The doctrine of chastisement, under which a husband could physically punish a defiant wife, as long as her injuries weren’t permanent, held sway in Anglo-American common law until the mid-nineteenth century. By then, the authoritarian notion of marriage was giving way to the idea that a husband’s dominion over his wife and children shouldn’t be physically enforced, and wife-beating was increasingly seen as brutal and low-class. In fact, one of the first states to rescind the right of chastisement was Alabama, in 1871, in a case called Fulgham v. State. “The wife is not to be considered as the husband’s slave,” the State Supreme Court held. “And the privilege, ancient though it be, to beat her 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.”
But, as the Yale law professor Reva Siegel has shown, courts and legislatures “vehemently condemned chastisement doctrine, yet routinely condoned violence in marriage.” What was often used to justify this paradox was obeisance to marital privacy. In a North Carolina case from 1868, State v. A. B. Rhodes, the State Supreme Court declined to enforce charges against a man who whipped his wife “with a switch about the size of one of his fingers (but not as large as a man’s thumb).” It did so not because it was upholding the husband’s right to chastise his wife “but because the evil of publicity would be greater than the evil involved in the trifles complained of; and because they ought to be left to family government.” The court cautioned against “raising the curtain upon domestic privacy.”
That was the thinking that shaped law enforcement and the broader understanding of domestic violence for most of the twentieth century. Violence in the home was regarded as something that was unfortunate but private, and arrests were discouraged in favor of mediation. It was not until the nineteen-seventies and eighties—when feminists and the battered-women’s movement brought renewed attention to the problem, introducing shelters and hot lines, and treating assault within the family as seriously as assault outside of it—that law enforcement and legislatures responded, passing mandatory arrest laws, creating domestic-violence units in prosecutors’ offices, and making it somewhat easier to obtain and enforce protection orders.
The incidence rate of domestic violence remains high, but it has dropped markedly in the years since that movement began. According to the Justice Department, it fell by sixty-seven per cent between 1994 and 2012. To some extent, that mirrors the general decrease in violent crime in the same period. This may be due, in part, to the increasing economic independence of women, which affords them more freedom to leave abusive relationships. But experts also point to the reforms brought about by the greater awareness of domestic abuse—by the raised curtain that the courts once feared, and that, apparently, some federal judges still do.
Margaret Talbot, “Matters of Privacy”, The New Yorker (6 October 2014), 21-22.