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The Racial Origins of U.S. Domestic Violence Law

  • Author(s): Mahan, Margo
  • Advisor(s): Fox, Cybelle
  • et al.
Abstract

This dissertation investigates the historical emergence of wife-beating laws in the United States. The key questions I investigate are: What were the social conditions in which wife- beating laws emerged in the nineteenth-century South? What do these conditions reveal about the primary functions of these laws? Based on analysis of 19th-century legal and government data, local and appellate case records, federal reports, Freedman’s Bureau documents, periodical data, and family records, I argue that Southern wife-beating laws were a white supremacist post-Civil War response to the legalization of black family formation. They functioned to control black labor and degrade the status of blackness.

My research challenges conventional accounts about the historical origins of U.S. domestic violence legislation. Since the proliferation of early wife-beating laws (1870-1900) coincided with first wave feminism, scholarship assumes that they were the result of feminist agency and borne out of a desire to protect women. These assumptions have led to two important limitations in domestic violence scholarship. First, most scholarship focuses on the North, where first wave feminism flourished. Second, even when research considers the effects of other social factors, such as race and class, it foregrounds the effects of feminist agency. Both limitations are troubling because the first state to legally rescind a husband’s right to chastise his wife was Alabama, whose 1871 Fulgham v. State ruling was also the country’s first in which the litigants were black. In fact, anti-wife-beating laws proliferated throughout southern states where, like Alabama, there was neither a feminist movement, nor female collective action against wife-beating. By the early 1900s, the ideological association between wife-beating and black families was so pervasive that denying “wife-beaters” the vote was a device some southern states used to disenfranchise black men.

In contrast to the feminist narrative, I argue that southern anti-wife-beating laws were a postbellum response to the racialized and gendered convergence of the antebellum Master- slave and Husband-wife relationships. Antebellum socio-legal norms simultaneously advanced marital cruelty protections for wives on the one hand and encouraged the physical chastisement of slaves on the other. This ensured that the authority to beat slave women – to include de facto slave wives – was a specifically white male prerogative; and, it added physical chastisement to a long list of naturalized distinctions between blackness and whiteness. Emancipation exposed the fragility of ‘domestic relations’ – and thus the

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southern way of life – by highlighting its dependence on racialized gender hierarchies. Wife- beating laws that threatened to punish black men, in the midst of socio-legal norms that kept black women vulnerable to white male violence, helped to restore a southern way of life that simultaneously controlled the labor and degraded the status of black families.

The dissertation has six chapters. The introductory chapter provides the theoretical framework for the project. Wife-beating cases, I argue, performed the crucial socio-legal function of reinforcing domestic gender norms – norms that were inextricably articulated through race and class, given the southern household’s distinctive Master-slave relationship. Chapter Two reveals that the antebellum progression of laws created a racialized double- standard for wife-beating, in which the prerogative to chastise white wives and slave men’s de facto wives, was a privilege exclusive to white men. Chapter Three begins after the Civil war, when the Reconstruction amendments led Southern states to legally recognize black marriages and families. But the antebellum racialized double-standard for wife-beating nevertheless endured, criminalizing black men as wife-beaters in a burgeoning law and order regime that enabled control over black labor. Chapter Four elucidates how, the racialization of wife-beating as a black crime functioned to symbolize and reify a hegemonic ideology of black family dysfunction. Chapter Five examines how wife-beating is eventually used to disenfranchise black men. Chapter Six concludes the dissertation. Situated at the intersection of sociology of family, political economy, criminalization, and 19th-century southern historical literatures, my dissertation reveals how racial projects to symbolically and materially privilege Whiteness motivated the emergence of “feminist” laws that scholarship and social policy largely conceptualize as apart from race, class, and market forces.

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