correlation present, causation unclear

part I: bodice retribution

This is a re-release, with edits, of one of the first big projects I did at Restorative Romance. My perspective and relationship with romance has expanded in the last two-and-half years and the world has changed. It comes in parts and I’ll be re-releasing them over the course of the next few weeks! This first one is about the history of the marital rape exemption and 19th-century efforts to counter the longstanding common law legal fiction of “irretractible consent.” Content warning for this whole series: I am discussing both bodice rippers, which include rape scenes and a legal scheme that did not criminalize marital rape, often quoting historical jurisprudence that is cruel and misogynistic.

The Rape of the Sabine Women by Giambologna in Florence, via wikicommons

introduction

The Flame and the Flower by Kathleen E. Woodiwiss was published in 1972 and was widely considered the first bodice ripper—though genre romance at large existed well before this. But this book had both explicit sex and explicit violence. A bodice ripper is a romance novel where the male main character sexually assaults or rapes the female main character and this plot pattern was very popular for the decades following The Flame and the Flower's publication. The fact that marital rape was not criminalized in 1972 is occasionally mentioned in histories of romance novels and as an explanation for the popularity¹ of bodice rippers in the 1970s-1980s.

The framing of this correlation goes one of two directions I find contradictory and equally spurious. Either the bodice rippers of the 1970s are revolutionary and “transformative” because they are doing something that the law does not: naming rape on the page and processing the violence on page in a way that in not afford in legal courts or, because marital rape was not a crime in 1972, the very concept of “consent” in the 1970s was so different that we cannot expect readers to hold romances to same standards that we do now regarding consent: we may see these books as romanticizing rape, but “societal understanding of consent was different than it is today.”²

To me, these theories are both incompatible with each other and represent a misunderstanding of the history of consent in the law, relying instead of a timeline coincidence without looks as the proximate factors either for the proliferation of bodice rippers or the increased criminalization of marital rape, while also speaking broadly about reader reaction to bodice rippers and the actual content of these books.

In either theory’s timeline, as marital rape exemptions were taken out of state laws, bodice rippers became less popular and more explicit consent permeated romance novel narratives. 1993 is given as the year of this watershed moment, since this is the year that the last state removed the total marital rape exception from its code.³ Before I even read a bodice ripper, I chafed at these theories—I think they rely too heavily on the idea that progress is linear and have a false idea that we have solved the problem of notions of consent and people “back then” just didn’t fully understand consent, including to some extent, female romance novel readers.

Additionally, places that reference marital rape laws seem to act like the conclusions draw themselves with regards to the popularity of bodice rippers and the fact that there were marital rape exemptions in every state when these books began to be popular, despite the fact that the self-concluding theories I see proffered run counter to each other. The facts are placed next to each other, without much argument being made of what the causal link is supposed to be. I really struggled to pin down exactly what the argument was exactly—but it is referenced enough that something is supposed to be drawn between these two facts. 

As a lawyer and a librarian, I am wary of any theory that points to the law as the vanguard of something. The law is a very slow to change mechanism, that in general works more responsively to progress than actively promoting it. It hints to a possible paternalism towards romance novel readers of the past—“of course, they romanticized rape as solved with a marriage contract, they could not yet conceptualize that assault could even take place within a marriage.”

As an abolitionist, I am skeptical of any theory that considers further prosecution and incarceration as wholesale progress or a solution. The theory relies on an oversimplification of the timeline and reality of marital rape exemptions, assuming that criminalization is the most satisfactory justice available for this harm, or that the criminalization has been successful in minimizing that harm. Additionally, the theory relies on an ahistorical timeline of how rape and consent are discussed in romance novels, including to some extent assuming that consent has been “solved” in 21st century romance novels. 

This first part of the project will provide background on marital rape laws, which are more complicated than “it was legal and condoned in 1972 and illegal and vilified by 1993.” Later parts will examine literary precedents of rape, where the law stood as bodice rippers were being published, close readings of rape scenes in some bodice rippers, examination of consent throughout the history of the genre, and intersections of these scenes with abolitionist politics.

Marital Rape at Common Law: England, 16th-19th century

At common law,⁴ a husband could not rape his wife. The definition of common-law rape was “forcible sexual intercourse with a female person without her consent.” However, the United Kingdom and other common-law countries (including the United States) relied on jurisprudence from Sir Matthew Hale, which supported the legal fiction of “irretractible consent.”⁵ In a posthumously published treatise, Hale wrote “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” This was the law in the United Kingdom until it was overturned in 1991 and was also the basis of marital rape exemptions in the United States. Very little further jurisprudence developed or challenged how Hale framed the exemption or the legal reasoning for it.

Sir Matthew Hale, a Scorpio man who once wrote a letter to his much younger housekeeper that he married that she could go visit the children from his first marriage, but it would be better for everyone if she didn’t stay for dinner.

Hale’s notable other contributions to jurisprudence include “witches must be real because we have laws against witchcraft,” advocating for lowering the death penalty to 14 and the idea that abortion should not be a crime before the “quickening,” the first notable movement of a fetus. He also wrote that rape "is an accusation easy to be made and hard to be defended by the party accused; one wherein the court and jury may with ease be imposed upon, the heinousness of the offense many times transporting them with indignation, whereby they may be over hastily carried to the conviction of the accused on the testimony of false and malicious witnesses.”⁶ We know this isn’t true now—it wasn’t true in England at any point either. By one example: the conviction rate of rape in one Victorian county was 40%, whereas all other felonies were convicted at a rate of 85%.⁷

Hale’s notion that marriage includes the “irretractible consent” of the woman went largely unchallenged in the United Kingdom and the United States, legally, until the 1970s. This lack of legal challenges leads to what law professor Jill Hasday refers to as “the consensual account” of the marital rape exemptions history, because both proponents and detractors will describe the rule as “a reality about which little systematic was known before 1970.”⁸ People on both sides of the debate about the exemptions act like the conversations started in the last sixty years.

But this perpetual consent was understood to be a legal fiction, or at least distinct from literal consent, from the moment of its inception. And Hasday points out in her history of the marital rape exemption that early “feminists repeatedly identified a woman’s right to control the terms of marital intercourse as predicate condition for women’s equality, which which full property rights and even suffrage would be meaningless.”⁹ It is certainly not that wives did not conceive of the harms of marital rape until the 1970s, but that powers that be refused to alter the exemption until then.

As a legal fiction,¹⁰ the existence of irretractible consent does not mean that all these jurists upholding the exemption or the women who were in these marriages, believed that women could literally not change their minds with regards to sex. It just means that category of behavior and harm could not meet the prima facie case of rape because the element¹¹ of consent would always be conceded in a marital rape case. Hasday points that even Hale’s own words acknowledge potential divergence: “but the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself in this kind unto his husband, which she cannot retract.”

The verb “cannot” suggests here that the consent is a “status” element of the marriage agreement. Most civil contracts allow for wide negotiations of the parties for the obligations and duties being agreed to—marriage is unique is disallowing certain normal contractual fixtures. This is still true now; the ability to break the marriage contract must be dissolved by the state, unlike most contracts, where a bilateral agreement could end a contract without any state oversight. Obligations and duties that cannot be negotiated by the parties make marriage a hybrid “status” and contract. Additionally the clause “which she cannot retract” would be unnecessary if Hale could not conceive of a wife never literally saying no to her husband.

Though traction for changing the laws was not found until the 1970s, consent in marital relations, regardless of the fictional “irretractible consent,” was a discussion of proto-feminists and first-wave feminists. Their discussion looked less to changes in the exemption, and more about the benefit to both parties of communication about desires and marital relationships. Part of this focus on extrajudicial solution may have come from the lack of success for non-marital rape prosecutions at the time. Why argue for a venue for prosecution when the existing law already repeatedly fails to provide punishment or justice?

In discussing the procedure and possible conclusions to rape prosecutions in Victorian Kent (so all of these cases were cases where the offender and victim were unmarried because a suit could not even be brought if the couple was married), Victorianist Carolyn Conley reports: 

“Acquittal and conviction were not the only possibilities. Only 21 percent of the men accused of rape actually stood trial for that offense. After an accusation was made, the defendant first went before a magistrate (justice of the peace) who could dismiss the charge, pronounce a verdict and sentence if the charge were minor, or order the accused to stand trial. Legally, magistrates, who were unpaid except in the cities and had no formal training, could not decide cases of rape or attempted rape. Their only legal options were to dismiss cases for lack of evidence or send them to the Grand Jury for indictment. Nevertheless magistrates frequently dismissed charges despite the presence of medical evidence, or reduced the charges and heard rape cases as common assaults. Twenty-six percent of the charges of rape or attempted rape heard by Kentish magistrates were either dismissed outright or heard as minor offenses.”

The practice of changing non-marital rape charges to assault may have informed how wives found legal recourse in cases where they could not bring suit for rape. A. James Hammerton analyzed assault charges brought by wives against their husbands in the nineteenth century, and many of these assaults were described as “having taken place in bed "with no explanation of precipitating arguments.”¹² Here, we have circumstantial evidence indicative of wives attempting to find recourse outside of the common law exemption of marital rape, indicating understanding of the harm that was done to them demanded some legal remedy, even if they were not placing the harm into the category of rape.¹³ 

In her history, Hasday cites two surveys of 19th century born women about their sexual relations. The study from Katherine Bennet Davis, Factors in the Sex Life of Twenty-Two Hundred Women (1929), has women emphasizing their marital happiness being dependent on their husbands having self-control in the bedroom. The earlier, smaller study from Dr. Clelia Duel Mosher, the earliest known survey of women’s sexual practices in the United States, has many participants saying the “ideal habit” of sex in marriage depends on perpetual, consistent mutual agreement.

The subjects of Mosher’s study were also honest about when their husband deviated from their ideal and the physical consequences of those sex acts where the wife was not an enthusiastic participant. Hasday concludes that these women “made clear that unwanted sex in marriage had caused real harm and they would have greatly preferred it if their husbands has respected their desires about sexual intercourse.”¹⁴

Proto-feminists did directly question the marital rape exemption and the legal fiction of irretractible consent from the middle of the 19th century outwards, even if this questioning did not change the manner in which women could find legal remedies. In the United States, among suffragists, this advocacy looked like arguing for “self-possession” in a marriage, particularly connected to child bearing. Elizabeth Cady Stanton wrote in a letter to Susan B. Anthony in 1853:

“It is in vain to look for the elevation of woman so long as she is degraded in marriage…Man in his lust has regulated long enough this whole question of sexual intercourse. Now let the mother for mankind, whose prerogative it is set the bounds of his indulgence, rouse up and give this whole matter a through, fearless examination…I feel, as never before, that this whole question of woman’s rights turns on the pivot of the marriage relation.”¹⁵

Later in 1848, Stanton would identify the right to self-possession as more important than any public sphere right (like voting) the suffragists were advocating for. But as Hasday points out, Stanton is not making a universal bodily autonomy argument, but a gender-specific right based on women’s childrearing responsibilities. This actually is one way that the concept of consent has changed radically between the 19th and 21st centuries: Stanton argues that self-possession (the right to choose when a married couple has sex) is particularly a woman’s right because of the role of maternity. Her framing of this reveals a common core of the suffragist political push: forced maternity harms upper and middle class white women’s ability to participate in public and political life, that would be their rightful domain, like their male counterparts, if they had the choice.

Another suffragist, Lucy Stone, who had long refused to marry because her opposition to the legal position of marriage, eventually agreed to marry Henry Blackwell, an abolitionist and reformer in his own right. In the document announcing their marriage, they both rejected the underlying theory of irretracible consent as a part of their marriage. Lucy Stone wrote a letter to her sister-in-law, stating “It is very little to me to have the right to vote, to own property &c. if I may not keep my body, and its uses, in my absolute right.”¹⁶ To say that criticism of the marital rape exemption started in the 1970s erases a central theme of at least the private thoughts of the most prominent American proto-feminists, just that the vision of a solution seems not to have some from further criminalization.

Another theory that was developed during the Victorian period was one of the masculine domestic ideal that no longer ruled as a despot in his home, but encouraged congeniality and tranquility. The encouragement of this was not for the safety of women, but for the benefit of men to enjoy their home lives more.¹⁷ Even if the framing was centered on a wife being more pure and less prone sexual desires and that a man should respect this in order to ensure a happy home life for himself, there was a social movement to discourage men from raping their wives, seeing a man overcome with sexual desire as not a sign of virility, but of malady.¹⁸

But even espousers of this flavor of misogynist belief could sometimes see that forced sex was in a marriage was rape. Public speaker and spiritualist Andrew Jackson Davis wrote in his book The Genesis and Ethics of Conjugal Love that sexual violence within marriage was rape, “notwithstanding its legal recognition by the State and the solemn sanction of the Supervising Church.” 

Victorianist Joanna Bourke points out that Davis is atypical in this view—but again, it is a documented view. In advice given to Victorian men, that lack of sexual restraint was a sign of a malady, like mental illness, rather than masculinity seems in line with the attempts that 19th-century women made to curtail marital rape. While prosecution was not an option, marriage manuals and health guides “sought to ameliorate the functional effect of the exemption by convincing husbands to voluntarily cede control of marital intercourse to their wives.”¹⁹ 

The Victorian discussion of marital rape, though pre-Kinsey report and during the very beginning of legal rights of women in the United Kingdom and the United States, indicates an awareness of the harm of marital rape, both to women and to the family unit. This is not a culture that could not conceptualize that it was a harm, just one for which the imagined solution for the harm existed outside of criminal prosecution, which makes sense because of the lack of success of prosecution for non-marital rapes at the time.

In the next part of this project, I’ll talk about the changes that happened in the marital rape exemptions in the second half of the 20th century and the romance novels that were being published at the same time.

1. Sarah MacLean discussing sexual assault in bodice rippers, particularly, The Flame and the Flowers by Kathleen Woodiwiss. “Romance is a genre that has put assault on the page, it puts trauma on the page, regularly. Trauma that women experience regularly. The reason why they call them bodice rippers is because in the early days of the genre, heroes were assaulting heroines at the beginning of the book. And then by the end they were redeemed and married and in love and partnered…and looking back through the lens of 2021, you're like, "That's problematic and not great." But in 1972, there was no such thing as marital rape. Wives couldn't be raped by their husbands, right? Legally. So the idea that that would be put on the page, and addressed on the page, and named on the page, and unpacked on the page was a really transformative thing. And these heroines didn't die. They didn't die. They weren't left miserable. They found happiness and they broke down a monstrous hero into a hero who could feel feelings…I mean, it makes sense in 1972. Now, it makes less sense. Although, that still exists in parts of the genre.”

2. “The History of Consent in Romance” at Book Riot, by Nikki Demarco

3. This article mentions the early 1990s/1994 as when “explicit consent” starts to appear in romance by giving an example of a book with explicit consent published in 1994. This is incorrect. Uncertain Magic by Laura Kinsale features a potentially violent hero, but he is decidedly not violent toward the heroine and the rumors of his violence are complicated in origin. This was published in 1987. The Bride by Julie Garwood was published in 1989 and is cited in this Book Riot article as “following the bodice ripper formula,” but this book does not feature violence between the couple, but rather a historically accurate plot of a woman being sold to a husband to pay debts.

4. The phrase “at common-law” refers to the body of law that comes from judge-made rules, originally established in England and then spread throughout English Commonwealth countries, including the United States. Law may be codified in a statutory code, but in US law, case law is still used to interpret these statutory codes and some areas of law still primarily use common law (particularly old areas--contracts and torts). For notice reasons, criminal law offenses are now codified in the United States

5. “Irretractible” is not a word (literally doesn't have an OED entry, though irretractable does). But it is the word that is used to describe this concept from Hale, so I’m using it.

6. Quoted in Henry John Stephen, Mr. Sergeant Stephen's New Commentaries on the Laws of England, 4 vols. (London: Butterworths, 1890), IV, 82.

7. Conley, Carolyn A. “Rape and Justice in Victorian England.” Victorian Studies, vol. 29, no. 4, 1986, pp. 519–36. JSTOR, http://www.jstor.org/stable/3828543. Accessed 19 Feb. 2025.

8. Catharine A. MacKinnon, Toward a Feminist Theory of the State 242 (1989).

9. Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CALIF. L. REV. 1373, 1385 (October 2000).

10. A legal fiction is a fact that is accepted as truth for the ease of a legal doctrine. A common example of this is the concept of “constructive notice''. In some legal doctrines, notice must be given to parties about a change in status or a legal proceeding--think about buying a piece of property that you do not occupy day to day. A third party could come and advertise that land and make a profit off of it by selling it to another person. The person who has bought the land could occupy it, not knowing that someone else rightfully owned it. But if you had registered the land conveyance at the county register (a public record) as you are supposed to do when you buy land, the second purchaser of the land was on “constructive notice.” They did not have “actual” notice that someone else owned the land, but just like you, they should have registered the deed with the county. This is how in those circumstances we justify taking away the land from someone who innocently bought it from the third party--they were on constructive notice, whether or not they ever knew you were the original owner. 

That is a legal fiction--we know they were not actually notified, but for some policy and doctrinal reason, we agree that constructive notice can be substituted.

11. Crime statutes are written to have “elements.” In order to be convicted of a crime, all elements must be proved by the prosecution. Defense of a crime may often focus on disproving one element because if that element is not proved, even if all the others one are, the defendant is “not guilty” of the crime as charged. In the case of rape, the common-law definition is “sexual intercourse with a female person without her consent.” The elements that would need to be proven here are 1. that sexual intercourse occurred 2. the victim was female 3. and the act occurred without her consent. The exemption comes from jurisprudence, so judges interpreting that common-law crime and saying “within that definition, because of the unique relationship between husband and wife, where she has given irretractible consent at the time of the marriage contract, the “without her consent” element will always be conceded, thus the prosecution’s case can never be made.

All crimes in the United States are now codified into statutes, so the elements for rape have changed and may be worded differently based on what jurisdiction you are in.

12. Joanna Bourke. “Sexual Violence, Marital Guidance, and Victorian Bodies: An Aesthesiology.” Victorian Studies 50, no. 3 (2008): 419–36. http://www.jstor.org/stable/40060365, citing A. James Hammerton, Cruelty and Companionship in the Nineteenth Century, 1992.

13. Shifting understanding of which acts are which crimes is not unique to sex crimes.

An easy example of this is the common law crime of burglary. Any 1L in the country can recite: common law burglary is the breaking and entering of someone else's dwelling at night with the intent to commit a felony therein. This doesn’t mean that at common law, breaking into someone’s dwelling during day time was not a harm or even a crime—it just isn’t burglary. It makes sense that night, especially in a world without electric lights or even potentially particularly reliable locks on a home’s door/windows, would elevate a crime of housebreaking to burglary (a felony at common law). Crimes are categories of behavior, oftentimes based on harms—the categories are man-made and can shift, but this does not mean that the harm was not understood to exist before the category is developed as we understand it today.

14. Hasday, (October 2000).

15. 2 Elizabeth Cady Stanton: As Reveled in Her Letters, Diary and Reminiscences 48, 48 1922.

16. Friends and Sisters, Letters between Lucy Stone and Antoinette Blackwell, 1846-93, 143, 144.

17. Joanna Bourke. “Sexual Violence, Marital Guidance, and Victorian Bodies: An Aesthesiology.” Victorian Studies 50, no. 3 (2008): 426

18. Id.

19. Hasday, (October 2000).