The Rule of Thumb and Progress (History and Domestic Violence)

There once was a time when marriage was a complete bar to the charge of battery.  Then that complete defense was replaced with the “rule of thumb;” that anything used to beat one’s wife needed to be smaller than one’s thumb.  Then starting with the reign of Charles II in the 1600’s, the rule of thumb was slowly eradicated.  Charles II was influenced by his wife Catherine of Braganza, who had witnessed violence by the “rule of thumb” and thought the measure of battery on one’s wife should be the effect, not the tool used.  She also changed history in other ways, as Catherine is also credited with introducing Britain to tea.

In the late 1800’s American courts were still struggling with whether marriage was a complete defense to battery, whether the “rule of thumb” applied instead, or if Charles II was right and the effect of the beating was the correct measure.  The tendency was for the courts to view the “family government” as its own insular unit that could manage its own affairs and that it was not the place of the courts to insert themselves into family matters.

One case from the Supreme Court of North Carolina in 1868 is particularly illustrative.  The opinion finds that “Defendant struck Elizabeth Rhodes, his wife,…without any provocation except some words uttered by her…[however, the court] will not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence.”  State v. A.B. Rhodes (1868) 61 N.C. 453.  The “respect” for the privacy of the family unit was so great that spousal battery was a trifling matter.

The hands-off approach of days-past was ridiculous and I would argue (correctly) that misogyny was cloaked in privacy.  However, the family law courts of today are more intrusive than any other form of government and there is something to be said for limiting the role of the judiciary.  Today, Judges make orders regarding school schedules, spousal support, and who gets the family dog.  Pragmatically, when spouses can’t agree on anything—someone simply has to decide.  I hope that someday the role of the judiciary can become less intrusive while still redressing harm and vindicating spouse’s rights.

Our domestic violence system is not perfect today.  Many times law enforcement “misses the boat,” affected spouses are afraid of reprisal, or they have difficulty presenting their case without a lawyer.  But, we are making progress.  Our courts have upheld the complete defense of marriage to both battery and rape, then shifted to a “rule of thumb” test, then focused on the effect of the battery, and now we have a slew of acts that qualify as domestic violence.  Have a cup of tea and thank Catherine of Braganza for her guidance along the way.

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Filed under Abuse, Family Law, Mindless Academia, The Judiciary

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