Monthly Archives: February 2016

New work on removing the marital rape exception

Worth a look, new and interesting article: Adrian Williamson (2016): The Law and Politics of Marital Rape in England, 1945–1994, Women’s History Review, online early release. Discussing the slow move to change in the law. If this is taken along with the article about the use of wives’ adultery in homicide cases, by Kesselring, (see my recent blog post) it reinforces the message that one of the biggest things which has to be overcome, when trying to improve the lives of women, has been – and is – the misinterpretation of history, to give some spurious form of legitimacy to rules which disadvantage women (‘look – this has long historical roots: that has to mean something, doesn’t it?). Kesselring pointed out the relatively short and somewhat shaky background to the idea that husbands who killed wives caught in adultery should receive lenient treatment. Here, Williamson deals with the marital rape exception, including the way in which Matthew Hale’s remarks on the subject were transformed into holy writ.

From the point of view of my own research, this is something to link into the work on suffrage campaigns (thinking about tactics for changing law, and about tactics used to resist improvements for women) and, more widely, it is something to bear in mind when looking at the extent to which legal history can be misused in the interests of dominant groups of various sorts. Some of the material here is well known to legal scholars – e.g. the material on low reporting and conviction rate in rape – but there are some interesting reminders of 19th and 20th century case law in this area, and of the pronouncements of different politicians, judges and academics (Lawton, Fairbairn and Glanville Williams in particular – a very topical Trump reference in the conclusion), and the point about there being a struggle right to the end to get rid of the exception, rather than there being any inevitability about it, is an important one.

There is often a strange amnesia, or instant mythologising, which occurs after a progressive change. Opposition is de-emphasised, everyone was somehow always in favour of the change, and it was always only a matter of time before things were put right. As the discussion here shows, change needs dedicated action from people who are prepared to be opposed, belittled and ridiculed.