November 28, 2022

The Man Who Hated Women

Guest Opinion
By Isiah Smith, Jr. | Sept. 24, 2022

The Dobbs v. Jackson decision presented the Supreme Court with an opportunity to reaffirm women’s right to choose and to reassure them that the law respected their lives and their dignity. Justice Alito declined that opportunity, however, and instead gave them Hale.

Matthew Hale that is.

Although he lived from 1609 to 1676, Matthew Hale abides. Hardly anyone had ever heard of Hale until Justice Alito referenced him repeatedly in the controversial Dobbs decision. University of Minnesota Law Professor Jill Elaine Hasday says in a story in The Washington Post that women today are still living in a world Hale helped create.

The first thing you should know about Hale is that, as a judge in 17th-century England, he presided over “witchcraft” trials. After one such trial, he found two women guilty and sentenced them to death. It could just as easily be said that the judge sentenced the women to death for the crime of being women.

But wait, there’s more: As Professor Hasday notes, Hale was an unusually prolific writer, known for a posthumous 1736 history of criminal law in Great Britain, which, for some reason, is widely relied upon today by American judges in hundreds of opinions.

Hale was clearly not writing for women, who, not incidentally, were excluded from the legal profession and judiciary. Nevertheless, he had more than a little to say about women. For example, his opinions on rape were bedrocks of American law for generations and persist to this day.

Hale believed that legal authorities should rarely trust women who reported having been raped. He believed rape was “an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Judges and lawyers quoted Hale’s poisoned opinions well into the second half of the 20th century. Echoes of Hale’s suspicion of women still reverberate in American law and culture, with the result that rapists often avoid punishment.

Perhaps Hale’s greatest disservice to the rights of women and most vicious affront to their dignity was his defense of the marital rape exemption, the idea that by virtue of marriage, a husband could not be prosecuted for raping his wife. Hale believed that a woman’s agreement to marry a man meant that she had placed her body under his total and permanent dominion and control!

In chilling words, Hale wrote: “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.”

Courts and legislatures found Hale’s explanation persuasive and embraced it for centuries. Until the 1970s, no American state would prosecute a husband for raping his wife—no matter the brutality, no matter the evidence, no matter the harm done to the woman’s body and psyche.

Even today, many commenters remain dubious of a woman claiming that she was raped by her husband. It’s the price exacted for availing herself of the benefits of being cared for by the husband. Perhaps my first year property law professor said it best: “When a man and a woman marry, they become one; and the husband is the one.” I do not believe he was joking.

The men (only men, of course) who created America’s legal order and system of justice cited Hale with ardent approval. Therefore, it does not come as a surprise that they refused to give women the rights of full citizenship, including the right to vote.

It is surprising, however, that, in 2022, Justice Alito, the author of the Dobbs decision that overruled Roe, relied heavily on a judge who believed that women could be witches. And the women who were not considered witches were subservient and therefore subordinated to the will of their husband (who, presumably, wouldn’t burn them at the stake).

I think that Justice Alito’s heavy reliance on a 17th-century misanthropic, misogynistic English juris says something quite disturbing about American society and the history of how this nation has considered women.

57 countries worldwide have been led by women since 1960. Great Britain just swore in Liz Truss, its third female prime minister. America is 246 years old, but we have yet to swear in a female leader. We came close six years ago; however, she lost to a person whose only qualification for president was apparently his gender.

America has had 46 presidents, all men, at least 20 of whom have been mediocre or worse. Yet we continue to elect them in the vain hope that at least some of them will wind up being okay.

Justice Alito wrote that abortion is not mentioned in the Constitution. You know what else isn’t mentioned?

Women.

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