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.").