Marital Rape as Blind Spot

Before the late twentieth century, there were no laws that protected legally wed wives from their husbands’ compelling them to have heterosexual intercourse.Footnote ¹⁰ Though customs and courtesies allowed wives to abstain after childbirth, little could be done to redress their husbands’ breaching such cultural expectations.Footnote ¹¹ Wives could not even criminally prosecute their husbands for violently forcing them into sex: English common law did not recognize marital rape.Footnote ¹²

There are many underlying principles beneath this long-held marital rape exemption. Rape had been a capital felony for centuries, but medieval law had classified it as an act of trespass against a baron, not the victim herself, which would make marital rape culturally and legally illogical.Footnote ¹³ Even with a broader historical transformation in which rape was understood by the eighteenth century as “a breach of the liberty of the woman and a great injury to her,”Footnote ¹⁴ it remained unclear under coverture whether a husband could commit such a crime against his wife. The posthumous 1736 edition of Matthew Hale's Historia Placitorum Coronae explained why: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”Footnote ¹⁵ Hale's explanation was based on marriage collapsing a woman's identity under her husband's identity and authority. It also was based on centuries of canon law defending what was considered the conjugal debt, in which spouses were expected to owe sexual comfort to each other perpetually.Footnote ¹⁶

The 1753 Hertfordshire case of Job Wells, who was prosecuted for raping his sixteen-year-old biological daughter, suggests that marital rape was not seen as a similar violation. Tucked into the widely circulated narrative, an aside reveals what Wells did to his wife a year earlier. Because he was “much given to Women, especially when he had been drinking, and then he was a down-right Brute,” Job did not restrain himself. “His Wife died about a Year ago, in Child-bed, and there is a Report, that he was the Occasion, by forcibly going to Bed to her the next Day after she was delivered, for she died on the third Day.”Footnote ¹⁷ Though both assaults might now be considered sexual battery, this is not how they were seen in eighteenth-century law. Rape was “an Offence in having unlawful and carnal Knowledge of a Woman by Force, and against her Will.”Footnote ¹⁸ Job's attack on his daughter met those requirements: it was unlawful because it was incestuous, against her will, and forced as he threatened her with a knife and swore that “he would rip [her] up, or cut [her] Throat” if she resisted him.Footnote ¹⁹ But Job was not charged for a crime against his wife, perhaps because it had occurred a year earlier and he refused to incriminate himself. Unless he had committed what was defined as an unnatural act like sodomy, there were no grounds upon which to prosecute him, even if her death resulted from the sexual attack. Job's assault was technically unrecognizable in common law. But the author's not identifying it as rape may have also been instinctive—a sense that wives truly gave perpetual sexual consent at the altar and that marriage collapsed the bodily boundary between spouses.

Conceptualizing marital rape required viewing a wife as possessing a separate existence that remained intact despite marriage. This was difficult for some contemporaries to imagine. Even the women's rights advocate Sarah Chapone, who lamented wives’ loss of property under coverture, nonetheless accepted husbands’ directing sexual relations. Thanks to the Fall, which Chapone defined as the “undue Gratification of [Eve's] Will,” a wife was required to acquiesce sexually because she “shall depend upon her Husband in all Matters of Pleasure, Diversion, and Delight: Her Desires should be circumscribed by his, whom she should reverence in Acquiescence to divine Authority: He should have the supreme Command in his Family, and she should act in Subordination to him.”Footnote ²⁰ The New Testament provided evidence, too. The Athenian Mercury editor rebuked a disinterested wife in 1694 that it was “not only indiscreet, but also very wicked . . . to refuse [her husband] her bed” because Saint Paul said both spouses owed each other their bodies and warned “defraud ye not one another, except it be with Consent for a time; therefore without he is as well satisfied as she, cannot deny him.” “Consent for a time” was not specified, but it was (at least grammatically) a matter of the husband's consent: if he is not “as well satisfied as she” with abstinence, then the wife “cannot deny him.” A Pauline passage that articulated a mutual conjugal obligation was expressed asymmetrically here. The husband consented, not the wife. If he wanted her body, she “cannot deny him.”Footnote ²¹

Daniel Defoe saw matters quite differently in his 1727 Conjugal Lewdness or Matrimonial Whoredom. Hale, Chapone, and the Athenian Mercury's editor asserted husbands’ conjugal authority; Defoe attacked it. He criticized the assumption that marriage allowed either husband or wife to exercise unbounded lust. Both spouses should be modest, civil, and self-governing, but above all else patient with the other's desires and “seasons.” Sex during menstruation and pregnancy was unnatural. Good husbands respected their wives’ wishes to abstain after years of reproduction. There should be “No Violences upon Nature on one Side or another; no pushing the Constitution to Extremities, no earnest Importunities, no immodest Promptings; let all that Nature dictates be free, spontaneous, voluntary and temperate.”Footnote ²² Defoe described how women could be sexually abusive, too, but it was largely husbands who coerced or forced their wives into unwanted sex. Defoe cast both spouses as separate, distinct individuals who had the mutual obligation to respect one another's different levels of desire and the mutual right to consent to sexual relations. Unlike Hale, he refuted husbands’ absolute conjugal rights over their wives, viewing unwanted marital sex as morally criminal, even if it was legal: “Marriage is no Protection for Crime . . . [T]he Woman may be ravish'd in the Marriage-Bed, and the Man deserve the Gallows for Crimes offer'd to his own Wife.”Footnote ²³

Defoe's explicitly identifying marital rape in print in the 1720s was singular. His argument asserting spouses’ separate existence within marriage was radical. It was also little read. Unlike his other works, Conjugal Lewdness was never republished after the 1720s, rarely referenced, and within decades described as “very scarce” when appearing at auction.Footnote ²⁴ His text was ignored by reviewers, but probably not because its conceptual framework was entirely sui generis. His argument was fundamentally religious, mindful of sin, and shaped by imagined principles of natural law. In Conjugal Lewdness, Defoe was unusually explicit in discussing routine marital sex for its age, but his Godly injunctions were familiar to Christians.Footnote ²⁵ As a Dissenter, Defoe diverged from the Church of England on many points. Nonetheless, he shared with the Anglican Church the view that marriage was more than a civil contract but a religious, spiritual, and moral union. Though secular courts could not prosecute unwanted marital sex or marital rape, England's ecclesiastical courts had spiritual jurisdiction over sacramental and moral matters, including the sort of marital conflict Defoe described. Here, ecclesiastical lawyers—also known as civilians—theoretically could consider whether unwanted or violent conjugal relations might justify a couple's marital separation.Footnote ²⁶

Matrimonial Causes in the Ecclesiastical Courts

Until the Matrimonial Causes (Divorce) Act of 1857, for centuries, English spouses had been tethered for life, required to cohabit and fulfill their conjugal debts. Most of the miserably married devised ad hoc solutions or awaited death, but those who could afford its high costs turned to England's ecclesiastical courts for a separation “a mensa et thoro.”Footnote ²⁷ These “bed and board” separations let spouses live apart and cease sexual relations. But the costs were steep: both partners were forbidden from remarriage while the other was alive; wives lost custody of their children; and wives also remained femes coverts in common law but were forced to support themselves on alimony, which was usually set at the lowest amount that women of each station could survive on.

English canon law permitted couples to separate when adultery or cruelty (or both) could be proved. It was comparatively easy to determine infidelity, but cruelty was almost indeterminable because there was no definitive list of unacceptable behaviors.Footnote ²⁸ As Judge William Scott (later Baron Stowell) explained in a 1790 case, one could not say what exactly cruelty was, “only what it is not.”Footnote ²⁹ Whether unwanted sex or sexual violence counted as cruelty depended partly on the view of the judge hearing such a case.

For the most part, unwanted or violent sex was described almost incidentally or simply as one type of wrong among many others. For example, when Anne Buntin sued to nullify her marriage on the grounds of her husband's alleged impotence, she stated that during sex he used “some artificiall Instrument ty'd or fasten'd to his Body with which he had like to have kill'd or ruined this Depont.”Footnote ³⁰ Sexual abuse peppered countless marital separation suits. Husbands hit, kicked, and pinched their wives while in bed at night and particularly abused them while they were pregnant, lying in, and nursing.Footnote ³¹ Husbands forcibly exposed their wives’ private parts to others: John Wallop ordered a servant to give his wife a clyster (enema) against her will; Michael Lister and Isaac Prescott stripped their wives and commanded the servants and others to view their naked genitals.Footnote ³² Some men forced their wives to share a bed when they were lying in, or when either spouse had smallpox or other contagious diseases.Footnote ³³ Some documents alluded to rape. Christopher Clarke warned his wife “that a man might ty his wife to a bedpost & was not accountable to anybody.”Footnote ³⁴ Sarah Aggate's husband stripped her naked, chained her to a bed in a garret for weeks, and apparently continued to have sexual relations with her until she escaped.Footnote ³⁵ Amelia Brazier's husband announced to a judge in 1781 that “‘he would beat and pox his wife whenever he thought proper.’”Footnote ³⁶ A few men subjected their wives to “unnatural” practices.Footnote ³⁷ Jane Prescott stated that her husband took her to bed “and behaved with a Barbarity and Indelicacy which Modesty forbids this Informant to mention.”Footnote ³⁸ Sometimes wives won their ecclesiastical causes. Sometimes they did not.

Eighteenth-century historians of marriage have fully acknowledged these acts of sexual violence,Footnote ³⁹ but they have also tended to “shy away from addressing the issue outright.”Footnote ⁴⁰ This is not for lack of concern, but because the nature of the archives does not easily reveal how unwanted marital sex was interpreted legally. Matrimonial causes produced voluminous manuscript records, but these are not fully transparent documents. They were molded by the court's categories and procedures, shaped by contemporary mores and the direction of counsel.Footnote ⁴¹ This blizzard of formal filed papers has yielded rich social historical stories, but relatively little reveals how legal practitioners addressed sexual conflict because advocates’ arguments and judges’ jurisprudence were not kept as part of the formal court record. Sometimes it was not even clear which side won the case or if the parties had settled before judgment.Footnote ⁴²

Fortunately, some records of court notes and debates survive that illuminate jurists’ remarks about sexual conflict. This material includes, beginning in the 1780s, published summaries of important ecclesiastical cases,Footnote ⁴³ plus some surviving contemporary manuscript diaries and notebooks kept by practitioners themselves for reference.Footnote ⁴⁴ Despite covering only a few decades across the eighteenth century, these sources record judicial attitudes and arguments where the formal cause papers do not. These notes and diaries cannot be taken as exact transcriptions of oral debate, but they capture much of what must have been said, including practitioners’ vibrant and impassioned arguments.Footnote ⁴⁵ Essential details otherwise missing from the filed papers often emerged in judicial conversation. In fact, it is only through these case notes that seemingly routine marital causes can reveal themselves to be something else, as is evident in some of the cases discussed below. Individual practitioners represented both husbands and wives and thus could make quite contrary arguments over the course of their judicial careers, but these reported court arguments show that when they represented wives, they argued that husbands’ power was limited by natural, moral, and gentlemanly principles. Though no practitioner suggested dismantling coverture entirely, wives’ representatives found arguments to curtail husbands’ sexual rights when wives were threatened by venereal disease, sexually violent threats, and even the trauma resulting from nonconsensual sex.Footnote ⁴⁶

Saying No to Venereal Disease

Reproduction ravaged women's bodies, but this wear and tear was not presented as a primary cause for separation in early modern cases because procreation was the very reason for marriage.Footnote ⁴⁷ Sexually transmitted diseases, however, transformed the ordinary burdens of reproduction into family catastrophes. Pox was interwoven in many marriages on the rocks, but the case of Ashe v. Ashe was among the very few in which venereal disease was the only allegation of cruelty. The court faced the question whether a husband's infecting his wife with venereal disease so endangered her life that she had the right to refuse sex to protect her health.

Catherine and James Ashe of Twickenham were apparently happy for three married years. The two wealthy cousins had wed in 1697, and by 1700 they had three healthy children.Footnote ⁴⁸ After the third delivery, Catherine postponed sex with James possibly to delay another pregnancy. He respected her wishes but turned elsewhere. He was indiscrete, reputedly boasting to servants “that he had picked up a pretty whore and had had her in a hackney coach and he often declared that it was a happy thing for a man to have a whore who would be constant to him.”Footnote ⁴⁹ Unfortunately, Sir James's happiness resulted in the pox, which he shared with Catherine. James denied being unfaithful, insisting that he only endured painful “fluxes” of massive doses of mercury “for nowe other reason but for the full satisfaction of the said Catherine.”Footnote ⁵⁰ Once his doctors said he was cured, the couple resumed sex. They had three more children over the next five years, but each baby manifested grisly symptoms consistent with congenital syphilis. One infant infected two wet nurses who developed lumpy masses, running sores, and pain so severe that Nurse Eleanor Forman stated that she “was in such a Condition by giving suck to the said Mary that she should never be well again and that if Sir James gave her all his Estate he could not make her amends.”Footnote ⁵¹

Catherine refused to have sex after the sixth birth in 1705, staying away in Bath for months. When she returned in August 1707, James asked when she would let him back to her bed. When she hedged, he threatened to “break a Leg or an Arme” if she would not name the date.Footnote ⁵² From then on, she slept in the servants’ quarters, and the two argued through a barricaded door. On 14 August 1707, he ordered her into the drawing room and in front of household staff demanded to know when she would let him renew sexual relations. She said perhaps in the future but not then. He ordered her to his coach, gave her twenty pounds, and sent her to her brother in Richmond. Gossips licked up the story. Isabella Lady Wentworth wrote, “al the world besyde this town is full of nothing but ye Lady Ash. whoe has Left her husband.”Footnote ⁵³ In another letter she reported, “it seems Sir James transgressed and went astray, which enraged her soe much that ever senc her last childe, which was three quarters old she never beded with him never man humbled himself more than he did to her.”Footnote ⁵⁴

As gossip swirled, Catherine sued James in the Archdeaconry of Middlesex Court against him on the grounds of adultery and cruelty. Lady Ashe was on weak ground compared to other wives alleging cruelty. James had never beaten her and only threatened physical violence in their August showdown. She also had a surprisingly weak case against James for adultery. He refused to confess in court and no eyewitnesses came forth, leaving the Middlesex Court judge unsure whom to believe. Even more damaging to her case was her willingness to possibly forgive him in the future. Out of all the depositions describing James's boasts, his extensive medical consultations, and the caustic effects of syphilis on the family, one statement jumped out to the judge. Witnesses reported that as she left the house in August, she told James, “Take notice I don't say I'll never bed with you tho’ my hard sufferings once made me think so.”Footnote ⁵⁵

These words also undermined her appeal at the Court of Arches where Sir John Cooke ruled against her. When she appealed again to the Court of Delegates, three bishops on the panel agreed that her words “made it appear my lady did not leave Sr. James on account of ye adultery, but only yt she was in danger of her life.” Perceiving one's life in danger might seem to be a good reason for a separation, but this is not how Cooke (or the bishops) saw it. Some of them believed that her openness to future relations meant that she “mt. safely bed wth. him” (and thus not be “in danger”). Cooke explained that in his lower court ruling, he had “only consider'd the convenience or inconvenience” of sex and feared that her potential forgiveness was the “Periculum anima[e] [an act of jeopardy] if he did not put ’em together.”Footnote ⁵⁶ By “convenience or inconvenience,” Cooke did not mean easy or difficult, but safe or harmful.Footnote ⁵⁷ The church viewed marriage as inviolable so long as both partners could fulfill its obligations—even only occasionally when it was “convenien[t]” or safe, which left little ground for separation.

Though the bishops agreed with Cooke's reasoning, the other delegates did not. They believed that James's genital cankers, extrajudicial confession, and other evidence adequately demonstrated adultery. They also found evidence of cruelty. Another historian has proposed that James's turning Catherine out was the cruel action and that she had goaded him into expelling her so that she could receive alimony.Footnote ⁵⁸ That could be true, yet Catherine filed an attestation refuting financial motives, which she accused James and his allies of alleging. She explained that she pursued her cause not “for any dislike that she had for his Person” or for an increase in her “Pin money,” but because of his infidelity and her suffering from the pox. She entreated the judges simply “to take her miserable Condition into their tender Considerations.”Footnote ⁵⁹ Perhaps they agreed with her original proclamation that “Sr. James having broken his Matrimonial Vow and defiled his Marriage bed and thereby . . . contracted the foul disease . . . the moment of her bedding with him might become unhealthy and diseased she thinks that she is not obliged by the Laws of God and Man to live and cohabit with him.”Footnote ⁶⁰ They granted her £300 in alimony, a relatively large sum, but as the court later discussed, a small portion of the fortune she had brought to the marriage.Footnote ⁶¹ The delegates’ debate and final rationale seem not to have been recorded, but the case survived as a precedent for cruelty in an anonymous notebook, ca. 1758, without elaboration.Footnote ⁶² James's expelling Catherine from the house was not unusual, but her allegation of cruelty based primarily on contracting venereal disease without any other physical abuse appears to be unique. Even if the delegates recognized Catherine's request to separate on health grounds, this was a sorry story for everybody. As in all separations, James was granted full custody of the surviving three children, and Catherine was officially forbidden from seeing them. Out of six children, only one daughter survived to adulthood, but Catherine predeceased her.

The Threat of Marital Rape

Lady Ashe succeeded in resisting marital sex because of the ongoing extreme physical pain caused by her husband's adultery and venereal disease. The eighteenth-century courts did not explicitly use the phrase “persistent or severe,” but this was basically their standard in cruelty causes. Those who had only experienced violence once or who were threatened with forced sexual intercourse had questionable grounds for a separation, as seen in the case of Holmes v. Holmes.

Francis Holmes said he was an enterprising ironmonger when he courted Sarah Kingston, a wealthy widow, in 1744. Once wed, he asked her for thousands of pounds to finalize some investments. Sarah's inheritance from her first husband had been put in trust, which limited Francis's ability to absorb her wealth. To grant Francis his request, Sarah was required to ask her guardians, who authorized only loaning him £2,000 from the estate. Soon after he received the loans, she realized he had lied to her, that he was no ironmonger at all, had no profession whatsoever, and had entered the marriage with large debts. He quickly defaulted on the loan, so her guardians obtained a statute of bankruptcy against him, chasing him for years.Footnote ⁶³ To avoid debtors’ prison, he often left, surfacing only to inveigle money out of her.Footnote ⁶⁴ Though he was the one who repeatedly disappeared, he filed a restitution of conjugal rights cause in 1754, claiming that she had abandoned the marriage. His formulaic documents masked a backstory that, once revealed, shows that his restitution suit was a cunning attempt to access her wealth and force her into sex.

Sarah denied that she had abandoned the marriage and then filed for own papers alleging his cruelty. She reported that in 1753, the long-absent Francis and two unknown confederates came to her door. Once she let them in, Francis scampered throughout the house, then “lockt up all the Doors and took the Keys and then came into the Parlour” and “swore he would lye with her there.” The two men stated “that . . . Holmes was her Husband and that he had got them to come and meet him there in order to See him lye with her and that he should lye with her in that Room in their Presence and that they would assist him by holding her for him.” One of them grabbed her, trying to force her to the floor. She wrenched away, ran to a window and escaped. She ran next door with Francis and the two men on her heels. Her neighbor Jeffrey Burston admitted her, but Francis and his men forced their way into his house, too. There they attacked her. “Francis Holmes then pulled her down upon the Floor tore off her Cap from her head and got hold of the hair of her head and attempted to drag and would have dragged her back again to [her] house,” but Burston intervened and sent for a magistrate. Francis and the men fled. Sarah was bruised and so “affrighted” that she took to bed for weeks. But Francis repeatedly came back, threatening her that “he would get some Lusty Fellow who should be strong enough to . . . do any thing that he wanted to be done.” He warned he would lock her up, take all her fortune, and “send her over Sea . . . and . . . No body should ever see her again or know what was become of her.” She pleaded that her life was in “manifest Danger.”Footnote ⁶⁵ In fact, it was, and Francis's restitution suit was the very device that could allow him to make good on all these threats.

Both the restitution and cruelty causes were heard at Doctors’ Commons in early 1754. The court admitted Sarah's allegations and granted her separation. Francis appealed to the Court of Arches. Sir George Lee, who was quite kind to his own wife, had no patience with Sarah.Footnote ⁶⁶ He sided with Francis and ordered Sarah to reside with him and fulfill her conjugal duties. As for her cruelty suit, Lee denied it, explaining, “In this case she had charged nothing but words, except the single fact of his dragging her by the hair, which happened after she had separated herself from him, and that was not a cruelty sufficient to entitle her to a divorce; and it was not suggested that he had ever beat her or put her in any danger while they lived together.”Footnote ⁶⁷

Sarah had to let Francis back in her house if she wished to appeal to the Court of Delegates. As the suit wore on, Francis complained that she provided his “board” but gave him only “five shillings” pocket-money for tobacco. They did not have sex.Footnote ⁶⁸ Within weeks, she had locked him out of the house, leaving him a hungry, homeless, tobacco-less pauper. Then she vanished.

Francis and his proctor doggedly pursued Sarah, demanding alimony, readmittance to her home, and her physical presence in court to answer his questions. But Sarah's attorneys replied that her presence was a mere formality. They were her proxies and could act fully in her name. It did not matter that Francis and his attorneys could not find her. However, Francis, they pointed out, needed to appear. This went on for months. Sarah could afford a long, expensive fight, but Francis could not. He racked up legal fees, which he paid off to his proctor in part by “writing for him at [his] Office . . . from Nine in the Morning till Eight in the Evening (Sunday Excepted).”Footnote ⁶⁹

Sarah lost her appeal at the Court of Delegates in the spring of 1757, but Francis was no better off because she ignored the multiple court orders that were repeatedly affixed to her front door. Her intransigence led the court to excommunicate her in February 1758, but this changed nothing. In exasperation, Francis requested that his attorneys petition the crown to punish her through the secular courts.Footnote ⁷⁰ This maneuver presumably failed, too, but it is unclear where Sarah went in the following years.

What stands out in the Holmes case today is Francis's attempt to rape Sarah with the help of two other men. The London Consistory Court judge was seemingly troubled, as he granted the allegation. But upon appeal this event did not particularly impress the Court of Arches dean Sir George Lee. Francis's attempt to have sex may have even seemed justifiable to him, if his manuscript notes are any indication. Eighty years later, jurist Joseph Phillimore published Lee's notes from the mid-1750s. According to Phillimore's transcription, Lee had noted what Francis's confederates had said to Sarah when they trapped her in the parlor: “they said he was her husband, and had a right to do so, and they would hold her for him to lie with her.”Footnote ⁷¹ None of the contemporary depositions or allegations at any of the courts included “a right to do so.” Perhaps the phrase was spoken in oral arguments or Lee inadvertently wrote it in his notes. In either case, the transformation emphasized a husband's sexual rights over his wife's body beyond what Francis Holmes's own henchmen had even threatened.

Sir George Lee was a great defender of coverture in this case and others, so much so that his tone was dismissive, almost caustic when ruling against Sarah and other wives.Footnote ⁷² But Lee's was not the final word on Sarah Holmes or husbands’ rights. After Sarah died intestate in 1764, Francis returned to Doctors’ Commons, arguing that all the wealth and property she had accrued since their marriage belonged to him, not her daughter and son-in-law. Though he petitioned the court presuming that coverture would give him control of Sarah's wealth, he was thwarted. Sarah's first husband had protected his estate carefully so that if she remarried, her future spouse would not absorb the inheritance he left to her and their daughter. When she remarried, her property was in trust, protected from absorption under coverture. She had the power to make gifts and loans, but only with her guardians’ permission. After she died without a will, Francis's advocate, Dr. Collier, insisted that her postmarital profits were his, plus he had a natural right to administer Sarah's estate as her husband. Arguing for Sarah's daughter Mary, Dr. Wynne began by challenging Francis's credibility and honor by gesturing toward the backstory: “the private History &c are not proper for me to enter into, but the Man shd be bound by his own solemn Act.” Francis had agreed to the terms of his marriage with Sarah as determined by her guardians. He had made a contract and he could not change it. Sarah, however, had had the right to disperse some of her wealth as she pleased. But she had found no reason to grant him anything. This was not her meanness; it was his malfeasance. “[U]nless he shd deserve by his Behavior, that she shd make a Will in his favor” she would have. But “she had made no Will.” Wynne transformed the technicalities of contract into a case of moral worthiness, invoking Francis's wretched behavior as Sarah's husband. Though hinting at the Holmes's “private History” probably did not shape Judge George Hay's decision in favor of Mary, Wynne's presentation in court was Sarah's posthumous revenge. Francis would surely have been in the audience at Doctors’ Commons. Not only did he find himself disparaged as dishonorable, a breacher of contract and a contemptible husband, but he also found himself barred from Sarah's wealth. Hay granted Mary Fleet the sole administration and acquisition of her mother's entire estate. Francis was left with nothing but the legal bills he would have owed Dr. Collier and his proctor.Footnote ⁷³

Thanks to the possibilities in equity, Sarah Holmes's family, first husband, and guardians had been able to establish her financial rights even in remarriage. This protected her property and assets from Francis. But such agreements in Chancery did not grant her the legal right to say no to her husband's sexual demands, as demonstrated by Lee's rulings. His decision against Sarah ultimately served as a precedent, as an example of an unhappy marriage that involved not quite enough cruelty to justify separation.Footnote ⁷⁴ Or, as an 1895 case citing Holmes v. Holmes explained, “There are numerous [cases] in the books in which restitution of conjugal rights has been decreed at the instance of sometimes a husband and sometimes a wife whose conduct was unbearable, though falling short of cruelty in the technical sense of the word.”Footnote ⁷⁵ The Holmes case survived for nearly 150 years as precedent not because it was an example of men's cruelty, but because it was not. It specifically demonstrated the edge of acceptable behavior because it showed how wretched a husband's behavior could be without meeting the threshold for a marital separation. But what about when a husband successfully forced his wife into sex against her will?

A “Love Fit” or Rape?

Lord George Warren was a status-conscious widower absorbed with gaining a peerage. He possessed land and a daughter but little cash and no male heir. Frances Bisshop, a lady-in-waiting to Queen Charlotte, was young, beautiful, and rich. In 1764, the two wed and soon inherited their bad fortune. Frances avoided sex. George was churlish and controlling, preoccupied with locating royal blood in his family tree.Footnote ⁷⁶ Theirs probably resembled many other miserable aristocratic unions, but in 1771 two surprising, violent assaults ruptured the marriage.

One morning in March 1771, Sir George ordered Frances to breakfast before she had completed her toilette. She joined him, but when she rose after the meal, he grabbed her “and shook her by the head and shoulders to a most violent degree, and then with great force shoved her under a Sideboard Table in a Recess.” She explained that “shaking her whilst under the Table and clawing at her and tearing off her Lappet from her Head . . . she was much bruised and her Skin scratched and torn by Sir George's Nails till the Blood came and was in several places black and blue with the said Bruises.” She “cried and screamed violently so as to be heard by the Servants in another Room but none of them durst come to her Assistance as they afterwards declared for fear of losing their Places.” After the attack, she kept a servant at her side around the clock because “the vile Treatment she had received from him” led her to believe “she could not trust her life with him.”Footnote ⁷⁷ Two months later in May 1771, Sir George caught her alone one night and locked her in a parlor. His footman and his estate bailiff—“a noted boxer”—were waiting and lifted her by the head and feet, while George “stopped her Mouth” with his gloves. They then dropped her with such force that she lay motionless for minutes. Once she came to, she asked for water and her family, but instead Sir George called two lawyers, including one Robert Kirke, “a most infamous Character . . . employed in carrying people privately away.” Water was also brought, but she feared it was poisoned. Frances sat herself on a dining chair, clutching the seat. Nobody could unlock her grip, so George told them to cut the chair apart, which injured her hands. Six hours later, at dawn, “the neighbourhood had been alarmed by her repeated cries.” The exasperated George gave up, sending the men and the hired coach away. Frances escaped to her father's house and launched her cruelty cause.Footnote ⁷⁸

Lady Warren's suit was finally heard a year later at Doctors’ Commons, with more disturbing details revealed. As he introduced the case in June 1772, Lady Warren's counsel, Dr. Collier, added some color missing from her original libel: Lord George “bruised her, and thrust her under a marble slab . . .The gentlemen on the other side will say, I doubt not, that this was a fit of love in Sir George. But this cannot be allowed.”Footnote ⁷⁹ Introducing this allegation by claiming his opponent would deny it was designed to lure his opponent. Dr. Harris took the bait: “it was certainly nothing more than a love fit, and there is no proof of any injury done [to] the Lady than that of clawing her thigh.”Footnote ⁸⁰ Agreeing to the words instead of denying them, Harris vocalized what Frances herself had not explicitly stated. She did not use the words “rape” or “ravish” in her papers (or even allege a sexual assault), but advocates spoke these words in court. As the two sides debated what happened at breakfast, George's attorney noted that Lady Germaine had said “the report was that Lady W[arren] was ravished.”Footnote ⁸¹ Lady Warren and her advocates did not directly allege sexual violence, instead allowing such details to emerge in depositions and the oral arguments in court. Once advocates said words like rape and ravish, allegations were framed anew. Details that seemed merely rude, like George's ripping off Frances's hair covering, took on more sexually menacing meanings.Footnote ⁸² In court, Frances's attorneys compared her treatment to that of wives sexually victimized by their husbands, notably the Earl of Castlehaven (1631) and the Earl of Anglesey (1701), both of whom were condemned in the House of Lords.Footnote ⁸³ Alluding to Castlehaven, whose name was shorthand for his crimes, including ordering a servant to rape his wife, implied Lord George's inhumane behavior. Invoking Anglesey, who bruised and scratched his wife's limbs, paralleled Lord George's marks upon Frances's thighs. These innuendos allowed Dr. Collier to assert, “Nineteen witnesses positively swear, that they believe that she cannot cohabit with him with comfort and five swear positively that they thinks he cannot cohabit with him with safety to her person and health. This is of itself sufficient for the foundation of a plea of divorce.”Footnote ⁸⁴ As an aside, Frances's attorneys added, “it is a known Case that man has been executed for a rape upon the mere evidence of the woman only,” perhaps alluding to Castlehaven's fate and a reminder that conjugal relations usually happened in private without witnesses. “If it should be admitted, that this was a love scene, it is plain that his lust was turned to rage. It was the act of a Cat [sic] and not of a Man alone.”Footnote ⁸⁵

George's counsel did not deny these accusations, instead citing Holmes v. Holmes as precedent that isolated moments of passion were inadequate grounds for separation.Footnote ⁸⁶ Lord George was “fully justifi[ed]” in barricading Frances because she “had for eight months . . . withdrawn herself from his bed” and because he suspected her family “intended” “a rescue.” Once removed from his home, George's attorneys suggested, he would no longer have access to her, but as long as he could keep her on his property, he had the right to have sex with her.Footnote ⁸⁷ Though they defended his sexual rights over Frances in marriage, they recognized a limit: he could not force her into sex outside his own home. But presumably he could force her into sex while they cohabited in his house, even if he had to imprison her there.

Lady Warren's advocates disputed whether George had any right to expect sexual relations once her “honor” had been offended in March. Because “the honor of man lies in his nose, and that of a woman under her petticoat,” wives must guard their modesty. “If a woman is injured, she can only do, as Lady W[arren] did, withdraw herself from her husband, till he offers a reconciliation. A man, on the contrary, having the purse in his power, may go where he will.”Footnote ⁸⁸ Though a woman might not have the means to leave her husband financially or legally, this did not negate her natural and moral rights. When her advocates said, “She had a right to resent his ill usage,” they indeed meant that she was not George's subject, but a person with separate desires and dignity. Furthermore, once Frances refused to sleep in the same bedroom, he was obligated to respect her: “from the moment she separated herself from him, he had no claim to conjugal rights . . . She has received an injury which she cannot forgive.”Footnote ⁸⁹ Dr. Bever argued that a husband's power was neither unlimited nor justifiable. He put it in characteristically eighteenth-century terms, but there was a bold principle beneath his euphemistic language: “A Lady's delicacy is more to be regarded than the authority of a man.”Footnote ⁹⁰ “And,” added Dr. Wynne, “it is certain that by the Laws of this Country a Wife is not bound to live with her Husband, till her heart is broken . . . They ought to have a legal liberty to part.”Footnote ⁹¹

Dr. Bever tried out one last salvo against Lord George's counsel, whom he said “much to my surprise, represented the Wife as one of the livestock of the family. If, Sr. G[eorge] looks upon Lady W[arren] in this light, he treats her as bad as a negro slave.”Footnote ⁹² Comparing wives to slaves was a persistent trope from Aphra Behn's day onward, but Dr. Bever's argument in June of 1772 was especially timely. Lord Mansfield had just issued his Somersett decision in King's Bench, which was popularly understood to proclaim that no man could be a slave when he stepped on English soil. So much for men, but Dr. Bever really asked whether the same right applied to women. In his portrayal of Sir George, he answered that women, too, have the right not to be treated as property.Footnote ⁹³

Judge John Bettesworth was unmoved. He praised Sir George, noting that “his being a Widower is . . . a circumstance greatly in his favor.” He questioned how Frances ended up with wounds on her thighs after breakfast. Even though witnesses specifically refuted that they resulted from broken stay splints, Bettesworth decided this was the likely explanation after all. He said nothing about sex. Frances's refusal to go where George wished was unacceptable: “It is certainly the duty of every married woman to accompany her husband to whatever house he may choose.” As for her damaged hands, “she has no one to thank but herself for the accident of the Chair.” Overall, “she has utterly failed in the material part of this libel.”Footnote ⁹⁴

Frances's proctor immediately announced his appeal. The Kentish Gazette reported that “indignation and contempt were seen visibly struggling in the J—'s countenance upon this declaration.” The writer sympathized with poor George: “We believe every married man will feel for a tender, indulgent husband thus harassed with an expensive suit, in which, whether conqueror or conquered, he is equally one sufferer, being sure to pay the piper.”Footnote ⁹⁵ That husbands settled their wives’ legal costs was one of the few protections that femes coverts had. Here, however, it only served to prove how spoiled and spiteful Lady Warren was.

Lady Warren dropped her appeal, according to the London Chronicle, because they “finally settled in an amicable way.”Footnote ⁹⁶ This was false. They could not be reconciled. George focused on his peerage and completely ignored her, even when she attempted to goad him into a parliamentary divorce through an extramarital flirtation in the 1770s.Footnote ⁹⁷ As they aged, they drifted from the public eye. Then in 1794, the breakfast conflict dramatically reappeared in the radical Republican Charles Pigott's political satire The Female Jockey Club.Footnote ⁹⁸ Rich with sexual innuendo, the text claimed that Lady Warren had “intimated” in 1771 to her stepdaughter “the very alarming falling off which she experienced in Sir George, who had become altogether remiss in the performance of matrimonial duty.” Because he was “justly indignant, that his manhood should be called in question,” he decided “to prove the falsehood of the accusation, and to convince her ladyship of the error under which she laboured.” So, “one morning AT BREAKFAST . . . seizing her unawares, with all the vehemence of inflamed and indignant passion, brought the whole affair directly on the carpet, and atchieved [sic] a complete victory over all her doubts and apprehensions.” As a result, “by the violent means which he had employed, my lady thought proper to swear a rape against her lord and master, but the court unwilling to widen a breach which seemed to have been occasioned by too much ardour on both sides, quashed the matter, and reconciled the parties.” Pigott claimed the “anecdote afforded . . . an inexhaustible fund of conversation to all the fashionable circles, and an infinity of remarks.”Footnote ⁹⁹

Pigott's tale captured the cultural challenges that Lady Warren faced. An early modern view that all women were naturally lustful had developed into a political, rank-based argument in the eighteenth century.Footnote ¹⁰⁰ British critics had claimed for decades that female royals and aristocrats secretly pulled the reins of power by sexually controlling political ministers and the public. By the time Pigott published The Female Jockey Club in 1794, Marie-Antoinette and her circle were also depicted as lascivious and power-hungry, the opposite of bourgeois wives who were chaste, compliant, domestic, and in need of protection.Footnote ¹⁰¹ Pigott situated Lady Warren in this anti-aristocratic discourse, portraying her as sexually voracious (when in fact she was barely interested in sex). When Pigott transformed her into a female rake, he asked whether rape was even possible if women always wanted it. In fact, Lady Warren's advocates had depicted her as an obedient, sexually modest, and sensitive wife. But the challenge was her social rank. She belonged by birth to a coterie of women who were publicly portrayed as debauched and independent, busy cheating on their poor husbands (whose own infidelities were irrelevant). Lady Warren was not among these women, but Lord George's advocates and Judge Bettesworth treated her as one of them, even comparing her to notorious adulteresses in various asides.Footnote ¹⁰²

When Lord George died in 1801, Lady Warren found herself removed from his will in favor of her stepdaughter. Worse followed. In February 1804, her muslin gowns caught fire in bed, and she died days later from the burns. Yet even in death, she was not free of her husband. The press recalled their conflict at Doctors’ Commons but transformed the resolution into a fairytale: “afterwards [they] renewed all their conjugal endearments, and lived together till the death of Sir George.”Footnote ¹⁰³ Lady Warren's post-rape hatred had been rewritten as reconciliated bliss.

“A Man May Commit a Rape on His Own Wife”

Rape was not a word to be used lightly in court. Aside from the political risks of an advocate directly accusing George Warren or any other elite of such an act, the civilians — the ecclesiastical lawyers — of course also recognized that Doctors’ Commons had no criminal jurisdiction.Footnote ¹⁰⁴ There is one time recorded, however, that an advocate did use the word to discredit a scoundrel husband in 1766. In addition to the remarkable fact that this Doctors’ Commons debate explicitly invoked marital rape, this case also sheds light on the eighteenth-century transformation in representations of male and female sexuality that helped to make marital rape visible.

The Balderstons of Canterbury informally parted ways in 1759 after six years of marriage. William's legal career never flourished, leaving him unable to support his family. His wife and children moved to her brother's home, and he went to London to resuscitate his fortunes. When his wife, Philadelphia, tried to visit, he rebuffed her. He was not busy with work, as he claimed, but with other women. Once Philadelphia realized the depth of his double life by 1762, she began proceedings to separate formally on the grounds of adultery, easily proved by his illegitimate children. William became desperate. He made a surprise visit on 28 October 1765 to Philadelphia at her brother's Canterbury home to attempt reconciliation, but did so by brandishing pistols at the door, terrifying the servants. When he discovered that Philadelphia was out, he restrained her maid Hester Bowes to prevent her from escaping to warn his wife of his presence. When Philadelphia came home later and saw him (and her captured maid), she fell into “the Fi[t] of Histericks.” It was late at night, so he called a watchman through the window to call an apothecary for help, who arrived and supposedly calmed Philadelphia. In his legal briefs, William insisted that despite these setbacks the night was a success. He described how once Philadelphia relaxed, he “continued with his Wife until the next Morning,” when she “in a very courteous and polite manner express[ed] her Thanks and Gratitude . . . for . . . his great Civility and Conduct towards her during the preceding Night.”Footnote ¹⁰⁵

Philadelphia's household members were not so filled with thanks and gratitude. Hester Bowes finally escaped the next day to a Justice of the Peace to report William's assault upon her. Magistrates arrived with a warrant, seized, charged, and jailed him for days until a patron posted bail. From his perspective, his incarceration resulted from Philadelphia's brothers’ conspiracy to keep his wife (and her fortune) from him. He said nothing about his double life, instead painting himself as a tragic victim and Philadelphia as a loving, if high-strung, wife.Footnote ¹⁰⁶

William Balderston's claims about their October night were vague and euphemistic, but his attorneys pushed further at Doctors’ Commons, arguing that they had had sex that night. Dr. Harris, Philadelphia's advocate, charged back. If sexual contact occurred between the two, the question was whether she had consented: “If Mr. B. can prove he laid with his Wife in 1765, it will be material, the Sute being brought in 1762; but did not he use force, was he naked with her on the same Bed, more shd be said; Consent, Carnal Knowledge, because on the same Bed, is a weak implication, a Man may commit a Rape on his own Wife.”Footnote ¹⁰⁷

Harris's proposition that “a Man may commit a rape on his own wife” was not an endorsement, but rather an observation: husbands could coerce or force their wives into sex. The quick notes do not clarify if he meant this hypothetically or if he was suggesting that unwilling, forced sex had occurred that night in October 1765. Whatever happened, Judge John Bettesworth dismissed William's claims that they had renewed sexual relations. From the start, Bettesworth was not inclined toward William's version of events: “I never saw an All[egati]on with more Words & fewer Facts.”Footnote ¹⁰⁸ In the end, he granted Philadelphia's adultery separation against her wordy husband on the indisputable evidence of his having been present at his out-of-wedlock children's baptisms.Footnote ¹⁰⁹

The Warren and Balderston cases were contemporaneous, but parallel details took on different valences. Both wives were described as nervous, but Lady Warren's feelings were treated as emotionally self-indulgent and manipulative while Philadelphia Balderston's were treated as the natural reaction of a modest woman frightened of a brutal husband. While aristocratic wives like Lady Warren were viewed as debauched, manipulating their exhausted husbands, middle-class marriages like that of the Balderstons were portrayed contrarily, with sexual voracious husbands and modest wives. This representational shift may have helped to make some cases of marital rape more imaginable than in earlier decades when women were once seen as lustful as men.

This transformation toward seeing wives as victims of their husbands’ unrestrained sexual passion is epitomized by Mary Popkin's 1794 cruelty and adultery case against John Bennet Popkin. The two married in 1778 in Bath but spent most of their marriage on the Continent. By the late 1780s they resided primarily in Lisle, France. Deponents described John as mean-spirited and lascivious, a serial adulterer. His behavior was worse than merely frequenting prostitutes or carrying on affairs. Witnesses described sexual assaults on servants, local working women, and possibly even a three-year-old girl.Footnote ¹¹⁰ John's eventual venereal disease was predictable, but his willingness to keep separate bedrooms from his wife was less so. At some point, however, he tired of virtue when no other woman was available. In September 1790, he “forcibly dragged” Mary “towards his bed.” Once captured, she resisted. Upon “her refusal, he became violently enraged, made use of many outrageous and dreadful menaces to compel her,” but she escaped his bedroom to a parlor. In front of houseguests and servants, she dropped to “her knees, intreat[ing] him to desist, promising to return to his bed as soon as he would satisfy her he was cured.” From that night forward, John physically tried to force her into sex. Amazingly, Mary warded him off for months. Witnesses described how she was “injured and impaired by . . . anxiety fear and terror” “that he might at last effect what he had attempted and compel her by force to sleep with him.” When John traveled on a business trip in January 1791, Mary fled to England where she could file her matrimonial suit on the grounds of cruelty and adultery. She listed many wrongs but was selective in her formal allegations, emphasizing his infidelity, debauching of servants, symptomatic venereal disease, and recent threats to bed her in Lisle. Mary Popkin may have been forced or coerced into sex for years, but her attorneys left it to the witnesses to suggest such trauma.Footnote ¹¹¹

The court granted Mary's separation, but John appealed. In the final ruling, Judge William Scott saw ample justification for separation, not only because of the number of allegations but also because he considered their sexual nature to make them particularly cruel. Though his ruling was not sweeping, Scott limited some of husbands’ sexual rights. First, when he ruled that “A husband's attempt to debauch his own women servants was a strong act of cruelty . . . an act of considerable indignity and outrage to his wife's feelings,” Scott recognized that adultery was not distinct from cruelty but overlapping as it caused irreparable emotional pain. Not only did this mean that infidelity could be more than adultery but that cruelty was not only defined as a physical wound. This determination was among others that Scott made that acknowledged cruelty arising from emotional abuse and interpersonal turmoil, including that of a sexual nature. Second, he rejected husbands’ absolute carnal rights when he stated, “The husband has a right to the person of his wife, but not if her health is endangered.” Third, he shifted damage from something that had happened to something that could be credibly feared. Mary had resisted his violent attempts and therefore had not yet been raped or infected with venereal disease, but Scott recognized that she had a right to relief and protection: “It is not necessary, when there is an attempt at violence by an overt act, to wait till it is actually put into execution.” Fourth, though John Popkin's advocates argued that Mary's “promise” to return to his bed meant that she forgave him, Scott disagreed, recognizing that her “declaration . . . was made under force and violence, and to relieve herself from his attacks. The promise was merely conditional, and that condition was never fulfilled.”Footnote ¹¹²

Scott's finding cruelty in the Popkin case reflected a different legal approach than that of jurists in the cases of Ashe, Holmes, and Warren. Whereas judges had evaluated those cases in terms of whether life-threatening harm had occurred or not, Scott viewed John Popkin as having failed his contractual obligations. Scott did not question husbands’ prerogative over their wives’ bodies, but their bodily rights were predicated on their remaining faithful, healthy, and nonviolent. Scott was not the first to treat marriage as involving reciprocal commitments, even under coverture. As John Bettesworth explained in a 1775 case of marital sexual abuse, “Till ye husband behaves as he ought to do, ye wife is at liberty to stay from him.”Footnote ¹¹³ When these judges sanctioned a wife's resisting sex, they did so because they considered the marital contract as binding only when both parties fulfilled its terms. In certain situations, a wife's consent was revocable, and it was dependent on the husband fulfilling his side of a bargain.

Cruelty was not a black-and-white matter, and this was especially true when wives’ allegations were sexual in nature. Without statutes or specific definitions, ecclesiastical advocates had to identify when a husband's behavior was essentially breaching his marital contract. Because this court's authority resided in the spiritual and moral realms, their power to punish was very limited, but their prerogative to pass judgment on interpersonal behavior in marriage was extensive. They were the arbiters of not necessarily what was legal or not, but what was moral and ethical. Here then, advocates played upon a cultural sense of what was considered appropriate behavior. When practitioners represented wives, they insisted that there were limits to husbands’ control over their persons. Eighteenth-century defenders of wives did not fully challenge the hierarchical nature of coverture, but instead they exploited it, arguing that husbands were obligated to protect and cherish their wives if wives were expected to obey and comply. Advocates’ arguments increasingly emphasized the natural vulnerability and weakness of women across the eighteenth century. Though depicting wives as emotionally fragile placed them below men in terms of rationality and reason, these characterizations could also be practical. As Elizabeth Foyster has described, wives’ “hysterical” responses to abuse and sexual violence provided a culturally legitimate “vehicle of expression.”Footnote ¹¹⁴ Advocates also used such characterizations to defend wives against their husbands. The terminology they used here was thus not primarily individualistic and rights-based, but rather based on feeling, nature, morality, honor, and decorum. This of course is not equivalent to recognizing spouses’ fundamental status as individuals with equal rights over their bodies.

But these eighteenth-century arguments were also not the opposite. They did not say that wives were entirely subsumed by their husbands’ dictates, but rather proposed that spouses were ethically obligated to consider each other's needs and desires. As William Scott explained in 1790 case, “When people understand that they must live together except for a very few reasons . . . they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes.”Footnote ¹¹⁵ His opinion may seem oppressive from a modern, secular, individualistic understanding of marriage today. But in the context of the eighteenth century, Scott's view that some matrimonial conflict could be resolved through “mutual accommodation” was a challenge to husbands’ prerogatives over their wives in all matters and an alternative way of imagining coverture as a union of two individuals. Scott was forced to acknowledge that some husbands like John Popkin ultimately failed in their duties and that their wives could not be expected to be endlessly accommodating. Though Scott and other ecclesiastical judges hardly found for wives in all cases, these positions meant that husbands’ contractual failures were not proved only by action but by credible threat and the emotional fear that they instilled in their wives.