Shaw v. Shaw
In February of 1845, after a preliminary hearing, the dispute went to Connecticut's Supreme Court of Errors.
Daniel's lawyers argued that he was not guilty of "intolerable cruelty" because these words meant "personal violence," resulting in extreme suffering or death--or, at least, endangering one's life or health. Daniel's actions were not "cruel" in either sense--certainly not extreme enough to allow for even a divorce a mensa et thoro. Finally, words, however abusive, are not legal cruelty. Daniel's violence did not endanger life, injure his wife, or disturb the peace. For such lesser cruelties, the remedy lay with the legislature, not the courts.
Emeline's lawyers argued that the supreme court should permit the Shaws to separate. By endangering his "blameless" wife's health, Daniel had forfeited his right to Emeline's company. Even though Daniel committed no bodily harm to his wife, his behavior defeated "the great ends of marriage." Especially offensive was his insulting and obscene language in front of the children, the mental "torture" he inflicted upon her by denying her access to her friends and family, and his "barbarous and disgusting abuse of his marital rights" by rape.
For the court, Chief Justice Williams first asked what constituted intolerable cruelty:
What is that "intolerable cruelty" spoken of in the statute? It doubtless speaks of acts done to the wife herself; and we understand it to impart barbarous, savage, inhuman acts. They must be of that character as to be in fact intolerable, not to be borne. The legislature must have had in view acts as cruel at least for those for which, under the head of extreme cruelty, the ecclesiastical courts in Great Britain divorce a mensa et thoro; and those decisions may furnish some assistance upon the subject . . .
The chief justice accepted Daniel's lawyers' argument that words, however abusive, did not amount to legal cruelty. He also agreed that Daniel's violence did not endanger his wife's life, injure her, or disturb the peace. Rationalizing Daniel's abusive language, Williams said:
The first thing to be considered . . . is the language made use of, by this defendant, towards his wife. It is vulgar, obscene, harsh . . . They were, however, accompanied by no act or menace indicating violence to her person . . . but when we look further, and find, that he was jealous of his wife, it is not so much to be wondered at, as we have been told by authority, that "jealousy is the rage of man." The unfortunate victim of this passion is indeed to be pitied; but the law furnishes no remedy for conduct like this.
Refusing to let Emeline visit her own mother and relatives was "harsh, if not cruel," the court agreed. However, it upheld the rule of patriarchy, concluding:
As the husband must have the right to say who shall be admitted to his house, and in some measure to regulate the intercourse of his wife, the court cannot draw a line by which his authority can be restrained.
Chief Justice Williams added that even unreasonable exercise of a husband's authority was not the kind of cruelty that would warrant a separation. He attributed Daniel's rape of his wife to his ignorance of Emeline's condition. Daniel did not know he was hurting her, and besides, she suffered no "real" harm. In conclusion, nothing the husband had done to the wife, rape included, was unlawful:
Were these acts, such acts of intolerable cruelty as are a cause of separation? No case of this kind is known to have been brought before the court . . . The cases [of violence] found in the books, are cases of violence, where the natural consequence would be injurious or dangerous, and where the act, therefore, was unlawful. Here the act in itself was a lawful act--in ordinary circumstances, not injurious nor dangerous . . . Are we to couple an act of this kind with an act where a violent blow is given, which must greatly injure or endanger, and which was so intended?
Therefore, the court refused to allow Emeline either to divorce or separate from Daniel.
Shaw v. Shaw illustrates how supportive the courts were of the idea that the husband was the head of the house: The "husband must have the right to say who shall be admitted to his house, and in some measure to regulate the intercourse of his wife." His rape of his wife, unlike today, was neither criminal nor cruel.
In 1978, only three states had laws that did not grant married men immunity from the rape of their wives. That year, the trial of Oregon v. Rideout led many other states to abolish marital and cohabitation exemptions to rape.