The 17th-Century English Judge Behind Abortion and Rape Rulings Today

Reporting trips, for me, are always an exercise in finding similarities among differences: the ribbons of shared dilemmas, conflicts and social changes that link people together, no matter their nation.

I spent most of the past two weeks in India, where that effort turned out to be more straightforward than expected. I was there working on a long-term project about young women struggling to strike a balance between their ambitions for new opportunities in a modernizing economy, and the constraints of a patriarchal system that expects them to remain at home, confined to the private sphere and governed first by their families, and then by their husbands and in-laws.

Many of their struggles seemed like more extreme versions of the dilemmas facing women around the world, including in the United States, where I grew up, and the United Kingdom, where I live now.

But somewhat unexpectedly there was also a far more direct link, which became clear when opinions by prominent judges in both countries became public within days of each other, both drawing on reasoning from the same man: Lord Matthew Hale, a 17th-century English jurist.

Hundreds of years ago, his decisions about women’s rights within marriage and over their own bodies — or, more precisely, his decisions that those rights ought to be constrained so that they wouldn’t encroach on men’s rights too much — became part of British common law, and so by extension the common law of the United States, India and other British colonies.

In the United States, Justice Alito’s leaked draft opinion to overturn Roe v. Wade cited Hale eight times. In India, an opinion from the Delhi High Court refused to criminalize spousal rape, upholding a legal exception that Hale had codified in a treatise in the 1600s. (The Indian court split, with another judge voting to end the exception. The petitioners plan to appeal the decision.)

“It’s so startling that within 10 days of each other, we have the leaked Alito decision and the decision on marital rape,” said Karuna Nundy, a lawyer who represented the petitioners in the Indian case. “Both traced back to a colonial-era misogyny that the constitutions of India and the United States — that guarantee individual rights, the individual rights to privacy of the body, to bodily integrity, to free sexual expression — have overridden.”

Or at least seemed, on paper and in other decisions, to have overridden. But both cases have shown how that kind of reasoning, once embedded not just within court judgments but also in social norms and practices that have their own collective momentum and power, can persist, even in the face of apparent progress.

The past is not dead: legal edition

A central tenet of Hale’s legal philosophy was that giving women legally enforceable rights over their own bodies was a threat to men’s freedom.

That comes through clearly in his famous description of rape as “an accusation easily to be made and hard to be proved and harder to be defended by the party accused, tho never so innocent.” That became the basis for centuries of jurisprudence and jury instructions that treated the moral character of rape victims as the paramount concern in rape cases, and often presumed that they were lying if they could not produce corroborating witnesses or other outside evidence for their claims.

Hale also wrote in his influential common-law treatise that marital rape could not be a crime because marriage itself constituted irrevocable consent to sex — but only for the wife. “For by their mutual matrimonial consent and contract,” he wrote, “the wife hath given herself up in this kind unto the husband which she cannot retract.” That belief was an outgrowth of the doctrine of coverture, which treated a married woman’s rights as “covered” by her husband’s. Her property became his, and she could not bring legal actions in her own right. The family, in this view, was a private sphere in which the husband was essentially the sovereign, and the wife could not appeal to the state for protection.

So far, so 17th century. Except that in common law systems, judicial opinions become binding the same way written laws do, so many of Hale’s beliefs didn’t stay in the past. Some are thankfully now defunct: We no longer hold witch trials, for instance. But his views on rape, marriage and abortion, enshrined in legal opinions, became part of Britain’s legal system, and then those of its colonies. And to say they have had global staying power there would be an understatement.

In the United Kingdom, marital rape was not criminalized until 1991. In the United States, it took until 1993 for it to be a crime in all 50 states. In India, it is still not criminalized at all.

Just two weeks ago, in the leaked draft opinion in Dobbs v. Jackson Women’s Health that promised to overturn Roe v. Wade, Justice Alito cited Hale’s treatise eight times as evidence that abortion was considered a crime at the time the U.S. Constitution was written.

And last Wednesday in India, the Delhi High Court issued a split verdict in the case challenging the country’s marital rape exception. The Indian government opposed the case in a brief that warned that removing the exception would make rape law “an easy tool for harassing husbands” and could have a “destabilizing effect on the institution of marriage” — ideas that seemed to flow directly out of Hale’s conception of marriage as a zone of male control.

One judge of the two-judge panel agreed, writing that it would be “antithetical to the very institution of marriage” for a husband to be regarded as a rapist — even if he compels his wife, repeatedly, to have sex without her consent.

The wiring of the patriarchy

But the common law is just the procedural mechanism by which these views became and remained law. The bigger story here is a political one.

In colonial India, allowing men control over the private sphere became part of an uneasy détente between the colonial authorities and Hindu nationalists who focused on the family as a zone that should be protected from foreign authority, Tanika Sarkar, an Indian historian of law and women’s rights, wrote in a famous 1993 article. (She also pointed out that it probably held some appeal for male colonial administrators who were uncomfortable with even just the modest progress that British women had won at home.)

In the United States, as numerous legal scholars have written, treating the family as a “private” sphere, protected against state interference, became a shield for male violence, including domestic abuse and spousal rape.

And just as protecting the hierarchy of male power became intertwined with nationalist politics in India, in the United States, traditional gender roles became a central element of southern states’ justification for white supremacy, including the Jim Crow laws.

“To justify and rationalize the brutality over Black men, they created this faux chivalry, and this supposed threat that white women had to be protected from,” said Angie Maxwell, a political scientist at the University of Arkansas. Protecting traditional gender roles thus became linked to protecting the racial hierarchy, she said.

That meant that the Roe v. Wade decision and other feminist reforms created an opportunity for the Republican Party: By framing feminism as a threat to white women’s safety and support, Republicans were able to win support among white women in the South. But that strategy also helped to cement the divide in American politics between a Republican Party dedicated to protecting existing hierarchies, and a Democratic Party that mostly sought more egalitarian reforms.

So while citing Hale looks from one angle like a sober reference to legal history, from another it reads as a more partisan political statement: This is how America has always been, and any change from it is illegitimate.

“The wiring of the patriarchy has been laid bare by the leaked Alito decision, and the fact that it hasn’t changed, even though both countries have constitutions that are meant to protect the individual rights of full citizens since then,” Nundy, the lawyer for the Indian case, told me. “It hasn’t changed from 300 years ago, though both countries gained independence since then. You’d expect that liberty of these sovereign nations would also bring liberty of the human body.”