Reviews | In his draft on ‘Roe,’ Alito cites the work of a blatant misogynist
Most Americans have probably never heard of Hale, an English judge and lawyer who lived from 1609 to 1676. Hale was on the bench so long ago that his duties as a judge included presiding over a court of witchcraft. trial where he sentenced two “witches” to death.
Nonetheless, we still live in the world that Hale helped create. And as this witchcraft trial suggests, Hale’s influence was not a “great” development if you believe that women have equal humanity to men.
Hale is best known for his “History of Crown Pleas‘, a treatise published posthumously in 1736 which became very popular with judges and lawyers in England and America. In my years of studying women’s legal history, I have read hundreds of American judicial opinions citing Hale’s treatise.
Hale did not write for women, who were excluded from the legal profession and the judiciary. But he had a lot to say about women. For example, his statements on rape have been the bedrock of American law for generations, and their influence lingers.
Hale thought authorities should be wary of women who said they had been raped. In his mind, rape was “a charge easy to make and difficult to prove, and more difficult for the accused party to defend, never so innocent.” Judges and lawyers cited Hale’s duck endlessly well into the second half of the 20th century. Echoes of Hale’s suspicion of women still reverberate in American law and culture, helping rapists avoid punishment.
Hale also wrote what has become the most frequently cited defense of the marital rape exemption, the doctrine that protected a husband from prosecution if he raped his wife. Hale explained that a woman’s agreement to marry meant that she had placed her body under the permanent domination of her husband. In the words of Hale: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and matrimonial contract the wife has thus delivered herself to her husband, that she can’t retract.”
Courts and legislatures have found Hale’s explanation persuasive and have repeated it for centuries. Until the 1970s, no state prosecuted a husband for raping his wife — no matter how brutal, no matter how much evidence.
Why did powerful men find Hale’s justification for protecting a husband’s sexual prerogatives so compelling? One reason is that Hale’s lyrics fit neatly into a legal system that gives husbands control over their wives in virtually any setting. This regime remained entrenched for most of American history, and significant aspects persisted even after gender-based disenfranchisement was made unconstitutional in 1920.
It might be tempting to assume that modern America has rejected marital rape exemptions altogether. But at least 21 states still treat marital rape more leniently than extramarital rape by criminalizing a narrower range of behaviors, establishing lesser penalties, or creating particular barriers to prosecution.
With that in mind, back to Alito. He talks about Hale so often because he is desperate to establish that the early American legal system was against abortion. He thinks that this characterization of the past upsets deer a veneer of legitimacy.
There are at least two problems with Alito’s reliance on story. First, Alito misrepresented the actual historical record. Abundant history to research establishes, the common law that ruled America in its early decades and beyond did not regulate abortion until “acceleration”—the time when a pregnant woman first detects fetal movement, which can occur produce as late as 25 weeks pregnant.
Alito reports that Hale “described the abortion of a child who died quickly in the womb as a ‘great crime'” while glossing over the key part of this passage. Vigorous wrote that abortion was a crime”if a woman either fast or tall with a child. Note the “if”.
Second, Alito draws on sources such as Hale without acknowledging their entanglement with legalized male supremacy. The men who cited Hale in building America’s first legal order refused to give women the right to vote or otherwise enjoy full citizenship. Using this history of injustice to deny modern women control over their own lives is a terrible argument, but apparently the best Alito can do.
Hale was a man who believed women could be witches, assumed women were liars, and thought husbands owned their wives’ bodies. It is high time to get out of this misogyny.