PADRES DE FAMILIA

As has been said, rape law had limited application to marital relations. A husband could not be charged with raping his wife, but a husband could be charged with rape if a separation order, a divorce decree, or a separation agreement were in force, the latter dependent on the terms of the contract. The circumstances where husbands could be charged with rape reflected a shift in gender discourses that limited

husbands’ rights over wives’ bodies. Under domestic law, rape or sexual violence could constitute cruelty, but these were contested by discourses that supported male privilege and held procreation as a duty of marriage. Some cases outside the period are referred to because they set precedents that continued into the 1960s and 1970s.

In the period under study a criminal law text quoted Lord Dundedin, a Scottish judge,

saying that ‘if the wife is adamant in her refusal the husband must choose between letting his wife’s will prevail, thus wrecking the marriage, and acting without her consent. It would be intolerable if he were to be conditioned in his course of action by

the threat of criminal proceedings’.136

This construction exemplifies the institutional

support for men’s right to sexual duties from wives and that a woman’s experience of sexual relations was subservient to a husband’s “needs”. The English judgment in

Kelly vKelly1939 suggested women had a right of refusal: ‘the husband has not legal

right to insist on his wife submitting to sexual intercourse on any and every occasion on which he may desire it…a wife has a right to refuse altogether to allow her husband to have sexual intercourse with her, and so long as she performs her other

134

Hodder v Hodder 1961, NZLR 1961, pp.677-9.

135 _{Reported in Luxford and Webb, p.30.}

136_{Dated late 1960s or early 1970s, cit., Susan Edwards, ‘Male Violence Against Women: Excusatory} and Explanatory Ideologies in Law and Society’, in Susan Edwards, Gender, Sex and the Law,

wifely duties, he has no redress for such a refusal’.137 But insistence did not

necessarily constitute cruelty. In Kelly v Kelly, the husband’s sexual practices were

constructed as abnormal and had affected the health of the wife, but they did not amount to cruelty. She did however have reasonable cause to live apart and was entitled to a maintenance order. This judgment did not make clear if a wife who

refused “normal” sexual relations could be held to be in constructive desertion i.e. was responsible for her husband’s leaving, but it had long been held that refusal could

cause injury to the other’s health.138

In the English case Kalefsky v Kalefsky1951, judgment held that ‘the wilful and

unjustifiable refusal of sexual intercourse is destructive of marriage, more destructive, perhaps, than anything else. Just as normal sexual intercourse is the natural bond of

marriage, so the wilful refusal of it causes a marriage to disintegrate’.139

Therefore, if such a refusal was unjustifiable and caused injury to health, there was no bar to cruelty being established.140 This standard could put pressure on women to comply

with their husbands’ sexual demands or risk ‘constructive desertion’ which meant

they would not have been entitled to welfare benefits or maintenance. In practice, however, the English courts did not readily condemn anyone who refused sexual access to their spouse.141 In Walsham v Walsham 1949, judgment held that mere

abstention could not amount to cruelty, even if it injured the denied party’s health.142

This decision appears to have applied in the New Zealand case, Paddison v Paddison

1949, in which a husband was held liable to maintain his wife despite her refusal of intercourse.143

While both parties could be held to be cruel where contraception was used without the

other’s consent, wives could claim and defend allegations of cruelty on this ground more easily than could husbands. Coitus interruptus was cruel on two grounds: it

frustrated the wife’s maternal instinct and it was injurious to the wife’s health because

it prevented the wife from having full satisfaction short of satisfaction of the maternal

137 _{Cit., Luxford and Webb, p.29.} 138 _{Biggs, p.170.} 139 Cit., Biggs, p.172. 140 _{Biggs p.172.} 141 _{Ibid., pp.171-4.} 142 _{Ibid., p.171.} 143

instinct.144 A wife could more easily defend an allegation of cruelty because her use of contraception could be constructed as a fear of the consequences of childbirth.145 These findings were premised on medical discourses that made a woman’s health, especially mental health, contingent on satisfactory sexual relations and conservative

discourses that embodied the belief that a woman’s ultimate satisfaction came from

having children.

Morality discourses were particularly powerful in shaping judicial responses to

allegations of sexual violence. Women who endured “normal” sexual practices had

little recourse to law, but the law would intervene when sexual practices were

“unnatural”, such as masturbation, sodomy and cross-dressing.146“Normal” sexuality was premised on gender difference, heterosexuality and reproduction. In the English case Lawson v Lawson1955, great importance was attached to the husband’s

insistence on his wife masturbating him because it showed that he was a ‘man who

was given to filthy practices with his wife’.147

However, it was difficult to prove both that the conduct occurred and the absence of consent.148 The belief that it was difficult

to rape a woman was also influential. An English wife’s allegation of sodomy was

dismissed because the magistrate did not belief it could be done without the other’s

consent.149Wives were also subject to allegations of “unnatural” conduct. A proven or suspicious association with another woman could be held to be cruel conduct towards the husband.150

CONCLUSION

Domestic law regulated marriage as a legal contractual agreement. Cruelty constituted a breach of contract and the law provided remedies to it that altered its terms: divorce, separation and maintenance orders. Men’s violence against wives was proscribed because it jeopardized marriage and indirectly, the social order. However, discourses embedded in law that aimed to preserve marriage and prescribed gender-specific

duties and expectations, contested women’s claims of cruelty. This was compounded

144 _{Reported in Biggs, p.176.}

145 _{Lord Denning in Fowler v Fowler 1952, reported in ibid., p.177.} 146 Ibid., pp.170, 185; Rosen, pp.201-2. 147 _{Cit., Biggs, p.6.} 148 _{Rosen, p.201.} 149 _Ibid. 150 Ibid., pp.201-2.

by the social arrangement in which married women were usually financially

dependent on men. Women also made investments in these discourses, which might have discouraged them from pursuing legal remedies. Where women sought legal assistance, the low status of domestic law and the male ethos of the legal profession meant they could have poor legal support.

Dominant discourses of law and the family privileging the ideal nuclear family supported the belief that if the law intervened in ‘all but the most egregious cases,

incalculable harm to the family’ might be done and the basic building block of society

might be permanently weakened.151Legal support for a husband’s right to control and discipline his wife, and constructions of women that engendered beliefs that women

provoked or deserved the violence, powerfully contested women’s claims of cruelty

and enabled a toleration of a certain level of violence within marriage.

The necessity of injury to prove cruelty focused attention on the female complainant

and obscured a husband’s conduct. This dependency also provided opportunity.

Medical discourses combined with gender ones to widen the legal meaning of cruelty. Mental distress and ill-treatment more easily constituted cruelty for women than for men, and some sexual practices were deemed more injurious to women. But as in any court of law, allegations had to be proven, and this was particularly difficult when conduct complained of was mostly private in nature.

Legal discourses that made cruelty a question of fact held judicial discretion essential. This invited multiple contesting discourses that intersected in various ways to shape court outcomes. Even where cruelty or persistent cruelty was proven, a magistrate could still deny a legal remedy.152 This made domestic court outcomes more unpredictable than in the criminal justice system. In the main the courts annulled duties to cohabit and ordered economic support for women in cases of serious cruelty not of their making, and where they had endured poor physical or mental health. Some women were granted reasonable cause to live apart with financial support from

151 _{Eva Buzawa and Carl Buzawa, Domestic Violence. The Criminal Justice Response (3}rd _ed.),

Thousand Oaks, California: Sage Publications, 2003, p.3.

husbands when their claims fell short of ‘grave and weighty’ causes. Some women

were granted legal remedies even when they were found to be partially responsible. However, overall, the threshold to prove cruelty was high, and only a small number of women gained support under the law relating to cruelty. Judicial decision-making under domestic law upheld the social structure that enabled cruelty in the first

instance and reinforced male privilege. Colin James’s description of Australian divorce law until the 1970s as a judicial instrument ‘to preserve hierarchy in

marriage-based family by the silencing of women and the empowering of men’, can also be applied to judicial responses in the discursive field of domestic proceedings in New Zealand in the 1960s.153 The next chapter explores social and material practices, which, on occasion, provided opportunity for women to leave violent marriages, but more often than not, compounded legal difficulties associated with leaving.

153_{Colin James, ‘A History of Cruelty in Australian Divorce’, Australian and New Zealand Law and}

History Society Conference, Hobart, 10 December 2006, pp.1-30. Retrieved December 2008 from www.anzlhesejournal.auckland.ac.nz.

Chapter 5