How Centuries of Legal Precedent Stack the System Against Survivors

The legacy of legislators and judges turning a blind eye to rape and sexual assault underscores why it matters who sits on our courts—and why the Senate must do better in vetting candidates and adopt a formal process to address sexual assault allegations.

The American legal system, both at the legislative and judicial levels, shapes social norms that historically make it difficult for survivors to come forward, and influences how law enforcement responds and prosecutors react in cases of alleged sexual misconduct. In my forthcoming book, Policing The Womb, I show how, across multiple states during a sample six-month period in 2016, judges failed victims of sexual assault.

In May, 2016, Judge Patrick Butler sentenced University of Colorado student Austin Wilkerson to community service for the sexual assault on an incapacitated freshman. In June, former Indiana University student John Enoch spent one day in jail after being charged with two rapes. In July, Judge Barry Steelman accepted the plea deal and suspended sentence of a school bus driver in Tennessee who raped a student at a local motel. In August, Judge William Estes sentenced David Becker, also a student athlete, to suspended probation rather than the two years recommended by prosecutors after he was found guilty of sexual battery against two women. In September, Hadi Nabulsi was sentenced to serve one year in jail for raping a child in Massachusetts. In October, Judge Michael Hensley of Madison, Indiana refused to issue an arrest warrant for Anthony Russell, who had a history of brutally battering his wife; hours later, Russell murdered his estranged wife.

These decisions are not without precedent. A close review of American legal history reveals a shameful past—one where the law of coverture, which defined women and their daughters as property, was incorporated into our legal system. As a matter of law, women’s sexuality was bundled within the ambit of property rights conferred to husbands. This judicial standard became ensconced in legislation throughout the United States.

Legal jurisprudence in the U.S., from its earliest origins through the late 1980s, is replete with cases where courts refuse to punish men for raping their wives—the women to whom they swore their loyalty, love and protection. According to the Supreme Court of Alabama, it “was a grave breach of marital duty” for wives to refuse intercourse with their husbands, and, the Court explained, “a husband may enforce sexual connection… and… in the exercise of his marital right he cannot be guilty of the offense of rape.”

In State v. Paolella, a case involving the kidnapping-at gunpoint-and rape of an estranged wife, the Connecticut Supreme Court acknowledged that “[c]ertainly there is ample evidence at this point for the court to find that the… basic elements of the rape have been proven,” but ruled that “a finding by the trier that the alleged offender and the victim were married exonerates the alleged offender, regardless of the proof of forcible sexual intercourse.”

As a result, by law, men could rape their wives, and even daughters, without punishment. The Colorado Supreme Court explained in 1981 that marital exemptions from rape prosecutions promoted legitimate state interests in preserving family relationships and averting juries having to grapple with “intimate sexual feelings, frustrations [and] habits” of married couples. The Court turned on its head what juries have been asked to do since the institution came into existence.

Indeed, parental immunity has been used by fathers as a successful defense against incest in civil cases. Courts have found it to be disruptive of family harmony for girls to litigate against their fathers in cases of incest. In a case concerning the gang-rape of a 10 year old girl, the Supreme Court of Massachusetts issued a reminder: if one of the men had been married to the girl, that fact would be a credible defense. A California court, in People v. Henry, offered similar advice to a father who admitted to raping and impregnating his 13-year-old daughter.

The Washington Supreme Court ruled in Roller v. Roller that a 15-year-old girl could not maintain an action of rape against her father, explaining that it was “against public policy” to allow such a suit to go forward. Although the Court recognized rape as a heinous action, it found that there would be no principled way to differentiate between rape and “any other tort” in actions by children against their parents. Courts across the country were persuaded by the same notion that allowing such litigation to proceed would disrupt parental authority in the household and interfere with the so-called “domestic tranquility” of families.

Historically, it could be argued that U.S. courts were never concerned with women’s capacities or autonomy in evaluating choices with regard to sex, sexuality and reproduction. Those types of questions were unnecessary to ask and answer; ostensibly, women’s and girls’ responses were irrelevant. (One exception consistent with the same pattern was when the perpetrator was Black and the victim a white woman; by prosecuting Black men for founded and unfounded cases of rape, white men were protecting and defending their property in the sexuality of white women and exercising their authority over Black people.)

Judicial temperament and integrity matter—not only in whether a judge has committed a sexual assault, but also in terms of what temperament and discretion is brought to evaluating the claims of others.

There are judges interested in protecting survivors and punishing wrongdoers who commit sexual violence. These are some of America’s unsung heroes. But, simply put, the American rule of law has historically focused on shielding perpetrators, not protecting victims of sexual assault.


Michele Bratcher Goodwin is a prolific thoughtleader on matters of constitutional law and health policy. In addition to Ms. magazine, Dr. Goodwin's commentary can be read in The Atlantic, The New York Times, the Nation, CNN and The L.A. Times, among others. She holds the Linda D. & Timothy J. O'Neill chair in constitutional law and global health policy at Georgetown Law School and serves as the co-faculty director of the O'Neill Institute for National and Global Health Law. She is the executive producer of Ms. Studios.