Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative

94 Pages Posted: 6 Apr 2015

See all articles by Elizabeth D. Katz

Elizabeth D. Katz

Washington University in St. Louis - School of Law

Date Written: 2015

Abstract

According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.

Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.

Keywords: legal history, family law, domestic violence, criminal justice, masculinity, manhood, family, marriage, divorce, United States Supreme Court, interspousal tort suits, tort, wife beating, husband beating, judging, assault

Suggested Citation

Katz, Elizabeth, Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative (2015). William & Mary Journal of Women and the Law, Vol. 21, No. 2, Winter 2015. Available at SSRN: https://ssrn.com/abstract=2589941

Elizabeth Katz (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

HOME PAGE: http://https://law.wustl.edu/faculty-staff-directory/profile/elizabeth-d-katz/

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