correlation present, causation unclear
part I: bodice retribution
Content warning: In this newsletter, I discuss marital rape laws and bodice rippers at length. Marital rape was not criminalized in the United Kingdom or the United States until well until the 20th century. Bodice rippers are romance novels that feature the female main character, experiencing sexual violence at the hands of the male main character, who will eventually be in her consensual romantic partner.
I also am coming at this topic (as with everything), from an abolitionist perspective. To me, prison abolition for all means prison abolition for all--I do not include an exception in my abolition politics for violence or sexual harms. I believe more fervently, above just about anything else, that incarceration only does harm to individuals, communities and the world.
This newsletter does not directly discuss abolition theory, but here are some links that might be of interest.
So You’re Thinking About Becoming an Abolitionist by Mariame Kaba
Are Prisons Obsolete? By Angela Davis
Against the “Prison/Psychiatric State”: Anti-violence Feminisms and the Politics of Confinement in the 1970s by Emily Thuma (I could not find an open access version of this article, but it may be available to you through your libraries, depending on your borrowing privileges).
Surviving Rape as a Prison Abolitionist by Miriam Perez-Putnam
Towards the horizon of of abolition: A conversation with Mariame Kaba
This newsletter will be released in three parts, Monday, Wednesday and Friday of this week. This is part one.
introduction
The Flame and the Flower by Kathleen E. Woodiwiss was published in 1972 and this is widely considered the first bodice ripper—though genre romance predates this date by half a century, this book had both explicit sex and explicit violence. 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.
This idea is often coupled with the idea that our modern consent politics are more resolved, and a tone of “thank goodness we’re no longer beholden” to the notions of the 20th century about what is and isn’t rape. That bodice rippers had to show violence being solved with marriage because of a lack of imagination on the part of readers and writers to think about consent in our modern terms.
The idea is that 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.2
Before I even read a bodice ripper, I chafed at this theory--I think it relies too heavily on the idea that progress is linear and has a false idea that we have solved the problem of notions of consent and people “back then” just didn’t understand consent, including to some extent, women romance novel readers. Additionally, places I have seen 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. 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--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 newsletter aims to provide background on marital rape laws, which are more complicated than “it was legal and condoned in 1972 and illegal and vilified by 1993.” Part II will examine rape in the context of violent bodice ripper precedents and a close reading of the rape scenes in The Flame and the Flower, the novel that is often placed next to the martial rape date range as meaningful evidence of connection. Part III will look at a bodice ripper just outside the 1972-1993 range and examine how some bodice rippers may actually be in closer dialogue with the abolitionist imagination.
a narrow history of marital rape laws
common law: england, 19th century
At common-law,3 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 “irretracible consent.”4 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 doctrine 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.
Hale’s notable other contributions to jurisprudence include “witches must be real because we have laws against witchcraft” and advocacy for lowering the death penalty to 14. 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.” 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%. Rape still has the lowest conviction of similarly weighted felonies in the United States.
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. But this perpetual consent was understood to be a legal fiction, or at least distinct from literal consent. Hale’s own statement acknowledges there is a potential divergence between a wife’s actual state of mind at any particular moment and the legal rule that infers consent.
As a legal fiction,5 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 element of consent would always be conceded in a marital rape case. There are reasons listed for this by jurists which read as misogyny--anxiety about a wife bringing false charges, anxiety about evidentiary issues, the idea that the rape is really a crime against the husband because the wife is his property, so what would the point of the suit be? But on the other side of it, if a woman was looking at how rape prosecutions went when they were allowed to be brought, with many of the same problems that exist now in prosecutions--embarrassment to the victim, an unsympathetic advocate, low conviction rates, the threat of a domestic partner being put in prison and losing his livelihood, it is easy to see that maybe removing the exemption would not solve the immediate threat of marital rape for women who were threatened by that harm.
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 and the discussion looked less to changes in the exemption, and more about the benefit to both parties of communication about desires and marital relationships.
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.”6 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.
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 mean that the harm was not understood to exist before the category is developed as we understand it today.
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.
Another warning here: a lot of early feminists frame their arguments in terms of women (presumably, white women) being worse off than enslaved black people. I am only directly referencing one of these arguments because I don’t want to give space to these arguments when I feel like I cannot properly contextualize and critique them, but many 19th-century, white feminists employ this metaphor.
A married woman’s legal inability to retract consent is what prompted John Stuart Mill to write “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.”
Mill’s argument, perhaps unsurprisingly, ignores material realities of enslaved people, particularly Black Americans, who we know were often the victims of sexual assault and violence at the hands of their white owners. At least one scholar7 I found asserts that Mill is attempting to reference the Hale exemption here--that while enslaved people might not have had legal recourse for lots of institutional reasons, they are not subject to the legal fiction of irretractible consent in the same way. Mill was a slavery abolitionist, so I could see him making this argument from the idea that the slavery property contract is already moot as immoral and reprehensible, while a marriage contract is not.
I think even this more assuming in good faith reading of Mill’s argument reveals a lack of consideration of race that should not go without critique. To compare women (again, Mill is talking about presumably white women here) to enslaved people with the enslaved people in the more favorable legal position is incorrect and racist.
But I included this quotation to make it clear that preeminent scholars and feminists were thinking about the martial rape exemption as a problem as early as 1869 when he published The Subjection of Women. Questioning the legal definition of consent did not suddenly appear in the 1970s, or even in the years immediately proceeding.
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.8 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.9
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.”10
The Victorian discussion of marital rape, though pre-Kinsey report and during the very beginning of legal rights of women in the United Kingdon 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 the imagined solution for the harm existed outside of criminal prosecution.
marital rape exemptions narrowed, but not removed: the united states, 1970-1990s
All of the above discussion is about 19th century England, the frequent setting, or near setting to many bodice rippers and romance novels. Now I am jumping ahead to the 1970s, the point where bodice rippers began to be published.
The United States seems to have whole heartedly embraced Hale’s marital rape exemption and it was a part of the common law, or even codified in statutory codes, across the United States until the mid-1970s, when, with the encouragement of second-wave feminist groups, states started to remove these wholesale exemptions.
South Dakota eliminated their martial rape exemption in 1975, though it was restored in 1977. Nebraska eliminated the exemption statutorily in 1975. Some states declared the exemptions unconstitutional because they failed the equal protection test for married women and unmarried women. Federal law eliminated the exception in 1986. Though 1993 is given as this watershed moment because this is the year that the last two states (North Carolina and Oklahoma) removed the wholesale exemptions, in that year, only 17 states treated marital rape the same under their statutes as non-marital rape.
Instead, marital rape was now an offense, but often distinct from non-martial rape, and this is true even now. States may require an element of resistance on the part of the victim of marital rape, or force on the part of the offender. The punishment may be lower. Some states have timeliness of reporting requirements for evidentiary purposes. And “even in states that do not have these increased requirements, successful prosecution of marital rape cases is still extremely difficult.”11
So even by the metrics set by this vision, where stricter laws and heavier punishment are the solutions, eliminating the marital rape exemptions is an unfinished project and certainly not one that ended in the early 1990s.
Most of the writings about marital rape and possible solutions to this violence take a very heavy criminalization and prosecution focused tact. That if only we got rid of these exceptions and actually attempted to prosecute these cases, that would lead to more just outcomes. This is an also an underlying thought of the linked theory between bodice rippers and marital rape exemptions--that once prosecution was available for this violence against women, readers of bodice rippers no longer needed the fantasy escapism of a world where the rapist is ultimately the source of restoration and where the heroine takes back power by making him supplicant.
In writing about a Foucauldian/feminist perspective on sex crimes, Chloë Taylor links treating rape as an “individual problem” instead of “a social problem structurally related to current construction of gender” to functions of support that require relying state police for money and services and thus “[rape] is seen as an event that requires the medical and psychological treatment of individual victims and the prosecution and treatment of individual offenders” rather than any large scale change, which would not be supported by the hegemonic institution of the police.12 By relying on alignment with police power to prosecute rape, this movement will inherently alienate and disproportionately harm groups already subjected by police power, while also individualizing the problem--and while we're at it, not actually be that great for treating the individual problem, even for upper and middle class white women.
The ultimate link between police power and carceral feminism can be seen in the early 1990s, the often stated “end” of bodice rippers. Though 1993 is the year given for the end of marital rape exemptions, 1994 is when Bill Clinton signed into law the first iteration of the Violence Against Women Act and the VAWA is perhaps the Federal culmination of carceral feminism being adopted by the lawmakers. The VAWA was a part of the 1994 Crime Bill that led to the most increase in federal and state incarceration rates ever.
Abolitionist critiques made of the VAWA can be found here in an article from Jezebel and the book referenced in that article, Abolition. Feminism. Now by Gina Dent, Erica R. Meiners, Beth Richie and Angela Davis. A main critique is that ultimately the VAWA funnels more into police departments and relies on the promise of incarceration as the solution to violence. But incarceration is state violence and police departments, even with the influx of cash have proven again and again ill-equipped to treat victims of violence, particularly, sexual violence with compassion and without retraumatizing them.
Beth Richie states in that Jezebel article that “there are many well-meaning advocates who are deeply committed to the work of liberation and freedom. But we’ve been limited in our imagination, and we have to think and build beyond the current system that’s more likely to criminalize than help survivors.”
I think the theory that marital rape exemptions explain away the popularity of bodice rippers in the last third of the 20th century is as a limit of imagination on a similar vector--the idea that we have progressed beyond something, rather than cut off another potential path.
Part II will be out on Wednesday, examining violent precedents of bodice rippers and The Flame and the Flower.
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.”
Mentioned 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. https://bookriot.com/the-history-of-consent-in-romance/
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
“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.
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.
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.
Anita Bernstein, The Common Law Inside the Female Body, 2018
Joanna Bourke. “Sexual Violence, Marital Guidance, and Victorian Bodies: An Aesthesiology.” Victorian Studies 50, no. 3 (2008): 426
Id.
Jill Elaine Hasday. “Contest and Consent: A Legal History of Marital Rape.” California Law Review 88, no. 5 (2000): 1373–1505. https://doi.org/10.2307/3481263.
Jessica Klarfeld, A Striking Disconnect: Marital Rape Law's Failure to Keep Up with Domestic Violence Law, 48 Am. Crim. L. Rev. 1819, 1819–20 (2011)
Chloë Taylor, “Foucault, Feminism, and Sex Crimes.” Hypatia 24, no. 4 (2009): 1–25. http://www.jstor.org/stable/20618178.