Marital Consciousness and the Criminalization of Spousal Abuse

Abstract

Criminal law's treatment of spousal violence oscillates between two different views. According to the first view, spousal violence is to be defined and prosecuted using generic titles such as assault or battery. According to the second, spousal violence constitutes a form of abuse - a terminology implying a background state of power or inequality that exists in spousal relationships, turning it into a distinct legal wrong. This Essay draws on Hendrik Hartog's account of nineteenth-century marital consciousness in Man and Wife in America - which considers people's assumptions and expectations regarding rights and duties within marriage - to illuminate this contemporary debate and situate it within a larger inquiry concerning the residues of patriarchy in contemporary law and society. This analysis calls for a fresh normative assessment of the different views for proscribing spousal violence under contemporary criminal laws.