not retribution or rehabilitation, but a secret third, more complex thing
part III: bodice restoration
restorative, as opposed to what
This newsletter gets its name from the theory of justice known as “restorative justice.” This justice is distinct from retributive justice (based on punishment) or distributive justice (most akin to what we might call rehabilitation theory). Restorative justice “is a response to wrongdoing that prioritizes repairing harm and recognizes that maintaining positive relationships with others is a core human need. It seeks to address the root causes of crime, even to the point of transforming unjust systems and structures.”1 This means that there is an effort toward restoration for the victim and the offender of the individual harms. The aims are harm focused and community focused.
Though not a new concept, as many non-Western cultures practice something like this, the turning point of articulation in the United States was 1990 with the publication of Changing Lenses--A New Focus for Crime and Justice by Howard Zehr. A key shift was altering the idea that crimes are committed against the state, rather than as a violation against individuals or communities.
Restorative justice is not integrated in the Federal code of the United States that defines how we dole out consequences for criminal acts. While 18 U.S.C § 3553 gives available reasons for sentencing based in retribution, deterrence, incapacitation and rehabilitation and weighs them as equally valid and appropriate underlying principles, throughout the last century, different theories have been adopted and abandoned as the primary reasoning for implementing punishment in practice in the United States. When considering a sentence of imprisonment, the federal courts are instructed by 18 U.S.C. §3582 to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” This language was adopted under the Sentencing Reform Act of 1984.
Though deterrence, incapacitation and rehabilitation are listed in the Federal code, any cursory look at the direction of punishment in the United States would see that retribution is at the center of how we justify and give out punishment. Rehabilitation was the model for most of the 20th century. The “medical model” that defined how punishment was viewed in the United States in the 20th century was effectively abandoned in the 1970s. The medical model saw crime as a disease that could be cured, and prisons focused on rehabilitative programming.
In 1974, sociologist Robert Martinson wrote a report titled “What Works?—questions and answers about prison reform” based on his comprehensive analysis of rehabilitation programs across the country. The article asks leading questions to the reader like “[i]sn't it true that a correctional facility running a truly rehabilitative program--one that prepares inmates for life on the outside through education and vocational training--will turn out more successful individuals than will a prison which merely leaves its inmates to rot?” Martinson asks these questions of the different vectors of the rehabilitative model: education, counseling, institutional environment design, medical treatment, sentence length, and decarceration. Even though Martinson identified some benefits to individuals through this model, he concluded that none of the aspects of rehabilitation worked to the designed ends and instead suggested a model of punishment based on retribution and deterrence.
The Martinson report is often pointed to as the watershed moment for the shift away from the rehabilitation model. The report had enough attention from the public to lead to Martinson being interviewed in 1975 on 60 Minutes in a segment about the nation’s rising crime rates.2 Martinson’s own conclusion was that incarceration might not be included in the punishment model, even a retributive one, at all and that “prison has become an anachronism and can be replaced by more effective means of social control.”3 But instead, politicians in the United States from both major parties took advantage of the turning tide of public sentiment to push for punitive sentencing, often relying on racially motivated rhetoric.4 The prisons would become used for “just deserts and incapacitation-to punish prisoners for the crimes they committed and to keep them away from society so that they could not commit any further crimes.”5
Rather than looking at prison as the failed “anachronism” that the Martinson report suggested it might become, the US doubled down in the 1970s and 80s. Instead of moving away from prisons as a mechanism to enact rehabilitation, the United States moved away from rehabilitation as the stated aim of imprisonment and embraced retribution. The creation of the United States Sentencing Commission and the abolition of federal parole under the Sentencing Reform Act of 1984, which led to mandatory minimums from the Federal Sentencing Guidelines and longer federal imprisonments.
finally, a recommendation: To Have and To Hold by Patricia Gaffney
I don’t think linking romance novels to cultural consensus about law is a futile activity--I actually think that there is more linking romance novels and law than the average romance reader or lawyer might think. Litigation about property and prosecutions about crime are frequently featured in historical romance. After all, one of our more beloved ur-texts, Pride and Prejudice, starts with an entail limiting financial options for a group of women.
But as I have discussed above, I think the causal link between marital rape exemptions and bodice ripper popularity is faulty. If marital rape exemptions made women feel like they needed a fantasy escape where rape is named, but women get happily ever afters with their abusers, I think the inverse would happen than what is articulated--why would bodice rippers become more popular as carceral justice options were increasing for married women? Additionally, the steep cutoff of bodice rippers placed at 1993 is inaccurate--historical bodice rippers persist, if less popular, and elements of non consent are features of other subgenres of romance, broadly characterized as dark romance, but also in specific subgenres, like mafia, paranormal, or monster romance that can feature a wide range of consent.
To Have and To Hold by Patricia Gaffney from 1995 is what inspired me to write this newsletter. It is the first bodice ripper I’d ever read. Despite almost exclusively reading historical romance for two and half years, I’d avoided any book that actually falls under this category, though some have skirted it, mostly out of fear of being triggered or upset. But instead of finding an assault that was eroticized, which bodice rippers often are accused of doing, I found a book where I thought the characters were more honest about the dynamics between themselves than many 21st century romance novels that I have read.
THATH acknowledges that the dynamic between the male main character and the female main character has an extreme power imbalance and that the relationship, objectively, cannot be consensual until these two characters problematize that dynamic together. So what we have in the book is characters who also, subjectively, acknowledge that there is not consent in their sexual relationship. He is a titled man, she is a middle class woman, who has fallen into poverty. He is her employer. And most importantly to the book, she is working for him as a part of her parole from prison and the alternative to being in his home is returning to incarceration.
The relationship starts in THATH at an adjudication. Rachel Wade, our heroine, has been picked up on parole for being indigent and having no fixed place of residence. She is on parole after being released from prison for killing her husband--she escapes a longer or a more permanent sentence in part because her case is so sympathetic: though she maintains her innocence, her much older husband forced her to participate in nonconsensual sex acts, including bondage of sorts (the lurid details of this remain, importantly, vague throughout the book).
The hero/villain is Sebastian Verlaine, a viscount and future earl, who is one of three adjudicators in the litany of cases that appear before the town’s court that day. Sebastian is basically bored with the mechanics of justice until Rachel shows up.
Immediately, Sebastian is taken with her, but his intentions are not pure and he knows it.
“He felt pity for her, and curiosity, and an undeniably lurid sense of anticipation. Against all reason, she interested him sexually. What was it about a woman--a certain kind of woman--standing at the mercy of men--righteous, civic-minded men, with the moral force of public outrage on their side--that could be sometimes be secretly, shamefacedly titillating? He thought of the hypocritical justices from England’s less than glorious past, men who had taken a lewd pleasure in sending women to the stake for witchcraft. Watching the pale, silent, motionless figure behind the bar, Sebastian had to admit a reluctant but definite kinship, not with their sentencing practices but with their prurient fervor.”
Here, Gaffney is saying the quiet part out loud--there is a longstanding fascination, if not totally sexual, at least lurid, with watching a woman be laid bare and experiencing pain, on every vector. Also, interestingly, one of those jurists who “had taken lewd pleasure in sending women to the stake for witchcraft” was indeed our friend, Sir Matthew Hale, author of the marital rape exemption at common law, had done in his legal career. But this interior thought of Sebastian is not just him condemning himself or Gaffney condemning jurists like Hale. There’s a reader alignment here too--I immediately thought of the current wave of the popularity of true crime. That there is some fascination, regardless of gender of the listener/reader, to hear about bad things happening to people, particularly people who are already subjugated. I also thought about the romance genres relationship with depicting sex workers, a frequent theme in the genre, but how readers and authors alike with denigrate the work or morality of sex workers in the same breath.
But for all his lewdness and sexual predation, Sebastian demands more of the criminal punishment system than his fellow adjudicators--at least in the case of Rachel. He asks another judge, “Tell me, Mayor, are you a proponent of the retribution theory of penal servitude, or the rehabilitation theory?” The mayor responds, diplomatically, a little of both, of course. Sebastian retorts, “Under either theory, sir, do you think it was intended that a convict prisoner pay for her crime indefinitely, without regard to the length of the sentence she’s served already?”
Sebastian then points out that reincarcerating Rachel does not actually solve the harm she is accused of, indigency and homelessness. What she needs is a job--she’ll be his housekeeper, of course. He puts the choice to Rachel: prison, or work as a housekeeper at his estate. She chooses work.
A critic of a bodice ripper would say there is no choice here at all. But very early on in Rachel’s POV, it is clear that she knows exactly what the conditions are of her employment under Sebastian, though she does not understand what his attraction to her is and the conditions have not yet been made explicit. As restricted as her options are, Rachel does make a choice and this is a great boon for her. Prison has taken away her ability to choose and she identifies the multitude of daily choices she’ll have to make as a housekeeper as almost more of an anguish than the threat of sexual assault from Sebastian.
After poking and prodding Rachel verbally for an extended period, placing her in the housekeeper position and reveling in her struggles with controlling the staff and making the decisions that he knew would trouble her, Sebastian is finally moved to make his assault of her sexual when he finds her sleeping on a windowsill having a nightmare. Sebastian questions what the nightmare was about, knowing it was about her late, abusive husband. He expresses anger that she would not let him attempt to comfort her after an earlier incident with the late husband’s daughter and now takes advantage of her allowing the intimacy of him holding her.
At this point, they both have inwardly acknowledged what the relationship is eventually going to be, and Sebastian considers prolonging Rachel’s period of fear in the anticipation, but instead chooses to declare it is “time” for them to consummate this condition of her employment. Rachel tells Sebastian she hopes to be “able to bear it.” Sebastian recognizes that she does not mean just this encounter, but her entire life forward.
And Sebastian’s assault of Rachel is not written like the violence that characterizes a rape like in The Flame and the Flower. The actual sex acts are not dissimilar to any other historical romance that I have read. But this is not an eroticized rape. The greatest subjective violence to Rachel is Sebastian’s constant questioning of what exactly her husband did to her. This prurient interest in the details she does not want to share is her greatest trauma. And if anywhere, this is where she demonstrates her “power of consent” that the Salon article argues that bodice ripper heroines don’t have--she refuses to disclose the details of her trauma to Sebastian at the point in their relationship.
In this initial sexual interaction, we don’t get Rachel’s POV. Dual POV is the typical format for historical romance and I haven’t read enough bodice rippers to comment on how it used during sex scenes in that subgenre. But dual POV can be used to release reader anxiety about situations with iffy consent, to varying degrees of success (see the discussion of Cold-Hearted Rake by Lisa Kleypas in Part II). A typical format for this would be that we are in the hero’s POV during the seduction, and his looming body, and his title, or position, possibly indicate to the reader that objective consent is not possible here. But we then will flip to the heroine’s POV and our fears are assuaged because even if the power dynamic has not yet been resolved, she, in own thoughts, is clueing us in to her subjective consent.
In To Have and To Hold, the POV does not flip until immediately after the sex. And Rachel’s perspective is not one of enthusiasm, but relief. Like the relief that happens after the jump scare in a horror movie--she now knows the upper limit of what Sebastian can do to her body and it was not as violent or traumatic to her as her husband’s abuses.
Sebastian asks her if he hurt her. She clarifies “you want to know if you hurt me” as a question, and he clarifies, “your body.” Rachel, triumphantly and tragically, says “My body survived, my lord, and seems to be functioning normally.”
Angela Toscano in the Journal of Popular Romance Studies (honestly read this whole thing, it is so so good) calls this rape “inquisitional.” The aim of Sebastian’s behavior toward Rachel is to elicit a response and when “Rachel does not respond either physically or verbally…Sebastian realize[s] that she will never answer him. It is the initial failure to garner a response from her through physical rape that leads to a verbal rape.”
According to Toscano, the rape of coercion, as opposed to the rape of mistaken identity (like the one that happens in The Flame and the Flower), “occurs precisely because the hero is aware that appearances are deceptive. Instead, he uses the rape to probe the heroine’s identity both physically and verbally.” Rachel’s stoicism confuses, angers, and arouses Sebastian, so he uses his words and body to egg her on, in an attempt to elicit a reaction that matches his own confusing one.
Toscano also argues that the true rape in the story, structurally in the narrative, is later when Sebastian’s friends are visiting his house and playing a game of Truth. They are similarly fascinated by Rachel’s past and frequently choose to ask her to report her trauma from prison. But when Sully, one of Sebastian’s friends asks Rachel about a detail reported at the time of sentencing that might have helped her escape the death penalty, about the level of abuse that she suffered at the hands of her husband, she flees and refuses to answer.
Sebastian is similarly affected by this inquisition--his POV includes language that mirrors the violent way that physical rape is described in The Flame and the Flower: “he felt the tear down the middle of himself widening.”
Toscano’s structural argument about the function of rape in romance novels is one of the best things I have read on romance. But here what I am more interested in is the novel’s vision of how Sebastian and Rachel come back from this moment.
Though Sebastian articulates rehabilitation and retribution as two theories for punishment of Rachel in his role as adjudicator, what actually leads to the happily-ever-after is much closer to restorative justice.
Firstly, rehabilitation and retribution would be wholly inappropriate for Rachel because she did not kill her husband. There is nothing for her to rehabilitate and retribute. One of the first moments of true intimacy between the couple is when Sebastian takes Rachel’s word for this, even though he has yet been totally redeemed yet in the plot of the novel. He asks her, unprompted, “Who do you think killed Wade?” and he is the first person to believe her, that someone else committed the murder.
Instead what employment at Sebastian’s home affords Rachel is a community of people who believe her. She becomes friends with the vicar’s wife and Sebastian’s valet. She has a job where she can practice making decisions, as simple as whether to replace or mend curtains, without fear of punishment for making the wrong ones. Her sexual relationship with Sebastian remains inquisitional and confrontational, but after the verbal assault by his friends, Sebastian changes tacts and works to articulate what his goal is for Rachel and she is able to buy into the project of learning physical intimacy that is not predicated on violence.
Rachel also eventually discloses her husband’s abuse of her to Sebastian, but Gaffney elides this disclosure. Much like the rapes of pre-Memoirs v. Massachusetts forced seductions, this trauma is explained off page. The sum total of the conversation takes three paragraphs and the reader never knows the details--they are excluded from this knowledge and, possibly, condemned for desiring it, if they still do, like Sebastian’s friends who prod her for the lurid details.
Gaffney affords Rachel her ultimate choice of who she shares the details with and the reader is not included in the now-trusted relationship with Sebastian. Sebastian restores Rachel by believing her and helping her realize that sex is not inherently the violent acts that her husband, and he, enacted her without permission
The offender must also be restored. Sebastian’s growth back to himself occurs through investing his home in Wyckerley, which he has once considered a temporary stopgap until his father, the Earl, passes away, so that Sebastian can inherit the more ostentatious home attached to that title. He also grows because he moves away from wanting the details of Rachel’s lurid trauma to be the thing that connects them--he shares with her his interest in opera and travel, and purchases her books to sustain her insatiable reading habit.
In one of the most charming inner thoughts I have read from a hero, there’s his moment where she cracks a joke as he is giving her a bath. Sebastian has previously stated that his goals are to make her laugh and to make her come. He thinks to himself “He remembered that one-half of his goal was to make her laugh, but it had never occurred to him that her making him laugh might be just as good.” I think this so neatly captures the journey that they are both going on together--Sebastian stating goals of intimacy and Rachel learning how to amend them on her terms, Sebastian being able to expand his thoughts about what would look like healing for Rachel as she is doing that healing and expressing more of herself to him.
To Have and To Hold, like all bodice rippers, makes the violent man the hero by the end, but it also makes clear the source of the most feared violence in Rachel’s life. The true villain of the book is the criminal punishment system that abuses Rachel. Reincarceration is what she fears more than anything, even after experiencing sexual harm at the hands of two men. Even if she had committed the murder, she was killing her abuser. But we see victims placed in prisons all the time after hurting their abusers. This is not something that has categorically changed since the 19th century or the 1990s.
For Rachel, and for Heather in The Flame and the Flower, incarceration is seen as only a step that would beget more harm. This is not a failure of imagination, but acknowledgment of a reality, reflective of the time the books are set, the times the books were written and the time we live in right now. The idea that advocating for further incarceration is progress forward and that once that happened, women no longer needed fantasies about rapists reforming as a coping mechanism ignores why at this moment of history, the early 1970s, that rape prosecutions, including martial rape laws were changing.
Bodice rippers did not start being published when marital law exemptions began, but when martial law exemptions started being questioned and overturned. And these books’ heyday of publication did not end when marital law exemptions ended in practice, since they haven’t ended in practice now, but at the zenith of bipartisan support for the mass incarceration project with the 1994 Crime Bill, which included the Violence Against Women Act. I’m not prepared to say that these have a direct causal link, but visions of non-carceral solutions to harm became increasingly less palatable as rhetoric of retribution overtook the rhetoric of the failed project rehabilitation in prison.
These books are not didactic manuals on healthy real-life relationships and suggesting that readers, at any point in history, cannot separate the depiction of violence from the endorsement of violence, is repeating the patronizing attitude that romance readers get from the jump for reading the maligned and dismissed genre at all. To me, it makes more sense that bodice rippers were most popular at a time of possible flux in how the United States thinks about responses to harm in general. These books are deeply concerned with questions of negotiating consent and asking questions of what can be forgiven, on an individual relationship basis.
Holding abolition politics in one’s mind is difficult--I had not heard of prison abolition until I was 25 and had 25 years of thinking in a carceral state, understanding that harms were and should be met with certain punitive responses, to undo. But something I repeat to myself often is that carceral impulses will never be satisfied with carceral solutions and once I learned about prison abolition, I realized that I hated the carceral impulses I had within myself and I wanted to work against them. Bodice rippers may depict an unsatisfactory and “outdated” vision of justice, but only if we allow the terms to be set by carceral logic of 2022. Assuming that we’re smarter than our grandmothers who read bodice rippers because we live in a world where it is easier to incarcerate someone is, frankly, some bullshit. To me, a vision of justice that is dependent on mass incarceration and punitive deserts enacted by the state is more unsatisfactory and less imaginative. Bodice rippers, like many romance novels, explore that more imaginative space of what interpersonal justice can look like.
Definition from RestorativeJustice.org
Adam Humphreys, Robert Martinson and the Tragedy of the American Prison, RibbonFarm, (Dec. 15, 2016), https://www.ribbonfarm.com/2016/12/15/robert-martinson-and-the-tragedy-of-the-american-prison/.
James Cullen, The History of Mass Incarceration, The Brennan Center (Jul. 20, 2018). https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration
Edward L. Rubin, The Inevitability of Rehabilitation, 19 Law & Ineq. 343 (2001)
Emma, this freaking rips. I literally said “yes, exactly!” out loud at multiple points while reading it. Can’t wait for the Newgate essay!