The Language of Violence: History.

(NOTE: These readings are required for Group A participants)

The legal history of domestic violence sheds some light on the current situation. It is important to keep in mind that wife beating has gone from a legal right of a husband to a legal prohibition. Consider the following:

Angela Browne, When Battered Women Kill, 164-65 (1987).

"…(S)uch physical domination of wives by husbands was firmly grounded in ancient laws and customs. The first known "law of marriage" was formalized by Romulus (who was credited with the founding of Rome in 753 B.C.) and required married women ‘as having no other refuge, to conform themselves entirely to the temper of their husbands and the husbands to rule their wives as necessary and inseparable possessions.’ The attitudes contained in this directive, ancient though the formulation may be, sound hauntingly like the sentiments expressed by men in (current) violent relationships.

In the late 1400’s, Friar Cherubino of Siena, in his Rules of Marriage, operationalized the process by which a husband was to rule his wife, recommending:

‘when you see your wife commit an offense, don’t rush at her with insults and violent blows…Scold her sharply, bully and terrify her. And if this still doesn’t work…take up a stick and beat her soundly, for it is better to punish the body and correct the soul than to damage the soul and spare the body…then readily beat her, not in rage but out of charity and concern for her soul, so that the beating will redound to your merit and her good.’

In his extensive commentary on English law, sir William Blackstone explained the powers of authority given to husbands in legal, rather than moralistic, terms. He noted:

‘for as [the husband] is to answer for her misbehavior, the law thought it reasonable to intrust him with this power of chastisement, in the same moderation that a man is allowed to correct his apprentices or children…

Blackstone went on to reassure his readers that, "this power of correction was contained within reasonable bounds…"; although the notation delineates some legalized ‘chastisement’ that sound markedly more violent than contained, as when Blackstone observes:

The civil law gave the husband the same, or a larger, authority over his wife: allowing him for some misdemeanors, to beat his wife severely with scourges [whips used for punishing people] and cudgels [stout sticks or clubs with a rounded head]…for others only moderate chastisement.

Even if a husband killed his wife, it was not considered a major offense. Yet for a wife to kill her husband was to kill her lord and master, and was an act comparable to treason. As Blackstone commented:

Husband and wife, in the language of the law, are styled baron and feme…[I]f the baron kills his feme it is the same as if he had killed a stranger, or any other person; but if the feme kills her baron, it is regarded by the laws as a much more atrocious crime, as she not only breaks through the restraints of humanity and conjugal affection, but throws off all subjection to the authority of her husband. And therefore the law denominates her crime a species of treason, and condemns her to the same punishment as if she had killed the king. And for every species of treason…the sentence of woman was to be drawn and burnt alive.'"

Deborah Epstein, "Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System."

11 Yale J.L. & Feminism 3 (1999).

[T]he European and American legal systems have a long history of complicity in--and even approval of--intimate abuse, particularly when perpetrated by men against their wives and children. In medieval Europe, wives were legally considered their husbands' chattel and a disobedient woman risked public chastisement. She might be sentenced to the ducking stool, whipped, or forced to wear an iron muzzle with a padlock and a spike pinning down her tongue. [FN31] Husbands were "excused for the injuries they inflicted on their wives. . . . Provided he neither kills nor maims her, it is legal for a man to beat his wife when she wrongs him." [FN32]

By the advent of the seventeenth and eighteenth centuries, lawmakers began to make feeble efforts to reform these laws. For example, French communities restricted a husband's legal right to physically discipline his wife to "blows, thumps, kicks or punches on the back if they leave no lasting traces." [FN33] This limitation was qualified, however, by the adage: "[T]he man who is not master of his wife is not worthy of being a man." [FN34] The nineteenth century witnessed additional Lilliputian steps toward progress. In Britain, one reformer in the House of Commons rose during debate to insist that "the country should treat its married women no worse than it treat[s] its domestic animals." [FN35]

From the early colonial period onward, American courts followed British common law by affirming the husband's right of domestic chastisement. In the words of the Mississippi Supreme Court, this rule allowed a husband to "use salutary restraints in every case of a wife's misbehavior, without being subjected to vexatious prosecutions resulting in the mutual discredit and shame of all parties concerned." [FN36]

It was not until the late nineteenth century that states finally began to move away from actually condoning a husband's use of physical force to discipline his wife. [FN37] But many still clung to the position that in the absence of "serious" violence, the government should not interfere in the private, family realm. As late as 1874, the North Carolina Supreme Court stated: "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." [FN38] This view predominated in most states well into the twentieth century.

Proceed to Scope.

[Introduction] [Scope] [Feminist Legal Theory] [Case Studies]