inferred consent, as a matter of law, from the couple's initial agreement to marry. n33 Legal writers like Joel Bishop, author of one of the most influential family law treatises of the nineteenth century, explained that the marital relation, as the foundational unit of society, was too important to be left to the vagaries of individual will. "The idea, that any government could, consistently with the general weal, permit this institution to become merely [a] matter of bargain between men and women, and not regulate it by its own power, is," he scoffed, "too absurd to require a word of refutation." n34

The marital relation in nineteenth-century law also diverged from a bilateral contract in its tremendous restrictions on the possibility of exit. A husband and wife could not simply agree to end their relationship. Marriages terminated at the death of one party or at divorce, which was only available for fault (most notably, cruelty, desertion, or adultery), and difficult to obtain even then. n35 If a husband or wife became incapable--  [*1388]  after marrying-- of performing an obligation of the marital relationship (through impotence or insanity, for example), this incapacity did not free the other spouse from marital obligations and did not constitute ground for marital dissolution. n36 The availability of remedies other than exit was extremely limited as well. If one spouse willfully refused to perform marital obligations, the common law did not permit the other to sue for enforcement or damages. n37 Suits between husband and wife for torts like assault and false imprisonment were also prohibited. n38

This structural account of status in the nineteenth-century marital relation only provides a partial picture, however. The rights and obligations of husband and wife also depended enormously, of course, on the  [*1389]  substance of these status rules. In the nineteenth century, many of these rules operated along common law principles of coverture, which explicitly subordinated wives to husbands. William Blackstone, whose treatise on the laws of England was extremely influential throughout the United States, offered the classic definition. "By marriage," he wrote,


 
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 every thing ....... Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. n39
 
Coverture united husband and wife by subsuming a married woman's civil identity and according husbands wide-ranging control over their wives. Legal scholars explained the principle in the language of hierarchical authority and obedience. As James Schouler's family law treatise elaborated, "the laws of nature and divine revelation" jointly designated the husband as "the head of the family." n40 "It [was] for the wife to love, honor, and obey; it [was] for the husband to love, cherish, and protect." n41

The implications of this understanding of the legal relationship between husband and wife can be found throughout nineteenth-century jurisprudence. Most notably for present purposes, a husband enjoyed substantial rights to his wife's person. n42 The common law gave husbands the authority to chastise, or correct, their wives, as long as the corporal punishment did not cause permanent injury. n43 Courts and commentators had  [*1390]  formally renounced this right by the latter half of the nineteenth century. n44 But legal authorities continued, nonetheless, to treat wife beating more favorably than other instances of assault and battery and remained extremely reluctant to enforce criminal or civil penalties for marital violence. n45 A husband could also, with only modest limitations, legally restrict his wife's movements in the nineteenth century--could conclusively determine where the couple would live, n46 could physically restrain his wife  [*1391]  to prevent her from leaving that household, n47 and could retrieve her if she did stray, particularly if she had left to go to another man. n48 In recognition of the legal control that husbands exercised over their wives, common law courts in the nineteenth century presumed that married women acted under the coercion of their husbands and accordingly excused them from liability for a wide range of crimes if committed in their husbands'  [*1392]  presence. This presumption excluded only the most serious offenses, like treason, murder, and robbery, and crimes understood to be the particular province of women, like keeping a brothel. n49

The marital rape exemption had deep roots in this legal regime. It was understood, explained, and defended in the context of a wide array of marital status rules that conclusively inferred consent from a person's initial agreement to marry and coverture principles that organized marital status so that husbands exercised control over their wives.

B. The Marital Rape Exemption in Nineteenth-Century Criminal Law
 
There was not the slightest suggestion in nineteenth-century case law and treatises that a husband could be prosecuted for raping his wife. Rape laws stated what a ""male person'" could not do to ""any woman, other than his wife.'" n50 Legal writers took pains to emphasize that "[a] man cannot be guilty of a rape upon his own wife," n51 that "a husband does not become guilty of rape by forcing his wife to his own embraces," n52 that rape "may be committed by any male of the age of fourteen or over, not the husband of the female." n53 This clear prohibition on prosecution had its intended effect. I have been able to locate no nineteenth-century attempts to  [*1393]  try a husband for personally raping his wife, n54 and only one prosecution, Frazier v. State, n55 from early in the twentieth century. n56 The Texas court that heard Mr. Frazier's appeal in 1905 reversed his conviction for assault with attempt to rape, which is not surprising. n57 The unexplained--and unique--puzzle of the Frazier case is how it reached a trial court and a jury in the first place.

The history of marital rape necessarily contains large silences because of this absence of prosecution. Cases left uninvestigated and unbrought are much harder to reconstruct than the concrete proceedings of trials and appeals. As a consequence, the record of the marital rape exemption has, on occasion, bizarre locations. This section examines laws, legal treatises, and cases, but none of these sources were responding to, commenting on, or deciding actual marital rape suits; they addressed the exemption in some other, less direct way. A large proportion of the nineteenth-century judicial opinions that discussed the marital rape exemption, for instance, revolved around the question of whether a rape indictment, in a case with no evidence of a marital relationship between victim and defendant, still had to state that the victim and defendant were not married to each other. Some nineteenth-century courts actually  [*1394]  reversed rape convictions because the indictment had failed to explicitly indicate that the victim was not the defendant's wife. n58

 [*1395]  The notable contrast between wives' categorical exemption from rape statutes and the protection against rape (nominally) accorded to other highly vulnerable classes of women also helps illustrate the exemption's deep roots in nineteenth-century law. It was a well-established proposition in nineteenth-century treatises that prostitutes and concubines fell within the purview of rape statutes, even if actual conviction was unlikely since the defendant could present evidence of the victim's occupation to the jury. n59 Legal writers explained that the concern of rape laws centered, not on the status of the victim, but on the fact that the act in question was "against the will of the female on whom it is committed." n60 On this theory, prostitutes and concubines were fully covered by rape laws; n61 a man accused of raping a prostitute or concubine could offer reputational evidence against his alleged victim only because such evidence was understood to speak to the likelihood that the woman had in fact consented. n62 Yet  [*1396]  nineteenth-century case law and treatises never indicated that analogous reasoning might suggest that husbands should be criminally liable for raping their wives. To the contrary, leading treatises reviewed the contrasting rights of prostitutes and wives side-by-side without any apparent qualms, noting, for example, that rape "may be committed as well on a common prostitute, as on any other female. But a husband does not become guilty of rape by forcing his wife to his own embraces." n63

The reasons cited to explain and justify the exemption in nineteenth-century authoritative legal sources originated in the work of Sir Matthew Hale, a former Chief Justice of the Court of King's Bench in England. Hale's seminal treatise, the History of the Pleas of the Crown, n64 was first published in England in 1736 and became extraordinarily influential in American legal circles almost immediately thereafter. n65 Even more than a century after Hale's work appeared, American treatises and case law had not supplemented Hale's arguments for the marital rape exemption with alternate theories of their own.

As an initial matter, this reliance on Hale suggests how secure nineteenth-century legal authorities took the criminal exemption to be. Indeed, one of the most striking aspects of the nineteenth-century "debate" over marital rape is how little debate there actually was in terms of direct exchange between the exemption's legal champions and its critics. Although, as we will see, some late nineteenth-century courts did modify the  [*1397]  law's treatment of marital rape as it affected the terms on which divorce was available, n66 lawyers and judges saw no need to respond to opposing arguments in the criminal arena--the core of the exemption, rather than its peripheries. In these sources, the criminal exemption remained a given. Treatise writers and judges saw no threat meriting a rethinking of the claims on which they had relied for over a hundred years.

Another explanation for this reliance on Hale, though, one equally important to understand, is that these sources depended on Hale so heavily because his arguments, grounded in principles of marital status law and common law coverture, still seemed so convincing to them. In the nineteenth century, American judges and lawyers who confronted the marital rape exemption routinely cited Hale's argument from irretractible consent. Hale's explication read, in full, as follows: "But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract." n67 The statement included no supporting citations, and this appears not to have been an oversight. Even scholars who believe that ample common law authority already sanctioned the marital rape exemption when Hale wrote, n68 posit that the theory of irretractible consent originated with him. n69  [*1398]  Yet treatises and cases would repeat Hale's words, virtually verbatim, throughout the nineteenth century, often as the only explanation they offered for the exemption: "A man cannot be guilty of a rape upon his own wife; for the matrimonial consent cannot be retracted," they noted. n70 "The husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract." n71 Several aspects of Hale's theory suggest why it proved so compelling.

Hale's understanding of presumed legal consent made enormous sense in the framework of nineteenth-century marital status law. As we have seen, all of these status rules operated automatically, subjecting every husband and every wife to predetermined constraints without permitting individual negotiation or waiting for individual consent. These status rules, moreover, remained in place as long as the marital relation itself: Opting-out was impossible while one's marriage lasted (and the prospects for securing a divorce were very limited). Whether a husband or wife actually supported these rules, or would have liked to contract around them, was irrelevant as a matter of law. The only occasion for actual agreement was a person's decision to marry in the first place. Hale's theory applied this same understanding of legal consent to one of the many status rules that organized the marital relation at common law, namely, the rape exemption. His work explained that, in this context as  [*1399]  elsewhere, a married person's original agreement to marry justified a legal presumption of permanent and irretractible consent to marital status law.

It was, accordingly, important that Hale's consent theory, and the marital rape exemption, did not cover forced marriages, where the wife had been unlawfully compelled to wed. Hale himself explicitly carved out an exception for these women, noting that their putative husbands could be prosecuted for raping them. n72 Nineteenth-century treatises, in turn, adopted the point. As Thomas Waterman explained in 1853, the agreement to marry was "in reality nothing more, nor less, than a contract between two parties." Because "a contract implied mutual consent, there [could], of course, be no contract, when either party withheld consent, or when consent [was] extorted by duress." The victim of a forced marriage had never freely agreed to marry, hence she was not legally married, hence her consent to the operation of marital status law could not be presumed. n73

I want to stress, however, that Hale's theory generally did not concern itself with a wife's actual state of mind. To be sure, his explanation depended on the proposition that a woman had actually agreed to her marriage, under circumstances free from legally cognizable force, duress, or fraud. But after a woman had made that decision, Hale's theory no longer turned on what a woman actually wanted or would agree to if asked. Consider Hale's last clause: "But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract." n74 This clause suggested that there might be situations in which a married woman would want to retract her consent to marital intercourse. Hale's statement, in other words, acknowledged the potential divergence between a wife's actual state of mind at any particular moment during a marriage, and the legal rule conclusively inferring consent from her initial agreement to marry. More precisely, it acknowledged this divergence and enforced the legal presumption of consent. In doing so, it reconciled the theory behind the  [*1400]  marital rape exemption with that explaining the legitimacy of marital status law generally.

Hale's argument for the marital rape exemption also resonated deeply with the coverture principles that shaped the content of most marital status rules in the nineteenth century. His explanation started by noting the "mutual matrimonial consent and contract" of husband and wife, evidenced by their shared agreement to marry. n75 But it proceeded to outline only the obligation that a wife owed her husband: "for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband." n76 In other words, Hale presented a couple's mutual decision to marry as grounds for subjecting wives and husbands to very different obligations and rights. Both a wife and her husband agreed to marry, but where this agreement gave the husband a right of sexual access to his wife, it bestowed an obligation on the wife to submit. One might think, as a purely theoretical matter, that this explicit sex-based differentiation required justification. But in historical context, of course, such an explanation could easily be understood as superfluous. Hale's theory accorded with coverture principles that generally subjected wives to a wide array of limitations and obligations that husbands did not bear. This is not to say that the relationship between husband and wife was not a reciprocal one at common law. It was; a wife had the right to support and protection from her husband. n77 But while the marital relationship was reciprocal, it was also explicitly hierarchical. Wives were vastly more constrained; they surrendered many more legal rights by marrying. The marital rape exemption, with its unequal demands on husband and wife, was just one more example of coverture principles at work. And the widespread commitment to the operative tenets of coverture was another reason that Hale's irretractible consent theory struck authoritative legal sources in the nineteenth century as so satisfactory.

When nineteenth-century cases and treatises considered the marital rape exemption, they did not limit themselves to citing Hale's consent theory, however. They often spent just as much time, or more, articulating what I call a "third-party caveat" to the marital rape exemption, also derived from Hale and also meant to legitimate a wife's subordination to her husband. This caveat stated that the marital rape exemption was a personal privilege. It only covered acts that a husband personally committed on his wife; it did not reach cases in which a husband had allowed, or forced, another man to rape his wife. Why were so many pages devoted to  [*1401]  stating this limit on the marital rape exemption? The effort indicates, first, what was and was not understood to be contestable. Cases and treatises touching upon the marital rape exemption in the nineteenth century would often cite Hale's irretractible consent theory, but would generally do little else to confirm the existence and soundness of the ban on prosecuting a husband for raping his wife. The lack of standard forms of support, like case citations, in discussions of the marital rape exemption indicated its status as an understood baseline. In contrast, judges and lawyers clearly felt that they had to do more to explain and justify the third-party caveat, perhaps because the caveat functioned to limit a husband's control over his wife's person. Even though every case and treatise that considered the issue endorsed the caveat, n78 the rule had to be defended rather than just stated.

More fundamentally, though, the emphasis on the third-party caveat reinforced the point that the marital rape exemption drew the line between legal and illegal intercourse so that it depended solely on whether a woman was married to her sexual partner, and not on her consent. In nineteenth-century jurisprudence, all sex outside of marriage, whether consensual or not, was illicit by definition and formally criminalized in fornication and adultery statutes. n79 The marital rape exemption reflected and extended this dichotomy by making marital intercourse legal by definition. n80 The third-party caveat helped to further underscore this demarcation by stressing that the marital rape exemption did not cover any sex outside of marriage, even if accomplished at a husband's command.

Structuring the legality of sex so that it turned exclusively on whether a woman was married to her sexual partner was crucially important because it obscured how the marital rape exemption made a wife's position resemble that of a prostitute. The comparison, which nineteenth-century feminists would press aggressively, n81 appears to have made the exemption's defenders anxious as far back as Hale. Prostitutes were generally thought to be socially degraded in ways that wives were not. But no overwhelming logic presented itself in this context to explain the  [*1402]  difference in the work performed. After all, a husband had a duty to support his wife at common law, n82 and the exemption gave him a legal right to take sex in return. If a wife had extramarital relations (against her husband's wishes), the common law permitted the husband to collect civil damages from the other man, financially compensating him for "the invasion of his exclusive right to marital intercourse with his wife." n83

Rather than attempt to substantively distinguish the terms on which wives and prostitutes provided sexual services, authoritative legal sources, with the help of the third-party caveat, separated the two sets of women by reference to whether or not they were married to the men who had sex with them. Consider Hale's explanation of the caveat:


 
A. the husband of B. intends to prostitute her to a rape by C. against her will, and C. accordingly doth ravish her, A. being present, and assisting to this rape ..... [T&rb>his was a rape in C. notwithstanding the husband assisted in it, for tho in marriage she hath given up her body to her husband, she is not to be by him prostituted to another. ..... [T&rb>he husband being present, aiding and assisting, is also guilty as a principal in rape, and therefore, altho the wife cannot have an appeal of rape against her husband, yet he is indictable for it at the king's suit as a principal. n84
 
In Hale's account, the difference between a wife and a prostitute is explained solely as a matter of jurisdiction. Intercourse with one's husband was the obligation of wives; it was part of what being a wife signified. In contrast, adultery (forced or not) fell within the purview of prostitutes. When a woman agreed to marry, she agreed to be a wife and, accordingly, not a prostitute. All this meant in practical terms, though, was that sex with one's husband (consensual or not) was licit and socially sanctioned, and sex with a man other than one's husband (consensual or not) was illicit and socially stigmatized. n85

 [*1403]  Nineteenth-century treatises and case law took care to note the third-party caveat to the marital rape exemption, often citing Hale's reasoning as an explanation. A husband could be found guilty of rape "as a principal in the second degree," treatise writers observed, "by assisting another person to commit a rape upon his wife; for though, in marriage, the wife has given up her body to her husband, yet he cannot compel her to prostitute herself to another." n86 Indeed, this caveat actually led to trial judgments where husbands were found guilty of aiding in the rape of their wives by other men. Consider two of the cases that reached a state supreme court. n87 While there is no evidence to suggest that these cases were representative of prosecutions under the third-party caveat, they are instances in which a nineteenth-century court had serious occasion to discuss, and explain, why a husband could be convicted as an accomplice to a rape committed on his wife.

People v. Chapman, n88 the earlier of the two cases, was decided by the Supreme Court of Michigan in 1886. Under a statute rendering all persons who had aided, assisted, or abetted in the commission of a crime liable to punishment as principals, Jeremiah Chapman had been tried and convicted in the rape of his wife, Maggie Chapman. The testimony of Mrs. Chapman and of the actual perpetrator of the offense, James Reagan, indicated that Mr. Chapman had entered into an arrangement with Reagan, whereby Mr. Chapman promised to pay Reagan twenty-five dollars in  [*1404]  return for Reagan's agreement to seduce Mrs. Chapman so that her husband could catch the couple in bed and use that evidence to obtain a divorce for adultery. Mrs. Chapman, however, resisted Reagan's advances, and he proceeded to rape her. As Reagan knew, Mr. Chapman was in an adjoining room at the time, watching and listening to all of this through a hole he had bored through the intervening wall. But Mr. Chapman did nothing to stop the rape. Only after it was over, did he burst into the room, declaring ""Now I have caught you.'" n89 Three days later, Mr. Chapman filed a bill for divorce, alleging that his wife had committed adultery with Reagan. n90 On appeal, Mr. Chapman argued that his actions were too tangential to make him an accomplice: that he had simply remained passive throughout the crime, that his agreement with Reagan had called for seduction, not rape. n91 The court decisively rejected this claim, applying standard principles from the law of accomplice liability. n92 It also described what it understood to be the source of Mr. Chapman's "moral guilt." n93 In doing so, the court did not simply explain that Maggie Chapman had been subjected to unwanted and forced sex. That would hardly have been a sufficient foundation for the case. Mrs. Chapman, remember, would have suffered no legally cognizable injury if the man in bed with her had been her husband. Rather, the opinion stressed that Mrs. Chapman, a married woman, had been subjected to extramarital intercourse, sex the judges took to be illicit and demeaning by definition. Jeremiah Chapman had then compounded his crime by falsely accusing his wife of adultery, subjecting her to the stigma of extramarital intercourse once more. In the court's words:


 
A husband who could barter with another for the despoiling of his wife's virtue, and stand by to witness it ..... , and remain passive and silent while such object was obtained by violence, and then use such permitted and encouraged rape to divorce her from him, and by this, and perjury added, publish her to the world as an  [*1405]  adulteress, is morally guilty of as foul a crime as can be named in the calendar. n94
 
State v. Dowell, n95 decided four years later in the Supreme Court of North Carolina, also enforced the third-party caveat. In this case, "the white husband of a white wife, under menace of death to both parties in case of refusal, and supporting his threat by a loaded gun held over the parties, [had] constrained a colored man to undertake, and his wife to submit to, an attempted sexual connection." n96 Without doubt, the racial composition of this crime had overwhelmingly increased the likelihood of prosecution, conviction, and affirmation on appeal; witness how the North Carolina court stated the facts. But in reasoning about the third-party caveat to the marital rape exemption, the court here, like the court in Chapman, explained the rule as illustrating and reinforcing the divide between licit and illicit intercourse so that it turned on whether the woman was married to her sexual partner, rather than on the woman's consent. The fact that Dowell had attempted to force a black man to rape his wife certainly underscored the illicit nature of the intercourse at issue, but did not change the basic framework in which the court understood the problem:

The defendant strangely insists that he is not guilty because he is the husband of the prosecutrix; and he relies as a defense upon the marital relation, the duties and obligations of which he has, by all the laws of God and man, so brutally violated. In our opinion, in respect to this offense, he stands upon the same footing as a stranger, and his guilt is to be determined in that light alone. ..... It is true that &lb>a husband] may enforce sexual connection; and, in the exercise of this marital right, it is held that he cannot be guilty of the offense of rape. But it is too plain for argument that this privilege is a personal one, only. Hence if ..... the husband aids and abets another to ravish his wife, he may be convicted as if he were a stranger. The principle is thus tersely expressed by Sir Matthew  [*1406]  Hale: "For, though in marriage she hath given up her body to her husband, she is not to be by him prostituted to another." n97
 
Authoritative legal sources in the nineteenth century agreed that a husband could not, and should not, be prosecuted for raping his wife. Their explanations, grounded in principles and presumptions evident throughout nineteenth-century regulation of the marital relation and sexuality, explicitly assumed and supported the legal subordination of wives to husbands. Judges, lawyers, and legislators may have been willing to oversee some modification of other aspects of women's legal status at common law in the latter half of the nineteenth century, but they remained emphatically unwilling to tamper with a husband's marital rape exemption.

C. The Marital Rape Exemption's Effect on the Lived Experience of Marriage in the Nineteenth Century
 
It is far simpler to discern how the marital rape exemption was explained and defended in judicial opinions and legal treatises than to discover how a husband's conjugal rights affected the lived experience of marriage in the nineteenth century. But the debate over marital rape turned on more than the arguments for the exemption put forth by judges and lawyers. The feminist campaign against marital rape did not simply treat a husband's right to control the terms of marital intercourse as an apt symbol of women's legal subjugation. The women challenging that right understood it to have important practical consequences for the shape of women's married lives. Moreover, the popular prescriptive literature that began to delineate the harm of marital rape in the second half of the nineteenth century focused exclusively on actual practice. These marriage manuals and health guides did not seek to change the legal rule granting husbands conjugal rights, but sought to ameliorate the functional effect of the exemption by convincing husbands to voluntarily cede control of marital intercourse to their wives.

By definition, the marital rape exemption meant that women subject to forced sex in marriage did not have the option of seeking criminal prosecution. It is not surprising that I was able to locate no nineteenth-century prosecutions of a husband for raping his wife. n98 The existence of the exemption made such attempts patently futile. The other practical consequences of the exemption are more hidden from view. Feminists and prescriptive writers engaged in a frank and voluminous dialogue about marital intercourse and marital rape in the latter half of the nineteenth century, but the social scientists of their era shied away from the subject. The studies of women's sexual experiences in marriage that do exist,  [*1407]  however, suggest a widespread desire among women to control the terms of marital intercourse, a widespread recognition that they did not have the right to exercise this control, and a widespread experience of harm caused by unwanted sex in marriage.

Katharine Bement Davis's Factors in the Sex Life of Twenty-Two Hundred Women (1929) n99 is the most systematic and rigorous examination of women's experience of sex in marriage during this approximate period. n100 Davis, a social scientist and penologist, n101 sent ten thousand letters to selected wives, asking them if they would be willing to answer and anonymously return a questionnaire about their sexual experiences. n102 Her questionnaire was very thorough, n103 and she ultimately received completed answers from 1073 married women. n104 Davis's study is not ideal for a  [*1408]  number of reasons, including its concentration on women somewhat younger than the contemporaries of the first woman's rights movement and its narrow focus on the middle class and the elite. n105 But notwithstanding its shortcomings, the study offers valuable information about the nature of actual sexual practices in the approximate era in which the first organized woman's rights movement challenged a husband's conjugal rights. Her report presents a fascinating window into women's lives.

The women Davis surveyed repeatedly made clear that they had entered into marriage with the expectation that their husbands had the right to control the terms of marital intercourse, although they were hardly enthusiastic about that husbandly prerogative. When asked whether they had been ""adequately prepared by instruction for the sex side of marriage,'" n106 a number of women reported that their mothers had explicitly conveyed this information about the nature of marriage to them. As one wife in this cohort explained, ""My mother taught me what to expect. The necessity of yielding to her husband's demands had been a great cross in her own life.'" n107 Davis's questioning about whether the women had been ""attracted or repelled by the way in which married sex relations came into [their] experience'" generated even more revealing responses. Nearly a quarter (223) of the first thousand women to respond "replied "neither.'" n108

Of these, 173 said that they "took it as a matter of fact"--something that every married woman had to go through with, regardless of her feelings. The other 50 qualified the "neither" with the following adjectives: Amused, 1; astonished, 8; bewildered, 3;  [*1409]  disappointed, 7; frightened, 8; indifferent, 8; indignant, 1; interested, 5; relieved (that it was no worse), 1; resigned, 3; shocked, 1; sorry, 1; stunned, 1; submissive, 2. n109
 
Davis's work also suggests that women's marital happiness in this period importantly turned on how a husband chose to wield his authority over marital intercourse--whether a husband actually exercised his admitted rights or restrained himself voluntarily. Women "attracted" by their first experiences of marital intercourse were significantly more likely to report that their subsequent married life had been happy as well. n110 In explaining what in their early sexual experiences had appealed to them, these women stressed "over and over again ..... the unselfishness, consideration, and self-control of the husband." n111 In contrast, women who had been "repelled" by their introduction to marital intercourse--a group that included almost one quarter (237) of the first thousand women in the study--emphasized "just the opposite qualities ....... The wife ignorant, unprepared, shocked at the strength of her husband's passion; the husband unable to realize this, inconsiderate, uncontrolled; a long period of adjustment--and if this fails, unhappiness for both." n112

Dr. Clelia Duel Mosher's earlier, if significantly smaller and less systematic, survey of married women's sexual lives accords with Davis's findings. n113 The Mosher study was notably less rigorous than Davis's work. It consists of unprocessed data about just forty-five married women. n114 Dr. Mosher, a physician and professor at Stanford University, did not attempt to analyze her findings or to publish her study. n115 That said,  [*1410]  Mosher's work provides useful information about an era somewhat earlier than the period that Davis analyzed. Indeed, Mosher's study, conducted between 1892 and 1920, is the earliest known survey of women's sexual practices in the United States. n116 Seventy percent of the women that Mosher questioned were born before 1870. Seventeen of the forty-five women were born before the Civil War. n117

Mosher's subjects repeatedly explained that they wished to limit marital intercourse to those occasions when it was agreed to by wife and husband alike. When asked what they thought "would be an ideal habit" of sex in marriage, these women stressed mutuality again and again. "Everything to be absolutely mutual," they typically responded. n118 "When desired by both." n119 "No habit at all, but the most sensitive regard of each member of the couple for the personal feeling and desires and health of the other." n120 "The marital relation when mutual," they explained, "begets a certain bond of love and sympathy that is certainly peculiar only to those happily mated." n121

At the same time, these women--like Davis's subjects--were well aware that the actual conduct of their sexual lives was ultimately under their husbands' control. Some women happily reported that their husbands had agreed to mutuality. One wife, who had intercourse when it was "as much desired by me as by him," explained that her husband was "an unusually considerate man." n122 Another woman with a "considerate husband" noted that he had delayed consummating their marriage for two weeks after the wedding. n123 Many other women in Mosher's study,  [*1411]  however, indicated that they were routinely obliged to submit to unwanted sex. These women, like their peers, would have chosen to limit marital intercourse to those times "when both had desire" n124 or "when acceptable to both." n125 But they simultaneously reported their husbands' systematic deviation from this ideal and the harm they had experienced as a result. One of these respondents described "having intercourse on an average of once a week," although sexual relations were "very painful" for her because of injuries sustained in pregnancy and childbirth. n126 Another explained that she had engaged in marital intercourse when she "often felt averse to it" and indicated that her husband controlled decisions about reproduction, the conception of her first child having taken place at "a time chosen by [her] husband as one that would probably result in pregnancy though [she] did not know his thought at the time." n127 Some reported deep disappointment and dissatisfaction in marriage. One woman had repeatedly been subject to much more frequent intercourse than she desired. n128 Although she felt "more alive mentally & physically" after sexual climax, she concluded nonetheless that her sexual experience in marriage had been "not agreeable" and that "men had not been properly trained." n129 A second woman in the same position wrote, more emphatically, of the "shock and destruction of all ideals: When a pure woman is treated by her husband as he has treated the prostitute he has been to before marriage, it becomes loathsome." n130

Although tantalizingly incomplete, Davis's study and Mosher's work provide some insight into how women negotiated marriage in the law's shadow. The responses to these surveys reflect a definite understanding that men had the authority to determine the conditions of marital intercourse and women the obligation to submit to whatever sexual demands their husbands chose to make. This understanding surely reflected social norms about acceptable marital behavior. But it would be a mistake to conclude that the popular expectations that Davis and Mosher reported were not linked to the law's embrace of the marital rape exemption. The married women who responded to the questionnaires that Davis and Mosher distributed made clear that unwanted sex in marriage had caused them real harm and that they would have greatly preferred it if their husbands had respected their desires about sexual intercourse. Yet they knew  [*1412]  that their husbands had a right to act differently, to diverge from what these women took to be the most desirable standard of marital conduct. This understanding about a husband's right to marital intercourse may have had nonlegal sources. But it was certainly given enormous strength and realism by the fact that the criminal law categorically refused to entertain claims based on forced sex in marriage, especially when combined with the legal and socioeconomic obstacles to securing a divorce based on marital rape (which will be discussed below). n131 As a practical matter, the marital rape exemption limited a woman' s options if she sought to avoid marital rape. As a normative matter, the exemption added the law's sanction to husbandly claims of marital authority. The marital rape exemption was not just a theoretical question for the law books and the legal treatises. It affected how women lived their married lives.

Yet this is hardly the full story of the marital rape exemption in the nineteenth century. Authoritative legal sources unambiguously endorsed the exemption, and the popular understanding of a man's marital rights seems to have tracked the legal rule. This does not mean, however, that a husband's conjugal prerogatives went uncontested in the nineteenth century. As Part II recounts, the nineteenth-century woman's rights movement fought against a husband's right to control marital intercourse in a campaign that was remarkably developed, prolific, and insistent, given nineteenth-century taboos against the public mention of sex or sexuality. Leading feminists identified a husband's conjugal rights as the crucial constitutive element of women's subordination. They called for both an enforceable right to refuse a husband's sexual demands and realistic socioeconomic alternatives to submission. The record of this struggle dramatically expands our understanding of the history of marital rape, and also provides important new insights into the goals, progress, and efficacy of the first organized woman's rights movement, which historians now frequently describe as overwhelmingly dominated by the battle for suffrage.

At the level of prescriptive norms about marital behavior, discussed in Part III, the organized feminist critique had genuine resonance, but ultimately not transformative power. The advocates of "free love," who operated on the leftward fringe of organized feminism in the nineteenth century, articulated the arguments of the woman's rights movement in a more radical voice. More surprisingly, popular tracts on marriage, reproduction, and health agreed that the exemption's consequences should be curbed in actual practice. Very soon after the organized woman's rights movement mobilized against a husband's conjugal rights, these mainstream authors began to describe and denounce the harm that marital rape inflicted on wives. This prescriptive literature, though, did not contest a  [*1413]  husband's legal right to determine the terms of marital intercourse. Instead, it called on husbands to voluntarily refrain from exercising their legal prerogatives, on the ground that such restraint would benefit them as much as their wives. Where feminists demanded a structure of rights to free women from subordination in marriage, the prescriptive literature turned the concern over marital rape into a call for voluntary strategies to enhance marital happiness and harmony, to be pursued to the extent that they served a husband's interests.

In the end, as Part IV explains, the nineteenth-century feminists lived to see no legal reform of a husband's conjugal prerogatives beyond marginal adjustments in the terms on which divorce was available. The marital rape exemption outlasted the rise of the first organized woman's rights movement in the United States, the enactment of the first married women's property acts, and the ratification of woman suffrage, but not because the issue was uncontroversial or unspeakable. In this realm where sex and reproduction were so clearly at issue, authoritative legal sources, like mainstream prescriptive authors, were unwilling to translate the growing social recognition that marital rape inflicted severe harm on wives into a legal acknowledgment of the dangers potentially posed by the marital relation, through the granting of legal rights that women might enforce against their husbands.

II The First Organized Feminist Campaign Against a Husband's Conjugal Rights
 
Almost immediately after the Seneca Falls Convention in 1848 sparked the formation of the first organized woman's rights movement in the United States, n132 feminists began to argue that full political and economic rights, including even the vote, would not be nearly sufficient to establish women' s equality with men. Although the woman's rights movement was committed to each of these reforms, feminists simultaneously contended that all of them would ultimately prove hollow unless a married woman also had the right to regulate her husband's sexual access--the right to her own person, in the language of the nineteenth century. Nineteenth-century Americans were reluctant to speak openly about  [*1414]  sex, n133 and the leaders of organized feminism were well aware of the social sanctions for sexual frankness. But their commitment to establishing a woman's right of self-possession as the foundation of her equality led feminists to offer a systematic and thorough critique of marital rape in language wholly understandable to contemporary audiences.

The consensual account of the history of marital rape now accepted by the exemption's supporters and critics alike is simply wrong as a factual matter. The nineteenth-century woman's rights movement contested a husband's right to determine the terms of marital intercourse vociferously and profoundly. Indeed, this campaign constitutes an important chapter in the history of organized feminism in the nineteenth century, one that sheds new light on the nature and dimensions of that movement.

Many historians have described the leadership of the nineteenth-century woman's rights movement as classically liberal, meaning intent on securing a gender-neutral distribution of political and economic rights and uninterested in transforming the structure of familial relations. n134 On this account, the first organized feminist movement sought to apply the principles of the Declaration of Independence to women, without challenging any of the document's other premises. Specifically, these historians contend that feminists grounded their appeal for gender-neutral rights of access to the public sphere in a natural rights argument that stressed "that women were essentially human and only incidentally female" n135 and regarded any mention of women's particular position, especially in the family, "as suspect." n136 All men and women were created equal, and the  [*1415]  appropriate way to recognize their equality was by distributing political liberty, namely the right to vote for democratically elected representatives. n137 This historical interpretation of the woman's rights movement is grounded in a reading of women's demands for suffrage. But historians have extrapolated from the debate over suffrage to conclude that the nineteenth-century feminist movement was neither alert to sources of inequality within the family that affected women's power and resources as a class nor committed to gender-specific structural reform. n138 Even where these historians briefly allude to the feminist claim for self-ownership in marriage, they do not indicate that this discussion might challenge their understanding of the movement. n139 Nineteenth-century feminists certainly did rely on arguments grounded in classic liberalism, which was the dominant philosophical tradition of the era and well suited to the suffrage demand. Indeed, the Declaration of Sentiments adopted at Seneca Falls  [*1416]  was explicitly modeled on the Declaration of Independence. n140 Yet, as the feminist argument for a wife's right to control her own person makes clear, the notion that the woman's rights movement limited itself to applying established liberal principles to women vastly understates the scope of the movement's theoretical commitments. These feminists began with liberalism's dedication to freedom and autonomy, but took it in radically new directions.

In defining what the right to one's own person meant, articulate feminists did not focus on gender-neutral rights to the public sphere or freedom from coercion by the state. They were concerned about married women who submitted to their husbands' sexual demands as the result of force, or threats, or because they lacked palatable alternatives. The woman's rights movement sought to establish a wife's right of refusal and to remake women's social and economic possibilities to create realistic alternatives to marriage. In making these claims, feminists recognized that some of the most important barriers to female self-possession were located within the structure of marriage, as well as the behavior of individual husbands. Feminists criticized both a husband's legal right of sexual access and the coverture rules that stripped married women of control over their family's resources. They also objected to the tenuous circumstances under which many never-married, separated, and divorced women lived, subject to both explicit employment discrimination that left women with few ways to support themselves outside of marriage and the social stigma associated with living outside a husband's household. n141 Indeed, feminists called unwanted marital intercourse, where the wife had acquiesced because of her economic and social dependence on her husband, legalized prostitution. n142 By that, they meant that the wife who was structurally compelled to have sex when she did not desire the act or its reproductive consequences was different only in name from the woman without any available option but to sell her body to strange men on the  [*1417]  street. In this vision, women's economic, legal, and bodily vulnerabilities in marriage were all intricately connected. In demanding a woman's right to her own person, feminists fought all of these inequalities simultaneously.

This claim, moreover, was intensely gender-specific. Feminists campaigning against marital rape focused solely on a woman's right to control marital intercourse, and they did not articulate their demand as a call for women to receive the same protections that men enjoyed. Their argument for self-ownership was not based on a theory of bodily inviolateness that would apply to man and woman like. Rather, it looked to women's exclusive responsibility for raising children. Nineteenth-century feminists did not celebrate the norm assigning women all of the work of childcare. Nonetheless, they took it to be such a profound social expectation that they reasoned within it, contending that women needed to have control over marital intercourse so that they could regulate the amount of their lives they devoted to motherhood. In demanding a woman's right to her own person, the nineteenth-century feminist movement was asserting an equal right, and challenging gender-based subordination, in a completely gender-specific way. This is not to suggest that the woman's rights movement would have countenanced sexual violence against men. But organized feminism explained the right to self-ownership in an idiom radically different from that employed by the nation's founders, one that was grounded in a gender-specific understanding of the comparative social position of women and men.

A. A Wife's Right to Her Person as the Predicate for Women's Equality
 
The feminist critique of women's legal subordination quickly focused on a married woman's lack of control over her own person. This concern, moreover, was evident throughout the woman's rights movement; feminists' substantive views on the issue differed far less than their strategic appraisals about how it could best be pursued. The most useful starting point for understanding what organized feminism took to be at stake in demanding a wife's right to her person lies in the work of Elizabeth Cady Stanton, the most prominent and brilliant theorist of the movement.

As early as 1852, Stanton argued that marital intercourse was inappropriate under certain conditions. Addressing a temperance convention, she warned of the dire eugenic consequences of having children with an alcoholic husband and informed the wives of such men that they should cease sexual relations at once. "Live with him as a friend," Stanton advised, "watch over and pray for him as a mother would for an erring son, soothe him in his wretchedness, comfort and support him, as best [you] may--but for woman's sake, for humanity's sake, be not his wife--bring  [*1418]  no children to that blighted, dreary, desolate hearth." n143 This exhortation, of course, left the key question ambiguous: How exactly was a wife to carry out her responsibility when her husband insisted on sexual access? Did Stanton expect a wife to rely solely on moral suasion? If so, what if persuasion did not work? n144 Indeed, one might read this statement as placing married women in a double bind, wherein they would be held morally responsible for reproduction that they did not, in fact or in law, have the ability to control. Stanton's early ambiguity was deliberate. As she explained in a letter to Susan B. Anthony, her closest ally, Stanton had grave doubts about "whether the world [was] quite willing or ready to discuss the question of marriage." n145 But Stanton's commitment to securing a married woman' s right to her own person was clear. Indeed, in the same letter, she identified the issue as the pivotal site of women's subordination:


 
It is in vain to look for the elevation of woman so long as she is degraded in marriage. ..... Man in his lust has regulated long enough this whole question of sexual intercourse. Now let the mother of mankind, whose prerogative it is to set bounds to his indulgence, rouse up and give this whole matter a thorough, fearless examination. ..... I feel, as never before, that this whole question of woman's rights turns on the pivot of the marriage relation, and, mark my word, sooner or later it will be the topic for discussion. I would not hurry it on, nor would I avoid it. n146
 
In 1855, Stanton found the appropriate occasion for public frankness. n147 That year, her cousin, Gerrit Smith, a leading antislavery reformer who was sympathetic to feminism, wrote her a public letter about the  [*1419]  woman's rights movement. n148 In this letter, he argued that women's continued inequality was largely the result of their dress, which was admittedly constraining and impractical. n149 Stanton, in a forceful and public reply, explained women's inequality as rooted in their lack of control over their person. n150 She identified this right as the most important that women hoped to achieve, more significant than any of the rights for which women had been publicly agitating since 1848. Indeed, Stanton articulated a view  [*1420]  of woman's citizenship that began, locationally, with the body. She understood a woman's right to control her person as the foundational right upon which political and economic equality needed to rest if they were to have any value. Yet when Stanton considered what was at stake in having control over one's person, she did not speak in terms of physical transgression, condemning the bodily invasion of unwanted intercourse or unwanted gestation. Instead, she focused on the social work of reproduction, the work of raising children. Stanton recognized that this work fell exclusively to women, and her demand for self-possession spoke only to women's claims. Stanton's argument about the right of self-ownership was, more accurately, an intensely gender-specific argument about a woman's particular right. She contended that women needed to have full control over marital intercourse so that they could determine how many children they would raise and when. As Stanton explained:
 
The rights, to vote, to hold property, to speak in public, are all-important; but there are great social rights, before which all others sink into utter insignificance. The cause of woman is ....... not a question of meats and drinks, of money and lands, but of human rights--the sacred right of a woman to her own person, to all her God-given powers of body and soul. Did it ever enter into the mind of man that woman too had an inalienable right to life, liberty, and the pursuit of her individual happiness? Did he ever take in the idea that to the mother of the race, and to her alone, belonged the right to say when a new being should be brought into the world? Has he, in the gratification of his blind passions, ever paused to think whether it was with joy and gladness that she gave up ten or twenty years of the heyday of her existence to all the cares and sufferings of excessive maternity? Our present laws, our religious teachings, our social customs on the whole question of marriage and divorce, are most degrading to woman ....... Here, in my opinion, is the starting-point; here is the battleground where our independence must be fought and won. n151
 
This was a claim about the right of every woman to control her own person. Moreover, Stanton was certain that the vast majority of women, including those who would never speak publicly, regarded present  [*1421]  arrangements with "deep and settled disgust." n152 At the same time, it is clear that when Stanton thought about the sacrifice involved in a life unwillingly devoted to "excessive maternity," she was particularly mindful of the position of educated and middle-class women, women very much like herself. These women had the wherewithal and the desire to participate in public political life, but not the opportunity, in part because of the temporal demands of child rearing. Elsewhere in her letter to Smith, Stanton described women's frustration--and suggested the role she envisioned for women in the political community--this way:


 
Suppose yourself a woman. You are educated up to that point where one feels a deep interest in the welfare of her country, and in all the great questions of the day, in both Church and State; yet you have no voice in either. Little men, with little brains, may pour forth their little sentiments by the hour, in the forum and the sacred desk, but public sentiment and the religion of our day teach us that silence is most becoming in woman. n153
 
Stanton's argument for a woman's right to her person, first fully developed in public in 1855, remained her pressing concern for years. n154 She consistently pursued the issue, with more or less explicitness, although she was well aware that a demand to restructure the most intimate relations of marriage would be extremely controversial. A year after Stanton's reply to Smith, Lucy Stone, another leader of the woman's rights movement, wrote Stanton privately, asking her to speak out again on "a wife's right to her own body" at an upcoming National Woman's Rights Convention, notwithstanding "the censure which a discussion of this question [would] bring." n155 Stanton agreed to write to the convention, although her public letter was less direct than Stone's private correspondence. Rather than offer a complete account of the claim for control over one's person, Stanton effectively referenced and invoked her earlier argument. "Is it any wonder," she asked, "that woman regards herself as a mere machine, a tool for men's pleasure? Verily is she a hopeless victim of his morbidly developed passions." In the feminist reordering, woman would be "the rightful lawgiver in all our most sacred relations." n156 Women reading this letter would have had no difficulty understanding its intent. In the years to follow, Stanton spoke about a married woman's  [*1422]  right "to her person" again and again. n157 She remained convinced that a wife's right to refuse her husband's sexual demands was the bedrock foundation needed to support equality. "Woman's degradation is in man's idea of his sexual rights," Stanton wrote to Anthony. "How this marriage question grows on me. It lies at the very foundation of all progress." n158

Stanton's understanding of a married woman's right to her person was shared throughout the woman's rights movement. Consider Lucy Stone, who was as prominent a feminist leader as Stanton but one generally taken to be more moderate. Stone absolutely agreed with Stanton that a woman's right to herself was the predicate on which equality depended. She differed from Stanton only in her greater reluctance to discuss the right in public, out of fear that outraged audiences would react by rejecting the entire feminist agenda. Yet despite her strategic hesitancy, Stone still publicly advocated a wife's right of self-possession, including, as we will see, n159 through the famous protest she issued upon her own marriage. n160 Stone was more wary of the potential costs of public exposure, but at the same time she was also determined to create public impetus for reform.

The tension in Stone's thought between her substantive commitment to establishing a woman's right to herself and her fears that public agitation on the question would be counter-productive was evident as early as  [*1423]  1853. By this point, Stanton had resolved to speak publicly about the right to self-ownership when an agreeable opportunity arose, n161 although she would not actually do so for another two years. n162 Stone, however, remained deeply worried that explicit advocacy was premature. She explained her concerns in a letter to Stanton this way:


 
One who is in total darkness, finds his eyes pained by the sudden admission of bright light--and closes them. So too with many, who are thinking on the Woman question;--broach in their hearing, these thoughts, that we must think, and feel, and their progress is yet so little, that they will be frightened from further investigation. Such at least, has been my fear. I do not care for any damnation, that may come from any quarter, when I am sure that the full time has come. n163
 
As this passage indicates, Stone's anxieties did not reflect any doubts as to the importance of securing a wife's right to her person. She went on to emphasize that she agreed with Stanton, "in all, except it be the time to strike." n164 "I know," Stone said, "that the abuse in question is perfectly appalling. ..... One noble woman told me how she fled from her husband, to the Shakers, because he gave her no peace either during menstruation, pregnancy, or nursing." n165 Stone's eagerness to reform the marital relation so that wives controlled their husbands' sexual access was so great that even in a letter devoted to warning Stanton about the risk of public exposure, Stone indicated the appeal that public advocacy on the question held for her as well: "Shall we keep silence when such curses are inflicted through woman upon the race?," Stone asked herself as much as Stanton. "There is, I confess, much force in your reasoning upon the subject." n166

Within two years, Stone herself had issued, on the occasion of her marriage, a public and widely distributed protest against a husband's legal control over his wife's person. Stone had long refused to marry because she was unwilling to submit to the operation of coverture principles. "It seems to me," she wrote in 1849, "that no man who deserved the name of MAN, when he knows what a mere thing, the law, makes a married woman, would ever insult a woman, by asking her to marry." n167 Henry  [*1424]  Blackwell, her patient suitor and a reformer in his own right, ultimately convinced her to change her mind by making clear that, in their marriage, he would never enforce marital status law against her. n168 In particular, she would have total freedom to determine the terms of marital intercourse and, accordingly, unrestrained control over the social relations of reproduction. "You shall," Blackwell assured her, "choose when, where & how often you shall become a mother." n169 At Blackwell's suggestion, n170 Stone agreed to make their arrangement public in the form of a protest to be published immediately after their wedding on May 1, 1855. In this document, Stone and Blackwell specifically rejected the theory of consent underlying marital status law, which conclusively presumed agreement from a couple's decision to wed. They declared that their agreement to marry "implied no sanction of, nor promise of voluntary obedience to such of the present laws of marriage, as refuse to recognize the wife as an independent, rational being, while they confer upon the husband an injurious and unnatural superiority." n171 In listing the features of coverture that they rejected, Stone and Blackwell cited a husband's right to "custody of the wife's person" first. n172 This statement was not as explicit as it might have been, and deliberately so, but it was perfectly understandable to a nineteenth-century audience. Indeed, it specifically inspired other feminists to speak publicly about a wife's right to control her husband's sexual access. n173 Soon after her wedding, Stone reviewed her objections to the legal terms of marriage in language more accessible to modern readers:

 [*1425] 
 
It is clear to me, that [the marriage] question underlies, this whole movement and all our little skirmishing for better laws, and the right to vote, will yet be swallowed up, in the real question, viz, has woman, as wife, a right to herself? It is very little to me to have the right to vote, to own property &c. if I may not keep my body, and its uses, in my absolute right. Not one wife in a thousand can do that now, & so long as she suffers this bondage, all other rights will not help her to her true position. n174
 
Stone, like Stanton, did not view a wife's right to her person as simply one of many important rights to which women were entitled. Like Stanton, she understood this right as the necessary foundation for equal citizenship, without which all other legal reform would prove near worthless.

Stanton and Stone articulated a perspective that was common in the woman's rights movement. Feminists repeatedly singled out a woman's right to control marital intercourse as the core component of equality. n175 Paulina Wright Davis, president of the 1871 meeting of the National Women's Suffrage Convention, identified a woman's right to her person as the most crucial right that women needed to achieve. She explained:


 
That the evils, sufferings and disabilities of the women, as well as of men, are social still more than they are political, and that a  [*1426]  statement of woman's rights, which ignores the right of self-ownership as the first of all rights, is insufficient to meet the demand, and is ceasing to enlist the enthusiasm and even the common interest of the most intelligent portion of the community. n176
 
There is no subject, Matilda E.J. Gage agreed, "which lies deeper down into woman's wrongs" than "the denial of the right to herself." n177 A woman should, Lucinda B. Chandler concurred, "legally hold the custody and control of her person in wifehood to govern according to her wisdom and instincts the maternal office." n178 "The repeal of the law of coverture, leaving the wife free to maintain her self-respect and to determine the exercise of her function of maternity, will confer the greatest service legislation can render." n179 Giving woman the right "to decide when she shall become a mother, how often & under what circumstances" was only just, n180 these arguments continued, because women performed the social work of reproduction. Like Stanton and Stone, these nineteenth-century feminists used women's exclusive responsibility for child rearing to insist that women were entitled to control the terms of this work and determine how much of their lives they would have to spend raising children. n181 Chandler noted that  [*1427]  "one position, with its attendant round of cares and duties, has ever been acknowledged as especially Woman's--that of Motherhood." n182 Sarah M. Grimke elaborated:


 
Surely as upon her alone devolves the necessity of nurturing unto the fulness of life the being within her & after it is born, of nursing & tending it thro' helpless infancy & capricious childhood, often under the pressure of miserable health; she ought to have the right of controlling all preliminaries. If man had all these burdens to bear, would not he declare that common sense & common justice confer this right upon him. n183
 

B. Structural Consent and Marriage as Legalized Prostitution
 
Nineteenth-century feminists often explained that economic and political equality would be meaningless, unless women had the right to their own persons in marriage. The statements reflected their view that equal citizenship needed to be grounded in self-ownership, because a wife's right to control her husband's sexual access would enable her to determine the conditions under which she performed reproductive labor. Yet this point constitutes only part of the feminist claim, and overstates the distinction that these women drew between personal self-possession, and political and economic rights. When feminists elaborated their understanding of consent, they made it clear that they would not be satisfied with legal reform recognizing a wife's right to herself. Instead, they argued that a wife could only freely consent to marital intercourse under circumstances in which she had both the legal right to refuse and realistic alternatives to submission. This was a structural understanding of consent that  [*1428]  considered how the structure of the marital relation, rather than simply the behavior of individual husbands, shaped women's opportunities as a class. Feminists noted, and attacked, the tremendous legal, social, and economic pressures that pushed women into marriage and kept them there. A woman who lived outside a husband's household, or (worse yet) divorced or separated, was marginalized and often found it extremely difficult to support herself, given laws and practices that explicitly excluded women from most jobs and suppressed the wages for women's work. In marriage, coverture principles stripped a wife of almost all legal claims to her household's resources and power, leaving her to confront her husband as an economic, social, and political dependent.

The language of "legalized prostitution" became one of the most powerful idioms in which nineteenth-century feminists articulated this structural understanding of consent. Even before the organization of the first woman's rights movement, Hale and his successors had anxiously recognized the similarities between the situation of wives subjected to the marital rape exemption and prostitutes. As we have seen, these lawyers and judges were never willing, or able, to present a substantive explanation differentiating the work of prostitution from the sexual services that husbands were entitled to take from their financially dependent wives. Instead, the authoritative legal sources sought to distinguish the two classes of women in jurisdictional terms. They argued that only extramarital intercourse could constitute prostitution, that sex could only be illicit and degrading if a woman's sexual partner was not her husband. n184 The woman's rights movement emphatically rejected that notion and was convinced that it had spotted a crucial weakness in the defense of a husband's conjugal rights. Precisely countering the claims of the exemption's supporters, feminists employed the term legalized prostitution to describe the condition of wives who acquiesced to marital intercourse because they had no practical alternative, nowhere else to go and no other means of negotiating their marital relationship. They argued that the legitimacy of sexual intercourse depended on a woman's genuine consent (understood structurally), contending that there was little relevant difference between married women who effectively traded sexual access in return for their husbands' socioeconomic support, and prostitutes who explicitly sold their sexuality to strangers because they, too, had no better way to earn a living. Legal and illegal prostitution were mirrored phenomena in the feminist vision, understandable on the same terms. n185

 [*1429]  The feminist analysis of illegal prostitution focused on the societal inequities that drove women to the trade, including, very prominently, the impediments that women faced in securing a living wage. Feminists understood prostitution as a (highly regrettable) substitute for work in the legitimate market, for women who did not have a husband to support them. This critique was directed outward; it did not account for prostitution in terms of the internal character flaws or moral worthlessness of its practitioners. Abby Price, a feminist from Massachusetts, explained that "cruel necessity" often drove the prostitute to vice. "The washer-woman," Price elaborated, "works as hard in proportion as the wood-sawyer, yet she makes not more than half as much by a day's work. Thus by narrowing the sphere of woman, and reducing her remuneration of labor so unjustly, her resources are few and she finds it hard to acquire an honorable independence." n186 "It is by no means rare," she added, "to see married women, widowed, or deserted by their husbands, becoming abandoned, with the sole object of saving their families from dying with hunger." n187 Lucy Stone similarly identified the causes of prostitution. "Women working in tailor-shops are paid one-third as much as men," she noted. Someone had calculated that this wage left women "just three and a half cents a day for bread. Is it a wonder," Stone concluded, "that women are driven to prostitution?" n188 "Is it not time," these women asked, "to throw open to women, equal resources with men, for obtaining honest employment?" n189

 [*1430]  The feminist attack on legalized prostitution in marriage proceeded along the same lines, explaining why wives were not able to exercise free choice with regard to marital relations when they had no good alternatives to acquiescence. "Even in our republic (so called)," Harriot Hunt reported, woman "is denied a finished education, and refused a just remuneration for her labor, and thus has been driven into legal and illegal prostitutions." n190 "Dollars and a home come to woman through man." n191 Wives "prostituted" themselves "body and soul," Fuller Walker confirmed, "for the sake of a home, a shelter, or money enough to buy bread that the passions of men may be satisfied." n192 While many feminists spoke of legalized prostitution as marrying "for a home," others contended that this description was too mild. Grimke, for instance, argued that marriages where women functionally traded sexual access for support could not accurately be described in a language of domesticity: "Many a woman (I call her not wife)," Grimke noted, "loathes the unhallowed connection she has formed & would gladly welcome death as a deliverer from that polluted prison house, which the world miscalls her home. A revolting experience has forced upon her the conviction that she is a legal prostitute." n193

 [*1431]  Feminists elaborated on this analysis as it applied to middle-class women outside the wage labor market, but explained the constraints that operated on women who performed market work as well. Stanton, particularly interested in the situation of the middle-class housewife, articulated a multi-tiered set of obstacles to exercising free choice with respect to marital intercourse. The first obstacle, of course, was legal. Marital status law gave women no control over their husbands' sexual demands: "A man in marrying gives up no right; but a woman, every right, even the most sacred of all--the right to her own person." n194 Yet that was not the only constraint Stanton saw. If marriage was to rise above "legalized prostitution," wives needed to have "personal freedom," something more, even, than a legal right to control marital intercourse. n195 This freedom "[did] not and [could not] now belong to the relation of wife, to the mistress of the isolated home, to the financial dependent." n196 Middle-class women were systematically trained, in Stanton's view, "to lives of inaction and dependance." n197 Indeed, they learned "dependance as a womanly virtue." n198 Marriage gave men enormous legal, economic, and social control over their wives. But women whose families could afford to educate them were taught to shun work in the arts, literature, philanthropy or the academy, which might have provided them with a happy alternative to marriage where they could not find "a pure and holy love." n199 Instead, these women were instructed to devote themselves to attracting a husband.  [*1432]  "If," Lucy Stone agreed, a middle-class woman went "heartily and bravely to give herself to some worthy purpose, she is out of her sphere and she loses caste." n200 As a consequence, these women had, Stanton continued, little alternative upon reaching adulthood, but "marrying for a home, a support, a position, a head, a protector, a defender, &c., marrying to escape the horrors of a single life of inactivity and vacuity, the odious cognomen of old maid." n201 "Teach woman self-dependance," Stanton advised, "and you end the wholesale degradation of the sacred institution of marriage." n202 "Educate woman," Ernestine Rose concurred, "to enable her to promote her independence, and she will not be obliged to marry for a home and a subsistence." n203

Of course, it was hardly the worry of poorer women that their lives had been squandered away in frivolity and indolence. Many women had no choice but to engage in market work. The woman's rights movement also described the somewhat different reasons that these women needed more than the legal right to refuse marital intercourse before they would be able to exercise genuine control over their own persons. As the feminists noted, most "profitable employments" were closed to women, and women were paid less for the work they did: "Even for the same services woman generally receives less than man." n204 They concluded that "the present condition of woman caused a horrible perversion of the marriage relation." n205 "As a consequence of her fewer resources, marriage has been to her the great means of securing position in society." n206 Women had to  [*1433]  "marry for a home," and were, accordingly, not able to exercise free choice in selecting, or remaining with, a husband. n207 The marital relation, Ann Preston declared, "which should ever be a "holy sacrament,' the unbiased and generous election of the free and self-sustained being--too often is degraded into a mean acceptance of a shelter from neglect and poverty!" n208 Woman would not be able to freely choose marriage, until she had "free access to vocations of profit and honor, the means of earning a livelihood and independence for herself!" n209

C. The First Woman's Rights Campaign Against Marital Rape as a Distinctly Nineteenth-Century Movement
 
Leading nineteenth-century feminists understood a woman's right to her person as the core foundation on which equal citizenship needed to rest. Their definition of consent to marital intercourse, in turn, demanded both a legal right to refuse, as well as the existence of real socioeconomic alternatives to marriage and submission. In many ways, these claims still resonate as distinctly modern. But one should not make the mistake of conflating nineteenth-century feminism with modern claims against the marital rape exemption. n210

As an initial matter, women were systematically excluded from the bar in the nineteenth century, n211 and their lack of legal training had important consequences for the shape of the arguments that the first woman's rights movement put forth. Organized feminists clearly wanted to  [*1434]  establish a woman's right to control the terms of marital intercourse. They meant this to be an independent right, moreover, not one subject to a husband's benevolent agreement. But these women did not clarify what form of enforcement they had in mind. To my knowledge, the woman's rights movement never addressed, for instance, the relative merits of criminal penalties as opposed to civil sanctions for marital rape. Moreover, the movement did not specify whether husbands were to be punished for marital intercourse to which their wives had acquiesced for want of palatable alternatives. The feminists' understanding of genuine consent was significantly more far-reaching than any definition that has ever operated in the criminal law on rape, even outside of the marital context. Criminal rape law focuses on the interaction between the particular victim and perpetrator: who did what when, who said what to whom. But the nineteenth-century feminist understanding of marital rape did not always turn on what an individual husband did or said. It challenged the voluntariness of a wife's consent to sexual intercourse with her husband whenever the wife had no realistic socioeconomic alternatives to marriage and submission, even where the woman's husband had never resorted to force, threats, or coercion. Perhaps the feminists envisioned subjecting "legalized prostitution" to the far lesser criminal penalties associated with illegal prostitution, but they never made that point. Such institutional questions were not of particular interest to nineteenth-century feminism. But to be fair, the judicial opinions and legal treatises of the nineteenth century did not explain the marital rape exemption by reference to institutional claims about the unsuitability of criminal sanctions. The authoritative legal sources argued from an understanding about the nature of marriage that was grounded in an acceptance of women's legal subordination, and the woman's rights movement attacked marital rape on those terms.

Nineteenth-century feminists also had reasons to be wary of marital intercourse that do not neatly map onto the modern landscape. As we have already seen, nineteenth-century feminists built on the premise that women would do all the social work of reproduction, the work of raising children. Rather than highlight issues of bodily autonomy or inviolateness, they understood a wife's right to control her husband's sexual access as the mechanism through which a married woman would determine the conditions under which she performed this labor. A number of other considerations distinctively structured organized feminism's assessment of the risks and rewards of marital intercourse.

Nineteenth-century feminists understood male sexuality to be importantly different from female sexuality. This view did not deny the female sex drive. Indeed, Elizabeth Blackwell, the first woman to graduate from medical school in the United States, devoted much of a treatise to  [*1435]  disputing the then-common notion that women naturally lacked sexual passion. n212 But feminists did take male sexuality to be "morbidly developed" in a way that its female counterpart was not. n213 On this theory, woman had "more self-control than man;" n214 irrational or immoral sexual acts tempted her far less. Stanton was sure that no woman enjoyed acts of prostitution, because "the true woman in her organization [was] too refined and spiritual, to be the victim of an over-powering passion" like that. n215 In contrast, this view held that lust and licentiousness systematically overrode male rationality and constantly tempted men to commit immoral acts, like insisting on marital intercourse when their wives' health called for restraint. n216

Although slightly more nuanced, the feminists' dichotomous rendering of the sexual instincts of man and woman drew heavily on a general societal understanding that the female sex drive was far less pronounced and more easily controllable than its male equivalent. n217  [*1436]  As Nancy Cott has most prominently noted, women had a number of reasons to accept and even promote their reputation for sexual reticence in the nineteenth century. n218 Female passionlessness was culturally associated with the premise that the natural inclination of womanhood was to moral seriousness. While women's status as moral exemplars had its own difficulties, it provided a sturdier foundation for respect and equality than earlier, Edenic images of women as sexual temptresses or sexual objects. n219 The costs of passionlessness for women, moreover, were mitigated. Women did not have the freedom to take many sexual liberties, even if they had been assumed to have interests in that direction. The social and  [*1437]  economic penalties for a woman's adultery within marriage and promiscuity or pregnancy before it remained extremely high. n220 The available empirical evidence on sexual practices, furthermore, suggests that many of the heterosexual experiences that women did have were not pleasurable, with men focused solely on their own sexual satisfaction. n221

This vision of female sexuality helped structure the nineteenth-century feminist conversation on marital rape. Widespread agreement about women's lesser sexual interest lent support to feminist efforts to resist men's sexual demands. The image of overdeveloped male sexuality, in turn, gave force to the claim that women needed an enforceable right to control the terms of marital intercourse because they could not assume that their husbands' sexual overtures would be tempered by reason and good moral judgment. Finally, the feminists' understanding that women's sexual desires were less developed led them to discount the potential costs of sexual restraint. The woman's rights movement did not criticize marital intercourse to which the woman had genuinely consented. It would be a mistake to conclude that nineteenth-century feminists were categorically hostile to sex. But they did not express any concern that according women full control over their husbands' sexual access would limit opportunities for sexual expression or sexual pleasure.

The nineteenth-century feminists' opposition to the use of contraceptive devices and abortion also influenced their understanding of the risks of marital intercourse. The first woman's rights movement was highly sympathetic to the reasons why women sought abortions. These feminists understood the incidence of abortion, in fact, to be rooted in women's lack of control over marital intercourse, which led desperate women to resort to abortion in order to control their fertility. They blamed the husbands who refused to restrain their sexual demands, rather than the wives forced to submit to them. "Forced maternity, not out of legal marriage but within it, the complete power of the stronger over the weaker sex," feminists explained, "must lie at the bottom of a vast proportion of such revolting outrages against the laws of nature and our common humanity." n222 But nineteenth-century feminists still did not endorse  [*1438]  abortion or contraceptive devices as means of regulating reproduction. n223 Linda Gordon has posited that nineteenth-century feminists feared that separating intercourse from reproduction would facilitate male infidelity, destabilizing marital relationships on which women were enormously dependent, in an environment in which extramarital sexuality remained an unattractive option for middle-class women. n224 As Reva Siegel has noted, supporting abortion would also have been very politically costly for the feminist movement, given the medical establishment's fierce and organized opposition to abortion in the second half of the nineteenth century. n225 This focus on limiting intercourse as the only means of curtailing reproduction, however, made nineteenth-century feminists extremely conscious of the costs and perils of each act of marital intercourse. These risks, moreover, encompassed more than the possibility that a woman would have to raise too many children, too quickly. They also included the physiological dangers associated with reproduction. Women still commonly died, or were permanently disabled, by pregnancy and childbirth in the nineteenth century. n226

 [*1439]  Finally, the first woman's rights movement predicted horrific eugenic consequences for the children that unwanted marital intercourse produced. In the second half of the nineteenth century, Americans increasingly understood their country in demographic terms, locating the key constitutive act of nation building in women's reproductive capacity and articulating a wide variety of claims in a eugenic idiom. The dominant eugenic arguments of the period endorsed America's hierarchies of national origin and race, contending that this ordering was natural, physiological, and unchangeable. These arguments faulted native-born white women for producing too few children while foreign-born and African-American women were producing too many. The claim featured heavily in the antiabortion literature of the day. Horatio R. Storer, the leader of that campaign, advised native-born white women that "the future destiny of the nation" rested "upon their loins." If unchecked, their supposedly disproportionate propensity for abortion would leave America "filled" with the children of aliens. n227 Similar fears about the nation's demographic fate lent support to the rash of antimiscegenation laws prohibiting interracial marriage that states enacted in the aftermath of the Civil War. n228

Historians have frequently noted that some nineteenth-century feminists directly appealed to this tradition on occasion. In particular, the debates over the Fifteenth Amendment led some women to make eugenic claims in support of the contention that native-born white women deserved the vote more than black men or male immigrants. n229 But there was more to the feminist argument about eugenics than this account suggests.

 [*1440]  Like the dominant purveyors of eugenic theories, the woman's rights movement developed eugenic arguments that supported its moral and legal claims. n230 At least when feminists described the eugenic consequences of depriving wives of control over their persons, their attention rested on environmental conditions of structured inequality rather than on race or national origin. In the (convenient) thinking of the movement, forced marital intercourse not only undermined a woman's freedom and equality, it was also eugenically disastrous for her children. Feminists assumed the inheritability of acquired characteristics and contended that a husband's licentiousness and a wife's unhappiness about her impending maternity  [*1441]  would be transmitted to their child before birth, forever diminishing the child's capabilities and prospects. A "corrupt, licentious, drunken brute" had the legal right, a subscriber to the feminist Woman's Journal warned, to "debauch and outrage [his wife's] person," to "force her to give birth to unwelcome children, the exact pattern of the father, to curse the world." n231 "Medical jurisprudence," Gage also advised, "has begun to accumulate facts on this point, showing how the condition and feelings of the mother mould not only the physical and mental qualities of the child, but its moral nature." n232 "So long as children are conceived in weariness and disgust," Stanton agreed, "you must not look for high-toned men and women capable of accomplishing any great and noble achievement." n233

Such arguments demarcated a field of harm, predicting that the adverse consequences of marital rape would be felt intergenerationally. But they also held out the possibility of change and salvation. The leading eugenic theories of the period described large portions of the population as irredeemably inferior, and used that to justify their continued subordination. Feminists, committed to more emancipatory principles, presented the mirror image of that claim, promising that the character of subsequent generations would improve if women had the right to control marital intercourse. Furthermore, where standard eugenic arguments blamed women for using their reproductive capacity unwisely, feminists laid the responsibility for eugenically undesirable children squarely at men's feet, on the ground that men controlled the terms on which reproduction occurred. As intended, these claims only increased what was at stake in marital intercourse. Nineteenth-century feminists sought to establish a  [*1442]  wife's control over her husband's sexual access in order to achieve equal citizenship for women. They also insisted that placing the regulation of marital intercourse in female hands was the only way to guarantee the health, vigor, morality, and developmental soundness of the future generation. "Truly," Stanton concluded, "are the sins of the father visited upon the children. God, in his wisdom, has so linked together the whole human family, that any violence done at one end of the chain is felt throughout its length." n234

Participants in the nineteenth-century woman's rights movement argued that a wife's right to her own person was the foundation on which women's equality and freedom depended. This view reflected their understanding that the right of self-possession would enable women to determine the conditions under which they raised children. Organized feminists in the nineteenth century, as should be clear at this point, did not contest women's responsibility for this work, or sanction other means of regulating the frequency of childbirth, like contraception or abortion. They saw limiting marital intercourse as the only legitimate method of regulating the work of motherhood and, for precisely this reason, were determined to give control over marital intercourse to wives. Accordingly, where authoritative sources in the criminal law argued that a wife's consent to marital intercourse could be legally and irretrievably presumed from her decision to marry, the woman's rights movement demanded both a legal right to refuse and real socioeconomic alternatives to submission.III Alternate Iterations of the Nineteenth-Century Critique of Marital Rape
 
Criticism of marital rape in the nineteenth century was not limited to the members of the organized woman's rights movement. Accounts of the harm that marital rape inflicted on wives appeared in other iterations, both on the fringes of feminism and, more remarkably, in the popular prescriptive literature on marriage, health, and reproduction. The nature and direction of the causal links between these social conversations is, to be sure, difficult to trace precisely. Most likely, the causation was circular, so that the organized feminist campaign was facilitated by growing  [*1443]  opposition to marital rape outside the movement, at the same time that the efforts of organized feminism helped foster and give momentum to this wider opposition. What is striking, though, is that there was a near simultaneous broaching of the question of marital rape in a number of different social communities in the latter half of the nineteenth century, suggesting that the woman's rights discourse about a supposedly unspeakable subject was far more centrist and in dialogue with customary norms than one might have otherwise assumed.

One site of opposition to marital rape outside of the organized woman's rights movement in the nineteenth century centered on the advocates of what was then known as "free love." These figures, less the constituents of a cohesive movement than a series of loosely affiliated individual thinkers, occupied the left-most part of nineteenth-century feminism, although at the margins there was some overlap in membership with the woman's rights movement. The free lovers agreed with the essential elements of the organized feminist argument for a woman's right to her own person. But they articulated their critique of the current structure of marital relations more radically and expansively, and called for even more transformative change than the woman's rights movement envisioned. Many members of the woman's rights movement resented the controversial free lovers and labored to disassociate themselves from free love in the popular mind. Yet it is hardly clear that the advocates of free love hampered the woman's rights movement's campaign against marital rape. The work of the free lovers added to the reasoning underlying the organized feminist attack on a husband's conjugal prerogatives. And the free lovers' deliberately provocative style may have made the woman's rights movement appear less radical by comparison.

More importantly, perhaps, the popular prescriptive literature contains powerful evidence that the feminist campaign against marital rape resonated with changing social norms about good marital behavior. Dozens of mainstream prescriptive writers began to publish extensive discussions of the moral, physiological, and eugenic harm caused by marital rape almost immediately after the organized feminist movement began to address the issue. This literature, however, did not contest a husband's legal right to determine the terms of marital intercourse. Rather, it sought to convince husbands to voluntarily refrain from exercising their acknowledged legal prerogatives, assuring them that the accommodation would benefit men as much as their wives. Feminists insisted on a wife's right to control her own person, to be pursued in the interest of ending women's marital subordination. The prescriptive literature certainly helped disseminate societal recognition of the proposition that marital rape inflicted injury on women. But that literature's version of the claim recommended only noncompulsory strategies for marital health,  [*1444]  happiness, and harmony, to be pursued at a husband's discretion so long as they furthered his self-interest.

Let's begin, though, with the free lovers.

A. The Advocates of Free Love
 
The advocates of free love parted company with the nineteenth-century feminist movement mainly over the ultimate desirability of the marital relation. The woman's rights movement sought to radically restructure marriage so that wives exercised much more power and control within it, but organized feminism endorsed marital monogamy and stability. Free lovers rejected the marriage form altogether. They argued that the law should create absolutely no constraints on consensual love and sex, and understood the prohibition on extramarital intercourse as such a constraint. n235 In the free love vision, each person had the ""right to love when she will, where she will and how she will.'" n236

 [*1445]  Not surprisingly, nineteenth-century conservatives were ferocious critics of free love. They abhorred its rejection of legal marriage, which they took to be a simple promotion of "Libertinism" and licentiousness. n237 Many--although not all--members of the organized woman's rights movement, in turn, were anxious to distinguish themselves from the more radical free lovers, n238 particularly since one of the most effective, if  [*1446]  unsubstantiated, charges leveled against the woman's rights movement in the nineteenth century was that it advocated free love. n239 Nonetheless, the free lovers' willingness to operate at the left-most reaches of public discourse may have helped deaden the shock of the mainline feminists' only somewhat more moderate claims. Moreover, for all the differences between free love and organized feminism on the value of the marriage form, the free lovers' attack on marital rape was closely aligned to that articulated by the woman's rights movement, even if couched in a more explicit and provocative idiom. The free lovers constituted another set of voices making the feminist case for a woman's right to self-possession.

The free lovers agreed with organized feminism that a woman's control over her own person was the necessary foundation for her equal citizenship. n240 They characterized a husband's sexual imposition on his unwilling wife as the violation of a "Woman's Natural Right to ownership of and control over her own body-self,--a right inseparable from Woman's intelligent existence; a right unquestionable, precious,

inalienable, real--beyond words to express." n241 But where the organized feminist movement's critique of marital rape left its preferred mode of enforcement unspecified, the free lovers charged--at great length and to tremendous publicity-- that unwanted sex in marriage was no different from the nonmarital outrages already prohibited and severely punished in criminal rape statutes. "Night after night there are thousands of rapes committed," Victoria Woodhull reported, "under cover of this accursed [marriage] license." n242 "The world has got to be startled ..... into realizing that there is nothing else now existing among pretendedly enlightened nations, except marriage, that invests men with the right to debauch women, sexually, against their wills." n243 "To the unmarried woman," Thomas Low Nichols and Mary S. Gove Nichols added, "a rape, or the violent possession of her person, is an outrage, which the laws of most countries punish with death." Yet after the marriage ceremony, "not only does the law justify the outrage, but she is severely blamed by a virtuous  [*1447]  society for not submitting to the man, to whom her person, her whole being forever belongs!" n244

The free lovers also compared a wife's sexual subjection in marriage to slavery. This was the most powerful reformist analogy available in postbellum America. After generations of debate over slavery and four years of war, the nation had just declared that particular form of subordination to be illegitimate. It was an open, and highly contested, question just how far the logic of freedom and equality that had undergirded the emancipation of the slaves would be permitted to extend in the postbellum period. But it was clear that other status relations would be more vulnerable the more they were understood to resemble slavery. The advocates of free love, taking full advantage of the rhetorical possibilities, constantly described marital rape in the language of bondage. Wives, they said, were "Sexual Slaves." n245 Under "legal sexual slavery," n246 a wife's duty was "submission." n247 Her husband's will was "her only law." n248 Indeed, in the decade before the Civil War, the Nicholses had devoted an entire chapter of their work on marriage to the parallel between a wife and a slave. n249 This discussion drew a specific analogy to the systemic sexual exploitation of slave women by white men, which was a constitutive element of chattel slavery in the United States. n250 The Nicholses advocated abolition,  [*1448]  defined broadly to include all forms of sexual subjugation that denied a woman--slave or wife-- the right to refuse a man's sexual demands. n251

In criticizing marital rape, the free lovers stressed that a woman needed control over her own person in order to determine the conditions under which she performed the work of raising children. n252 But the free lovers' focus on the work of motherhood was not particularly tight. In contrast to the leaders of the organized woman's rights movement, who  [*1449]  concentrated on limiting the downside risks of sexuality for women, the advocates of free love also justified a woman's right to control her husband's sexual access by reference to rights of the body: namely, female sexual autonomy and pleasure. Woodhull, who always made the woman' s rights movement seem substantially more traditional by comparison, was concerned about wives who were sexually unfulfilled because "compelled to undesired relations with the legal owners of their sexual organs." n253 "The mind," she elaborated, "in rebellion at the enslaved condition, has such an effect upon the sexual act that it becomes impossible for [the woman] to respond or reciprocate." n254 In Woodhull's view, sexual apathy actually threatened a wife's health and longevity. She cited medical authority for the proposition that: ""If the [sex] act is complete, so that both body and mind are satisfied, no disease arises, though there be frequent repetitions; but if the act be incomplete, the organs being irritated merely, and the mind not satisfied, then disease will surely follow.'" n255 The Nicholses concurred in finding that "the apathy of the sexual instinct in woman is caused by the enslaved and unhealthy condition in which she lives." n256 "A healthy and loving woman," they reported, "is impelled to material union as surely, often as strongly, as man." n257 These women were, the couple warned, "destroyed by being made bond-women." n258

The free love critique of forced oral sex in marriage was another sign of their concern with women's sexual autonomy and pleasure, as well as their willingness to delve publicly into topics that brought the issue of marital rape to the fore even as they made the organized woman's rights movement seem almost tactful by comparison. The conduct here was necessarily not procreative, but many women in the nineteenth century thought oral sex was inherently degrading. The issue was whether a wife had the right to refrain from sex acts in which she did not want to  [*1450]  participate, even when the possibility of maternity was not at stake. The free lovers answered that question, not surprisingly, with a resounding yes. The Lucifer, a journal devoted to free love principles, published a series of letters in 1890 detailing the particular humiliation that wives experienced upon being compelled to perform oral sex. "I know of one case," one correspondent reported, "where a man when his wife was so near her confinement that he did not care to enforce his claim in the natural way, forced her to relieve him by making a " sucker' of her and she would vomit with the disgust and nausea thus caused." n259 "So long as these revolting, disgusting, horrible things are," these writers agreed, "they may as well be made known, that they may be done away with. The fact that they do exist is enough to make any person having any humanity in them, struggle to enlighten the race on the right use of sex." n260

Like the organized woman's rights movement, the free lovers went on to demand more than a wife's legal right to refuse. They also condemned the structure of marriage more generally, joining organized feminism to explain that wives functioned as legalized prostitutes whenever they had no realistic alternatives to marriage and submission. n261 Woodhull, like Stanton and Stone, repeatedly stressed that women would never achieve sexual freedom until they were "self-reliant and self-supporting individuals," n262 no longer "dependent upon [men] for the means of subsistence." n263 "Sexual relations," she declared, "should be the result of entirely different motives than for the purpose of physical support." n264 The  [*1451]  free lovers ultimately rejected the marriage form entirely, going significantly beyond what the woman's rights movement endorsed. n265 But the free lovers' analysis of marriage as it was currently constituted resonated deeply with the organized feminist effort against marital rape.

Feminists across the spectrum in the latter half of the nineteenth century agreed that a husband's conjugal rights were a crucial constitutive element in women's subordination and campaigned for a wife's right to her own person. The advocates of free love offered a critique of marital rape which reinforced that advanced by the organized woman's rights movement, even as the free lovers spoke in a more radical and explicit voice. But feminists were not alone in their opposition to marital rape. Very soon after feminists began to address the question, the popular prescriptive literature on marriage started to broach the subject as well.

B. The Popular Prescriptive Literature
 
The prescriptive literature on marriage in the second half of the nineteenth century was preoccupied with warning husbands to refrain from marital intercourse when they did not have their wives' consent. Popular authors, like the woman's rights reformers, were remarkably frank, even verbose, in their discussion of the issue. n266 Marriage manuals, written by both men and women and widely read, warned husbands that subjecting one's wife to marital intercourse when she did not want to risk the possibility of motherhood was immoral and dangerous to the health of  [*1452]  man, woman, and unwillingly produced child. n267 They called on husbands not to exercise their legal prerogatives and proposed a wide array of stratagems to facilitate that result. In this way, criticism of marital rape registered and reverberated in a wider popular conversation about intimacy in marriage in the nineteenth century.

It is important to recognize, however, the differences between the feminist rights discourse on marital rape and the work of mainstream prescriptive writers. First, the popular prescriptive literature focused on each individual husband's behavior. These texts wanted husbands to refrain from nonphysical coercion, as well as physical force compelling a wife to submit to marital intercourse. But their understanding of a wife's consent did not include the structural concerns about marriage that occupied feminists; these writers did not suggest an inquiry into the limited economic and social opportunities that pushed women into marriage and kept them there.

More fundamentally, the operative premise behind the popular prescriptive literature's argument for a husband's voluntary restraint was that he had the authority to act differently. This literature explicitly addressed social norms, rather than the law. Yet the two were never fully separable. The law shaped the prescriptive literature's understanding of society, even as that literature urged husbands to act better in practice than the law required. The prescriptive literature's entire discussion of manly self-restraint assumed and accepted the baseline proposition that a husband had the right to control the terms of marital intercourse. He might be persuaded not to avail himself of that entitlement, by tracts promising that marital mutuality would benefit a husband at least as much as his wife. But prescriptive writers acknowledged that the choice was ultimately his. This was the very proposition that the woman's rights activists vigorously disputed. Nineteenth-century feminists explained a husband's conjugal prerogatives as an instrument of women's subordination and demanded rights that women could enforce against their husbands. In the prescriptive literature, this rights discourse was transformed into suggested strategies for marital health, happiness, and harmony, to be pursued in a husband's interest and at his discretion.

 [*1453] 

1. The Prescriptive Account of the Harm of Marital Rape
 
Like the nineteenth-century feminists, prescriptive writers elaborated at length on the harm that marital rape inflicted. But the prescriptive literature's focus was not on wives alone. This literature warned that marital rape inflicted severe injuries on wives that were morally untenable. It went on, however, to report that marital rape ultimately operated against a husband's self-interest as well, appealing directly to the party who retained the right of control.

Prescriptive writers put forth three prominent moral arguments explaining the harm that marital rape caused wives. These arguments were not feminist in their reasoning; they did not consistently recognize the fundamental equality of men and women. But they were real and empathetic nonetheless. The prescriptive literature's first moral argument was grounded in a view of the animal world, which supposed that intercourse among lower animals was always under the female's control. This argument, in essence, was a claim that women should be treated as well as other female animals, not a claim for women to be treated as well as men. Although put forth in an effort to mitigate the functional consequences of women's subordination to men, the argument did not challenge that hierarchical ordering. n268 It simply contended that what was natural (and therefore right) for lower animals, was right for women as well. When R.T. Trall declared that "God and Nature have given to the female the supreme control of her own person," he cited the practice of "the whole animal kingdom below man" as his sole piece of supporting evidence. n269 "No male animal offers violence to the female," Trall explained. "He never compels her to submit to the sexual embrace against her desire, nor forces her to bear offspring against her inclination or will. But, when she is in condition to propagate her kind, and desires the co-operation of her male partner, she informs him of it." n270 William McLaury similarly advised husbands to "take a lesson from the lower animals, and not coerce or over-persuade, but await the wife's invitation at this time." n271

 [*1454]  Marriage manuals also argued that women should control their husbands' sexual access because wives would have to do the work of bearing and nursing any children conceived. Grounded in a gender-specific appreciation of the work that women performed, this argument did track the predominant feminist claim for a wife's right to her own person. The feminist reformers focused on the work of raising children, identifying it as the most time-consuming and taxing part of motherhood. The prescriptive literature spoke about the physiological aspects of reproduction (childbirth and lactation), a form of labor that was perhaps easier for a popular audience to recognize as onerous work. John Cowan explained that a wife needed the right "to her own person-- the right to deny all approaches, save and only when she desired maternity," n272 because she bore all of the risks of gestation and childbirth: "the pains, the troubles, the heart-burnings, the sickness, the danger of premature death." n273 "Justice and reason dictate," Nicholas Boyd agreed, "that she who feeds the unfolding germ with her very life-blood, endures the pangs of travail and nurses the babe at her own breast, should be left to decide freely, without compulsion or entreaty, when she is ready to undertake the holy office of maternity." n274

 [*1455]  Finally, the postbellum prescriptive literature's last moral argument in favor of voluntary restraint warned husbands that subjecting an unwilling wife to marital intercourse meant treating her like a prostitute, a fundamentally immoral and degrading course of action. As this commentary repeatedly explained, prostitution could exist inside marriage under essentially the same terms on which it operated outside the marital relation. n275 When feminists made this point, they used it to draw attention to women's socioeconomic dependence on their husbands and to indicate how this inequality hampered women's ability to refuse marital intercourse. n276 The prescriptive literature took a somewhat different tack: These writers argued that the essence of prostitution, inside marriage and out, was a sex act in which the man used the woman simply to satisfy his sexual desire, without any attempt to modify his sexual demands and without any concern, more generally, for the woman's welfare or state of mind. Eliza Duffey described wives "who feel that they bear the brand of the prostitute within their souls, because they are forced to yield their bodies unwillingly to gratifying that which they can regard in no other light than as a selfish lust, hallowed as it is by no mutual desire, nor exalted by self-forgetting impulses." n277 As an article entitled Prostitution Within the Marriage Bond concluded, "marriage, home, and posterity are alike dishonored when women are forced to submit to sexual abuses which are revolting to their souls." n278 "He is an ill husband," Sylvanus Stall agreed, "that uses his wife as a man treats a harlot, having no other end but pleasure." n279

The prescriptive literature supplemented these moral claims against marital rape with a series of physiological arguments that made clear that the injury caused by marital rape was not limited to wives. This literature warned that the practice of marital rape actually endangered the health of  [*1456]  its male perpetrator. It also indicated that the physiological injury that marital rape inflicted on women and the children they unwillingly bore inevitably redounded to men's material, emotional, and dynastic detriment as husbands and fathers. Nineteenth-century feminists, demanding a woman's enforceable right to her own person, focused on the injury that marital rape caused women. Prescriptive writers, hoping to appeal to the self-interest of husbands, explained the physiology of marital rape in much more male-centered terms than those feminists employed, n280 using their own health claims to establish their own (male-centered) case for voluntary restraint.

In contending that husbands put their own health at risk when they subjected their unwilling wives to marital intercourse, prescriptive writers built on a widespread understanding that a man could endanger his prospects by expending sexual energy. Many articulate Americans in the nineteenth century envisioned the male body as a closed energy system and sexual activity as a taxing drain, so that the outlay of sexual effort would leave a man physically weakened and with less vigor to devote to intellectual, economic, and moral pursuits. This presupposition was endorsed by leading medical professionals, n281 popular guides to men's health, n282 and even some of the utopian experimental communities of the day, which taught their male followers to avoid sexual climax. n283

 [*1457]  The prescriptive literature on marriage contained analogous warnings about the still more severe physiological consequences for men who had marital intercourse without their wives' consent. Dr. Cowan issued one of the most complete accounts of the potential dangers. "If the husband demands his rights from the wife, who only accedes through dread of consequences," he warned, "the effect on the man's brain and nervous system is very little different from that produced by self-abuse." n284 Indeed, Cowan elaborated a progression of symptoms with starkly debilitative consequences: "a general weakness of the nervous system;" the "inability to promptly digest ordinary food;" "a weakening of the joints, and especially the joints of the knees, a softening of the muscles, a want of strength, and a motion of an unsteady, dragging nature, differing so noticeably from the springing, strong, elastic carriage of the continent individual;" "dyspepsia;" "general debility;" "consumption;" "weakened and impaired" memory; "disordered vision;" "impaired" hearing; and "paralysis of the lower extremities." n285 Henry Clarke Wright went so far  [*1458]  as to suggest that "intemperance, war, slavery, unsuitable food, dress and habitations, exposures to heat, cold, and excessive toil" had historically been less dangerous to the health of the male population than "uncalled for and unwarranted" marital intercourse. n286 Duffey made the intent of such health advisories perfectly explicit. Even if a husband was too much of a "sensualist" to consider moral arguments or the interests of anyone but himself, the consequences for a man's own health--"diminished strength, diminished nervous force, and diminished mental powers"-- were "sufficiently serious for men to pause, at least, in their selfish course, and consider a little." n287

The prescriptive literature also described the marital disfunction, financial strain, and household disorder that would come to pass if wives were physiologically damaged by unwanted marital intercourse, explaining women's welfare in terms of their husband' s self-interest. These tracts reported that undesired intercourse was devastating to a woman's health, even putting aside the risks involved in gestation and childbirth. Augustus Gardner, for instance, advised men that just one night of excess could have lasting consequences. Unless a wife retained control over her person on her wedding night, "permanent disorganizations," "uterine weakness with its whole train of nervous sympathies," were likely. n288

Here again, the marriage manuals relied on a wider medical and prescriptive discourse, one that located women's physical and psychological vulnerability in their reproductive and sexual capacity. Most notably, doctors in the latter half of the nineteenth century were preoccupied by the increasing number of middle-class, urban women stricken with "hysteria,"  [*1459]  a newly discovered medical condition that manifested itself in pain, paralysis, chronic fatigue, and general "nervousness." n289 Medical science could discover no organic basis for hysteria, but physicians speculated that its predominance reflected an emotional instability and physical weakness inherent in women's nature. n290 Many doctors thought, more specifically, that the onset of hysteria was linked to a woman's reproductive cycle and that women with a history of sexual excess were far more likely to fall victim to the disease. n291 Notwithstanding such insights, physicians could devise no reliable cure for hysteria; the victims' families were often faced with medical bills of mounting size and disruptions of indeterminate length. n292

The prescriptive literature's description of what happened to wives subjected to unwanted marital intercourse, which included both verifiable somatic ailments and reports of the sort of "nervous weakness" associated with hysteria, resonated with widespread popular awareness of the hysteria phenomenon. According to these popular experts on marriage, husbands--perhaps without even realizing it--were making their wives pathologically "weak and nervous" and imposing upon themselves "large financial outlays for medical advice and attendance." n293 Whenever a husband did not permit his wife to regulate their marital intercourse, the woman's "tender, delicate organs of generation" were prone to "become inflamed, and ulcerate, and render the woman an invalid." n294 ""Direful diseases, insanity and consumption'" were the usual result. n295 Stated most bluntly, these experts warned that husbands intent on claiming their "legal  [*1460]  right" were "destroying and oft-times murdering their wives" and, with them, their marriages. n296

The physiological dangers confronting the children that these wives unwillingly conceived were hardly less severe. In this context, too, the prescriptive literature advised husbands that they would ultimately bear the cost of the injury they inflicted through marital rape, in this case through a diminution in the quality of their offspring. Like the leaders of the woman's rights movement, n297 prescriptive writers in the latter half of the nineteenth century contended that acquired characteristics were inheritable. This meant that a wife's despair about her pregnancy would be forever stamped on her--and her husband's--child. Wright warned that when a wife became "a mother from necessity rather than from choice," her child would "partake of her degradation." n298 "Developed in joyless, lifeless imbecility, or intense anguish," it would be "born an idiot, or without sufficient vital force to develop it into life with the ordinary energies and faculties of a man or woman." n299 The child would also be permanently marked by his father's base carnality in forcing marital  [*1461]  intercourse. "Witness," Cowan observed, the thousands of children born predisposed to be "the idiotic, the weak, the diseased, the drunkards, the gluttons, the debased." n300 These children, Alice Stockham elaborated, were endowed before birth "with lustful passions and morbid appetites." n301 Benjamin Flower similarly concluded that the "children of lust," born to women whose husbands refused to recognize their "rights and desires," could never rise much above the manifest qualities of their fathers; they were destined to fill "prisons and insane asylums." n302

2. Manly Self-Restraint and Self-Interest
 
The marriage manuals and health guides of the second half of the nineteenth century offered an extensive account of the injury that marital rape inflicted, on husbands along with their wives and children. But this literature did not proceed to advocate legal reform. Unlike the nineteenth-century feminist movement, it accepted a husband's right to determine the terms of sex in marriage. The prescriptive literature described the harm that marital rape caused in order to set the stage for the presentation of strategies designed to encourage husbands to refrain voluntarily from exercising their admitted legal prerogatives. Having recognized a husband's sexual entitlement, these strategies appealed to a man's self-interest explicitly and without apology. Prescriptive writers acknowledged that a husband's conjugal restraint would benefit his wife, but hastened to reassure their male readers that voluntarily ceding control over marital intercourse would always strengthen and solidify a husband's power and position in his family. Their arguments for voluntary restraint were directed at a man's self-esteem and his property interest in his wife's welfare. Storer, the leader of the anti-abortion movement, offered the quintessential explanation for his recommendation that husbands no longer subject their wives to unwanted intercourse, characterizing a wife's improved health and longevity solely as an aspect of her husband's well-being:


 
And here let me say, that I intend taking no ultra ground; that I am neither a fanatic nor professed philanthrope; and that in loosing, as I hope to do, some of woman's present chains, it is solely for professional purposes, to increase her health, prolong her life, extend the benefits she confers upon society--in a word, selfishly to enhance her value to ourselves. n303
 
 [*1462]  Much of the prescriptive literature evoked similar themes, albeit in somewhat less blatant and extreme form.

A number of writers proposed that a husband think of voluntarily ceding control over intercourse to his wife as the best possible manifestation of manliness, a way to confirm and display his noble character. This was a particularly powerful approach because it connected to an enormous body of existing sentiment which insisted that the key characteristic of successful masculinity was self-restraint in the face of strong temptation. The contention was especially prominent in discussions of male sexuality, which simultaneously recognized the fierce sexual desires of young men and urged them to direct their energy to matters intellectual and economic instead. n304 Reformers in other arenas, however, also profitably relied on the prevalent association between ideal masculinity and self-restraint. Activists seeking to change white America's initially cavalier attitude toward the lynching of African-American men in the South, for instance, effectively depicted lynch mobs as lustful, passionate, undisciplined, and accordingly unmanly. n305

In the latter half of the nineteenth century, prescriptive writers brought the weight of this understanding of masculinity to bear on the question of forced sex in marriage. Boyd emphasized that "it is for woman to determine when (and when only) the closest relations may be assumed," by reminding husbands that "it is the part of a true man to render instinct and desire wholly subject to reason and conscience." n306 Indeed, he compared a husband's sexual desire to a formidable racehorse that needed to be broken by masculine human will. "If a mettlesome young blood-horse becomes your property, do you let him tame you and drive you?," Boyd asked. If a husband did, "such failure would betray weakness and lack of manhood. Just so with regard to the amative propensity; you are to get the upperhand and keep it. Your manliness is shown when you possess yourself and master passion, not when passion overpowers and possesses you." n307 Duffey seconded the idea that "true manliness" in a husband entailed "a wise restraint of the passions for his  [*1463]  wife's sake." n308 As Wright also explained, "human law and custom" gave the husband complete authority over marital intercourse, but a man who was "pure, honest, noble, manly" would never "demand[ ] sensual gratification, against the wishes of his wife." n309

Many authors also counseled husbands that ceding control over marital intercourse was the only way to preserve the enormous personal benefits of marital love, happiness, and harmony. "The first great requirement necessary in those whose desire is for a happy and lovable married life," Cowan advised, was that it "be allowed by the husband that with the wife should rest the question as to the time when she wished to accept the sacred trust of maternity." n310 Where a wife was reduced to "loathing submission," William Goodell agreed, "love and affection changed into aversion and hate." n311 McLaury took pains to make clear to husbands that exercising their marital rights would simply produce "morose, angular, and disagreeable" wives; "peaceful rest" only blessed marriages in which the husband allowed his wife to determine the terms of marital intercourse. n312

On a related note, the prescriptive literature promised husbands that their voluntary restraint would ultimately lead to more pleasurable marital intercourse, making a husband's self-interest in his wife's welfare clearer still. Duffey predicted that a husband who continued to court his wife's affection after marriage and wait for reciprocation would find "greater delight" in a "monthly marital conjunction" than a selfish sensualist could obtain from "daily or semi-weekly excesses." n313 A husband, she wrote, "will have only himself to blame, if he is bound all his life to an apathetic, irresponsive wife." n314 Cowan, a less elegant if more direct writer, surmised that "nearly all women ..... who are used by their husbands simply as chattels ..... lie passive and motionless." "As to the possible pleasure to him of such a union," Cowan suggested that a husband "might as well  [*1464]  practice solitary indulgence." n315 Stall agreed that a man's exercise of his marital rights would always be self-defeating in sexual terms. It would only render his wife "incapable of marital pleasure, and also render[ ] her incapable of bringing to him the satisfaction which he seeks." n316

Even outside the woman's rights movement and the domain of the free lovers, the question of marital rape was hardly unthinkable or unspeakable in the latter half of the nineteenth century. The popular prescriptive literature agreed with feminists, publicly and at length, that marital rape inflicted severe harm. But feminists made a rights claim putting forth women's interests, as distinct from and defined against the interests of men. They wanted a wife to have the legal right and socioeconomic ability to refuse her husband's sexual demands against his will, recognizing that voluntary concessions were an unreliable defense against potentially recalcitrant, dangerous, and selfish husbands. The popular prescriptive literature, in contrast, did not situate its opposition to marital rape in an analysis of women's subordination, and did not support giving women enforceable rights against men. It left decisive control over marital intercourse in the husband's hands, to be exercised in his own interest as he saw fit. Popular prescriptive writers promised that the interests of husband and wife coincided on the issue of marital rape (although one could deduce from their descriptions of contemporaneous marital relations that many husbands had been slow to recognize that fact). The prescriptive account of the injury that marital rape produced focused as much attention on the costs to husbands as wives. Yet it was clear which party to the marriage would prevail when marital mutuality broke down.
[...]

C. The Lessons, and the Promise, of History
 
Despite the availability of this dramatic record of injury, the modern feminist attempt to explain the marital rape exemption in terms of the divergent, even antagonistic, interests of husbands and wives has not been particularly effective. In part, the consensual account of the history of marital rape, now accepted by supporters and opponents of the exemption alike, helps explain the success of the exemption's modern defenders. The proposition that the marital rape exemption serves the shared interests of husbands and wives is likely to appear more reasonable, even commonsensical, if one approaches the exemption with the assumption that it has long been the subject of consensual agreement between men and women. That proposition would be more difficult to maintain if the historical  [*1499]  contest over marital rape, in which feminists vociferously opposed a husband's conjugal prerogatives as the ultimate foundation of women's subordination in marriage, were widely known. As this Article has revealed, the marital rape exemption did not survive into the twentieth century because it lacked opposition or because no organized cohort of women thought that the exemption operated to the benefit of husbands but the great detriment of their wives.

Still, it would be implausible to suggest that the present legislative commitment to preserving some substantial form of the marital rape exemption, and the judicial decision to not intercede under the Equal Protection Clause, would instantly collapse, if the historical struggle over marital rape became common knowledge. If the fate of the nineteenth-century campaign against a husband's conjugal prerogatives illuminates anything, it is that society's reluctance to acknowledge that marriage is a potentially antagonistic and dangerous relation by giving women legal rights against their husbands is long-standing, well-entrenched, and extremely resistant to feminist opposition, especially where marital sex and reproduction are directly implicated. Even the nineteenth-century prescriptive authors who expounded at length on the harm that marital rape was inflicting on wives were unwilling to translate that social recognition into support for granting women legal entitlements. Where feminists made a rights claim advancing women's interests as they were distinct from and defined in opposition to those of men, the prescriptive literature put forth a series of suggested strategies for marital harmony and happiness. Authoritative legal sources, in turn, absolutely refused to alter a husband's exemption from prosecution for raping his wife. After a half-century of writing and advocacy (feminist and otherwise) exploring sexual abuse in marriage, the only change in the legal status of marital rape consisted of a marginal amelioration in the terms on which divorce was available to (privileged) women.

Phrased another way, then, one reason that people are so attracted to the consensual account of the history of marital rape in the first place is that we greatly prefer to envision marital relations as loving, mutually supportive, and harmonious, rather than loathsome, abusive, and conflict-ridden--even though, as a practical matter, we encounter evidence all the time that the latter state of affairs characterizes some relationships. That cultural denial helps explain, for instance, the studies finding that even people who know current divorce rates believe that the possibility that they will divorce is negligible and fail to plan rationally for the contingency. n462 The contemporary defense of the marital rape exemption is one  [*1500]  of the most conspicuous, if bizarre, expressions of this phenomenon. Modern courts, lawmakers, and commentators are never more anxious to expound upon the wonders of marital love, trust, intimacy, and respect than when a husband's freedom from prosecution for raping his wife is at stake.

The cultural need to understand marital relations as consensual and harmonious also helps explain another phenomenon of approximately the last quarter-century. n463 During this period, dozens of states revisited their marital rape exemptions, but decided to retain them in substantial form nonetheless. One result of this review was that states modified the scope of their exemptions. n464 Another result was that virtually every one of these states rewrote its marital rape exemption in gender-neutral terms, n465 in contrast to the explicit and enthusiastic gender-specificity of the common  [*1501]  law formulation. n466 This latter, linguistic change has almost no practical consequences, given the accuracy with which one can predict that marital rapes will be committed by husbands on wives. n467 But as a matter of modern equal protection doctrine, it is very important. Statutes that explicitly classify by sex are automatically subject to heightened scrutiny under the Equal Protection Clause, which relatively few statutes have managed to survive. n468 Once a statute has been made formally gender-neutral, however, it is subject to heightened scrutiny only if a plaintiff can establish the equivalent of legislative malice: that the gender-neutral statute was enacted "at least in part "because of,' not merely "in spite of,' its adverse effects upon" women. n469 This is precisely the sort of malignant motivation that is least likely to be uttered in the constitutionally conscious age in which we live. So, as a practical matter, modern marital rape exemptions are subject to rational basis review. Although a small number of state courts have found exemptions unconstitutional on a rational basis analysis, n470 a marital rape exemption is likely to survive this relatively  [*1502]  unrigorous level of constitutional scrutiny, which asks only whether the legislature has articulated one reason for the exemption that the court is willing to accept as rational. n471

Modern feminist critics, including most prominently Robin West, have provided an excellent doctrinal analysis of the status of gender-neutral laws under contemporary equal protection doctrine, and explained the difficulties that the modern feminist campaign against the marital rape exemption has encountered as rooted in the inadequacy of that doctrine. n472 But feminists have not devoted nearly as much attention to the question of why the Supreme Court might have chosen to privilege gender-neutral laws in the first place, and whether there is something more behind the states' move to gender-neutral marital rape exemptions than a desire to survive constitutional scrutiny. The fate of the historical struggle over marital rape, and the nature of the modern arguments put forth in the exemption's defense, suggest that the focus on gender-neutralization is tapping into a larger cultural story about mutuality in relations between the sexes, particularly in marriage.

The effect of the current equal protection doctrine on gender-neutrality is to treat men and women as occupying interchangeable roles, in all cases except where the text of the statute or explicit legislative statements of malicious intent force the court to do otherwise. It is a doctrinal methodology for disregarding evidence about gender-specific consequences that suggests the possibility that the interests of men and women may be unaligned, differentially affected, even antagonistically opposed to one another, and not interchangeable at all. Marital rape  [*1503]  exemptions are not the only statutes with disproportionate consequences for women to have undergone recent revision into a gender-neutral idiom. Child custody n473 and alimony laws n474 are now almost uniformly gender-neutral, and wife beating statutes now regulate "spousal abuse." n475 Indeed, this impulse substantially predates modern equal protection law: State interspousal tort immunity doctrines, first developed when married women gained the right to sue in their own names in the middle of the nineteenth century, were phrased in gender-neutral terms from the outset. n476 Yet the strength of the yearning to insist within the law that the interests of men and women always harmoniously coincide is nowhere more apparent than with the marital rape exemption, where the sex-specificity of the underlying conduct and injury is extraordinarily pronounced, but equal protection doctrine nonetheless treats husbands and wives as though they occupy unassigned positions.

 [*1504]  All this indicates that there are deep-seated reasons why the course of the modern effort against marital rape importantly resembles that of its nineteenth-century predecessor, where feminists campaigning to unseat a husband's conjugal prerogatives had much less of an impact on the law than they sought, or won elsewhere. There is no easy path upon which contemporary feminists might proceed, given the profound and long-lived societal reluctance--particularly where marital intercourse and reproduction are at issue--to formulate women's legal rights around the understanding that marital relations are potentially antagonistic and dangerous. There is, however, a very pertinent difference between the arena in which the first organized woman's rights movement operated and the contemporary environment, which suggests that the future fate of the modern feminist campaign against marital rape need not track the historical record.

In the latter half of the nineteenth century, the proposition that marital rape inflicted severe harm upon married women was widely acknowledged. The prescriptive literature described this harm in great detail. Authoritative legal sources, moreover, never denied the proposition, and courts occasionally remarked upon it themselves while deciding divorce cases later in the century. Recall, for instance, that when a New Jersey court wanted to underscore the weakness of Abby English's divorce petition for sexual cruelty, it cited medical testimony that, "although there would be pain" whenever English was forced to have intercourse, "a large proportion of married women assent under exactly those circumstances." n477 In an age that still accepted and endorsed a vast range of legal structures explicitly subordinating women to men, this recognition of injury was not enough to persuade either popular experts on marriage or lawmakers to repudiate a husband's legal right to rape his wife.

The modern defenders of the marital rape exemption, in contrast, submerge and deny the harm that the rule causes women. This has been good strategy for a reason. It is much more difficult to justify the harm that marital rape inflicts upon wives, and explain the absence of legal remediation, in a nation now formally committed to women's legal equality and the undoing of women's subjection at common law. n478 The historical record helps make this harm concrete, revealing the ways in which it is buried by the contemporary defense of the marital rape exemption. If the injury that marital rape inflicts were more systematically put at issue, and arguments presuming that marital relations never cause women harm were more systematically resisted, it might be harder for the legal system to continue to shelter a husband's conjugal prerogatives. Certainly, building on this  [*1505]  excavation of injury would be a useful place for the modern feminist opposition to marital rape to begin its work anew.



Footnotes