Violence against Women in Kentucky: A History of U.S. and State Legislative Reform

4. Domestic Violence and Stalking: A Nation’s Reform

99 4 Domestic Violence and stalking A Nation’s Reform The push to reform the laws pertaining to rape, domestic violence, and stalking did not begin with the judges who interpreted the law, the police who enforced it, or the attorneys who prosecuted violators of it. rather, it began in the women’s movement of the 1970s. Women ’s rights advocates declared that what happened behind closed doors between husbands and wives was not private but deeply political , setting the stage for the anti-rape and domestic violence movements that followed (Schechter, 1982). While the early courts opined on laws that, in effect, gave abusive men immunity and permitted a veil of secrecy to shield family violence, feminist advocates challenged the concept of family privacy, pierced the veil, and forced the issue of violence against women into the nation’s collective consciousness (Schneider, 2000; Siegel, 1996). • • • “The movement has . . . challenged the idea that the family is always a safe haven from a brutal world. . . . The seemingly private sphere of the family and the public sphere of social and worklife will never be quite so separate again.” —Susan Schechter (1982, p. 31) • • • domestic Violence lAWs Centuries ago, roman law treated women as the property of their husbands, who were empowered to control, beat, divorce, or even 100 Violence against Women in KentucKy murder their wives if they committed offenses that jeopardized their husbands’ reputations or property rights (Schneider, 2000). Almost 2,800 years ago, during the reign of romulus, wife abuse was accepted and condoned under the “laws of chastisement,” which gave husbands the absolute right to discipline their wives physically for various unspecified offenses (Smith, 1988). Under English common law, which serves as the basis for American jurisprudence, the feudal doctrine of coverture applied, whereby women lost their legal identities when they married. Williams Blackstone confirmed that “by marriage the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended in marriage” (Blackstone, 1966, p. 442). Early writers in the domestic violence movement observed that this law effectively removed married women’s legal status and disempowered them to such an extent that they had no legal protections (Dobash & Dobash, 1979). In practice, this also meant that a husband could legally batter his wife, as long as minimal marks were left. This notion of a permissive level of violence left women without a legal system to turn to for protection. Interestingly, this same thinking still applies to the discipline of children in many cultures where spanking is permissible, but leaving marks is not. In the seventeenth century, laws were enacted that criminalized physical violence against women. In 1641 the Puritans’ Massachusetts Body of laws and liberties provided that “every married woman shall be free from bodily correction or stripes (lashing) by her husband, unless it be in his own defense upon her assault” (Pleck, 1987, p. 21). Unfortunately, in practice, these laws were fairly meaningless. The Puritan culture was ruled by religious laws that gave the family patriarch the responsibility of enforcing rules of conduct among family members; thus, a husband had tacit permission to “physically discipline,” or batter, his wife (Buzawa & Buzawa, 1996). Evidence of the Massachusetts law’s lack of authority is the fact that, between 1633 and 1802, only twelve cases of wife abuse were brought to court in Plymouth Colony (Pleck, 1987). In the nineteenth century, courts upheld a husband’s right to discipline his wife. In 1824 the Mississippi Supreme Court ruled in Bradley v. State that a husband could use “moderate chastisement” in cases of emergency. Bradley was overturned by Harris v. State in 1894, but by then, most states had adopted laws that followed the socalled moderate chastisement standard. At least one court opinion, Domestic Violence and Stalking: A nation’s reform 101 coming from north Carolina, declared that the defendant had a right to strike his wife as long as he used a switch no longer than his thumb. Specifically, the court ruled: “We find that the defendant struck Elizabeth rhodes, his wife, three licks, with a switch about the size of one of his fingers (but not as large as a man’s thumb), without any provocation except some words uttered by her and not recollected by the witness. . . . The laws of this State do not recognize the right of the husband to whip his wife, but our courts...