That is evident in his famous description of rape as “an accusation that is easy to make and hard to prove and harder to defend by the accused party, but never more innocent.” That became the basis for centuries of jurisprudence and jury instruction that treated the moral character of rape victims as the number one concern in rape cases, often presuming that they were lying if they could not provide 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 involved an irrevocable consent to sex — but only for the woman. “For by their mutual consent and contract of marriage,” he wrote, “the woman has thus surrendered herself to the man who cannot withdraw her.” That belief was an outgrowth of the cover-up doctrine, which treated a married woman’s rights as “covered” by her husband’s. Her became his property, and she was unable to take legal action herself. The family, in this view, was a private sphere in which the man was essentially the sovereign, and the woman had no recourse to the state for protection.
So far, so 17th century. Except that in common law systems judicial opinions become binding in the same way as written laws, many of Hale’s convictions have not remained in the past. Some are fortunately now defunct: for example, we no longer hold witch trials. But his views on rape, marriage and abortion, anchored in legal advice, became part of the British legal system and then that of its colonies. And to say they have had global stamina would be an understatement.
Marital rape was not criminalized until 1991 in the United Kingdom. In the United States, it wasn’t until 1993 that it was 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 nullify Roe v. Wade, Judge Alito cited Hale’s dissertation eight times as evidence that abortion was considered a crime at the time when the US Constitution was written.
And last Wednesday in India, the Delhi Supreme Court issued a split judgment in the case challenging the exception for rape within the country. The Indian government opposed the case in a letter warning that removing the exception would make the Rape Act “an easy tool to harass spouses” and could “destabilize the institution of marriage” – ideas straight from Hale’s conception of marriage as a zone of male control.
