Jill Elaine Hasday, "Contest and Consent: A Legal History of Marital Rape"
FOOTNOTES:
n1. See, e.g., Alaska Stat. 11.41.432 (Michie 1998); Ariz. Rev. Stat. Ann.
13-1406.01, 13-1407(D) (West 1989); Ark. Code Ann. 5-14-103, 5-14-105, 5-14-109
(Michie 1997); Cal. Penal Code 261, 262 (West 1988); Conn. Gen. Stat.
53a-65(2)-(3), 53a-70b(b) (1994); Idaho Code 18-6107 (1997); Iowa Code
709.4(1)-(2) (1993); Kan. Stat. Ann. 21-3517(a) (1995); Ky. Rev. Stat. Ann.
510.035 (Banks-Baldwin 1990); La. Rev. Stat. Ann. 14:43, 14:43.1, 14:43.3 (West
1997); Md. Ann. Code art. 27, 464D (1996); Mich. Comp. Laws 750.520l (1991);
Minn. Stat. 609.349 (1987); Miss. Code Ann. 97-3-99 (1994); Nev. Rev. Stat.
200.373 (1997); N.H. Rev. Stat. Ann. 632-A:2, 632-A:5 (1996); Ohio Rev. Code
Ann. 2907.01(L), 2907.02 (West 1997); Okla. Stat. tit. 21, 1111 (1983); R.I.
Gen. Laws 11-37-1(9), 11-37-2 (1994); S.C. Code Ann. 16-3-658 (Law. Co-op. Supp.
1999); S.D. Codified Laws 22-22-7.2, 22-22-7.4 (Michie 1998); Tenn. Code Ann.
39-13-507 ( Supp. 1999); Va. Code Ann. 18.2-61, 18.2-67.1, 18.2-67.2,
18.2-67.2:1 (Michie 1999); Wash. Rev. Code 9A.44.010(3), 9A.44.050, 9A.44.060,
9A.44.100 (1988); Wyo. Stat. Ann. 6-2-307 (Michie 1997); infra notes 408-409 and
accompanying text.
n2. See, e.g., Ariz. Rev. Stat. Ann. 13-1406.01(B) (West 1989) (giving judge
discretion to treat marital rape as a misdemeanor); Va. Code Ann. 18.2-61(D),
18.2-67.1(D), 18.2-67.2(D), 18.2-67.2:1(C) (Michie 1999) (permitting court, if
state prosecutor and victim agree, to place marital rapist on probation pending
completion of counseling or therapy; once counseling or therapy is completed,
court may discharge rapist and dismiss proceedings if it "finds such action will
promote maintenance of the family unit and be in the best interest of the
complaining witness").
n3. See, e.g., Cal. Penal Code 262(b) (West 1988) (one-year reporting
requirement, unless victim's allegation is corroborated by independent evidence
that would be admissible at trial); 720 Ill. Comp. Stat. 5/12-18(c) (West 1993)
(thirty-day reporting requirement, unless court finds good cause for delay);
S.C. Code Ann. 16-3-658 (Law. Co-op. Supp. 1999) (thirty-day reporting
requirement).
n4. See infra notes 470-471 and accompanying text.
n5. Model Penal Code and Commentaries 213.1 cmt. 8(c), at 343 (Official Draft
and Revised Comments 1980).
n6. People v. De Stefano, 467 N.Y.S.2d 506, 511 (Suffolk County Ct. 1983)
(noting "the extensive research done by this Court").
n7. Warren v. State, 336 S.E.2d 221, 223 (Ga. 1985).
n8. Catharine A. MacKinnon, Toward a Feminist Theory of the State 242 (1989)
[hereinafter MacKinnon, Toward]; see also Catharine A. MacKinnon, Feminism
Unmodified 5 (1987) ("Since 1970, feminists have uncovered a vast amount of
sexual abuse of women by men. Rape, battery, sexual harassment, sexual abuse of
children, prostitution, and pornography, seen for the first time in their true
scope and interconnectedness, form a distinctive pattern: the power of men over
women in society.") (emphasis added); Susan Moller Okin, Justice, Gender, and
the Family 129 (1989) ("In the 1970s and 1980s, partly as a result of the
feminist and children's rights movements that originated in the 1960s, wife
abuse has been "discovered' .<elip>.<elip>.<elip>. Family violence is now much
less sanctioned or ignored than in the past; it is becoming recognized as a
serious problem that society must act on.").
n9. See Warren, 336 S.E.2d at 223 ("Perhaps the most often used basis for the
marital rape exemption is the view set out by Lord Hale in 1 Hale P.C. 629. It
is known as Lord Hale's contractual theory."); De Stefano, 467 N.Y.S.2d at
510-11 ("Formal recognition of a spousal exemption or immunity from rape .<elip>.<elip>.
is attributed to Sir Matthew Hale (1609-1676) .<elip>.<elip>.<elip>. From Hale
until 1977 there was no serious challenge to the spousal exemption."); Model
Penal Code and Commentaries, supra note 5, at 213.1 cmt. 8(c), at 342 ("The
traditional explanation for legal incapacity to rape one's own wife is that the
marriage constitutes a blanket consent to sexual intimacy which the woman may
revoke only by dissolving the marital relationship." (citing Hale)); Robin West,
Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42
Fla. L. Rev. 45, 64-65 (1990) ("Marital rape exemptions are strikingly easy to
trace to misogynist roots, from Hale's infamous argument that a married woman is
presumed to consent to all marital sex and, therefore, cannot be raped, to the
common law's assumption that marriage results in the unification of husband and
wife .<elip>.<elip>.<elip>.").
n10. The "woman's rights movement" is the term that organized feminism used to
describe itself in the second half of the nineteenth century
and the name that I will employ in this Article. That designation appeared as
early as the announcement for the Seneca Falls Convention of 1848, which marked
the movement's start. See 1 History of Woman Suffrage 67 (Elizabeth Cady Stanton
et al. eds., Ayer Co. 1985) (1881) ("Woman's Rights Convention.--A Convention to
discuss the social, civil, and religious condition and rights of woman, will be
held in the Wesleyan Chapel, at Seneca Falls, N.Y., on Wednesday and Thursday,
the 19th and 20th of July, current; commencing at 10 o'clock a.m.").
n11. Linda Gordon's groundbreaking work, which focuses on the 1870s, dominates
this aspect of the history of birth control. See Linda Gordon, Woman's Body,
Woman's Right: Birth Control in America 95-115 (rev. ed. 1990) [hereinafter
Gordon, Woman's Body, Woman's Right]. As she observes, "[a] woman's right to
refuse is clearly the fundamental condition of birth control." Id. at 103. An
important feature of Gordon's work is to explain why the feminist commitment in
the 1870s to "birth control" did not also take the form of advocating the use of
contraceptive devices. See id. at 97-101; Linda Gordon, Why
Nineteenth-Century Feminists Did Not Support "Birth Control" and
Twentieth-Century Feminists Do: Feminism, Reproduction, and the Family, in
Rethinking the Family: Some Feminist Questions 140, 144-47 (Barrie Thorne ed.,
rev. ed. 1992) [hereinafter Gordon, Why Nineteenth-Century
Feminists Did Not Support "Birth Control"]; infra text accompanying notes
222-224.
Reva Siegel's legal history of the nineteenth-century struggle
over abortion also discusses sexual self-possession in marriage. Siegel explains
that "most frequently, [nineteenth-century feminists]
attributed the incidence of abortion to marital rape," although "they also
attributed abortion to the onerous work of motherhood, some even tracing it to
the expropriation of women's domestic labor in marriage." Reva Siegel, Reasoning
from the Body: A Historical Perspective on Abortion Regulation and Questions of
Equal Protection, 44 Stan. L. Rev. 261, 306 (1992) [hereinafter Siegel,
Reasoning from the Body]; see also infra text accompanying notes 222-225.
In addition, Siegel's reading of early woman's rights advocacy about household
labor and wife beating describes how nineteenth-century
feminists put forth an institutional critique of marriage that attempted to give
gender-specific meaning to the liberal vision of self-ownership. In the process
of this discussion of marital labor and marital violence, she observes that
feminists would occasionally offer a simultaneous critique of marital rape in
the same terms. Siegel, however, does not disentangle the marital rape claim
from claims about household labor and wife beating, explore its full dimensions,
or trace its course. See Reva B. Siegel, Home as Work: The First Woman's Rights
Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L.J. 1073, 1102-06
(1994) [hereinafter Siegel, Home as Work]; Reva B. Siegel, "The Rule of Love":
Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2148-49 (1996)
[hereinafter Siegel, "The Rule of Love"].
n12. See William Leach, True Love and Perfect Union: The Feminist Reform of Sex
and Society 90 (2d ed. 1989) ("If women were to control their own fertility,
moral education was required to raise both sexes to an equal level of purity, to
rationalize or render " natural' and harmless male sexual desire, and to prevent
disease."); id. at 92-93 ("In effect, feminists fixed the limits of sexual
expression, organized and channeled it, thereby reducing occasions for sexual
intercourse."); Blanche Glassman Hersh, "A Partnership of Equals": Feminist
Marriages in 19th-Century America, in The American Man 183,
204 (Elizabeth H. Pleck & Joseph H. Pleck eds., 1980) (arguing that
nineteenth-century woman's rights movement advocated "late
marriage and "moral [rather than legal] restraint' within marriage. These were
the only means of birth control they could accept.").
Jane Larson's work on the history of rape reform also appears to operate on the
premise that nineteenth-century feminists did not
systematically challenge the law's treatment of marital rape. She characterizes
feminist efforts between 1885 and 1900 to raise the age-of-consent in statutory
rape laws as "the first American women's rape reform initiative." Jane E.
Larson, "Even a Worm Will Turn at Last": Rape Reform in Late
Nineteenth-Century America, 9 Yale J.L. & Human. 1, 4 (1997).
n13. For instance, Karen Sanchez-Eppler observes that in the writings of
feminist-abolitionists like Angelina and Sarah Grimke and Elizabeth Cady
Stanton:
Concern over the slave woman's sexual victimization displaces the free woman's
fear of confronting the sexual elements of her own bodily experience, either as
a positive force or as a mechanism of oppression. The prevalence of such fear is
illustrated by the caution with which even the most radical feminist thinkers
avoid public discussion of "woman's rights in marriage"; only in their private
correspondence do the leaders of the woman's rights movement allude to sexual
rights.
Karen Sanchez-Eppler, Touching Liberty: Abolition, Feminism, and the Politics of
the Body 22 (1993); see also Blanche Glassman Hersh, The Slavery of Sex:
Feminist-Abolitionists in America 65 (1978) ("There was little argument about
the grievance [sexual abuse in marriage], but timidity and prudishness made it
difficult to discuss even privately, and feminists expressed widespread anxiety
that it would frighten away potential supporters who could accept less
controversial but much-needed reforms."); Hersh, supra note 12, at 203 ("The
efforts of the feminist women and men to elevate spiritual intercourse in
marriage over physical union were consistent with their demand for woman's
sexual autonomy. This was played down in public rhetoric, [however,] especially
in the conservative postwar period when efforts at marriage reform virtually
ended.").
Ellen DuBois takes a somewhat different tack. DuBois has done a tremendous
amount of work uncovering the demands of the early woman's rights movement, and
she briefly discusses some instances of public feminist advocacy for a woman's
right to control her husband's sexual access. Yet, ultimately, DuBois subsumes
the sexual self-ownership claim within her argument that
nineteenth-century feminists understood suffrage to be their most radical
and important goal, and were willing to bypass questions of marital status in
order to secure women's right to participate in the public sphere on
gender-neutral terms. See Ellen Carol DuBois, Outgrowing the Compact of the
Fathers: Equal Rights, Woman Suffrage, and the United States Constitution,
1820-1878, 74 J. Am. Hist. 836, 843, 856-57 (1987); infra text accompanying
notes 22-25, 135-139.
n14. See infra text accompanying notes 134-140.
n15. See infra text accompanying notes 18-27.
n16. See infra text accompanying notes 18-21.
n17. See infra note 26 and accompanying text.
n18. See Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in
Nineteenth-Century New York 17, 51-55 (1982); Michael
Grossberg, Governing the Hearth: Law and the Family in
Nineteenth-Century America 25 (1985); Elizabeth Bowles Warbasse, The
Changing Legal Rights of Married Women, 1800-1861, at 7-21 (1987); Richard H.
Chused, Married Women's Property Law: 1800-1850, 71 Geo. L.J.
1359, 1365-68 (1983).
n19. See James Schouler, A Treatise on the Law of the Domestic Relations 16-21
(Boston, Little, Brown, & Co. 1870); Basch, supra note 18, at 156-59 (on New
York statutes enacted in 1848 and 1849); Warbasse, supra note 18, at 137-247;
Richard H. Chused, Late Nineteenth Century Married Women' s
Property Law: Reception of the Early Married Women' s Property Acts by Courts
and Legislatures, 29 Am. J. Legal Hist. 3, 3 (1985); Chused, supra note 18, at
1398-1412; Siegel, Home as Work, supra note 11, at 1082-83.
n20. See Basch, supra note 18, at 164-65; Amy Dru Stanley, From Bondage to
Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation
175, 199-217 (1998); Siegel, Home as Work, supra note 11, at 1083, 1142-43,
1180-87; Reva B. Siegel, The Modernization of Marital Status Law: Adjudicating
Wives' Rights to Earnings, 1860-1930, 82 Geo. L.J. 2127, 2141-46 (1994).
n21. See Siegel, Home as Work, supra note 11, at 1084 ("In 1860, the national
census reported that only 15% of all free women were engaged in paid labor, and
most were single or widowed. Historians estimate that 5% of married white women
worked outside the home during the nineteenth century; the
1890 census counted only 3.3% of married women working for wages."). Free black
married women participated in the labor force in significantly greater numbers.
See, e.g., Paula Giddings, When and Where I Enter: The Impact of Black Women on
Race and Sex in America 48 (1984) ("By 1847 a census revealed that close to half
the female Black population of Philadelphia consisted of washerwomen and
domestic servants. .<elip>.<elip>. While the White female labor force was made
up primarily of single women, Black women, both married and single, were forced
to work .<elip>.<elip>.<elip>."); Alice Kessler-Harris, Out to Work: A History
of Wage-Earning Women in the United States 123 (1982) ("In 1880, 73.3 percent of
black single women and 35.4 percent of black married women in seven southern
cities reported paid jobs. Among white women only 23.8 percent of the single and
7.3 percent of the married reported paid employment.").
n22. See Siegel, Home as Work, supra note 11, at 1085, 1076 (noting historians'
claims that "the earnings statutes satisfied feminist economic demands," while
disputing assertion with thorough account of feminist advocacy for ""joint
property' laws" that would entitle wives "to joint rights in marital property by
reason of the [household] labor they contributed to the family economy"); Ellen
Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women's
Movement in America, 1848-1869, at 42 (1978) (arguing that New York Married
Women's Property Act of 1860 "granted New York women all the economic rights
they demanded, but still refused women the right to vote"); Basch, supra note
18, at 165 ("Every provision of the 1860 [New York] statute, it should be noted,
was a specific goal of the women's movement. The New York Earnings Act, in other
words, was the significant legislative realization of demands by women for
women."). Zillah Eisenstein similarly writes that:
Stanton in the end focuses on the legal component of woman's oppression within
marriage. She argues that because women give up their legal existence in
marriage, they become nameless, purseless, and childless. The husband and wife
become one person legally--the husband. The man has custody of his wife's
person. He is guardian of their children, owner of her property, and has rights
to her industry. Hence, the married woman has no legal status, and propertied
single women are taxed without representation. If this is the problem, the
solution in Stanton's mind was passage of the Married Woman's Property Act
(1836-48).
Zillah R. Eisenstein, The Radical Future of Liberal Feminism 159 (1981).
n23. DuBois, supra note 22, at 40. Aileen Kraditor similarly explains:
Why did most feminists focus their campaign for equality so sharply on the vote
between the Civil War and the passage of the Nineteenth Amendment to the
Constitution in 1920? An obvious reason .<elip>.<elip>. was that most of the
other rights they had agitated for either had been won or were clearly on the
way to being won.
Aileen S. Kraditor, Introduction to Up from the Pedestal: Selected Writings in
the History of American Feminism 3, 19 (Aileen S. Kraditor ed., 1968). Eleanor
Flexner also presents suffrage as the key claim of the
nineteenth-century feminist movement, the demand to which all its advocacy
inexorably led. See, e.g., Eleanor Flexner, Century of Struggle: The Woman's
Rights Movement in the United States 156 (rev. ed. 1975) (noting that Elizabeth
Cady Stanton and Susan B. Anthony understood the vote to be the issue "of
primary importance" to the woman's rights movement).
n24. Ellen DuBois, The Radicalism of the Woman Suffrage Movement: Notes Toward
the Reconstruction of Nineteenth-Century Feminism, 3 Feminist
Stud. 63, 63 (1975).
n25. Id.; see also Stanley, supra note 20, at 203 ("By the postbellum era, only
suffrage assumed higher priority for feminists than earnings legislation; this
was a reform of marriage law on which they could agree.").
n26. See U.S. Const. amend. XIX ("The right of citizens of the United States to
vote shall not be denied or abridged by the United States or by any State on
account of sex. Congress shall have power to enforce this article by appropriate
legislation.").
Reva Siegel has argued that subsequent interpretation of the Nineteenth
Amendment has itself been dominated by this same consensual vision of women's
history. Advocates on both sides of the debate over woman suffrage understood
the Nineteenth Amendment to have profound feminist implications for relations
between the sexes, particularly in marriage. See Reva B. Siegel, Collective
Memory and the Nineteenth Amendment: Reasoning About "the Woman Question" in the
Discourse of Sex Discrimination, in History, Memory, and the Law 131, 142-52
(Austin Sarat & Thomas R. Kearns eds., 1999). Modern courts and commentators,
however, have read the Nineteenth Amendment simply as a rule barring sex-based
restrictions on the franchise, rather than as a source of broader constitutional
norms about women's status and rights. See id. at 132-33. Siegel argues that
this interpretation of the Nineteenth Amendment reflects and "in turn sustains
the prevailing understanding of gender arrangements as the product of evolving
social consensus rather than legal coercion and political conflict." Id. at 133.
n27. Steven Buechler has a somewhat different account of the progress of the
woman's rights movement, based primarily on his study of the movement in
Illinois. See Steven M. Buechler, The Transformation of the Woman Suffrage
Movement: The Case of Illinois, 1850-1920, at xi-xiii (1986). Buechler does note
that the movement began by criticizing many aspects of women's status beyond the
scope of the married women's property acts, see id. at 26-27, 38-41, 88-90, but
he explicitly rejects the notion that the movement ultimately turned to a narrow
focus on suffrage because of the strength of the opposition it encountered in
seeking fundamental changes in the law of marriage, see id. at 211. Instead,
Buechler argues, the middle-class women who led the woman's rights movement
voluntarily dropped their challenge to marital status law as they became
increasingly class-conscious and more anxious about radically disrupting the
status quo. See id. at 45-47, 51-52, 95-96, 102.
n28. As such, this Article fits into an emerging body of work that is returning
to the primary sources to rethink the emphasis that historians of the woman's
rights movement have traditionally put on suffrage specifically, and
gender-neutral rights to participate in the public sphere more generally. See
Elizabeth B. Clark, Religion and Rights Consciousness in the Antebellum Woman's
Rights Movement, in At the Boundaries of Law 188, 188-89 (Martha Albertson
Fineman & Nancy Sweet Thomadsen eds., 1991) ("Historians have overstated both
the secular identity of antebellum feminism and the centrality of suffrage to
that movement. .<elip>.<elip>. Rights consciousness was originally rooted in
domestic concerns for many women, who saw them as a means of achieving
protection for themselves and their families while pursuing the ends of social
justice."); Siegel, Home as Work, supra note 11, at 1078 ("Most accounts of
nineteenth-century feminism have focused on the movement's
quest for the vote. .<elip>.<elip>. But the movement's demand for joint property
was no timid sister of suffrage advocacy. .<elip>.<elip>. [It constituted] an
explosive critique of the family form--exposing the state's role in defining
"private sphere' life and demonstrating that women's economic dependence on men
was a condition imposed and enforced by law.").
n29. See 2 James Kent, Commentaries on American Law 99 (O.W. Holmes, Jr. ed.,
Boston, Little, Brown, & Co. 12th ed. 1873); Edward D. Mansfield, The Legal
Rights, Liabilities and Duties of Women 242-43 (Salem, John P. Jewett & Co.
1845); Schouler, supra note 19, at 46.
n30. See Irving Browne, Elements of the Law of Domestic Relations and of
Employer and Employed 9-12 (Boston, Boston Book Co. 2d ed. 1890); Kent, supra
note 29, at 100; Mansfield, supra note 29, at 243-44; Tapping Reeve, The Law of
Baron and Femme 312 n.1 (Albany, William Gould 3d ed. 1862); James Schouler, A
Treatise on the Law of the Domestic Relations 54 (Boston, Little, Brown, & Co.
3d ed. 1882).
n31. See Maryland v. Baldwin, 112 U.S. 490, 494-95 (1884); Meister v. Moore, 96
U.S. 76, 79 (1878); 1 Joel Prentiss Bishop, Commentaries on the Law of Marriage
and Divorce 11 (Boston, Little, Brown & Co. 4th ed. 1864); Kent, supra note 29,
at 102-03; Reeve, supra note 30, at 308 n.1; W.C. Rodgers, A Treatise on the Law
of Domestic Relations 58-63 (Chicago, T.H. Flood & Co. 1899); Ariela R. Dubler,
Note, Governing Through Contract: Common Law Marriage in the
Nineteenth Century, 107 Yale L.J. 1885, 1890-95 (1998).
n32. See Maynard v. Hill, 125 U.S. 190, 211 (1888) ("When the contract to marry
is executed by the marriage, a relation between the parties is created which
they cannot change. Other contracts may be modified, restricted, or enlarged, or
entirely released upon the consent of the parties. Not so with marriage.");
Adams v. Palmer, 51 Me. 480, 483 (1863) ("[Marriage is] a new relation, the
rights, duties and obligations of which rest, not upon [the couple's] agreement,
but upon the general law of the State, statutory or common, which defines and
prescribes those rights, duties and obligations. They are of law, not of
contract."); 5 The American and English Encyclopaedia of Law 746 (John Houston
Merrill ed., Northport, Edward Thompson 1888) ("The relation of two married
persons to each other is not a mere personal relation depending on their will,
but a status,--a legal condition established by laws,--which the State has full
power to create, change, and abrogate."); Joel Prentiss Bishop, Commentaries on
the Law of Marriage and Divorce 31 (Boston, Little, Brown & Co. 1852) ("It is
not in the power of the [married] parties, though of common consent, to alter
any substantial, as to make the marriage for a time, or take the power over the
wife from the husband, and place it in her or any other .<elip>.<elip>.<elip>.")
(citation and internal quotation marks omitted); 1 William T. Nelson, A Treatise
on the Law of Divorce 5 (Chicago, Callaghan & Co. 1895) ("The [marital] relation
differs from a contract in the following essentials: 1. The parties are not free
to fix the terms of the agreement.").
n33. See Schouler, supra note 19, at 22 ("[Marriage] is a contract .<elip>.<elip>.
, to a certain extent, since the law always presumes two parties of competent
understanding who enter into a mutual agreement .<elip>.<elip>.<elip>. But this
agreement differs essentially from all others. This contract of the parties is
simply to enter into a certain status or relation.").
n34. Bishop, supra note 31, at 10; see also Maynard, 125 U.S. at 205 ("Marriage,
as creating the most important relation in life, as having more to do with the
morals and civilization of a people than any other institution, has always been
subject to the control of the legislature."); Adams, 51 Me. at 485 ("[Marital
obligations] arise not from the consent of concurring minds-- but are the
creation of the law itself; a relation the most important as affecting the
happiness of individuals, the first step from barbarism to incipient
civilization, the purest tie of social life, and the true basis of human
progress.").
n35. See 1 Joel Prentiss Bishop, New Commentaries on Marriage, Divorce, and
Separation 16 (Chicago, T.H. Flood & Co. 1891) ("Evils numberless, extending to
the demoralization of society itself, would follow the abandonment of marriage
as a permanent status, and permitting it to be the subject of experimental and
temporary arrangements .<elip>.<elip>.<elip>. [Nevertheless,] no married partner
should desert the other, commit adultery, beat or otherwise abuse the other .<elip>.<elip>.<elip>.");
Kent, supra note 29, at 113 ("When a marriage is duly made, it becomes of
perpetual obligation, and cannot be renounced at the pleasure of either or both
of the parties. It continues, until dissolved by the death of one of the
parties, or by divorce."); Nelson, supra note 32, at 18 ("In the divorce suit
the interest of the state is paramount to the rights of the parties .<elip>.<elip>.<elip>.
The state has an interest in marriage as a public institution; and public policy
requires that the marriage be preserved in all cases where the purposes of the
marriage are not defeated."); Rodgers, supra note 31, at 3 ("[A] contract of
marriage .<elip>.<elip>. is indissoluble in its binding force, even with the
consent of the parties or either of them .<elip>.<elip>.<elip>."); Schouler,
supra note 19, at 22-23 ("Mutual consent .<elip>.<elip>. brings them together .<elip>.<elip>.<elip>.
[But] death alone dissolves the tie,--unless the legislature [permits] divorce;
and this it should only do when the grossly immoral conduct of one contracting
party brings unmerited shame upon the other .<elip>.<elip>. and inflicts a wound
upon the community.").
For a more extensive discussion of the law of divorce in the
nineteenth century, see infra Part IV.
n36. See Ferris v. Ferris, 8 Conn. 166, 167-68 (1830) ("Corporal imbecility may
arise after the marriage, which will not then vacate the marriage, because there
was no fraud in the original contract.") (citation and internal quotation marks
omitted); Bishop, supra note 32, at 28 ("[Marriage] subsists in full force, even
although one of the parties should be forever rendered incapable, as in the case
of incurable insanity, or the like, from performing his part of the mutual
contract.") (citation and internal quotation marks omitted); Schouler, supra
note 30, at 34 (noting that a marriage is not voidable for impotency where the
"physical incapacity arises from some cause subsequent to marriage").
Incapacity that existed at the time of the marriage ceremony was ground for
marital dissolution. See Bascomb v. Bascomb, 25 N.H. 267, 272 (1852) (denying
divorce on ground that alleged impotency "arose not only after the marriage, but
as a consequence of it [specifically, injuries sustained during childbirth]. .<elip>.<elip>.
It would seem to be the result not of the neglect, but of the performance of
duty. It is no fault of the libellee, that she has fallen into her present
condition .<elip>.<elip>.<elip>."); Browne, supra note 30, at 5 ("Where
impotence exists there can be no valid marriage. .<elip>.<elip>. The impotency
must have existed at the time of the marriage."); Amos Dean, Principles of
Medical Jurisprudence: Designed for the Professions of Law and Medicine 3-4 (New
York, Banks & Bros. 1866) ("[By statute, New York] provides that a marriage
contract may be declared void for physical incompetency in either of the
parties, which existed at the time of the marriage."); Reeve, supra note 30, at
322 n.1 ("Impotence, in order to constitute a ground of divorce, must exist at
the time of the marriage, and must be incurable."); Rodgers, supra note 31, at
12 ("The law never sanctions the annulment of a marriage on account of the
disability of physical incapacity, unless the same existed at the time of the
marriage.").
n37. See Bishop, supra note 32, at 32 ("No suit at law or in equity, sounding in
contract, and going to the status itself, can be maintained between husband and
wife .<elip>.<elip>.<elip>. And we may well conclude that where there is no
remedy known to the law .<elip>.<elip>. there is no right."); Nelson, supra note
32, at 5 ("The [marital] relation differs from a contract in [that] .<elip>.<elip>.<elip>.
no damages can be recovered for a violation of marital duty."); Schouler, supra
note 19, at 56-57 ("The peace of society forbids that [husband and wife] should
sue one another for damages for breach of the marital obligations. Here again is
marriage sui generis, and not like other contracts.").
n38. See Tapping Reeve, The Law of Husband and Wife 93 n.1 (Albany, William
Gould, Jr., & Co. 4th ed. 1888) ("It is now settled in New York that a married
woman cannot recover damages in a civil action against her husband for assault,
notwithstanding the [1860 New York statute] allowing her to .<elip>.<elip>.
"[sue] for damages .<elip>.<elip>. , the same as if she were sole.'"); Schouler,
supra note 30, at 77-78 ("This disability of the spouses to sue one another .<elip>.<elip>.
is founded on the principle that husband and wife are one. .<elip>.<elip>. The
wife has no cause of action in damages against her husband for a pure tort
committed upon her person during the marriage relation, such as assault or false
imprisonment.").
n39. 1 William Blackstone, Commentaries 430.
n40. Schouler, supra note 19, at 53.
n41. Id. (emphasis added); see also Bradwell v. Illinois, 83 U.S. (16 Wall.)
130, 141 (1873) (Bradley, J., concurring in the judgment) ("Man is, or should
be, woman's protector and defender. The natural and proper timidity and delicacy
which belongs to the female sex evidently unfits it for many of the occupations
of civil life."); 1 Joel Prentiss Bishop, Commentaries on the Law of Married
Women 27 (Philadelphia, Kay & Brother 1871) (noting that coverture principles
reflect "the law of nature, which gave strength to the man and feebleness and
dependence to the woman").
n42. See Schouler, supra note 19, at 53 ("As to the more strictly personal
consequences of the marriage union, [the husband's] rights and duties have
suffered no violent change at our modern law."); see also id. at 16-17
(describing a shared consensus "that as to rights of the person, or what are
sometimes contrasted with civil as moral rights, no essential changes are
wanted; the property rights of married women coming alone within the scope of a
sweeping reform").
n43. See 9 The American and English Encyclopaedia of Law, supra note 32, at 815
("The old writers say that a husband may chastise his wife with a rod no thicker
than this thumb .<elip>.<elip>.<elip>."); Blackstone, supra note 39, at 432
("The husband also (by the old law) might give his wife moderate correction.
For, as he is to answer for her misbehaviour, the law thought it reasonable to
intrust him with this power .<elip>.<elip>. in the same moderation that a man is
allowed to correct his servants or children .<elip>.<elip>.<elip>."); Browne,
supra note 30, at 14 ("The common-law idea of marriage is that the husband and
wife become one person, and that person is principally husband .<elip>.<elip>.<elip>.
He has the custody and control of her person. He may moderately chastise her.");
1 Emlin McClain, A Treatise on the Criminal Law 207 (Chicago, Callaghan & Co.
1897) ("It seems generally to be supposed that by the earlier common law the
husband might lawfully inflict physical chastisement on his wife in exercising
over her a reasonable control, .<elip>.<elip>. unless some permanent injury
should be inflicted, or there should be an excess of violence .<elip>.<elip>.<elip>.");
Tapping Reeve, The Law of Baron and Femme 65 (New Haven, Oliver Steele 1816)
("[At common law,] the husband seems to have had the same right over the person
of his wife, that he had over the person of his apprentice; to chastise her
moderately or confine her; a right still claimed and enforced in [England],
among the lower ranks of society."); Siegel, "The Rule of Love," supra note 11,
at 2121-29.
n44. See Fulgham v. State, 46 Ala. 143, 146-47 (1871) ("The privilege, ancient
though it be, to beat [the wife] with a stick, to pull her hair, choke her, spit
in her face or kick her about the floor, or to inflict upon her like
indignities, is not now acknowledged by our law."); 9 The American and English
Encyclopaedia of Law, supra note 32, at 815 ("Though the old writers say that a
husband may chastise his wife with a rod no thicker than his thumb, modern law
recognizes no such right, and a husband is not justified in beating his wife,
even though she be drunk, or insolent."); 1 Joel Prentiss Bishop, Commentaries
on the Criminal Law 535 (Boston, Little, Brown, & Co. 7th ed. 1882) ("[A] former
supposed right of chastisement is entirely abandoned .<elip>.<elip>.<elip>.");
Browne, supra note 30, at 17 ("At ancient common law the husband had the right
moderately to chastise his wife .<elip>.<elip>.<elip>. But under modern common
law, the husband has no right to strike his wife even if she is drunk or
insolent."); McClain, supra note 43, at 207 ("But this authority on the part of
the husband [to "lawfully inflict physical chastisement on his wife'] has been
expressly repudiated in all the recent cases on the subject .<elip>.<elip>.<elip>.");
Reeve, supra note 30, at 142 n.1 ("A husband has no right to inflict corporal
punishment on his wife .<elip>.<elip>.<elip>."); Schouler, supra note 19, at 59
("Since the time of Charles II. the wife has been regarded more as the companion
of her husband; and this right of chastisement may be regarded as exceedingly
questionable at the present day. The rule of love has superseded the rule of
force."); Siegel, "The Rule of Love," supra note 11, at 2129 ("By the 1870s,
there was no judge or treatise writer in the United States who recognized a
husband's prerogative to chastise his wife.").
n45. As Reva Siegel's study of this transition reveals,
nineteenth-century judges and legal scholars explained the refusal to
intervene in cases of wife beating as a method of protecting marital privacy and
promoting marital harmony. See Siegel, "The Rule of Love," supra note 11, at
2142-70. For judicial explanations along these lines, see State v. Oliver, 70
N.C. 60, 61-62 (1874) ("If no permanent injury has been inflicted, nor malice,
cruelty nor dangerous violence shown by the husband, it is better to draw the
curtain, shut out the public gaze, and leave the parties to forget and
forgive."); State v. Rhodes, 61 N.C. (Phil. Law) 453, 459 (1868) ("[It] is not,
that the husband has the right to whip his wife .<elip>.<elip>. ; but that we
will not interfere with family government in trifling cases. .<elip>.<elip>. We
will not inflict upon society the greater evil of raising the curtain upon
domestic privacy, to punish the lesser evil of trifling violence.").
n46. See 9 The American and English Encyclopaedia of Law, supra note 32, at 812
("The husband is the head of the family. He decides where the family residence
shall be, and may change it as often as his pleasure, business or health
dictates; and his wife must live where he directs .<elip>.<elip>.<elip>.");
Browne, supra note 30, at 15 ("The husband is entitled to select the mutual
domicile, where the wife is bound to reside, and whither she is bound to follow
him."); Kent, supra note 29, at 218 ("The husband is the best judge of the wants
of the family, and the means of supplying them; and if he shifts his domicile,
the wife is bound to follow him wherever he chooses to go."); Rodgers, supra
note 31, at 126 ("The husband, being the head of the family in law, has the
right to the unmolested possession and control of the person of his wife to the
exclusion of all the world. His home is her home; his domicile her domicile.");
Schouler, supra note 19, at 54 ("As there must be a home, so there is also a
matrimonial domicile of the parties recognized by universal law. And the
husband, as the dignior persona, has the right to fix it where he pleases. .<elip>.<elip>.
Wherever he goes she is bound to go likewise .<elip>.<elip>.<elip>."). Joel
Bishop literally naturalized a husband's right to decide where he and his wife
would live, explaining that "nature, as well as law, points to the husband as
the proper party" to determine marital domicile. "The concurring testimony of
the world," he observed, "represents the husband to be the forest oak, and the
wife the forest vine, clinging to its bark, and graceful and lovely only while
it clings." Bishop, supra note 31, at 654.
Nineteenth-century courts were increasingly willing to
consider modifications to this common law right, but only incremental ones. In
1882, for instance, James Schouler observed that "[a] husband would not be
permitted to remove his wife to some remote and undesirable place for the sake
of punishing or tormenting her, or so as to compel her to stay alone where he
did not mean to reside himself." This, he explained, "would not be fixing the
matrimonial domicile with honest intent." Schouler, supra note 30, at 65.
n47. See 9 The American and English Encyclopaedia of Law, supra note 32, at 814
("The husband as head of the family has a right of gentle restraint over his
wife's movements. He may, by reasonable measures, enforce cohabitation and a
common residence; he may lock her up to prevent her from eloping, or going into
lewd company and squandering her money .<elip>.<elip>.<elip>."); Blackstone,
supra note 39, at 433 ("The courts of law will still permit a husband to
restrain a wife of her liberty, in case of any gross misbehaviour."); Kent,
supra note 29, at 218 ("As the husband is the guardian of the wife, and bound to
protect and maintain her, the law has given him a reasonable superiority and
control over her person, and he may even put gentle restraints upon her liberty,
if her conduct be such as to require it .<elip>.<elip>.<elip>."); Mansfield,
supra note 29, at 270 ("If [a wife] attempts to leave [her husband], or is
guilty of improper conduct, he has a right to control and constrain her liberty;
provided always this is done gently and with no violation of the criminal
law."); Reeve, supra note 43, at 66 ("It is said, that [a husband] may imprison
[his wife] to prevent her going off with an adulterer, and also to prevent her
from destroying and squandering his property."); Schouler, supra note 19, at 53
("Marriage necessarily supposes a home and mutual cohabitation. Each party has
therefore a right to the society of the other. They married to secure such
society. And the obligation rests upon both to live together--or as the
expression sometimes goes to adhere.").
n48. See 1 Joel Prentiss Bishop, Commentaries on the Criminal Law 739 (Boston,
Little, Brown & Co. 2d ed. 1858) ("Perhaps, under some circumstances, [a
husband] may simply restrain [his wife' s] locomotion. And the North Carolina
court has very properly held, that he may lawfully take her by force from the
possession of an adulterer."); Browne, supra note 30, at 17 ("There is no doubt
that the husband may forcibly prevent the wife from eloping .<elip>.<elip>.<elip>.");
Mansfield, supra note 29, at 270 ("If a wife leave her husband, he has a right
to reclaim and bring her back."); Reeve, supra note 43, at 66 ("This seems to be
settled, that if a wife elope and go away from her husband without cause, that
the husband may seize upon her person and bring her home .<elip>.<elip>.<elip>.");
Schouler, supra note 19, at 60 ("Strong instances for the exercise of this right
[of " gentle restraint'] occur where the wife has eloped with a libertine and
the husband wishes to bring her home, or where she purposes an elopement and he
seeks to prevent it.").
Common law courts had placed some restraints on the exercise of this authority
by the nineteenth century. Tapping Reeve's family law
treatise, the first published in the United States, explained as early as 1816
that "the court will never take away a wife from a friend to whom she has fled
to escape the effects of his brutality, and order her to be delivered to her
husband." Reeve, supra note 43, at 66; see also Kent, supra note 29, at 217-18
("For any unreasonable and improper confinement by [her husband], [a married
woman] may be entitled to relief upon habeas corpus."); Schouler, supra note 19,
at 60-61 ("Mr. Justice Coleridge, in an English case, observes, that the
husband's right must not be exercised unnecessarily or with undue severity; and
that the moment the wife, by her return to conjugal duties, makes the restraint
of her person unnecessary, such restraint becomes unlawful.").
n49. See 9 The American and English Encyclopaedia of Law, supra note 32, at
826-28; 1 Joel Prentiss Bishop, Commentaries on the Criminal Law 243-49 (Boston,
Little, Brown & Co. 1856); Browne, supra note 30, at 14-15, 26-27; Wm. L. Clark,
Jr., Hand-Book of Criminal Law 77-78 (St. Paul, West Publishing Co. 1894);
Mansfield, supra note 29, at 285; Rodgers, supra note 31, at 230-31; 1 Thomas W.
Waterman, A Complete Practical Treatise on Criminal Procedure 6-7 (New York,
Banks, Gould & Co. 6th ed. 1853); Francis Wharton, A Treatise on the Criminal
Law of the United States 19-23 (Philadelphia, James Kay, Jun. & Brother 1846).
Common law courts paired this exemption from liability for wives with a rule
holding husbands criminally liable for the offenses their wives had committed in
their presence. As Joel Bishop explained, a husband was required, on pain of
criminal sanctions, "to put forth his marital power to restrain [his wife] from
violating the laws." Bishop, supra note 44, at 536.
n50. 2 Waterman, supra note 49, at 304-1 n.1 (quoting Ohio statute); see also
id. at 305-1 n.1 (quoting Oregon law defining rape as an act committed by ""any
male person'" against ""any woman other than his wife' ").
n51. Oliver L. Barbour, The Magistrate's Criminal Law 66 (Albany, Wm. & A. Gould
& Co. 1841).
n52. 2 Bishop, supra note 48, at 623-24.
n53. McClain, supra note 43, at 429; see also id. at 207-08 ("The consent of the
wife to sexual connection with the husband having been given by the act of
marrying, he is not guilty of an assault in having such connection."); 3 Joseph
Chitty, A Practical Treatise on the Criminal Law 811 (Springfield, G. & C.
Merriam 4th Am. ed. 1841) ("A man cannot, indeed, be himself guilty of a rape on
his own wife .<elip>.<elip>.<elip>."); Clark, supra note 49, at 190 ("It is
lawful for a husband to have carnal knowledge of his wife, and the fact that he
uses force does not make him guilty of rape."); 1 Wm. L. Clark & Wm. L.
Marshall, A Treatise on the Law of Crimes 645 (1900) ("[A] man cannot be guilty
of this offense [rape] by having carnal knowledge of his wife, and it can make
no difference that he does so by force and against her will."); Ira M. Moore, A
Practical Treatise on Criminal Law, and Procedure in Criminal Cases, Before
Justices of the Peace and in Courts of Record in the State of Illinois 306
(Chicago, Callaghan & Co. 1876) ("The Husband Cannot be Guilty of Rape upon his
own Wife .<elip>.<elip>.<elip>."); Wharton, supra note 49, at 293 ("[A] husband
cannot be convicted of the offence [of rape] .<elip>.<elip>.<elip>.").
n54. Husbands were successfully prosecuted for rapes committed on their wives,
when they were not the direct perpetrators of the rape but had helped or forced
another man to commit it. See infra text accompanying notes 78-97.
In addition, at least one husband in England was prosecuted in the
nineteenth century for forcibly sodomizing his wife. See Regina v. Jellyman,
173 Eng. Rep. 637, 637 (1838) ("The prisoner was indicted for having committed
an unnatural offence with his own wife .<elip>.<elip>.<elip>. It was stated by
the wife of the prisoner, that he committed the offence while in bed with her,
and that she resisted as much as she could .<elip>.<elip>.<elip>."). The court
instructed the jurors to acquit if they found that the wife had actually
consented to the sodomy. The jury returned a verdict of not guilty. See id.
(recording jury instruction that: "The wife, if she consented, would be an
accomplice [to sodomy], she would require confirmation .<elip>.<elip>.<elip>. If
you either disbelieve the evidence, or believe the prosecutrix did not resist,
you ought to acquit; it was her duty to have resisted such an attempt to the
utmost."); see also Moore, supra note 53, at 307 & n.3 (citing Jellyman); 1
Thomas W. Waterman, A Complete Practical Treatise on Criminal Procedure 185 (New
York, Banks & Bros. 7th ed. 1860) (discussing Jellyman).
n55. 86 S.W. 754 (Tex. Crim. App. 1905).
n56. At trial, Mason Frazier was found guilty of assault with attempt to rape.
The evidence indicated that Emma Frazier, his wife, had informed her husband
that she no longer wanted to have marital intercourse with him, had moved into a
separate bedroom, and had unsuccessfully sought a divorce. See id. at 754-55.
Mr. Frazier was convicted based on evidence that:
On the occasion of the alleged assault [he] entered [his wife's] room, and
rather vigorously insisted upon what he believed to be his rights as a husband.
She resisted, and fled into the room where the boys were sleeping. Appellant
followed her in there, and again renewed his efforts. She finally escaped,
however, and the matter ended.
Id. at 755.
n57. The Texas Court of Criminal Appeals relied on a long line of precedent in
finding that Mr. Frazier's conduct did not constitute "a violation of the law."
Id. at 755. As it noted, "in all the cases it is said, so far as we are aware,
wherever the question has been adjudicated, that the husband cannot be himself
guilty of actual rape upon his wife." Id.; see also id. ("So far as we are
aware, all the authorities hold that a man cannot himself be guilty of actual
rape upon his wife .<elip>.<elip>.<elip>."); id. ("We are aware of no case
holding that the husband can be guilty of the offense where he himself is the
actual party to the intercourse.").
n58. These cases often relied on United States v. Cook, 84 U.S. (17 Wall.) 168
(1872), which held that an explicit statement of non-applicability was required
in an indictment where the statutory exemption at issue constituted an element
of the crime, rather than simply a defense to it, see id. at 173-74. The courts
that considered this question in the context of the marital rape exemption were
divided.
Some held that the marital rape exemption was a constitutive element of the
crime of rape, so that an indictment could not give sufficient notice to the
accused of the offense charged without specifically indicating that the
exemption did not apply. See Parker v. Territory, 59 P. 9, 10 (Okla. 1899) ("As
the allegation that the prosecutrix was not the wife of the accused was a
material and necessary part of the definition of the offense, .<elip>.<elip>. we
think there is no doubt that the failure to charge this fact in the indictment
was fatal to the indictment .<elip>.<elip>.<elip>." (citing Cook)); Young v.
Territory, 58 P. 724, 725 (Okla. 1899) ("[Oklahoma's rape statute] cannot be
read, and eliminate the clause "not the wife of the perpetrator.' This [clause]
is not a matter of excuse for the defendant, .<elip>.<elip>. but is a necessary
and essential element of the crime itself, which must be established by the
prosecution .<elip>.<elip>.<elip>." (citing Cook)); Dudley v. State, 40 S.W.
269, 269 (Tex. Crim. App. 1897) ("In cases of assault with intent to rape the
indictment must negative the fact that the girl was the wife of the accused.");
Edwards v. State, 39 S.W. 368, 368 (Tex. Crim. App. 1897) ("Part of the
definition [of raping a girl under 15], is the fact that the parties were not
man and wife. .<elip>.<elip>. All of the constituent elements that go to make up
rape, except penetration, must be alleged and proved in an assault with intent
to rape .<elip>.<elip>.<elip>."); Rice v. State, 38 S.W. 801, 802 (Tex. Crim.
App. 1897) ("The words "other than the wife of the person' occur in the body of
the enacting clause. .<elip>.<elip>. [It] is a part of the act itself, and,
under the rule heretofore laid down, the indictment should negative the fact
that the alleged injured female was the wife of the defendant.").
Other courts refused to overturn rape convictions where the indictment failed to
specifically indicate that the victim was not the defendant's wife. See People
v. Estrada, 53 Cal. 600, 600 (1879); State v. Terry, 20 N.C. (3 & 4 Dev. & Bat.)
240, 242 (1838); McClain, supra note 43, at 434 ("It is not necessary to allege
in the [rape] indictment that the woman is not the wife of the defendant .<elip>.<elip>.<elip>.");
see also State v. Halbert, 44 P. 538, 538 (Wash. 1896) (holding that an
indictment for sexually abusing a female child, whose last name was the same as
the defendant's, did not need to state that the child was not the defendant's
wife). These decisions were generally careful to stress that the indictments at
issue indicated, albeit indirectly, that the victim was, in fact, not the wife
of the accused. See State v. White, 25 P. 33, 35 (Kan. 1890) ("If Lottie Linden
had been the wife of the defendant Charles W. White, her name would have been
White, and the intercourse charged would not have been a "crime' or " rape' nor
committed "unlawfully and feloniously,' as charged .<elip>.<elip>.<elip>.");
Commonwealth v. Scannel, 65 Mass. (11 Cush.) 547, 548 (1853) ("The indictment,
charging as it does, that the defendant did ravish one Mary Moran, a person of
different name and without further description, corresponds to the usual
precedents in this respect, and is well enough."). Some of these courts also
specifically characterized the marital exemption as a defense to rape, rather
than an element of the crime, which placed the burden on the defendant to bring
forth evidence that he was married to the victim. See Commonwealth v. Fogerty,
74 Mass. (8 Gray) 489, 491 (1857) ("[A] party indicted [could always] show, in
defence of a charge of rape alleged to be actually committed by himself, that
the woman on whom it was charged to have been committed was his wife. But it is
not necessary to negative the fact in the indictment."); State v. Williams, 23
P. 335, 337 (Mont. 1890) ("The essential element of the offense is the outrage
to the person and feelings of the female .<elip>.<elip>.<elip>. The offense
would exist in an act of sexual intercourse committed with any female, under any
of the [statutory] circumstances .<elip>.<elip>. , with the exception, not of a
class of females, but of a single individual, viz., the wife of the
perpetrator."); State v. Williamson, 62 P. 1022, 1023 (Utah 1900) ("It is not
necessary, under our statute, to show in the information that the person
ravished was not the wife of the defendant. The statute contains no provision or
exception requiring it. .<elip>.<elip>. The party indicted, however, may show in
his defense that the alleged act was committed with his wife."); Francis J.
Lippitt, Criminal Law as Administered in Massachusetts 261 (Boston, Houghton,
Osgood & Co. 1879) ("The [rape] Indictment need not allege .<elip>.<elip>. that
the female was not his wife. .<elip>.<elip>. This can be shown in defence.").
n59. The common law rule that a man could be prosecuted for raping a prostitute
actually dates as far back as 1631, when the King's Bench in England noted in
Lord Audley's Case that a rape conviction would stand, notwithstanding proof
"that the party ravished [was] of evil fame, and of an unchaste life." The Trial
of Mervin Lord Audley, Earl of Castlehaven, for a Rape and Sodomy (1631),
reprinted in 3 A Complete Collection of State Trials 401, 414 (T.B. Howell ed.,
London, T.C. Hansard 1816) [hereinafter Lord Audley's Case]. As the opinion
explained, "the Judges resolve it to be a Rape, though committed on the body of
a common strumpet; for it is the enforcing against the will which makes the
Rape; and a common whore may be ravished against her will, and it is Felony to
do it." Id.
n60. Barbour, supra note 51, at 65.
n61. See id. ("Nor will it be any excuse [in a rape case that the victim] .<elip>.<elip>.
was a common strumpet, or the concubine of the ravisher; for she is still under
the protection of the law, and may not be forced."); Chitty, supra note 53, at
811 ("Formerly it was said to be no rape for a man to have forcible knowledge of
his own concubine, but the law now presumes the possibility of her return to
virtue.") (citations omitted); Clark, supra note 49, at 190 ("The fact that the
woman is a common prostitute, or the man's mistress, does not make the act any
the less rape, if force, actual or implied, is used; for the carnal knowledge is
unlawful, and forcible unlawful carnal knowledge of any woman is rape."); Clark
& Marshall, supra note 53, at 646 ("Subject to this qualification [for wives],
any female may be the subject of rape. It is not necessary .<elip>.<elip>.<elip>.
that she shall have been chaste. .<elip>.<elip>. [Unchastity] does not, as a
matter of law, prevent the intercourse from being rape, if it was in fact
accomplished by force and without her consent."); Dean, supra note 36, at 25
("The crime of rape may be committed upon a virgin, a single or married woman,
or even upon a prostitute. The latter being also under the protection of the
law."); McClain, supra note 43, at 442 ("The want of chastity of the female is
no defense, for the crime of rape may be committed upon a prostitute or upon the
mistress of the assailant .<elip>.<elip>.<elip>."); Moore, supra note 53, at 304
("It is, however, no excuse for the party committing the offense of rape that
the woman was a strumpet or the concubine of the ravisher, for she is still
under the protection of the law and may not be forced."); 2 Waterman, supra note
49, at 306-1 n.1 ("[A] common strumpet .<elip>.<elip>. is still under the
protection of the law, and may not be forced. Neither is it even any
justification, that [the victim] was a concubine to the ravisher himself; for a
woman may forsake her unlawful course of life .<elip>.<elip>.<elip>."); Wharton,
supra note 49, at 296 (similar).
n62. See Barbour, supra note 51, at 67 ("If the prosecutrix be of good fame .<elip>.<elip>.
these and the like circumstances give greater probability to her evidence; but
on the contrary, if she be of evil fame .<elip>.<elip>. these and the like
circumstances carry a strong but not a conclusive presumption that her story is
fictitious."); Chitty, supra note 53, at 812 (similar); 2 Joel Prentiss Bishop,
Commentaries on the Criminal Law 619 (Boston, Little, Brown, & Co. 6th ed. 1877)
("This offence may be committed as well on a woman unchaste, or a common
prostitute, as on any other female. In matter of evidence, however, want of
chastity may, within recognized limits, be shown as rendering it more probable
that she consented."); Clark, supra note 49, at 190 ("The fact, however, that
the woman was a prostitute, or of unchaste character, may always be considered
in determining whether she consented or not, as a prostitute would be more apt
to consent than a chaste woman."); Clark & Marshall, supra note 53, at 646 ("The
fact that she was not chaste may aid, as a matter of evidence, in showing that
she consented .<elip>.<elip>.<elip>."); Dean, supra note 36, at 24 ("It may .<elip>.<elip>.
be shown that she ["the prosecutrix'] is a common prostitute, this fact, if
true, tending to repel the allegation of force, and laying a foundation for
inferring assent on her part."); McClain, supra note 43, at 442 ("While the want
of chastity of the female is no defense, .<elip>.<elip>. the bad character of
the prosecutrix as to chastity is material as tending to show that the evidence
of want of consent is not sufficient."); Moore, supra note 53, at 302-03 ("For
the purpose of raising the presumption that the woman consented, it may be shown
that she bore a notoriously bad character for want of chastity and common
decency; that she was in fact a common prostitute; or .<elip>.<elip>. the
concubine of the ravisher; or had voluntarily had connection with him."); 2
Waterman, supra note 49, at 307 to 307-1 ("Nor is it any defence that she is a
common strumpet .<elip>.<elip>.<elip>. But .<elip>.<elip>. though in itself no
defence, it is most material for the defendant, and it is permitted to him to
show the fact, to throw a doubt upon her statement that the connexion was had
against her will."); Wharton, supra note 49, at 296 ("All these latter
circumstances [being "a common strumpet' or "a concubine to the ravisher'],
however, are material to be left to the jury in favour of the party accused,
more especially in doubtful cases, and where the woman's testimony is not
corroborated by other evidence.").
n63. 2 Bishop, supra note 48, at 623-24.
n64. 1 Matthew Hale, The History of the Pleas of the Crown (Philadelphia, Robert
H. Small 1st Am. ed. 1847) (1736).
n65. See Cornelia Hughes Dayton, Women Before the Bar: Gender, Law, and Society
in Connecticut, 1639-1789, at 246-47 (1995); Sharon Block, Coerced Sex in
British North America, 1700-1820, at 179-80, 189, 195 (1995) (unpublished Ph.D.
dissertation, Princeton University) (on file with author).
n66. See infra Part IV.
n67. Hale, supra note 64, at 629.
n68. The earliest roots of the marital rape exemption are murky. The rule may be
linked to the concept of "conjugal debt" in medieval moral theology and the law
of the church. This concept, derived from Biblical statements on marriage, held
that "both husband and wife had a duty to perform sexually at the request of
their mate." Elizabeth M. Makowski, The Conjugal Debt and Medieval Canon Law, 3
J. Medieval Hist. 99, 99 (1977); see also 1 Cor. 7:4 ("A wife has no authority
over her body, but her husband; likewise the husband has no authority over his
body, but his wife. You must not refuse each other .<elip>.<elip>.<elip>."). A
husband or wife could not unilaterally terminate this conjugal debt, even by
joining a religious order that prohibited sexual intercourse. See Makowski,
supra, at 109. A spouse lost his right of sexual access only if he committed a
sin like adultery. See id. Some historians of the middle ages have presented the
doctrine of conjugal debt as evidence "of female equality in marital sexual
relations," arguing that "medieval canonists' opinions about the sexual equality
of married men and women formed an integral part of the process that slowly led
to a grudging recognition that equity requires that men and women be treated
equally in other spheres of life as well." James A. Brundage, Sexual Equality in
Medieval Cannon Law, in Sex, Law and Marriage in the Middle Ages 66, 70, 72
(1993); see also Makowski, supra, at 99 (describing conjugal debt as an "equal
opportunity concept"). The history of the marital rape exemption in the
nineteenth and twentieth centuries suggests that these scholars may have read
too much into the fact that the conjugal debt concept formally bound a husband
as much as his wife. Tellingly, almost every marital rape statute has been made
formally gender-neutral in the last twenty-five years, but the change has had
essentially no impact on the gender-specificity of the law's operation. See
infra text accompanying notes 444-447, 463-476.
n69. See David Lanham, Hale--Misogyny and Rape, 7 Crim. L.J. 148, 155 (1983)
("While it seems clear that there was ample authority for the fact of marital
immunity in rape, the theoretical basis of the immunity does seem to be Hale's
own creation."). Lanham is very sympathetic to Hale, despite the impression that
the title of his article might convey. He argues, for instance, that Hale
invented his own explanation for the marital rape exemption because "Hale's
attitude towards marital immunity was more favourable to women than any
authority which he could have cited. Instead of giving a reference or series of
references which would have given a misleading impression of his view of the
law, he inserted his statement of marital immunity." Id. at 153-54.
Cornelia Hughes Dayton's study of court records in colonial Connecticut also
suggests that Hale's writing on rape did not simply record the law as it was
then understood, but instead was deeply influenced by Hale's own view of how
rape law should be organized and explained. See Dayton, supra note 65. Dayton
studied, not the marital rape exemption, but another famous statement from Sir
Hale on rape, his warning that:
It is true rape is a most detestable crime, and therefore ought severely and
impartially to be punished with death; but it must be remembered, that it is an
accusation easily to be made and hard to be proved, and harder to be defended by
the party accused, tho never so innocent.
Hale, supra note 64, at 635. Her research indicates that Hale' s suspicion about
the veracity of women who brought rape charges did not correspond to the law in
colonial America, at least, at the time that he wrote. To the contrary, Dayton
reports that courts in seventeenth-century Connecticut operated on the
presumption that women's charges of rape were to be believed. See Dayton, supra
note 65, at 31-32, 234-40. The presumption eventually changed, by the middle of
the eighteenth century, because judges and lawyers who had been influenced by
reading Hale changed their local law to reflect his warning. See id. at 60-61,
232, 234, 246-47. This history suggests that contemporaries did not understand
Hale' s writing on rape simply as a positive account of the law, but rather took
it, at least in some respects, as a normative argument.
n70. Barbour, supra note 51, at 66; see also Chitty, supra note 53, at 811 ("A
man cannot, indeed, be himself guilty of a rape on his own wife, for the
matrimonial consent cannot be retracted .<elip>.<elip>.<elip>."); Moore, supra
note 53, at 306 ("The Husband Cannot be Guilty of Rape upon his own Wife for the
matrimonial consent cannot be retracted .<elip>.<elip>.<elip>.").
n71. State v. Haines, 25 So. 372, 372 (La. 1899); see also 2 Waterman, supra
note 49, at 306-1 n.1 (same statement).
n72. See Hale, supra note 64, at 629-30. Hale also argued that victims of forced
marriages who retroactively gave their consent to the abduction could shield
their husbands from rape prosecution. See id. at 629, 633.
n73. 2 Waterman, supra note 49, at 306-1 n.1; see also Barbour, supra note 51,
at 72; Chitty, supra note 53, at 811.
Blackstone made a similar argument to explain why a wife could properly testify
against her husband in cases of forced marriage:
in this case she can with no propriety be reckoned his wife; because a main
ingredient, her consent, was wanting to the contract: and also there is another
maxim of law, that no man shall take advantage of his own wrong; which the
ravisher here would do, if by forcibly marrying a woman, he could prevent her
from being a witness, who is perhaps the only witness, to that very fact.
Blackstone, supra note 39, at 431.
n74. Hale, supra note 64, at 629 (emphasis added).
n75. Id. (emphasis added).
n76. Id. (emphasis added).
n77. See 9 The American and English Encyclopaedia of Law, supra note 32, at
815-16, 829-32; Peregrine Bingham, The Law of Infancy and Coverture 187-88
(Exeter, George Lamson 1st Am. ed. 1824); Bishop, supra note 32, at 31-32;
Blackstone, supra note 39, at 430; Kent, supra note 29, at 176-79; Mansfield,
supra note 29, at 284-305; Schouler, supra note 19, at 76-77.
n78. See sources cited infra notes 79-97.
n79. See Clark, supra note 49, at 312-19; Clark & Marshall, supra note 53, at
164-65; Constable of the Commonwealth, Abstract of Criminal Laws of
Massachusetts 80-81 (Boston, Wright & Potter rev. ed. 1869); Eugene L. Gross, A
Digest of the Criminal Laws of Illinois 53 (Springfield, Illinois Journal Co.
1868); Lippitt, supra note 58, at 130-34; Edward Livingston, A System of Penal
Law for the United States of America 87-88 (Washington, Gales & Seaton 1828); 2
McClain, supra note 43, at 248-60, 286-88; Moore, supra note 53, at 443-45; M.
Warren, Ohio Criminal Law and Forms 329-30, 336-38 (Cincinnati, Wrightson & Co.
1856); Wharton, supra note 49, at 556-59.
n80. In fact, this dichotomy was never as complete as discussion of the marital
rape exemption in the nineteenth century suggested. Many
states prohibited sodomy between husband and wife. See, e.g., Moore, supra note
53, at 306-07; Waterman, supra note 54, at 184-86. However, lawyers and judges
never acknowledged this point in explaining the exemption's treatment of licit
and illicit sex.
n81. See infra text accompanying notes 184-209, 261-264.
n82. See supra note 77 and accompanying text.
n83. Bigaouette v. Paulet, 134 Mass. 123, 125 (1883); see also Bedan v. Turney,
34 P. 442, 443 (Cal. 1893) ("Her sexual intercourse with another is an invasion
of his rights .<elip>.<elip>.<elip>. As the right belongs to the husband, it is
no defense to his action for redress that its violation was by the consent or
procurement of the wife, for she is not competent to give such consent .<elip>.<elip>.<elip>.");
Browning v. Jones, 52 Ill. App. 597, 604 (1893) ("Under and by virtue of [the
marriage contract] the husband had acquired a right and interest in, what is
termed in law, consortship, .<elip>.<elip>. which is the converse of a
dishonored bed, the destruction of domestic comfort, of suspicion cast upon the
legitimacy of offspring .<elip>.<elip>.<elip>."); Wales v. Miner, 89 Ind. 118,
125 (1883) ("As against the rights of the husband, the wife is incapable of
consenting to her seduction."); 9 The American and English Encyclopaedia of Law,
supra note 32, at 834 ("Inasmuch as the husband has the exclusive right of
sexual intercourse with his wife, necessarily he has a right of action against
anyone who commits adultery with her."); Reeve, supra note 43, at 63-64;
Schouler, supra note 19, at 109.
n84. Hale, supra note 64, at 629 (emphasis added).
n85. Although Hale seems to have devised the argument from prostitution to
explain the third-party caveat, the caveat itself appeared in the common law a
century before his treatise was published. In Lord Audley's Case, tried at the
King's Bench in England in 1631, the defendant, Mervin Lord Audley, Earl of
Castlehaven, was found guilty of committing "a Rape upon his own wife; for
holding her by force, while one of his minions forcibly, against her will, had
carnal knowledge of her." Lord Audley's Case, supra note 59, at 401. Under
English law, an accomplice or accessory to a felony was considered a principal
and subject to the same penalty as the person who actually committed the crime,
here a capital penalty for rape. See id. at 401, 416. The judges who decided
Lord Audley's Case did not offer any explanation for their decision, beyond the
fact that they found that the defendant had indeed committed the acts charged.
See id. at 416; see also id. at 411 (wife's testimony); id. at 413 (servant's
confession that he raped Lord Audley's wife at Lord's insistence). Indeed, the
decision did not even mention the marital rape exemption as a background
condition to be kept in mind.
n86. 2 Waterman, supra note 49, at 306-1 n.1 (emphasis added; original emphasis
omitted). For other endorsements of the third-party caveat, see Commonwealth v.
Murphy, 84 Mass. (2 Allen) 163, 164-65 (1861); Commonwealth v. Fogerty, 74 Mass.
(8 Gray) 489, 491 (1857); Strang v. People, 24 Mich. 1, 13 (1871); Parker v.
Territory, 59 P. 9, 10 (Okla. 1899); Young v. Territory, 58 P. 724, 725 (Okla.
1899); 9 The American and English Encyclopaedia of Law, supra note 32, at 807;
Barbour, supra note 51, at 66; 2 Bishop, supra note 48, at 624; Chitty, supra
note 53, at 811; Clark, supra note 49, at 190-91; Clark & Marshall, supra note
53, at 645-46; Dean, supra note 36, at 24; Lippitt, supra note 58, at 261;
McClain, supra note 43, at 430; Moore, supra note 53, at 306; Wharton, supra
note 49, at 293.
n87. At least one other husband in the nineteenth century
appealed his conviction as an accomplice in the rape of his wife to a state
supreme court. State v. Haines, 25 So. 372 (La. 1899), endorsed the third-party
caveat to the marital rape exemption as a general matter, see id. at 372, but
limited the caveat's scope to exclude cases, like Haines itself, in which:
(1)EEthere was no evidence that the man who had actually engaged in the sexual
intercourse had been forced to do so, against his will, by the husband;
andEE(2)EEthis actual perpetrator had nonetheless been acquitted of rape by the
time the state's case against the husband went to trial, see id. at 373. The
court reasoned that "one cannot be guilty of aiding and abetting the perpetrator
of a crime without its first being shown that the crime has been actually
committed by another." Id.
n88. 28 N.W. 896 (Mich. 1886).
n89. Id. at 896.
n90. See id. at 897.
n91. See id. at 896-97.
n92. As the court reasoned:
The husband was not a mere passive looker-on in the proceedings. Reagan knew he
was in the next room, in sight of his work; and when the wife screamed, and
respondent did not interfere, he knew that the husband was willing he should
succeed in the accomplishment of the intercourse by force, if necessary,--an
intercourse which had been bargained for by the husband. And the presence of the
husband in the next room, waiting to catch the parties together, known to
Reagan, both as to the presence, and the purpose of such presence, imparted to
him a confidence in his undertaking. And the husband intentionally gave reason
for such confidence. By the lifting of his finger or the opening of his mouth he
could have prevented the injury to his wife, but he did not do so.
Id. at 897.
n93. Id. at 898.
n94. Id. (emphasis added). The dissent in Chapman condemned Jeremiah Chapman's
conduct in even harsher terms. See id. at 901 (Sherwood, J., dissenting) ("It is
hard to conceive of an act more cruel, or conduct more flagrant and injurious,
to the young wife, whose person, pride, and chastity were violated and mangled,
and whose hope, happiness, and life have been essentially destroyed, than was
perpetrated by the villainous defendant .<elip>.<elip>.<elip>.") (emphasis
added).
It is important to note that the Michigan Supreme Court ultimately set aside
Chapman's conviction based on procedural inadequacies in his preliminary
examination. See id. at 900-01. This outcome might be taken to mean that the
court actually harbored some uneasiness about jailing a husband for a rape
committed on his wife. But there was certainly no statement to that effect in
the Chapman opinion. Perhaps, as the dissent argued, see id. at 904 (Sherwood,
J., dissenting), the procedural irregularity in Chapman--the fact that none of
the depositions taken at the preliminary examination were signed, see id. at
900--was too minor to justify setting aside the conviction. But the holding in
Chapman did nothing to create particular obstacles to future third-party rape
prosecutions against husbands. The procedural issue that was dispositive in
Chapman applied to all criminal cases equally.
n95. 11 S.E. 525 (N.C. 1890).
n96. Id. at 525.
n97. Id. (quoting Hale, supra note 64, at 629) (emphasis added).
n98. See supra text accompanying note 54.
n99. Katharine Bement Davis, Factors in the Sex Life of Twenty-Two Hundred Women
(1929).
n100. At least two other studies of the sexual lives of married women were
published in the United States in the early twentieth century. Dr. G.V. Hamilton
published A Research in Marriage in 1929. This study, which was begun in 1924,
reported the results of Hamilton's interviews with one hundred married women and
one hundred married men, all volunteers solicited casually through personal
contacts. See id. at xi, 1-2. Hamilton, a psychiatrist, asked his subjects a
number of questions that might cast light on how the terms of intercourse were
negotiated in actual marriages. But he presented the findings of his research in
such a condensed form that they are difficult to interpret.
For instance, Hamilton asked his subjects: ""Is sex intercourse between you and
your (spouse) always a matter of mutual desire, or does your (spouse) at times
merely submit to it because you desire it?'" Id. at 159 tbl.102. His report of
their answers focused solely on the frequency of submission, without offering
any qualitative information. Hamilton's chart reveals that wives often submitted
when they did not desire intercourse. Seventy-three of the hundred wives
reported having submitted at some point in their marriages, where only three
reported that their husbands had ever submitted to them. See id. Sixty-four of
the hundred husbands reported that their wives had submitted to them, where only
seven reported that they had ever submitted. See id. Hamilton's study does not
indicate, however, the terms of this "submission." We do not learn, for example,
whether (and why) any of these wives felt an obligation to submit, or feared
physical violence if they refused.
Robert Latou Dickinson and Lura Beam published A Thousand Marriages: A Medical
Study of Sex Adjustment in 1932. This study was based on the records that a
single obstetrician/gynecologist had kept in the course of forty-seven years of
practice. See id. at xvi, 3. It focused on the relationship between a woman's
gynecological health and her sexual "passion" or "frigidity" in marriage. See
id. at 3. The work did not consider the amount of control, or lack thereof, that
wives were able to exercise over the terms of marital intercourse.
n101. For brief accounts of Davis's career, see Estelle B. Freedman, Their
Sisters' Keepers: Women's Prison Reform in America, 1830-1930, at 116-18 (1981);
Nicole Hahn Rafter, Partial Justice: Women, Prisons, and Social Control 60,
65-66, 69-72, 79, 153 (2d ed. 1990).
n102. See Davis, supra note 99, at xi. "From these 10,000 women," Davis reports
that she "received requests for the questionnaires from about one third, and
about one third of those receiving them filled them out and returned them." Id.
n103. Among other topics, Davis's questionnaires covered: childhood influences,
sex education, sexual intercourse before marriage, expectations about marital
intercourse, marital happiness, birth control practices, abortion, the frequency
of intercourse, female sexual pleasure and orgasm, the relationship between
sexual desire and the menstrual cycle, masturbation, and homosexuality. See id.
at 1-78, 151-86, 218-37, 297-328.
n104. See id. at xi. "For the most part, however," Davis "used only the first
1,000 received, as the additional 73 cases had no important effect on the
results." Id. at xi-xii. Davis also sent a different questionnaire about sex to
1200 unmarried women. See id. at xiii.
n105. The Davis study has at least two major limitations. First, Davis published
Factors in 1929 and conducted all of her research within the previous decade,
several decades after a husband's conjugal rights were hotly contested by an
organized feminist movement. This limitation is partially overcome, however, by
the fact that many of the women included in Davis's survey came to maturity in
the latter half of the nineteenth century. At the time of
their reply, Davis's married women respondents ranged in age from twenty-one to
eighty-three. See id. at 1. Second, Davis focused on the middle class and the
elite. Davis deliberately did not want to survey a purely representative sample
of married women. Half of her ten thousand letters went to the members of an
unnamed "large national organization," with the organization's leadership
instructed to choose five thousand "normal married women-- that is, women of
good standing in the community, with no known physical, mental, or moral
handicap, of sufficient intelligence and education to understand and answer in
writing a rather exhaustive set of questions as to sex experience." Twenty-five
hundred other women "were selected from published lists of membership in various
clubs belonging to the General Federation of Women's Clubs. The choice of names
was purely arbitrary except that it was made from the great varieties of types
and interests represented in this organization, and with a nationwide
distribution." The last "2,500 names were taken from the alumnae registers of
women's colleges and coeducational universities, the choice of names being made
on a basis of age and geographical distribution." Id. at xi.
n106. Id. at 63.
n107. Id. at 67. Another respondent noted that ""[her] mother had taught [her]
that men were chiefly animals.' " Id. A third woman, who apparently felt that
her mother's warnings had been overstated, reported a similar course of
instruction: ""I think mother gave me an abnormal idea of men by her own sex
attitude. .<elip>.<elip>. I thought most men must be beasts.'" Id.
n108. Id. at 69, 68 tbl.V.
n109. Id. at 69.
n110. Davis reports that 116 women responded that they were unhappy with their
married life. She compared this group with 116 "happy" women from her survey,
chosen to match the unhappy cohort in age and education. See id. at 67. Of the
unhappy group, 28 (24.1%) had been attracted ""by the manner in which married
sex relations came into [their] experience'" and 42 (36.2%) had been repelled.
In contrast, 54 (46.6%) women in the happy group reported having been attracted
by their initial experiences of marital intercourse and 27 (23.3%) repelled. To
phrase these findings another way: Eighty-two women in this sample of 232
reported having been attracted by their initial experiences of marital
intercourse. Of these 82 women, 54 (65.9%) reported being happy in their married
life. Sixty-nine women in this sample reported having been repelled by their
introduction to marital intercourse. Of these 69 women, 42 (60.9%) women were
unhappy in their married life. See id. at 68 & tbl.V.
n111. Id. at 69.
n112. Id. at 68 tbl.V, 69, 71.
n113. Clelia Duel Mosher, The Mosher Survey: Sexual Attitudes of 45 Victorian
Women (James MaHood & Kristine Wenburg eds., 1980).
n114. See James MaHood, Preface to Mosher, supra note 113, at v, vii ( "Our best
estimate is that significant information for a total of only 45 different women
has come down to us and appears here."); id. ("The blanks [questionnaires] are
consecutively numbered, and the last is No. 51. But Blanks No. 7, 37, 39, and 48
are missing in the original, and practically no information appears on Blanks
16A and 49. .<elip>.<elip>. Stanford Historian Carl Degler identified Blanks 30
and 33 as from the same woman.").
n115. See id. at v-vii; Mosher, supra note 113, at 3 (noting that her study "has
given the investigator a priceless knowledge for a practicing physician and
teacher," but "some thought of arranging this work for publication .<elip>.<elip>.
was prevented by pressure of other routine work"); Carl N. Degler, Introduction
to Mosher, supra note 113, at xi, xii-xiv, xvii.
Mosher also never indicated her method for selecting subjects. She appears to
have relied on volunteers that she knew personally or professionally, women
drawn almost exclusively from the upper middle class. See id. at xii ("No clues
are provided as to how the respondents were selected. Presumably they were
self-selected .<elip>.<elip>.<elip>. Many of the Mosher women seem to be
[Stanford] faculty wives."); id. at xiii ("Thirty-four of the 45 women attended
college or normal school; the education of three is unknown. Since very few
women or men attended college in the nineteenth century, these
women were clearly not typical of the general population."). Moreover, Mosher
varied her methodology over time, altering the questions she asked, sometimes
relying on a written questionnaire and sometimes asking her questions orally and
recording the answers herself. See MaHood, supra note 114, at vi-vii; Degler,
supra note 115, at xii. Even at their most complete, Mosher's questionnaires
never approximated the scope of Davis's inquiry.
n116. See MaHood, supra note 114, at v-vi; Degler, supra note 115, at xi.
n117. See Degler, supra note 115, at xi.
n118. Mosher, supra note 113, at 114 (Blank No. 10).
n119. Id. at 435 (Blank No. 44).
n120. Id. at 139 (Blank No. 12).
n121. Id. at 276-77 (Blank No. 24); see also id. at 210 (Blank No. 18) ("The
ideal must be a compromise between two and must be the best for both."); id. at
317 (Blank No. 28) ("Special occasion each time. Man should court wife each
time.").
n122. Id. at 25 (Blank No. 2(a)).
n123. Id. at 426 (Blank No. 43); see also id. at 162-63 (Blank No. 14)
(reporting that her "ideal habit" was "such as I have--Where intercourse is only
held when mutually desired").
n124. Id. at 423 (Blank No. 42).
n125. Id. at 409 (Blank No. 40).
n126. Id. at 44 (Blank No. 3).
n127. Id. at 252 (Blank No. 22).
n128. See id. at 407 (Blank No. 40).
n129. Id. at 408 (Blank No. 40); see also id. at 9-11 (Blank No. 1) (reporting
more frequent marital intercourse than desired, although she "considered that
[marital intercourse] sh'd be regulated largely by the woman").
n130. Id. at 421-23 (Blank No. 42).
n131. See infra Parts II.B, III.A, IV.
n132. For a full account of the Seneca Falls Convention, see History of Woman
Suffrage, supra note 10, at 67-73. This convention adopted a "Declaration of
Sentiments" that demanded the reform of coverture laws. See Declaration of
Sentiments (1848), reprinted in History of Woman Suffrage, supra note 10, at 70,
70 ("[Man] has made [woman], if married, in the eye of the law, civilly dead. .<elip>.<elip>.
[A married woman] is compelled to promise obedience to her husband, he becoming,
to all intents and purposes, her master--the law giving him power to deprive her
of her liberty, and to administer chastisement."). A woman's right to her
person, however, was not mentioned. See id. at 70-71.
n133. As late as 1899, the frank discussion of sexual intercourse could be
controversial at official gatherings of medical professionals. That year, Dr.
Denslow Lewis presented a paper on the "Gynecologic Consideration of the Sexual
Act" at a meeting of the American Medical Association (AMA). Denslow Lewis, The
Gynecologic Consideration of the Sexual Act 23, 5-19 (M & S Press 1970) (1900).
One of his colleagues objected to the presentation, on the ground that the
discussion of sex was "attended with more or less filth and we besmirch
ourselves by discussing it in public." Id. at 20. The AMA declined to publish
Lewis's work. See id. at 23-49. The AMA was a socially conservative
organization, but its members' concerns were hardly unusual in this respect.
Even progressive figures committed to the cause of sex education frequently
expressed deep discomfort about breaching social proprieties. "Which shall we
prefer," one such troubled writer asked in 1866,
an eruption of all the secrets of the physician into print and wood-cuts, every
counter strewn with them, and boys and girls invited to premature fancies--or
the old ignorance of sacred laws of the sexual relation, the old subjection of
woman to the slavery of superfluous child-bearing, with all the disgust,
alienation, hidden chagrin, foundered health and spirits, which that brings?
J.W., Book Notice, Radical (Boston), Aug. 1866, at 492, 492 (reviewing R.T.
Trall, Sexual Physiology (1866)). John Weiss recommended "telling the truth with
greater economy of details." Id.
n134. By employing the term "classically liberal," I mean only to denote the set
of ideas stated above. My use of the designation is not intended to endorse any
broader claims about the nature of classical liberalism, a much disputed
subject.
n135. DuBois, supra note 22, at 36.
n136. DuBois, supra note 13, at 846. Aileen Kraditor similarly explains the
position of the organized woman's rights movement:
If all men were created equal and had the inalienable right to consent to the
laws by which they were governed, women were created equal to men and had the
same inalienable right to political liberty. In asserting that natural right
applied also to women, the suffragists stressed the ways in which men and women
were identical. Their common humanity was the core of the suffragist argument.
Aileen S. Kraditor, The Ideas of the Woman Suffrage Movement, 1890-1920, at 44
(1965); see also Keith E. Melder, Beginnings of Sisterhood: The American Woman's
Rights Movement, 1800-1850, at 154 (1977) ("All humans are equal in the sight of
God and nature, was the assumption [of the nineteenth-century
woman's rights movement], equal not necessarily in talents or endowments, but in
basic rights and responsibilities. Aileen Kraditor has identified this approach
as the argument for justice, eternal and undifferentiated, not dependent on
gender.").
n137. As Anne Firor Scott and Andrew MacKay Scott have observed:
Though the demand that women should be permitted to vote was radical in its
implications, the argument was familiar. People who could not vote were being
governed without their consent. The Declaration of Sentiments asked only that
the Declaration of Independence be followed to its logical conclusion. If rights
were given by the Creator was it likely that he discriminated on grounds of sex?
Women were one-half the population. If they had no right to vote, the idea of
consent of the governed was hollow.
Anne Firor Scott & Andrew MacKay Scott, One Half the People: The Fight for Woman
Suffrage 9-10 (Univ. of Illinois Press 1982) (1975); see also DuBois, supra note
13, at 841 ("The demand for political equality could inspire a women's rights
movement among women from 1848 on because political democracy was simultaneously
a widely held belief and a radical assertion when applied to women. Political
equality for women rested on the popular republican tradition that insisted on
equal rights for all, with the franchise the crowning jewel of individual
freedom.").
n138. See DuBois, supra note 22, at 37 (arguing that organized feminist
movement, focused on establishing "that men and women were morally identical,"
"ignored the reality of women's domestic confinement, which made them different
from and dependent on men"); Elizabeth B. Clark, Matrimonial Bonds: Slavery and
Divorce in Nineteenth-Century America, 8 Law & Hist. Rev. 25,
49 (1990) [hereinafter Clark, Matrimonial Bonds] ("Stanton's preoccupation with
individual freedom prevented her from developing a coherent class-based theory
that invoked systematic legal or institutional remedies to women's position in
marriage."); Elizabeth B. Clark, Self-Ownership and the Political Theory of
Elizabeth Cady Stanton, 21 Conn. L. Rev. 905, 934 (1989) ("Elizabeth Cady
Stanton's extreme individualist orientation made it very difficult for her at
any stage in her career to develop a substantive theory of the state, or a
theory of class action within the state.").
n139. See DuBois, supra note 13, at 843, 856-57.
n140. See History of Woman Suffrage, supra note 10, at 68 ("After much delay,
one of the [women gathered to write the Declaration of Sentiments] took up the
Declaration of 1776, and read it aloud with much spirit and emphasis, and it was
at once decided to adopt the historic document, with some slight changes such as
substituting "all men' for "King George.'"); Declaration of Sentiments, supra
note 132, at 70 ("We hold these truths to be self-evident: that all men and
women are created equal .<elip>.<elip>.<elip>.").
n141. As the Declaration of Sentiments adopted at the Seneca Falls Convention
elaborated:
[Man] has monopolized nearly all the profitable employments, and from those she
is permitted to follow, she receives but a scanty remuneration. He closes
against her all the avenues to wealth and distinction which he considers most
honorable to himself. As a teacher of theology, medicine, or law, she is not
known.
He has denied her the facilities for obtaining a thorough education, all
colleges being closed against her.
Declaration of Sentiments, supra note 132, at 71.
n142. This casts doubt on Elizabeth Clark's argument that the organized woman's
rights movement felt "compelled to downgrade the importance of financial
"security' in marriage, in order to establish it as an affective relationship
between equals." Clark, Matrimonial Bonds, supra note 138, at 49.
n143. Elizabeth Cady Stanton, Mrs. Stanton's Address, Lily (Seneca Falls, N.Y.),
May 1852, at 39, 41 (speaking at the second Women's Temperance Convention of the
State of New York, April 20, 1852).
n144. Antoinette Brown Blackwell made a similarly ambiguous statement at the
Tenth National Woman's Rights Convention, held in New York on May 10 and 11,
1860. See Tenth National Woman's Rights Convention, in History of Woman
Suffrage, supra note 10, at 688, 727 ("" [Is a woman bound, because] legally
married to one who is debased to the level of the brute, to be the mother of his
children?' .<elip>.<elip>. " No! .<elip>.<elip>. you are bound never to make one
whom you do not honor and respect, as well as love, the father of any child of
yours.'") (statement of Antoinette Brown Blackwell).
n145. Letter from Elizabeth Cady Stanton to Susan B. Anthony (Mar. 1, 1853), in
2 Elizabeth Cady Stanton: As Revealed in Her Letters, Diary and Reminiscences
48, 48 (Theodore Stanton & Harriot Stanton Blatch eds., 1922).
n146. Id. at 48-49.
n147. Stanton had already briefly alluded to the issue in an address prepared
for the New York Legislature that she also presented at a woman's rights
convention held in Albany in 1854. See Mrs. Stanton's Address, Albany
Convention, in History of Woman Suffrage, supra note 10, at 591, 599 ("The
signing of this [marriage] contract is instant civil death to one of the
parties. .<elip>.<elip>. [The wife] can own nothing, sell nothing. She has no
right even to the wages she earns; her person, her time, her services are the
property of another.") (emphasis added); id. at 605 ("Think you the wife of the
confirmed, beastly drunkard would consent to share with him her home and bed, if
law and public sentiment would release her from such gross companionship?
Verily, no!") (emphasis added).
n148. Smith and Stanton had been discussing woman's rights for at least two
years, in private correspondence that mirrored their eventual public writing.
Smith, for instance, wrote Stanton at the end of 1853 to clarify his position.
By that point, the general outlines of their dispute were already distinct.
Smith explained:
My wife says that you do not regard me as going far enough. I believe no one can
go further than I do. She says that you claim for every wife the right to her
person against the tyranny and lust of her husband. So do I. But so long as she
is dependent and poor, she will fail to establish this right; and so long as she
remains in her clothes-prison, she will be dependent and poor. I believe you can
make no claim for woman to which I do not respond. Do not regard me as opposing
or ignoring any such claim. If we differ at all, it is only that you do not
regard a radical change in the dress of woman to be indispensable to the
achievement of the rights and independence of woman. But I hope we do not differ
on this point.
Letter from Gerrit Smith to Elizabeth Cady Stanton (Dec. 19, 1853) (on file with
author; Elizabeth Cady Stanton Papers, Library of Congress). As this missive
implies, Stanton was never convinced of the need to prioritize dress reform
above all else. In a letter to Smith from the early 1850s, she presented a
different agenda:
Our laws, our customs, our fashions, are founded in some philosophy -- All those
relating to woman in the false one that God made woman for man -- to grace his
home, to minister to his necessities, to gratify his lust, hence our laws make
her a mere dependent, she has no rights to houses or lands, to silver or gold,
not even to the wages she earns. She is given in marriage like an article of
merchandize. .<elip>.<elip>. [And] she that is given never dreams that she
herself has the most sacred right to her own person. .<elip>.<elip>. The rights
of humanity are more grossly betrayed at the altar than at the auction block of
the slave-holder .<elip>.<elip>.<elip>.
Letter from Elizabeth Cady Stanton to Gerrit Smith 1-3 (Jan. 5, 1851?) (on file
with author; Elizabeth Cady Stanton Papers, Library of Congress).
n149. Smith's argument proceeded along the following lines:
I admit that the dress of woman is not the primal cause of her helplessness and
degradation. That cause is to be found in the false doctrines and sentiments of
which the dress is the outgrowth and symbol. On the other hand, however, these
doctrines and sentiments would never have become the huge bundle they now are,
and they would probably have all languished, and perhaps all expired, but for
the dress. .<elip>.<elip>.
Were woman to throw off the dress, which, in the eye of chivalry and gallantry,
is so well adapted to womanly gracefulness and womanly helplessness, and to put
on a dress that would leave her free to work her own way through the world, I
see not but that chivalry and gallantry would nearly or quite die out. No longer
would she present herself to man, now in the bewitching character of a
plaything, a doll, an idol, and now in the degraded character of his servant.
But he would confess her transmutation into his equal; and, therefore, all
occasion for the display of chivalry and gallantry toward her on the one hand,
and tyranny on the other, would have passed away.
Letter from Gerrit Smith to Elizabeth Cady Stanton (Dec. 1, 1855), reprinted in
History of Woman Suffrage, supra note 10, at 836, 837.
n150. Frances D. Gage, another leading figure in the woman's rights movement,
also publicly responded to Smith's letter. She, too, identified a woman's right
to herself as the bedrock principle on which equal citizenship depended,
although Gage defined this right broadly to include a woman's control over both
marital intercourse and her own labor. See Letter from Frances D. Gage to
Frederick Douglass' newspaper (Dec. 24, 1855), reprinted in History of Woman
Suffrage, supra note 10, at 842, 843 ("We must own ourselves under the law
first, own our bodies, our earnings, our genius, and our consciences; then we
will turn to the lesser matter of what shall be the garniture of the body.").
n151. Letter from Elizabeth Cady Stanton to Gerrit Smith (Dec. 21, 1855),
reprinted in History of Woman Suffrage, supra note 10, at 839, 840-41. Stanton's
1852 address at the second Women's Temperance Convention of the State of New
York also expressed deep dissatisfaction with the fact that most women's lives
were devoted wholly to raising children and performing domestic work. She argued
that:
[If] one half our race must forever hold a subordinate position, subject to the
will and dictation of another, thinking no great thoughts, and feeling no true
liberty, always confined to the narrow treadmill round of domestic life, wholly
occupied with trifling matters and ministering to the animal necessities, and
lusts of the flesh alone, that part belongs not to woman.
Stanton, supra note 143, at 40.
n152. Letter from Elizabeth Cady Stanton to Gerrit Smith, supra note 151, at
840.
n153. Id.
n154. For more discussion of Stanton's understanding of a woman's right to
herself, see infra text accompanying notes 194-202.
n155. Letter from Lucy Stone to Elizabeth Cady Stanton (Oct. 22, 1856), in
Elizabeth Cady Stanton, supra note 145, at 67, 68.
n156. Letter from Elizabeth Cady Stanton to Lucy Stone and the National Woman's
Rights Convention, Cooper Institute, 1856 (Nov. 24, 1856), reprinted in History
of Woman Suffrage, supra note 10, at 860, 860-61.
n157. See Letter from Elizabeth Cady Stanton to the Editor of the New York
Tribune (May 30, 1860), reprinted in History of Woman Suffrage, supra note 10,
at 738, 738-39 ("An unmarried woman can make contracts, sue and be sued, enjoy
the rights of property, to her inheritance--to her wages--to her person--to her
children .<elip>.<elip>.<elip>. It is only in marriage that [woman] must demand
her rights to person, children, property, wages, life, liberty, and the pursuit
of happiness.") (emphasis added); E.C.S., Marriage and Divorce, Liberator
(Boston), June 1, 1860, at 88, 88 (same); Address of Elizabeth Cady Stanton, on
the Divorce Bill, Before the Judiciary Committee of the New York Senate, in the
Assembly Chamber, Feb. 8, 1861, at 3-4 (Albany, Weed, Parsons & Co. 1861) ("[I
come to plead] the justice of an entire revision of your whole code of laws on
marriage and divorce. .<elip>.<elip>. It is only in marriage, that [woman] must
demand her rights to person, children, property, wages, life, liberty and the
pursuit of happiness.") (emphasis added); The Property Law (note in pamphlet
after Stanton's address), in id. at 13 (noting that the married women of New
York were denied "the control and custody of [their] own persons"); Letter from
Elizabeth Cady Stanton to Wendell Phillips and the National Antislavery Standard
(Dec. 26, 1865), reprinted in Elizabeth Cady Stanton, supra note 145, at 109,
110 ("If the two millions of southern black women are not to be secured in their
rights of person, property, wages, and children, then their emancipation is but
another form of slavery.") (emphasis added); see also For Women Only: Mrs.
Elizabeth Cady Stanton Discourses on Marriage and Maternity, Daily Iowa State
Register (Des Moines, Iowa), July 29, 1871, at 2, 2 ("We must educate our
daughters in this order: First--To regard their own lives and bodies and the
laws which govern them.").
n158. Letter from Elizabeth Cady Stanton to Susan B. Anthony (June 14, 1860), in
Elizabeth Cady Stanton, supra note 145, at 82, 82.
n159. See infra text accompanying notes 167-173.
n160. Moreover, she also encouraged other feminists to speak publicly. Recall
Stone's 1856 letter to Stanton. See supra text accompanying notes 155-156. The
specific purpose of this letter was to urge Stanton, who had "dared to speak"
already, to raise her voice again: "I very much wish that a wife's right to her
own body should be pushed at our next convention," Stone wrote. "It does seem to
me that you are the one to do it." Letter from Lucy Stone to Elizabeth Cady
Stanton, supra note 155, at 68.
n161. See supra text accompanying note 146.
n162. See supra text accompanying notes 147-153.
n163. Letter from Lucy Stone to Elizabeth Cady Stanton (Aug. 14, 1853), in 1 The
Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony 223, 224 (Ann D.
Gordon ed., 1997).
n164. Id.
n165. Id.
n166. Id.
n167. Letter from Lucy Stone to Antoinette Brown Blackwell (Aug. 1849), in
Friends and Sisters: Letters Between Lucy Stone and Antoinette Blackwell,
1846-93, at 53, 56 (Carol Lasser & Marlene Deahl Merrill eds., 1987); see also
id. ("It is horrid to live without the intimate companionship, and gentle loving
influences which are the constant attendant of a true love marriage
.<elip>.<elip>. but nothing is so bad as to be made a thing, as every married
woman now is, in the eye of Law.").
n168. See Letter from Henry B. Blackwell to Lucy Stone (Dec. 22, 1854), in
Loving Warriors: Selected Letters of Lucy Stone and Henry B. Blackwell, 1853 to
1893, at 108, 108 (Leslie Wheeler ed., 1981) ("The Law by clothing me with
unjust powers puts me in the position of the wrongdoer .<elip>.<elip>.<elip>.
But after all what is the Law? It is nothing, unless appealed to. It is merely
"a rule of civil action' in case of such appeal. It exists only where it is
invoked."). As their protest specified, Stone and Blackwell agreed to submit any
disputes that arose between them to private arbitration rather than the court
system. See Henry B. Blackwell & Lucy Stone, Protest (1855), reprinted in
History of Woman Suffrage, supra note 10, at 260, 261 ("Married partners should
provide against the radical injustice of present laws, by every means in their
power. .<elip>.<elip>. Where domestic difficulties arise, no appeal should be
made to legal tribunals under existing laws, .<elip>.<elip>. all difficulties
should be submitted to the equitable adjustment of arbitrators mutually
chosen.").
n169. Letter from Henry B. Blackwell to Lucy Stone, supra note 168, at 110.
n170. See Letter from Henry B. Blackwell to Lucy Stone (Jan. 3, 1855), in Loving
Warriors, supra note 168, at 115, 115-16 ("I want to make a protest distinct and
emphatic against the laws. I wish, as a husband, to renounce all the privileges
which the law confers upon me, which are not strictly mutual
.<elip>.<elip>.<elip>. Help me to draw one up. .<elip>.<elip>. Surely such a
marriage will not degrade you .<elip>.<elip>.<elip>.").
n171. Henry B. Blackwell & Lucy Stone, Protest, supra note 168, at 261. This
protest was originally published in the Worcester Spy and the Liberator. See
History of Woman Suffrage, supra note 10, at 261.
n172. Henry B. Blackwell & Lucy Stone, Protest, supra note 168, at 261.
n173. Caroline Dall, for instance, cited this statement from the protest to
explain why she could no longer remain silent about a wife's right to
self-possession:
The protest signed by Lucy Stone and Henry Blackwell on the occasion of their
marriage, seemed to relate to whatever was most objectionable in all law, every
where. I take it, therefore, section by section, as the foundation of whatever
remarks I may wish to make .<elip>.<elip>.<elip>.
.<elip>.<elip>.<elip>.<elip>.
1. The custody of the wife's person.
.<elip>.<elip>.<elip>. Probably no right with which he is invested occasions
more suffering than this, yet it is necessarily of a kind to be passed over in
silence, and which,--speak of it impersonally as we will,--it seems unfit to
press publicly upon the attention of an audience. But, if the results of this
right are sustained by the laws of the land; should they be such as we must
blush to speak of; if women die under its inflictions,--are they never to find
those of their own sex strong enough to show the reasons why, and pure enough to
remain unsuspected in doing so? .<elip>.<elip>. In relation to such a right, it
may be said, that every thing will depend upon the character of the husband, and
that no good man would feel himself justified by it. Precisely for this reason
ought the law to be altered. Only the conduct of a violent, abusive man,
regardless of all holy obligations, is likely to come before a Court under it;
and such men ought not to be sustained by the law .<elip>.<elip>.<elip>.
Caroline H. Dall, Report Concerning Some of the Laws of Massachusetts in
Relation to Women (July 2, 1855), in Reports on the Laws of New England,
Presented to the New England Meeting, Convened Sept. 19 and 20, 1855, at 1, 2
(Boston? 1855).
n174. Letter from Lucy Stone to Antoinette Brown Blackwell (July 11, 1855), in
Friends and Sisters, supra note 167, at 143, 144.
n175. Susan B. Anthony, for instance, was convinced that "nearly all the wrongs
of which we complain grow out of the inequality, the injustice of the marriage
laws, that rob the wife of the right to herself and her children--that make her
the slave of the man she marries." In marriage, Anthony concluded, "tyrant law
and lust reign supreme." Tenth National Woman's Rights Convention, supra note
144, at 735 (statement of Susan B. Anthony); see also Clarina I. Howard Nichols,
Reminiscences, in History of Woman Suffrage, supra note 10, at 171, 194, 197
(recounting an 1858 speech in which she discussed "the no-right of the white
wife and mother to herself" and the systematic sexual exploitation of slave
women by white men).
n176. National Women's Suffrage Convention, Woodhull & Claflin's Weekly (New
York, N.Y.), May 27, 1871, at 3, 3.
n177. Matilda E.J. Gage, Is Woman Her Own?, Revolution (New York, N.Y.), Apr. 9,
1868, at 215, 215; see also id. ("Nowhere has the marital union of the sexes
been one in which woman has had control over her own body."); Matilda Joslyn
Gage, Our Book Table, Nat'l Citizen & Ballot Box (Syracuse, N.Y.), Nov. 1878, at
2, 2 ("The law of motherhood should be entirely under woman's control, but in
order to be that, woman must first of all be held as having a right to
herself.").
n178. Lucinda B. Chandler, Woman's Sphere of Motherhood, Woman's J. (Boston,
Chicago, & St. Louis), Sept. 13, 1873, at 291, 291.
n179. Lucinda B. Chandler, Marriage Reform, in Report of the International
Council of Women, Assembled by the National Woman Suffrage Association,
Washington, D.C., U.S. of America, March 25 to April 1, 1888, at 284, 285
(Washington, Rufus H. Darby 1888); see also Elizabeth Blackwell, The Benevolence
of Malthus Contrasted with the Corruptions of Neo-Malthusianism (1888), in
Essays in Medical Sociology 77, 109 (London, no pub. 1899) (contending that "the
ancient legal oppression, which is still upheld under the title of "conjugal
rights,' is a remnant of that old lustful subjection of the physically weaker to
the stronger"); Mattie H. Brinkerhoff, Woman and Motherhood, Revolution (New
York, N.Y.), Sept. 2, 1869, at 138, 138 ("It should be for [women] to decide
when and how often they shall take upon themselves the sacred duties of
motherhood .<elip>.<elip>.<elip>.").
n180. Sarah M. Grimke, Marriage (1852-1857), in The Female Experience: An
American Documentary 89, 91 (Gerda Lerner ed., 1977).
n181. At the same time, these activists were also particularly aware, as Stanton
was, of the distinctive opportunities in public political or intellectual life
that might be available to educated and relatively affluent women like
themselves, if they could successfully limit the portion of their lives devoted
to physical and social reproduction. See supra text accompanying notes 152-153.
Gage expressed the keen regret of many of these women when she noted that
"without the control of one's own person, the opportunities of the world, which
are [the] only means of development, cannot be used." Matilda Joslyn Gage on the
Right of Habeas Corpus, Ballot Box (Toledo, Ohio), Nov. 1876, at 1, 1.
n182. Chandler, supra note 178, at 291.
n183. Grimke, supra note 180, at 91; see also id. at 95 ("Look at the unnatural
tug upon [the] constitution [of a mother of six], her night watches, her sore
vexations and trials & causes nameless & numberless, that wear away her life. If
men had to alternate with their wives, the duties of the nursery, fewer &
further between would be its inmates."). "A Subscriber" to the Woman's Journal
made a similar point:
As a mother, a woman goes through the tragedy of giving birth to her son,
watches over and cares for his helpless infancy, brings him through all the
diseases incident to childhood, is his nurse, physician, seamstress,
washerwoman, teacher, friend, and guide, spending the cream of her days to bring
him up to be a voter .<elip>.<elip>.<elip>. Then he leaves home and marries a
wife, whom it took some other mother twenty-one years to raise
.<elip>.<elip>.<elip>. Then he votes to help make a law to disfranchise his wife
and these two mothers, who have unitedly spent forty-two years of the prime of
their days for his benefit, without any compensation. And then he makes another
law to compel his wife to do all the same kind of drudgery which his mother had
done, with the addition of giving birth to as many children as in his good
pleasure he sees fit to force upon her. .<elip>.<elip>. It is time we stated
facts and called things by their right names, and handled this subject without
kid gloves.
After being the recipient of so many favors, such base ingratitude and
self-conceit, such arrogant, pompous, unwarrantable, criminal usurpation of
power, such supreme selfishness is not to be tolerated or forgiven!
A Subscriber, A Wife's Protest, Woman's J. (Boston, Chicago, & St. Louis), Mar.
6, 1875, at 74, 74 (emphasis added).
n184. See supra text accompanying notes 78-97.
n185. As Reva Siegel has shown, the woman's rights movement and doctors opposed
to legal abortion engaged in a somewhat different contest over the meaning of
"legalized prostitution" in the second half of the nineteenth
century. In this debate also, the woman's rights movement used the language
of legalized prostitution to criticize women's subordination in marriage and
lack of control over their reproductive functions. See Siegel, Reasoning from
the Body, supra note 11, at 308. But where the defenders of the marital rape
exemption were anxious to distinguish marriage and prostitution, the
anti-abortion movement embraced the analogy between the current state of marital
relations and prostitution, "arguing that marriage was a relation of legalized
prostitution so long as man's natural sexual urge were allowed expression in
marriage without reproductive consequence." Id. at 309 (original emphasis
omitted).
n186. Abby H. Price, Address Read to the "Woman's Rights Convention," at
Worcester, in The Proceedings of the Woman' s Rights Convention, Held at
Worcester, October 23d & 24th, 1850, at 20, 24 (Boston, Prentiss & Sawyer 1851);
see also id. at 26 ("I have the authority of Dr. Ryan, and of Dr. Mayhew,
persons of well known integrity .<elip>.<elip>. and they publicly affirm, that
nearly all were driven to dissolute lives because there were no means open to
them of obtaining an adequate maintenance.").
n187. Id. at 25 (citation and internal quotation marks omitted).
n188. National Convention at Cincinnati, Ohio, in History of Woman Suffrage,
supra note 10, at 163, 166 (statement of Lucy Stone).
n189. Price, supra note 186, at 26; see also Caroline H. Dall, The College, the
Market, and the Court; or, Woman's Relation to Education, Labor, and Law 135
(Boston, Lee & Shepard 1867) ("I ask for woman, then, free, untrammelled access
to all fields of labor; .<elip>.<elip>. the question which is at this moment
before the great body of working women is "death or dishonor:' for lust is a
better paymaster than the mill-owner or the tailor .<elip>.<elip>.<elip>.");
Susan B. Anthony, Social Purity (1875), in 2 Ida Husted Harper, The Life and
Work of Susan B. Anthony 1004, 1007 (Arno & N.Y. Times 1969) (1898) ("[Women
have] but few and meager chances. Only the barest necessaries, and oftentimes
not even those, can be purchased with the proceeds of the most excessive and
exhausting labor. .<elip>.<elip>. Can we wonder that so many poor girls fall
.<elip>.<elip>. ?"); Ellen Battelle Dietrick, "Rescuing Fallen Women," Woman's
J. (Boston), May 27, 1893, at 162, 162 ("Society says to all women, "Go sew, you
belongers in the home, go sew!' .<elip>.<elip>. As a direct consequence of
millions of women crowded into a channel of labor which cannot comfortably
support more than thousands, a large proportion of them slowly starve or
supplement their wages as advised by tempters."); Female Labor Question,
Revolution (New York, N.Y.), Oct. 29, 1868, at 259, 259 (""Next to the liquor
traffic, it is generally conceded that the greatest cause of vice is the
inadequate reward of female labor, and the difficulty of woman's obtaining
employment at any price.'" (quoting Susan B. Anthony)); Helen M. Slocum, The
Causes of Prostitution, Woman's J. (Boston), Jan. 18, 1879, at 22, 22 ("I have
investigated this matter to some extent in New York, and I learn from various
sources that want of remunerative employment is the chief cause which leads
women first to go down."); id. ("There are in the city of New York, and its
immediate vicinity, many thousand women, outside of domestic service, who are
compelled to work for wages which do not average over $ 2 per week.
.<elip>.<elip>. How long would men hold out against such starvation wages, for
the sake of being virtuous .<elip>.<elip>. ?"); The Wages of Work and Sin,
Revolution (New York, N.Y.), Oct. 8, 1868, at 221, 221 ("Large establishments
that will secure to women and girls profitable employments will do more to save
them from destruction than all the prayer-meetings that can be organized in the
John Allen dance-houses.").
n190. Harriot K. Hunt, Glances and Glimpses 201 (Boston, John P. Jewett & Co.
1856).
n191. Id. at 384.
n192. Fuller Walker, Women Fit for Suffrage, Golden Age (New York, N.Y.), Sept.
19, 1874, at 2, 2-3.
n193. Grimke, supra note 180, at 94; see also id. at 96 ("Many so called wives,
rise in the morning oppressed with a sense of degradation from the fact that
their chastity has been violated, their holiest instincts disregarded,
.<elip>.<elip>. and that, too, a thousand times harder to bear, because so
called husband has been the perpetrator of the unnatural crime."); Address of
Elizabeth Cady Stanton, on the Divorce Bill, Before the Judiciary Committee of
the New York Senate, in the Assembly Chamber, Feb. 8, 1861, supra note 157, at 7
(explaining that "marriage is, in many cases, a mere outward tie, impelled by
custom, policy, interest, necessity; founded not even in friendship, to say
nothing of love; with every possible inequality of condition and development");
id. at 8 ("[Is marriage sacred, where a woman] consents to live in legalized
prostitution! her whole soul revolting at such gross association! her flesh
shivering at the cold contamination of that embrace! held there by no tie but
the iron chain of the law, and a false and most unnatural public sentiment?");
id. ("What father could rest at his home by night, knowing that his lovely
daughter was at the mercy of a strong man, drunk with wine and passion, and
that, do what he might, he was backed up by law and public sentiment?"); A
History of the National Woman's Rights Movement 22 (Paulina W. Davis comp., New
York, Journeymen Printers' Co-operative Ass'n 1871) ("To [Stanton's] lectures,
also, is due a healthier tone of public sentiment on the marriage question. It
is slowly beginning to be felt that in that relation there is a vast amount of
legalized prostitution, bearing the semblance of virtue, but is rotten below the
fair exterior.").
Robert Dale Owen, a prominent divorce reformer, similarly reasoned from
domesticity in arguing against restrictive divorce laws on the ground that they
permitted marital rape:
Is it her home where [the unwilling wife] is sitting? Let us not so desecrate
the hallowed word. A bloated wretch, whom daily and nightly debauch has degraded
below humanity, has the right to enter it. .<elip>.<elip>. He has the command of
torments, legally permitted, far beyond those of the lash. That bed-chamber is
his, and the bed is the beast's own lair. It depends, too, on the brute's
drunken will whether it shall be shared or not. Caliban is lord and master, by
legal right. There is not a womanly instinct that he cannot outrage; not a holy
emotion that he may not profane. He is authorized to commit what more resembles
an infamous crime, usually rated second to murder, and often punished with
death, than anything else.
Robert Dale Owen, Divorce, N.Y. Daily Trib., Mar. 5, 1860, at 7, 7.
n194. Letter from Elizabeth Cady Stanton to Susan B. Anthony (July 20, 1857), in
Elizabeth Cady Stanton, supra note 145, at 69, 70.
n195. Id.
n196. Id.
n197. Stanton, supra note 143, at 40.
n198. Id.
n199. Id.; see also id. ("Could not fame, distinction, the love of science, of
literature, a highly cultivated taste in the arts, the editor' s or professor's
chair, authorship or philanthropy as fully satisfy the soul of woman, as does
the inferior position she now looks to as the summun bonum of all happiness?").
n200. National Convention at Cincinnati, Ohio, supra note 188, at 166 (statement
of Lucy Stone); see also id. (noting that "the same society that drives forth
the young man, keeps woman at home--a dependent-- working little cats on
worsted, and little dogs on punctured paper").
n201. Stanton, supra note 143, at 40.
n202. Id.
n203. Tenth National Woman's Rights Convention, supra note 144, at 732
(statement of Ernestine L. Rose); see also The Second National Convention in
Worcester, in History of Woman Suffrage, supra note 10, at 226, 238 (statement
of Ernestine L. Rose) ("It will be said that the husband provides for the wife
.<elip>.<elip>.<elip>. I wish I had the power to make every one before me fully
realize the degradation contained in that idea. Yes! he keeps her, and so he
does a favorite horse; by law they are both considered his property."); Grimke,
supra note 180, at 96 ("Her imperfect education unfits her for acquiring that
pecuniary independence which would lift her above the temptation to marry for a
home. .<elip>.<elip>. The great work to be done now for woman by woman, is to
impress her with the necessity of pecuniary independence
.<elip>.<elip>.<elip>.").
n204. Ann Preston's Address, Westchester Convention, in History of Woman
Suffrage, supra note 10, at 350, 361-62; see also Grimke, supra note 180, at 96
("Now [women] work under great disadvantages and can obtain a mere pittance.");
National Convention at Cincinnati, Ohio, supra note 188, at 166 (statement of
Lucy Stone) ("The flour-merchant, the house-builder, and the postman charge us
no less on account of our sex; but when we endeavor to earn money to pay all
these, then, indeed, we find the difference."); id. ("Female teachers in New
York are paid fifty dollars a year [a fraction of what male teachers received],
and for every such situation there are five hundred applicants.").
n205. National Convention at Cincinnati, Ohio, supra note 188, at 166 (statement
of Lucy Stone).
n206. Ann Preston's Address, supra note 204, at 362; see also National
Convention at Cincinnati, Ohio, supra note 188, at 166 (statement of Lucy Stone)
("It is asked of a lady, "Has she married well?' "Oh, yes, her husband is rich.'
").
n207. National Convention at Cincinnati, Ohio, supra note 188, at 166 (statement
of Lucy Stone).
n208. Ann Preston's Address, supra note 204, at 362.
n209. Id. at 361; see also Anthony, supra note 189, at 1007 ("To [end
prostitution in marriage], girls, like boys, must be educated to some lucrative
employment; women, like men, must have equal chances to earn a living.
.<elip>.<elip>. Marriage, to women as to men, must be a luxury, not a necessity;
an incident of life, not all of it.").
n210. For a discussion of the modern feminist movement's understanding of the
harm that marital rape inflicts upon women, see infra text accompanying notes
434-443.
n211. See, e.g., Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 137-39 (1873)
(upholding Illinois Supreme Court's decision to refuse Myra Bradwell a license
to practice law); id. at 141 (Bradley, J., concurring) ("The natural and proper
timidity and delicacy which belongs to the female sex evidently unfits it for
many of the occupations of civil life. The constitution of the family
organization .<elip>.<elip>. indicates the domestic sphere as that which
properly belongs to the domain and functions of womanhood."); In re Lockwood,
154 U.S. 116, 116-18 (1894) (holding that Virginia could deny Belva A. Lockwood
admission to state bar, even though she had already been admitted to bars of
United States Supreme Court and several other states); In re Application of
Martha Angle Dorsett to Be Admitted to Practice as an Attorney and Counselor at
Law in Said Court (Minn. Ct. C.P. Hennepin County 1876), in Syllabi, Oct. 21,
1876, at 5, 6 (explaining that lawyers would not be able "to grade up the
profession" if women were admitted to the bar, because women's reproductive
responsibilities would always prevent them from "bestowing that time (early and
late) and labor, so essential in attaining to the eminence to which the true
lawyer should ever aspire"); In re Motion to Admit Miss Lavinia Goodell to the
Bar of this Court, 39 Wis. 232, 245 (1875) (endorsing women's statutory
exclusion from bar on ground that contrary rule "would be revolting to all
female sense of the innocence and sanctity of their sex" and "shocking to man's
reverence for womanhood and faith in woman, on which hinge all the better
affections and humanities of life").
n212. Blackwell argued "that the assertion that sexual passion commands more of
the vital force of men than of women is a false assertion, based upon a
perverted or superficial view of the facts of human nature." Elizabeth
Blackwell, The Human Element in Sex 56 (London, J. & A. Churchill new ed. 1894);
see also id. at 49. She noted, however, that the sexual interest of wives was
highly diminished when they did not want to risk reproduction, remembered
awkward or brutal conjugal encounters, or had suffered injuries in childbirth
that made intercourse painful. See id. at 49-50. This argument insisted that
women had the right to sexual feelings and called for a restructuring of the
marital relation so that wives could control the terms of their husbands' sexual
access.
Other feminists privately indicated their view that women could be active sexual
agents. Stanton, for instance, once remarked in her diary that she had
been reading Leaves of Grass. Walt Whitman seems to understand everything in
nature but woman. In "There is a Woman Waiting for Me," he speaks as if the
female must be forced to the creative act, apparently ignorant of the great
natural fact that a healthy woman has as much passion as a man, that she needs
nothing stronger than the law of attraction to draw her to the male.
Elizabeth Cady Stanton, Diary Entry (Sept. 6, 1883), in Elizabeth Cady Stanton,
supra note 145, at 210, 210; see also Elizabeth Cady Stanton, Diary Entry (Feb.
22, 1881), in id. at 183, 183 ("I have come to the conclusion that the first
great work to be accomplished for woman is to revolutionize the dogma that sex
is a crime, marriage a defilement and maternity a bane.").
n213. Letter from Elizabeth Cady Stanton to Lucy Stone and the National Woman's
Rights Convention, Cooper Institute, 1856, supra note 156, at 860.
n214. Stanton, supra note 143, at 40.
n215. Id.
n216. See Grimke, supra note 180, at 95 ("How often is [the pregnant woman]
compelled by various considerations to yield to the unnatural embraces of her
husband, and thus to endanger the very existence of her embryo babe. How often
is it sacrificed to the ungoverned passion of its own father & the health of the
mother seriously impaired.").
n217. For some notable expressions of this view, see William Acton, The
Functions and Disorders of the Reproductive Organs 162-63 (Philadelphia, Lindsay
& Blakiston 3d Am. ed. 1871) ("The majority of women (happily for society) are
not very much troubled with sexual feeling of any kind. What men are habitually,
women are only exceptionally. .<elip>.<elip>. Even if [women's sexual feeling
is] roused (which in many instances it never can be) it is very moderate
compared with that of the male."); id. at 164 ("Many of the best mothers, wives,
and managers of households, know little of or are careless about sexual
indulgences. Love of home, of children, and of domestic duties are the only
passions they feel."); [Nicholas Francis Cooke], Satan in Society 143
(Cincinnati, C.F. Vent 1871) ("While we readily admit and claim for our argument
that a woman capable of bearing children is also capable of the sexual instinct,
the simple fact remains that the majority perhaps--or certainly an immense
proportion--of those who have borne children are innocent of the faintest ray of
sexual pleasure."); Albert H. Hayes, Physiology of Woman 225-26 (Boston, Peabody
Med. Inst. 1869) ("Sexual feeling in the female, is, in a majority of cases, in
abeyance, and .<elip>.<elip>. it requires positive and considerable excitement
to be roused at all; and, even if roused (which in many instances it never can
be), is very moderate, compared with that of the male."); William W. Sanger, The
History of Prostitution 488-89 (New York, Harper & Bros. 1858) ("[For] most
females [desire] exists in a slumbering state until aroused by some outside
influences. .<elip>.<elip>. Without .<elip>.<elip>. stimulating cause, the full
force of sexual desise [sic] is seldom known to a virtuous woman. In the male
sex nature has provided a more susceptible organization than in females
.<elip>.<elip>.<elip>.").
n218. See Nancy F. Cott, Passionlessness: An Interpretation of Victorian Sexual
Ideology, 1790-1850, 4 Signs 219, 235 (1978) ("Women's participation in the
creation of Victorian sexual standards and the place of passionlessness in the
vanguard of feminist thought deserve more recognition. The serviceability of
passionlessness to women in gaining social and familial power should be
acknowledged as a primary reason that the ideology was quickly and widely
accepted."); Howard Gadlin, Private Lives and Public Order: A Critical View of
the History of Intimate Relations in the U.S., 17 Mass. Rev. 304, 318 (1976)
("The nineteenth-century double standard was the vehicle for a
desexualization desired by both men and women for opposing purposes. Men wanted
to desexualize relationships to maintain their domination; women wanted to
desexualize relationships to limit male domination.").
n219. Cott explains that:
Passionlessness served women's larger interests by downplaying altogether their
sexual characterization, which was the cause of their exclusion from significant
"human" (i.e., male) pursuits. The positive contribution of passionlessness was
to replace that sexual/carnal characterization of women with a spiritual/moral
one, allowing women to develop their human faculties and their self-esteem. The
belief that women lacked carnal motivation was the cornerstone of the argument
for women's moral superiority, used to enhance women' s status and widen their
opportunities in the nineteenth century.
Cott, supra note 218, at 233; see also John D'Emilio & Estelle B. Freedman,
Intimate Matters: A History of Sexuality in America 71 (2d ed. 1997) ("Many
middle-class women accepted the view that women lacked innate sexual desire. For
one, it provided a means of elevating women to spiritual equality with men.");
John S. Haller, Jr. & Robin M. Haller, The Physician and Sexuality in Victorian
America at xii (1974) ("The Victorian woman sought to achieve a sort of sexual
freedom by denying her sexuality, by resorting to marital continence or
abstinence in an effort to keep from being considered or treated as a sex
object."); Christine Stansell, City of Women: Sex and Class in New York,
1789-1860, at 68 (1986) ("The " true' woman, powerfully repudiated misogynist
assumptions about the weaker character of the sex and studiously ignored the
well-worn tales of Eve's transgressions[, banishing] .<elip>.<elip>.<elip>. the
image of the vain, foolish, sexually duplicitous woman. The dignified Christian
woman demanded respect and esteem for her sex.").
For discussions of an earlier, more sexualized understanding of woman's nature,
see John Demos, A Little Commonwealth: Family Life in Plymouth Colony 82-84
(1970); Laurel Thatcher Ulrich, Good Wives: Image and Reality in the Lives of
Women in Northern New England, 1650-1750, at 89-105 (1982).
n220. See Cott, supra note 218, at 233 ("Women had to conform to male tastes and
wait to be chosen but resist seduction or suffer ostracism for capitulating
.<elip>.<elip>.<elip>. In sexual encounters women had more than an even chance
to lose, whether by censure under the double standard, unwanted pregnancy and
health problems, or ill-fated marriage."); Haller & Haller, supra note 219, at
xii ("The options open to the Victorians were few. Respectable ladies, even in
the privacy of their own homes, had to remain ladies. They could not become
promiscuous without attracting the wrath of society .<elip>.<elip>.<elip>.").
n221. See supra text accompanying notes 106-112, 118-130 (discussing Davis and
Mosher studies).
n222. Child Murder, Revolution (New York, N.Y.), Mar. 12, 1868, at 146, 146-47;
see also id. at 146 ("There must be a remedy even for such a crying evil as this
[abortion]. But where shall it be found, at least where begin, if not in the
complete enfranchisement and elevation of woman?"); A., Marriage and Maternity,
Revolution (New York, N.Y.), July 8, 1869, at 4, 4 ("[Husbands] think it
impossible that they can outrage [their wives]; they never think that even in
wedlock there may be the very vilest prostitution; and if Christian women are
prostitutes to Christian husbands, what can we expect but the natural sequence--
infanticide?"); L.B. Chandler, Motherhood: Its Power Over Human Destiny,
Woodhull & Claflin's Weekly (New York, N.Y.), May 13, 1871, at 1, 2 ("The
practice of feticide is becoming one of the crying evils of our time, and there
is but the alternative of an undesigned and undesired maternity, at which the
soul of the mother not only shrinks, but stands outraged, .<elip>.<elip>. or a
free, unhindered, God-inspired motherhood, never imposed by selfishness and
lust."); Child Murder, Revolution (New York, N.Y.), Apr. 9, 1868, at 217, 217
("Could you look in upon the wretched homes where heartbroken women work
.<elip>.<elip>. to provide food for the little ones whom the brutal lusts of a
drunken husband have forced upon them, you would not wonder that they did not
choose to add to their number."); Gage, supra note 177, at 216 ("I hesitate not
to assert that most of this crime of "child murder,' " abortion,' "infanticide,'
lies at the door of the male sex."); Grimke, supra note 180, at 90 ("Has she
not, too often, when thus compelled to receive the germ she could not welcome,
refused to retain & nourish into life the babe, which she felt was not the fruit
of a pure connubial love?"); Siegel, Reasoning from the Body, supra note 11, at
306-07; Gordon, Woman' s Body, Woman's Right, supra note 11, at 108.
n223. See Blackwell, supra note 179, at 115 ("The wife must determine the times
of union; this is the only natural method of regulating the size of the family.
.<elip>.<elip>. The [contraceptive] methods recommended to women by
Neo-Malthusians are ineffectual, and if widely practised will subject women to a
more degrading slavery than has hitherto been devised by the insanity of
lust."); For Women Only: Mrs. Elizabeth Cady Stanton Discourses on Marriage and
Maternity, supra note 157, at 2 ("One lady asked a question which hinted at
prevention by other than legitimate means, and Mrs. Stanton promptly replied
that such views of the matter were too degrading and disgusting to touch upon,
and must be classed in the category of crime alongside of infanticide.");
Gordon, Woman's Body, Woman's Right, supra note 11, at 97-101; Gordon, Why
Nineteenth-Century Feminists Did Not Support "Birth Control,"
supra note 11, at 144-47; Siegel, Reasoning from the Body, supra note 11, at
304-05.
n224. See Gordon, Woman's Body, Woman's Right, supra note 11, at 98, 111, 119.
n225. See Siegel, Reasoning from the Body, supra note 11, at 305 n.175, 280-323.
n226. See Carroll Smith-Rosenberg & Charles Rosenberg, The Female Animal:
Medical and Biological Views of Woman and Her Role in
Nineteenth-Century America, 60 J. Am. Hist. 332, 345 (1973) ("Death from
childbirth, torn cervixes, fistulae, prolapsed uteri were widespread "female
complaints' in a period when gynecological practice was still relatively
primitive and pregnancy every few years common indeed."); Gordon, Woman's Body,
Woman's Right, supra note 11, at 106; Regina Markell Morantz, Making Women
Modern: Middle Class Women and Health Reform in 19th Century
America, 10 J. Soc. Hist. 490, 497-98 (1977).
n227. Horatio Robinson Storer, Why Not?: A Book for Every Woman 85 (Boston, Lee
& Shepard 1866); see also John Todd, Serpents in the Doves' Nest 16 (Boston, Lee
& Shepard 1867) (anti-abortion tract warning "that while our foreign population
have large families, our own native American families are running out, and, at
this rate, must and will entirely run out"); Jill Elaine Hasday, Federalism and
the Family Reconstructed, 45 UCLA L. Rev. 1297, 1344-45 (1998); Siegel,
Reasoning from the Body, supra note 11, at 299 ("Translating the creed of
manifest destiny into reproductive terms, Storer fused America's populations,
territories, and women in a powerful image of reproductive potentiality.
.<elip>.<elip>. In this vision, the state was its populations, and its identity
was determined by the reproductive conduct of its female citizens."); Carroll
Smith-Rosenberg, Disorderly Conduct: Visions of Gender in Victorian America 238
(1985) ("Equally political race-suicide arguments, which, beginning in the 1870s
and 1880s, put the birth-control and abortion issue in a racist and xenophobic
context, also singled out bourgeois matrons as the " unnatural' perpetrators of
"unnatural' acts.").
n228. See Hasday, supra note 227, at 1344-45. As one white Southerner
articulated the danger of interracial union:
"If we have social equality we shall have intermarriage, and if we have
intermarriage we shall degenerate; we shall become a race of mulattoes; we shall
be another Mexico; we shall be ruled out from the family of white nations. Sir,
it is a matter of life and death with the Southern people to keep their blood
pure."
David Macrae, The Americans at Home 297 (E.P. Dutton & Co. 1952) (1870).
n229. Ellen DuBois, for instance, has explained that postbellum suffrage
arguments
contained a strong theme of race antagonism, a reaction to the strategic
antagonism between black suffrage and woman suffrage. .<elip>.<elip>. Woman
suffragists criticized the Fifteenth Amendment because "a man's government is
worse than a white man's government" and because the amendment elevated the
"lowest orders of manhood" over "the higher classes of women." The racism of
such protests was expressed in hints of sexual violence, in the suggestion that
women's disenfranchisement would mean their "degradation," "insult," and
"humiliation." Those overtly racist arguments reflected white women's special
fury that men they considered their inferiors had been enfranchised before them.
DuBois, supra note 13, at 849-51; see also Flexner, supra note 23, at 225
("Another reason for the widening gap between working and more privileged women
in the suffrage movement was the antagonism many of the latter felt for the huge
and increasing numbers of immigrants. .<elip>.<elip>. These women resented the
fact that such men, speaking little or no English, stood between them and the
vote."); Elisabeth Griffith, In Her Own Right: The Life of Elizabeth Cady
Stanton 124 (1984) ("The insistence of abolitionists and Republicans that black
male suffrage take precedence over female suffrage enraged Stanton. In defense
she adopted an antiblack, antimale, profemale argument. According to Stanton, it
was better and safer to enfranchise educated white women than former slaves or
ignorant immigrants."); Hersh, supra note 13, at 94 ("Like most feminists,
[Stanton] found it particularly galling that the "lowliest white man' (and later
the most ignorant black man, whom Stanton contemptuously referred to as "Sambo')
was given suffrage before the most educated woman."); Kraditor, supra note 136,
at 44 ("The suffragists, belonging to the same native-born, white, Anglo-Saxon,
Protestant, middle class as the men who were rethinking the meaning of natural
right ["as it applied to the new immigrants'], also began [by the late
nineteenth century] to put less emphasis on the common
humanity of men and women."); Leach, supra note 12, at xiv ("[Stanton's]
speeches often resonated with elitism, with contempt for the "ignorant
foreigners and other riff-raff' who refused to support suffrage, and with
conviction that the "Saxon race' above all others was "destined' to "carry the
new gospel of women's equality to all the nations of the earth.' " (quoting
Women's Trib., July 5, 1890)); Melder, supra note 136, at 154 ("Paulina Wright
Davis and Elizabeth Cady Stanton were more concerned for women's interests than
for the needs of blacks, and when offered a choice in the struggle over the
fifteenth amendment, between giving the vote to black males and denying it to
women, they turned against the Negro."); Gordon, Why
Nineteenth-Century Feminists Did Not Support "Birth Control," supra note 11,
at 149-50 ("Elizabeth Cady Stanton's appeal for giving the vote to educated
women in preference to ignorant men is of a piece with trade unionists'
denunciation of Blacks as scabs even as they excluded them from their unions.").
The final version of the Fifteenth Amendment states that: "The right of citizens
of the United States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous condition of
servitude." U.S. Const. amend. XV, 1.
n230. Cf. Siegel, Reasoning from the Body, supra note 11, at 293 (noting that
doctors in the second half of the nineteenth century "attacked
both abortion and contraception as violations of marital obligation, and, to
prove this, emphasized the danger they posed to women's health") (original
emphasis omitted). Siegel argues that this "scientific construal of the human
body was a form of sexual politics, transposing religious and legal norms into
physiological imperatives in a way that obscured questions of "justice and
inherent right.'" Id. at 313.
n231. A Subscriber, supra note 183, at 74 (emphasis added); see also id. ("The
fruit of such marriages fill our alms houses with paupers, our penitentiaries
with criminals, our lunatic asylums with incurable maniacs, and our other public
institutions with idiots and spendthrifts. Such marriages spread wickedness,
misery, ruin, and death, everywhere throughout the world.").
n232. Gage, supra note 177, at 215.
n233. Letter from Elizabeth Cady Stanton to Gerrit Smith, supra note 151, at
841; see also Isabella Beecher Hooker, Womanhood: Its Sanctities and Fidelities
15 (Boston, Lee & Shepard 1874) ("[A] great part of the physical and moral
deterioration of the present day arises, it seems to me, from the fact that
children are not conceived in the desire for them, and out of the pure lives of
their fathers, as well as their mothers .<elip>.<elip>.<elip>."); Hunt, supra
note 190, at 9-10 ("The reception of every child has much to do with its whole
life. .<elip>.<elip>. The child accepted as a necessity--nursed and tended
grudgingly--has one birthright. But the child, loved and cared for in embryo,
and received in the fulness of conjugal, paternal, and maternal love,--has quite
another birthright!"); Harriot Stanton Blatch, Voluntary Motherhood, in
Transactions of the National Council of Women of the United States, Assembled in
Washington, D.C., February 22 to 25, 1891, at 278, 280 (Rachel Foster Avery ed.,
Philadelphia, J.B. Lippincott Co. 1891) ("Poets sing and philosophers reason
about the holiness of the mother's sphere, but men in laws and customs have
degraded the woman in her maternity. Motherhood is sacred,--that is, voluntary
motherhood; but the woman who bears unwelcome children is outraging every duty
she owes the race."); id. at 282 ("Ever since the patriarchate was established
there has been a tendency to cramp the mother in her maternal rights; so we see
no race improvement comparable with our advance in material science.
.<elip>.<elip>. The remedy does not lie in depriving women of public freedom,
but in according them absolute domestic liberty.").
n234. Letter from Elizabeth Cady Stanton to Paulina Wright Davis (Oct. 20,
1850), in The Proceedings of the Woman's Rights Convention, Held at Worcester,
October 23d & 24th, 1850, supra note 186, at 51, 54; see also Tenth National
Woman's Rights Convention, supra note 144, at 719 (statement of Elizabeth Cady
Stanton) ("Men and brethren, look into your asylums for the blind, the deaf and
dumb, the idiot, the imbecile, the deformed, the insane .<elip>.<elip>. and
there behold the terrible retributions of your violence on woman!"); Letter from
Elizabeth Cady Stanton to Lucy Stone and the National Woman's Rights Convention,
Cooper Institute, 1856, supra note 156, at 860-61 ("[Woman] suffers not alone!
Man too pays the penalty of his crimes in his enfeebled mind, dwarfed body, and
the shocking monstrosities of his deformed and crippled offspring.").
n235. See Victoria Woodhull, The Beecher-Tilton Scandal Case, Woodhull &
Claflin's Weekly (New York, N.Y.), May 17, 1873, at 3, 4-5 (""The marriage
institution .<elip>.<elip>. is now effete, and in a general sense injurious
.<elip>.<elip>.<elip>. I mean by marriage in this connection, any forced or
obligatory tie between the sexes, any legal intervention or constraint to
prevent people from adjusting their love relations .<elip>.<elip>. in complete
personal freedom .<elip>.<elip>.<elip>.'" (quoting herself)); E.H. Heywood,
Cupid's Yokes: Or, the Binding Forces of Conjugal Life 22 (Princeton,
Co-operative Publishing Co. 1877?) ("Sexual organs are not less sacredly the
property of individual citizens than other bodily organs .<elip>.<elip>.<elip>.
The belief that our Sexual Relations can be better governed by statute, than by
Personal Choice, is a rude species of conventional impertinence
.<elip>.<elip>.<elip>."). Thomas Low Nichols and Mary S. Gove Nichols contended
that a loveless and inescapable marriage could actually be fatal:
In this marriage a man is bound to live with a woman he does not love, and to
renounce all hope of enjoying any intimate relation with any other woman whom he
does love; for the law of marriage makes such enjoyment a crime punishable in
many States by a long imprisonment. He must support a woman for whom he has no
attraction; one who, from the very fact of a loveless marriage, becomes peevish,
ill-tempered, and finally diseased. Our graveyards are filled with the corpses
of women who have died at from thirty to thirty-five years of age, victims of
the marriage institution. .<elip>.<elip>. The cares, the responsibilities, the
monotony, the dissatisfaction, the disgust, the perpetual struggle between
inclination and duty, make life a burthen and death a welcome relief.
T.L. Nichols & Mary S. Gove Nichols, Marriage: Its History, Character, and
Results 84-85 (Cincinnati, Valentine Nicholson & Co. 1854).
n236. A Spicy Time on Free-Love--Very Broad Doctrines Freely Avowed, N.Y. Times,
June 29, 1858, at 1, 1 (quoting Julia Branch); see also id. (""I believe in the
absolute freedom of the affections, and that it is woman's privilege, aye, her
right, to accept or refuse any love that comes to her. She should be the ruling
power in all matters of love .<elip>.<elip>.<elip>.'" (quoting Julia Branch)).
Notwithstanding the charges of their many critics, free lovers did not advocate
promiscuity. Indeed, they phrased much of their critique in terms of an attack
on the impurity inherent in ""fidelity to a legal bond, where there is no
Love--where there is Force on one side and Fear on the other.'" Letter from
Stephen Pearl Andrews to Horace Greeley, in Love, Marriage, and Divorce 60, 70
(Stephen Pearl Andrews ed., New York, Stringer & Townsend 1853) (quoting Mary S.
Gove Nichols). ""Promiscuity in sexuality [was] simply the anarchical stage of
development wherein the passions rule supreme.'" Vic's Vagaries, Chi. Times,
Oct. 17, 1875, at 9, 9 (quoting Victoria Woodhull). "" The very highest sexual
unions [were] those that [were] monogamic, and .<elip>.<elip>. these [were]
perfect in proportion as they [were] lasting.'" Id. The free lovers wanted love
and intimacy, believed they could only flourish if freely chosen by both woman
and man, and concluded that they could only be freely chosen if the state placed
no limits at all on their operation. This was not only a normative claim, but a
statement of law as well. The free lovers contended that both natural rights
theory and the United States Constitution, properly understood, already
recognized the liberty they demanded. Victoria Woodhull, one of the most
prominent free lovers, explained that she had ""an inalienable, constitutional
and natural right to love whom [she wanted]; to love as long or as short a
period as [she could].'" Victoria C. Woodhull, The Elixir of Life; or, Why Do We
Die? 19 (New York, Woodhull & Claflin 1873) (quoting herself) (emphasis added).
Ezra Heywood argued that "statutes against adultery and fornication, [were]
unreasonable, unconstitutional, unnatural and void." Heywood, supra note 235, at
22 (emphasis added).
n237. The Free Love System, N.Y. Daily Times, Sept. 8, 1855, at 2, 2; see also
Concerning Free Love, N.Y. Daily Trib., July 20, 1871, at 4, 4 ("[Free love
destroys] those ideas of conjugal duty, with which society has succeeded for
some centuries .<elip>.<elip>.<elip>. The obligations of fidelity are to last no
longer than the [sexual] impulse. .<elip>.<elip>. Mrs. Davis' s vagaries may be
fun to men, but they are death to women."); Of Free Love, Finally, N.Y. Daily
Trib., Aug. 1, 1871, at 4, 4 ("These are the only two logical results of the
doctrine of Free Love. With pure women .<elip>.<elip>. it means no love at all.
With the other kind, it means the promiscuous license of the beasts that
perish.").
n238. Much talk at the 1869 meeting of the Equal Rights Association, for
instance, was devoted to the question of how the woman's rights movement could
best distance itself from the advocates of free love. A variety of participants
agreed on this goal; they differed only in their analysis of the best strategy
for achieving it. Mary Livermore, a feminist from Chicago, wanted the
Association to pass a strong resolution endorsing "the sanctity of the marriage
relation .<elip>.<elip>.<elip>. At the West, she said, this woman's movement had
to contend against the obloquy of being in favor of the free-love doctrine; she
wanted this resolution to rebut that false charge to the fullest extent." Equal
Rights, N.Y. Times, May 14, 1869, at 8, 8. Antoinette Brown Blackwell, the first
woman ordained as a minister in the United States, "speaking on behalf of New
England, agreed with Mrs. L. as to the necessity of making the resolution
stronger on this point." Id. Lucy Stone, in contrast, "thought the resolution
and the whole discussion concerning it out of place. The subject should not even
be hinted in this connection. If any one said that the women who urge this
suffrage reform had any affiliation with the detestable doctrine of free love,"
she declared, "let the lie stick in his throat." Id. Ernestine L. Rose concurred
with Stone. She
objected to the resolution on account of its being in effect a plea of guilty.
If a man said to her he was not a thief, she would immediately look out for her
pocket-book. The prominent workers in this movement had been before the nation a
long time, and none dare assert that their moral characters were stained. It was
not the thing now, after thirty-three years of toil, and when success was ready
to crown their efforts, for the women who desired simply equal political rights
for their sex to come out and voluntarily declare that they were not
prostitutes.
Id.; see also 1 Harper, supra note 189, at 322-26 (similar account of 1869
meeting).
A decade earlier, Sarah M. Grimke had also taken care to "exculpate "the woman's
rights movement,' from the charge of "tending directly and rapidly to the Free
Love system, & nullifying the very idea of Marriage as anything more than a
partnership at will.' On the contrary," she explained, "our great desire is to
purify & exalt the marriage relation & destroy all licentiousness." Grimke,
supra note 180, at 93 (quoting the New York Times).
Not every member of the organized woman's rights movement, however, was so
concerned about distancing herself from the free lovers. Stanton, for instance,
deeply resented the popular attacks on Victoria Woodhull that focused on her
reputation for (un)chastity rather than her political views. "We have had women
enough sacrificed to this sentimental hyper critical, prating about purity,"
Stanton concluded. "This is one of man's most effective engines, for our
division, and subjugation." Letter from Elizabeth Cady Stanton to Lucretia Mott
(Apr. 1, 1872) (on file with author; Elizabeth Cady Stanton Papers, Vassar
College). Isabella Beecher Hooker and Susan B. Anthony, in turn, agreed that the
woman's rights movement should avoid criticizing Woodhull in public. See Letter
from Isabella Beecher Hooker to Susan B. Anthony (Mar. 11 and 14, 1871), in The
Limits of Sisterhood: The Beecher Sisters on Women's Rights and Woman's Sphere
205, 206-09 (Jeanne Boydston et al. eds., 1988).
n239. See, e.g., The Free Love System, supra note 237, at 2 ("The Woman's Rights
movement tends directly and rapidly in the same direction [as free love],--that
extreme section of it, we mean, which claims to rest on the absolute and
indefeasible right of woman to an equality in all respects with Man, and to a
complete sovereignty over her own person and her conduct.").
n240. See Nichols & Nichols, supra note 235, at 117 ("Woman' s one, single, and
supreme right, and the one which includes all others, is her right to
herself.").
n241. [Ezra H. Heywood], Free Speech: Report of Ezra H. Heywood's Defense Before
the United States Court in Boston, April 10, 11 and 12, 1883, at 16 (Princeton,
Co-operative Publishing Co. 1883?).
n242. Victoria C. Woodhull, Tried as by Fire 8 (New York, Woodhull & Claflin
1874).
n243. Id.
n244. Nichols & Nichols, supra note 235, at 102; see also id. at 336 ("[The
crime of rape] exists chiefly in the marriage relation."); [Moses Harman], The
Next Revolution: Or Woman's Emancipation from Sex Slavery 7 (Valley Falls,
Lucifer Publishing Co. 1890) (condemning "legalized rape" in marriage).
n245. Harman, supra note 244, at an unnumbered back page.
n246. Victoria C. Woodhull, The Scare-Crows of Sexual Slavery 22 (New York,
Woodhull & Claflin 1874); see also id. at 21-22 ("I hope I may break up every
family in the world that exists by virtue of sexual slavery, .<elip>.<elip>. [I
will] stand even upon the scaffold, if need be, that my sisters all over the
world may be emancipated, may rise from slavery to the full dignity of
womanhood."); id. at 22 ("Marriage slavery has slaughtered more women than ever
there were men slaughtered on the gory fields of battle.").
n247. Nichols & Nichols, supra note 235, at 85.
n248. Id.; see also id. at 306 (condemning "the domestic servitude of marriage,"
in which wives are subject to "involuntary, compulsory, and repugnant
maternity"); Letter from Theresa Hughes to the Lucifer (Apr. 26, 1890),
reprinted in Harman, supra note 244, at 63, 63 ("She [the author's married
friend] was a slave in every sense of the word, mentally and sexually, never was
she free from his brutal outrages, morning, noon and night, up almost to the
very hour her baby was born, and before she was again strong enough to move
about."); Woodhull, supra note 242, at 37 ("[A] woman .<elip>.<elip>. is
compelled to submit herself, sexually, to a legal master whenever he demands it,
even to the extent of brutality!"); Letter from Stephen Pearl Andrews to Horace
Greeley, supra note 236, at 70 (identifying a wife as ""a legal slave'" to her
husband's sexual demands (quoting Mary S. Gove Nichols)); A Spicy Time on
Free-Love--Very Broad Doctrines Freely Avowed, supra note 236, at 1 ("Why should
woman tame herself into calm submission, and be the slave and toy and play-thing
of man? .<elip>.<elip>. Women are bought and paid for, as the negro slave is."
(quoting Julia Branch)).
n249. See Nichols & Nichols, supra note 235, at 90-96.
n250. For a discussion of sexual exploitation under slavery and the abolitionist
advocacy that contested it, see Hasday, supra note 227, at 1332-34.
n251. Indeed, in their enthusiasm to make the connection between marital rape
and slavery, the Nicholses contended that a wife's sexual vulnerability to her
husband was actually more absolute than a slave woman's vulnerability to her
master, the (highly unconvincing) theory being that any one slave had a greater
chance to escape her master's notice and abuse than a wife had to escape her
husband's notice and abuse:
The female slave may be compelled to submit to the embraces of her master--the
wife is compelled to submit to the embraces of her husband, however
disagreeable, painful, revolting, or dangerous to health and life.
.<elip>.<elip>.
The female slave has little chance of choosing who shall be the father of her
children-- the civilized wife has still less power of choice. .<elip>.<elip>.
The power to refuse does not exist in one [marriage] in a thousand.E.E.E.
The master may be a kind and benevolent man, giving his slave every indulgence;
so may the husband; but the wife, in vital matters concerning the affections, is
far less likely to be indulged in freedom than the slave.
Nichols & Nichols, supra note 235, at 93-94. Fifteen years later, John Stuart
Mill offered an even more extreme version of the same argument in The Subjection
of Women, first published in England in 1869. Mill also charged that women were
more sexually subordinated in marriage than in slavery, but his claim turned on
the wholly inaccurate premise, see supra note 250 and accompanying text, that a
female slave had the right to reject her master's sexual advances outright. As
Mill explained:
Above all, a female slave has (in Christian countries) an admitted right, and is
considered under a moral obligation, to refuse to her master the last
familiarity. Not so the wife: however brutal a tyrant she may unfortunately be
chained to--though she may know that he hates her, though it may be his daily
pleasure to torture her, and though she may feel it impossible not to loathe
him--he can claim from her and enforce the lowest degradation of a human being,
that of being made the instrument of an animal function contrary to her
inclinations.
John Stuart Mill, The Subjection of Women 33 (Susan Moller Okin ed., Hackett
Publishing Co. 1988) (1869). For a discussion of the
nineteenth-century feminist campaign against marital rape in England, see
Mary Lyndon Shanley, Feminism, Marriage, and the Law in Victorian England,
1850-1895, at 156-88 (1989).
n252. Woodhull "protested against the custom which compels women to give the
control of their maternal functions over to anybody. It should be theirs to
determine when, and under what circumstances, the greatest of all constructive
processes--the formation of an immortal soul--should be begun." Victoria C.
Woodhull, A Speech on the Principles of Social Freedom 36 (New York, Woodhull &
Claflin 1874). Woman, Eliza W. Farnham explained, had an ""indefeasible right'"
to ""that freedom and control of her person in the marriage relation which alone
would enable her to consult her nature, and its physical and spiritual capacity
to assume at any time the office of mother.'" A Spicy Time on Free-Love-- Very
Broad Doctrines Freely Avowed, supra note 236, at 1 (quoting Eliza W. Farnham);
see also id. (""Women of the Nineteenth century! The marriage
institution gives you one right .<elip>.<elip>. the right to bear children.
.<elip>.<elip>. It is the law of wise men, who know very much better than you do
when you want a child, and when you ought to become a mother.'" (quoting Julia
Branch)); Heywood, supra note 241, at 9 ("Do you believe that maternity is a
matter concerning which women should be consulted, that they should do therein
what seems to them right and best; or do you think it right or expedient to
subject women to forcible impregnation .<elip>.<elip>. ? In other words are you
opposed to Rape?"); Nichols & Nichols, supra note 235, at 102 ("[Women are]
compelled to submit to the toils and sufferings of a maternity for which they
have no desire .<elip>.<elip>. The duty of a woman to bear children against her
own will, is a part of the marriage system .<elip>.<elip>.<elip>.").
n253. Woodhull, supra note 236, at 9.
n254. Woodhull, supra note 242, at 42.
n255. Id. at 42-43 (quoting Dr. John M. Scudder, Professor of the Diseases of
Women in the Cincinnati Medical College); see also id. at 43 ("" Therefore,' he
adds, "the wife should not lose control of her person in marriage. It is hers to
rule supreme in this regard.'" (quoting Scudder)). A correspondent to Moses
Harman's Lucifer offered a similar diagnosis in describing the plight of a woman
whose "health and strength left her after her marriage." The writer surmised
that:
This would not have occurred, however amative her husband might have been, if he
had been kind and careful, but instead, he played the brute the first night
after their marriage. To use her own expression, "he went to work like a man a
mowing," and instead of a pleasure as it might have been, it was most intense
torture.
He kept this up for a little less than a year, then, as you know, she was laid
in the grave, and he is just as much her murderer, as though he had killed her
in any other manner.
I believe that a strong, healthy, well organized woman will have sexual desires,
and if less so than man, it is because she is less active in the fresh outdoor
air.
Letter from Sadie Athena Magoon to the Lucifer, reprinted in Harman, supra note
244, at 8, 9.
n256. Nichols & Nichols, supra note 235, at 202.
n257. Id.
n258. Id.
n259. Letter from Lois Waisbrooker to Moses Harman, editor of the Lucifer (Mar.
27, 1890), reprinted in Harman, supra note 244, at 35, 36. "The young man of
whom I knew," added a second writer, "threatened his bride of a week with a
sharp knife in his hand, to compel her to perform the office of "sucker.'"
Letter from Lucinda B. Chandler to the Lucifer, reprinted in id. at 48, 49.
Another wife successfully resisted her husband's demands, but not before "he
dragged her out of bed, kicked, choked, pinched and bit her, and then left her
lying on the floor unconscious." Letter to Moses Harman, editor of the Lucifer,
reprinted in id. at 13, 14.
n260. Letter to Moses Harman, editor of the Lucifer, reprinted in id. at 13, 14.
n261. See Woodhull, supra note 246, at 24 ("[A] blessed emancipation shall dawn
for womankind, such as eye hath not seen nor heart conceived, in which no woman
will ever even seem to be compelled to sell her body to any man for a permanent
home, or for the means to procure a temporary one."); Woodhull, supra note 242,
at 19 ("In the exact sense, the woman who sells her body promiscuously is no
more a prostitute than she is who sells herself in marriage without love. She is
only a different kind of a prostitute."); id. at 43 ("Sexual freedom, then,
means the abolition of prostitution both in and out of marriage; .<elip>.<elip>.
means the end of her pecuniary dependence upon man, so that she may never even
seemingly, have to procure whatever she may desire or need by sexual favors
.<elip>.<elip>.<elip>."); Sixteenth Amendment. Woman as a Social Element.,
Woodhull & Claflin's Weekly (New York, N.Y.), May 28, 1870, at 4, 4 ("Public
prostitution is but nothing compared to that practiced under the cloak of
marriage. The latter is increasing to such an extent as to threaten the
existence of the former.").
n262. Woodhull, supra note 252, at 35.
n263. Sixteenth Amendment. Woman as a Social Element., supra note 261, at 4.
n264. Woodhull, supra note 252, at 35. Stephen Pearl Andrews seconded the view
that woman would not control her own person until she "possessed the Freedom to
bestow herself according to the dictates of her own affections, wholly apart
from the mercenary considerations of shelter, and food, and raiment." Letter
from Stephen Pearl Andrews to the editor of the New York Tribune, in Love,
Marriage, and Divorce, supra note 236, at 39, 47; see also Heywood, supra note
235, at 21 ("[In marriage,] social pleasure, being an object of common desire,
becomes a marketable commodity, sold by her who receives a buyer for the night,
and by her who, marrying for a home, becomes a "prostitute' for life."); Nichols
& Nichols, supra note 235, at 85 (describing the sufferings of a wife who "has
married for a home--for position-- because her friends will not hear of her
refusing a good offer" and now finds "her body .<elip>.<elip>. prostituted to
[her husband's] morbid passions").
n265. See supra notes 235-236 and accompanying text.
n266. This literature did not take mutual consent to be a sufficient condition
for marital intercourse. It opposed all intercourse where reproduction was not
sought and desired, instructing readers that "passional enjoyment must be made
wholly incidental, never pursued as an end." Nicholas E. Boyd, To the Studious
and Thoughtful, in Dio Lewis, Chastity; or, Our Secret Sins 312, 316
(Philadelphia, George Maclean & Co. 1874). But it did advise husbands to accept
mutual consent as a necessary condition for marital sex. See also id. ("It is
right, then, to exert the sexual function when children are desired, and rightly
desired, and only then .<elip>.<elip>.<elip>."); John Cowan, The Science of a
New Life 112-13 (New York, Fowler & Wells Co. 1869) ("Sexual connection was
intended only for the propagation of the species; for had God intended it
otherwise, He would, in the greatness of His wisdom, have adapted some
peculiarity of structure in the sexual organism that would have enabled mankind
to exercise the lustful of their natures without the danger of impregnation
following."); E.B. Duffey, The Relations of the Sexes 235 (New York, M.L.
Holbrook & Co. 1885) ("It is a solemn thing to evoke a human being to life--a
being .<elip>.<elip>. whose everlasting good or ill may depend directly upon
ourselves. Are we justified, then, in calling such a being lightly into
existence, at a lustful impulse, and then blasphemously throwing the
responsibility upon God?").
n267. A number of the women that Mosher surveyed, for instance, reported
having carefully reviewed the popular prescriptive literature on marriage before
their own weddings. Several women specifically cited Alice Stockham's Tokology.
See Mosher, supra note 113, at 21 (Blank No. 2); id. at 29, 41 (Blank No. 3);
id. at 111 (Blank No. 10). Others mentioned John Cowan's The Science of a New
Life, see id. at 195 (Blank No. 17); id. at 273 (Blank No. 24), works by George
Napheys, see id.; id. at 299 (Blank No. 26), and works by R.T. Trall, see id. at
21 (Blank No. 2). One woman reported having read the "best pages" of Orson
Squire Fowler. Id. at 273 (Blank No. 24).
n268. Indeed, only a few of the prescriptive authors ever spoke in terms of
human nature and a woman's human rights. Sylvanus Stall explained that a woman,
as "a free moral agent," was fully capable of assuming responsibility for the
regulation of her own maternity and had a "personal right[ ]" to do so. Sylvanus
Stall, What a Young Husband Ought to Know 152 (Philadelphia, Vir Publishing Co.
1897). A wife, Eliza Duffey added, did "violence to her own moral nature, by
yielding unwillingly to demands or pressing importunities." Duffey, supra note
266, at 209; see also Hayes, supra note 217, at 54 ("The conjugal embrace should
never be indulged in against her [the wife's] wishes. .<elip>.<elip>. She is a
free, moral agent, as well as himself.").
n269. R.T. Trall, Sexual Physiology: A Scientific and Popular Exposition of the
Fundamental Problems in Sociology at xi (New York, Miller, Wood & Co. 4th ed.
1867).
n270. Id.
n271. Wm. M. McLaury, Remarks on the Relation of Menstruation to the Sexual
Functions, 20 Am. J. Obstetrics 158, 161 (1887). Orson Fowler agreed: "This is
the "male and female' law throughout all the kingdoms of animal, feathered, and
even insect life," he wrote. "In no single instance, except among human, does
the male ever obtrude himself upon the unwilling female." O.S. Fowler, Sexual
Science 682 (Philadelphia, National Publishing Co. 1870). Even Stall relied on
evidence from the animal kingdom: "Any one who has given attention to the
reproductive act among animals," he reported, "will have noticed that in no
instance can the male force this relation upon the female without her
acquiescence, and in most instances the time of copulation is wholly determined
by the condition of the female." Stall, supra note 268, at 128. Stall could not
"but believe that this is also intended to be the rule among human beings." Id.;
see also Boyd, supra note 266, at 318 ("It is for the female to determine when
impregnation shall take place. Observing the lower animals alone would favor
this conclusion .<elip>.<elip>.<elip>."); Letter from Mrs. Z.R. Plumb to M.L.
Holbrook, in Parturition Without Pain; a Code of Directions for Escaping from
the Primal Curse 124, 126 (M.L. Holbrook ed., New York, M.L. Holbrook 14th ed.
1882) (""Enforced and unwilling maternity is not the habit of the brute; why of
the human, so-called, enlightened world?'").
n272. Cowan, supra note 266, at 394.
n273. Id. at 109.
n274. Boyd, supra note 266, at 318-19. It would, Dio Lewis concurred, be "a
tyranny and outrage" for a wife to have no "right to deny her husband," where
every "sexual intimacy meant a possible pregnancy with all its deprivations and
discomforts, a parturition with all its sufferings and dangers, a long period of
lactation--in brief, motherhood, with all its weighty responsibilities and
incessant labors." Lewis, supra note 266, at 18-19; see also E.B. Duffey, What
Women Should Know 132-33 (Philadelphia, J.M. Stoddart & Co. 1873) ("[The woman]
has to endure the pains, penalties and responsibilities [of bearing children],
both before and afterward, and she can best judge of her fitness and her powers
of endurance. .<elip>.<elip>. It is the extreme of cruelty for her husband to
force child-bearing upon her."); Hayes, supra note 217, at 54 ("The conjugal
embrace should never be indulged in against [the wife's] wishes. The husband may
have the power, but he is a brute, if he imposes upon his wife the pains of
labor and the perils of maternity against her consent."); Trall, supra note 269,
at 202 ("It is for [woman] to nourish and sustain the new being; it is her
health and life that are directly imperiled by being compelled to bear children
.<elip>.<elip>.<elip>. It is her absolute and indefeasible right to determine
when she will, and when she will not, be exposed to pregnancy."); Henry C.
Wright, The Unwelcome Child; or, the Crime of an Undesigned and Undesired
Maternity 23 (Boston, Bela Marsh 1858) ("Who shall say how often, for what
purposes, and under what conditions, the wife shall subject her person to a
relation which renders her liable to become a mother, and to the suffering and
anguish of developing and giving birth to a child?").
n275. See Cowan, supra note 266, at 104-05 ("The honeymoon is one nightly
repetition of legalized prostitution, sinking the pure, high and holy into the
low, debasing and animal. .<elip>.<elip>. The result of marital excess is as
disastrous to the body, mind and soul of the individual as is unlegalized
prostitution."); Alice B. Stockham, Tokology, a Book for Every Woman 154
(Chicago, Alice B. Stockham & Co. rev. ed. 1889) ("Is it too strong language to
say [a wife] is the one prostitute taking the place, for the man, of many, and
not like her, having choice of time or conditions? In consequence she not only
suffers physically, but feels disgraced and outraged to the depths of her
soul."); B.O. Flower, Prostitution Within the Marriage Bond, 13 Arena 59, 70
(1895) ("Prostitution, even though sanctioned by the church and state in the
marriage ceremony, is none the less prostitution, and .<elip>.<elip>. its fruits
are altogether debasing.").
n276. See supra text accompanying notes 184-209, 261-264.
n277. Duffey, supra note 266, at 207.
n278. Flower, supra note 275, at 70.
n279. Stall, supra note 268, at 93 (citation and internal quotation marks
omitted). How could it be a wife's duty, Henry Clarke Wright similarly asked,
"to submit to such a relation, when her own soul not only does not sanction, but
loathes it! .<elip>.<elip>. A duty to become a prostitute,--a mere tool of her
husband's gratification! It is a horrid mockery!" Wright, supra note 274, at
39-40.
n280. See supra text accompanying notes 227-234.
n281. See, e.g., Benjamin Rush, Medical Inquiries and Observations upon the
Diseases of the Mind 347 (Hafner Publishing Co. 1962) (1812) (warning that
sexual appetite, "when excessive, becomes a disease both of the body and mind,"
with potential consequences including "seminal weakness, impotence, dysury,
tabes dorsalis, pulmonary consumption, dyspepsia, dimness of sight, vertigo,
epilepsy, hypochondriasis, loss of memory, manalgia, fatuity, and death"); W.,
Remarks on Masturbation, 12 Boston Med. & Surgical J. 94, 96 (1835) ("This drain
upon the system [ejaculation] should .<elip>.<elip>. be made but sparingly.
Sturdy manhood, in all its vigor, loses its energy and bends under the too
frequent expenditure of this important secretion; and no age or condition will
protect a man from the danger of unlimited indulgence, [even if] legally and
naturally exercised."); Gail Pat Parsons, Equal Treatment for All: American
Medical Remedies for Male Sexual Problems: 1850-1900, 32 J. Hist. Med. & Allied
Sci. 55, 59 (1977) ("Doctors believed that the healthy body, whether male or
female, maintained an equitable distribution of this static quantity of nerve
force. .<elip>.<elip>. Too much sexual excitement .<elip>.<elip>. could upset a
delicate health sustaining equilibrium. Excessive sexual activity attracted this
force to the genitals and withdrew it from other areas of the body
.<elip>.<elip>.<elip>.").
n282. For some of the more extreme manifestations of this argument, see
Sylvester Graham, A Lecture to Young Men 20 (Arno Press 1974) (1834) (warning
that sexual "excesses" will "produce the most terrible effects. The nervous
system .<elip>.<elip>. is tortured into a shocking state of debility
.<elip>.<elip>. and the muscles generally, become relaxed and flaccid; and
consequently, all the organs and vessels of the body, even to the smallest
capillaries, become extremely debilitated; and their functional power,
exceedingly feeble."); Henry G. Hanchett, Sexual Health 25-26 (New York, Charles
T. Hurlburt 1887) ("The sexual act is an exhausting one. It takes hold of the
whole body, and demands the best energies of every part of the system. It
requires so much of nerve-force that it ought always to be followed by a period
of rest."); Frederick Hollick, A Popular Treatise on Venereal Diseases, in All
Their Forms 361 (New York, Excelsior Publishing House 50th ed. 1881) ("When a
man expends too much Semen .<elip>.<elip>. he does the same thing as if he
really destroyed a portion of his brain, because he takes away that which is
necessary to nutrify it. Nature will not produce enough of these substances to
make Brain and to allow of licentious indulgence at the same time."); see also
G.J. Barker-Benfield, The Horrors of the Half-Known Life: Male Attitudes Toward
Women and Sexuality in Nineteenth-Century America 180-88
(1976); Stephen Nissenbaum, Sex, Diet, and Debility in Jacksonian America:
Sylvester Graham and Health Reform 25-38 (1980); Jayme A. Sokolow, Eros and
Modernization: Sylvester Graham, Health Reform, and the Origins of Victorian
Sexuality in America 12-14, 77-99 (1983); Ronald G. Walters, Primers for
Prudery: Sexual Advice to Victorian America 32-48 (1974); Ben Barker-Benfield,
The Spermatic Economy: A Nineteenth-Century View of Sexuality,
in The American Family in Social-Historical Perspective 336, 340-44 (Michael
Gordon ed., 1973).
n283. Most notably, a utopian community in Oneida, New York practiced "male
continence," sexual intercourse without male orgasm or ejaculation, under the
leadership of John Humphrey Noyes. Noyes argued that the habit would "give new
speed to the advance of civilization and refinement. The self-control, retention
of life, and ascent out of sensualism, which must result from making freedom of
love a bounty on the chastening of physical indulgence," would, he promised,
"raise the race to new vigor and beauty, moral and physical." John Humphrey
Noyes, Male Continence 16 (Oneida, Office of Oneida Circular 1872), reprinted in
The Berean, Male Continence, Essay on Scientific Propagation (Arno Press 1969);
see also Lawrence Foster, Religion and Sexuality: Three American Communal
Experiments of the Nineteenth Century 74, 93-98 (1981);
Lawrence Foster, Women, Family, and Utopia: Communal Experiments of the Shakers,
the Oneida Community, and the Mormons 81-84 (1991); Louis J. Kern, An Ordered
Love: Sex Roles and Sexuality in Victorian Utopias-- the Shakers, the Mormons,
and the Oneida Community 224-44 (1981); Spencer Klaw, Without Sin: The Life and
Death of the Oneida Community 130-32 (1993); Ira L. Mandelker, Religion,
Society, and Utopia in Nineteenth-Century America 36-37,
118-19 (1984).
The Shaker community, which practiced complete abstinence, similarly believed
that sexual expenditure "taxed severely every part of the vital economy" of the
body. "Unchastity causes in the aggregate, a tremendously expensive, inane and
profitless drain upon the vital forces," Shakers explained. "It penetrates every
part of the system and drains therefrom the finest essence of brain and blood
and nerve, the seeds of health, vigor, life and motion, and expels them as food
for demons of darkness that feed on the vices of mortals." A.G. Hollister,
Mission of Alethian Believers, Called Shakers 7 (Mount Lebanon, A.G. Hollister
1892-1899); see also Kern, supra, at 77-91.
n284. Cowan, supra note 266, at 105.
n285. Id. at 105-06. George Napheys similarly observed that:
The ordinary results of an abuse of the conjugal privilege are, in the man, very
much the same as those brought on by self-abuse. Locally there is
over-excitation, irritability, and possibly inflammation. The digestion becomes
impaired, dyspepsia sets in, the strength is diminished, the heart has spells of
palpitation, the spirits are depressed, spermatorrh<um I>a may arise, the
genetic powers lose their vigor, there is unusual sensitiveness to heat and
cold, sleep is not refreshing, and a jaded, languid indifference takes the place
of energy and ambition.
George H. Napheys, The Transmission of Life: Counsels on the Nature and Hygiene
of the Masculine Function 179-80 (Philadelphia, H.C. Watts & Co. new ed. 1884).
n286. Henry C. Wright, Marriage and Parentage: Or, the Reproductive Element in
Man, as a Means to His Elevation and Happiness 172 (Boston, Bela Marsh 1854);
see also Augustus K. Gardner, Conjugal Sins Against the Laws of Life and Health
78 (New York, Hurst & Co. rev. ed. 1874) ("Excess in lawful desire is subject to
the same corporeal laws as in unlawful, and its penalty is disease and
debility."); William Goodell, Lessons in Gynecology 436-37 (Philadelphia, D.G.
Brinton 1880) ("Destroy the reciprocity of the union, and
.<elip>.<elip>.<elip>.ENature exacts a forfeit .<elip>.<elip>.<elip>. Witness
[the husband's] ill health and ill temper .<elip>.<elip>.<elip>."); Stall, supra
note 268, at 130 (predicting a "destruction of physical power" and "weakening of
the intellect," which would leave the husband "unfit for study, mental activity,
and oftentimes for all kinds of business").
n287. Duffey, supra note 266, at 220-21.
n288. Gardner, supra note 286, at 79. "So serious was the haemorrhage" resulting
from one husband's initial use of force, Gardner wrote, "that the services of
several of the most eminent surgeons of this city were requisite, and the life
of the blooming bride was for several days most seriously jeoparded." Id. at 77.
n289. See Smith-Rosenberg, supra note 227, at 204-05; Barbara J. Berg, The
Remembered Gate: Origins of American Feminism, the Woman and the City,
1800-1860, at 112-14, 116-19 (1978); Barbara Ehrenreich & Deirdre English, For
Her Own Good: 150 Years of the Experts' Advice to Women 103-05 (1978); Rachel P.
Maines, The Technology of Orgasm: "Hysteria," the Vibrator, and Women's Sexual
Satisfaction 4-5, 7-8, 35 (1999); Ann Douglas Wood, "The Fashionable Diseases":
Women's Complaints and Their Treatment in Nineteenth-Century
America, 4 J. Interdisc. Hist. 25, 26-29 (1973).
n290. See Smith-Rosenberg, supra note 227, at 204-06; Ehrenreich & English,
supra note 289, at 110-11.
n291. See Smith-Rosenberg, supra note 227, at 206-07; Berg, supra note 289, at
114-15; Ehrenreich & English, supra note 289, at 110-11, 134; Maines, supra note
289, at 36, 38, 41; Wood, supra note 289, at 28-29, 36.
n292. Indeed, Carroll Smith-Rosenberg has suggested that women may have become
hysterics precisely because it became a socially acceptable way in which they
could deviate from routine responsibilities that had proven deeply unsatisfying.
See Smith-Rosenberg, supra note 227, at 207-08; see also Berg, supra note 289,
at 116, 120; Ehrenreich & English, supra note 289, at 107-08, 133-40; Wood,
supra note 289, at 35-36. Rachel Maines has offered a somewhat narrower
explanation, positing that the victims of hysteria may have been expressing a
dissatisfaction and frustration that was particularly sexual and somatic in
nature. See Maines, supra note 289, at 5 ("When marital sex was unsatisfying and
masturbation discouraged or forbidden, female sexuality, I suggest, asserted
itself through one of the few acceptable outlets: the symptoms of the
hysteroneurasthenic disorders.").
n293. Stall, supra note 268, at 131.
n294. Duffey, supra note 266, at 215.
n295. Id. at 216 (quoting Dr. Dixon).
n296. Cowan, supra note 266, at 311; see also Goodell, supra note 286, at 437
(explaining that unwanted marital intercourse reduced a wife to a "wreck of body
and of mind"); Trall, supra note 269, at 244 (reporting that "many a man who
would have been a good husband if he had only known how" had "destroyed [his
wife's] health, happiness and life" by denying her control over marital
intercourse).
Marriage manuals often warned husbands that their wives' health was particularly
impaired by sexual intercourse during pregnancy or lactation. See [William A.
Alcott], The Physiology of Marriage 158 (Boston, John P. Jewett & Co. 1856) ("If
young men as a general rule, could see .<elip>.<elip>. all the diseases of mind
and body to which, by their sensual indulgence during pregnancy, they subject
their wives and children, they would hesitate in their career of thoughtlessness
and recklessness."); Stall, supra note 268, at 215 ("The consequences [of sex
during pregnancy] have entailed permanent injuries upon the young wife, and
oftentimes resulted in death itself."); Stockham, supra note 275, at 159-60
("The sexual relation at this time [during gestation] exhausts the mother
.<elip>.<elip>.<elip>. It is worth investigating, whether the cause of much of
the pain at parturition may not also be removed by the practice of continence
during gestation.") (internal quotation marks omitted); Wright, supra note 286,
at 217 ("[Sex during pregnancy] deranges the action of the whole generative
system; the pains and perils of childbirth are greatly aggravated, and the life
of child and mother is oftentimes endangered."); Boyd, supra note 266, at 319
("To prostitute her while pregnant to merely sensual uses inflicts atrocious
wrongs both on her and on her offspring. (It causes the woman a variety of
distressing maladies .<elip>.<elip>.<elip>. The same holds true in a measure so
long as the infant draws its mother's milk.)").
n297. See supra text accompanying notes 231-234.
n298. Wright, supra note 274, at 116.
n299. Id. at 40; see also Cowan, supra note 266, at 131-32 ("The originating of
children in God's own image should be an intensely active, loving desire on the
part of both man and wife. .<elip>.<elip>. Children can as easily be brought
into the world with happy, sunny, laughing natures, as with cross, fretful,
irritable natures."); Hayes, supra note 217, at 54 ("The children born of such
enforced embraces are, in the language of Michelet, an outrage on their
mothers."); Trall, supra note 269, at xii ("[The] mental states .<elip>.<elip>.
of both parents at the moment of conception, affect the future being for life
.<elip>.<elip>. [The mother's] happy or unhappy circumstances, through the
periods of gestation and lactation, continually affect and modify the
organization of the offspring for good or for evil."); Flower, supra note 275,
at 70 ("When a woman is forced to bear children to a man she hates or no longer
loves, .<elip>.<elip>. the child is cursed before it is born. .<elip>.<elip>. I
can conceive of few crimes greater than the bringing into the world of children
of lust or hate.").
n300. Cowan, supra note 266, at 138.
n301. Stockham, supra note 275, at 154.
n302. Flower, supra note 275, at 67.
n303. Horatio Robinson Storer, Is It I?: A Book for Every Man 89 (Boston, Lee &
Shepard 1868).
n304. See supra notes 281-283 and accompanying text; see also Noyes, supra note
283, at 20 ("Male Continence in its essence is self-control, and that is a
virtue of universal importance.").
n305. See Gail Bederman, "The White Man's Civilization on Trial": Ida B. Wells,
Representations of Lynching, and Northern Middle-Class Manhood, in Manliness &
Civilization: A Cultural History of Gender and Race in the United States,
1880-1917, at 45, 58-59 (1995) ("[Ida B.] Wells [a leading anti-lynching
activist] depicted lynch mobs as vile, unmanly and cowardly, hiding their own
rampant lusts with sanctimonious calls for chastity, and excusing their brutal
murders by invoking the honor of harlots. .<elip>.<elip>. Northern men could
only regain their manliness by ending lynching."); see also id. at 70
(concluding that Wells's campaign "forced some long-lasting, if subtle, shifts
in whites' approaches to lynch law. .<elip>.<elip>. After 1894, most Northern
periodicals stopped treating lynching as a colorful Southern folkway.
.<elip>.<elip>. It became a truism that lynching hurt America in the eyes of the
"civilized world.' ").
n306. Boyd, supra note 266, at 319.
n307. Id.
n308. Duffey, supra note 266, at 284.
n309. Wright, supra note 286, at 184, 182 (emphasis added); see also J.H.
Kellogg, Plain Facts for Old and Young 264-65 (Burlington, I.F. Segner 1884)
("The duty of the husband [to restrain himself] is very plain, and to him the
wise physician will appeal in a manner which cannot fail to arouse him to a
sense of his duty if there is yet left unconsumed by the fires of lust even a
vestige of genuine manhood."); Stall, supra note 268, at 102 ("The man who gains
the mastery [of his sexual nature] grows more manly, more noble, while the man
who is overcome becomes less manly, and if lust be given the sway he becomes
increasingly beastly.").
n310. Cowan, supra note 266, at 394.
n311. Goodell, supra note 286, at 436-37.
n312. McLaury, supra note 271, at 161. Wright, too, spoke again to instruct
husbands that they should "ask not what the law allowed," but "govern themselves
by the one only law of the heart." Wright, supra note 286, at 139. If a husband
loved his wife and wanted to keep her love, he could "never, intentionally nor
unintentionally, impart to her the germ of a new existence, till she demands it,
and is ready, cheerfully and joyfully, to receive, nourish and develop it." Id.
at 184.
n313. Duffey, supra note 266, at 223.
n314. Id. at 206.
n315. Cowan, supra note 266, at 111; see also Hayes, supra note 217, at 54
("Where the woman is enforced to yield to her husband's lust, coition then
becomes purely animal on the part of the husband, and he might as well gratify
himself upon a stuffed figure.").
n316. Stall, supra note 268, at 130-31; see also Fowler, supra note 271, at 684
("Obliging her to submit, against her inclinations, prevents your enjoyment and
disgusts her of you, infuriates you against her, diseases her, and thus cuts off
your own and her future sexual pleasures, and outrages Nature's sexual
ordinances."); Stockham, supra note 275, at 156 (describing a married couple in
which "a single [voluntary] coition in a month gave the husband more
satisfaction than the many had done previously"); Wright, supra note 286, at 191
("Manly passion is not in itself repulsive or unwelcome to the purest heart of
woman, when it is the voice, as it ever should be, of a love unspeakable.").