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November 9, 2011

"Marriage as Punishment"

The title of this post is the title of this forthcoming article by Professor Melissa Murray now available on SSRN. As the abstract reveals, this piece a serious discussion of interesting issues (though the title might sound like the punchline of a bad joke among rowdy bachelors):

Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will.  However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used -- and importantly, continues to be used -- as state-imposed sexual discipline.

Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who 'seduced and had sexual intercourse with an unmarried female of previously chaste character' under a 'promise of marriage.' Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage.  The defendant could simply marry the victim and avoid liability for the crime.  However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.

The history of marriage as punishment offers important insights for contemporary discussions of marriage.  It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry.  Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.

With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.

November 9, 2011 at 08:27 AM | Permalink

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Comments

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When the BOP looks at time in a halfway house, inmates who are married and have a family get less halfway house time than someone single.

Posted by: JS | Nov 9, 2011 9:06:02 AM

it sounds to me that forcing the woman to marry the dishonest cad who seduced her was more designed to punish the woman than the man.

Posted by: virginia | Nov 9, 2011 9:18:52 AM

I am really looking forward to reading Supremacy Claus's comments on this post.

Posted by: def atty | Nov 9, 2011 11:45:08 AM

Never let your wife catch you reading an entry titled, "Marriage as Punishment."

Posted by: Bill Otis | Nov 9, 2011 12:51:07 PM

"transforming them from sexual outlaws into in-laws."

Not only do I like the way this lady thinks, I love the way she writes. I wonder if she's single.

Posted by: Daniel | Nov 9, 2011 2:19:14 PM

bill: "Never let your wife catch you reading an entry titled, "Marriage as Punishment.""

me: spoken with experience?

I guess that my argument that the marriage was more designed to punish the woman than the man wouldn't help very much.

Posted by: virginia | Nov 10, 2011 5:53:48 AM

Marriage is punishment for the man too. if you got involved to make you wife indulged in shop and makeup.

Posted by: Tax relief Irvine, ca | Nov 10, 2011 10:51:04 AM

I'm kind of divided between laughing or getting offended by the spambot because I believe it tried to make some sort of sexist comment about women. Does posting unreadable barely illiterate drivel actually help bring in business?

Posted by: virginia | Nov 10, 2011 12:19:52 PM

um, barely literate - but barely illiterate actually sort of works too

Posted by: virginia | Nov 10, 2011 12:21:46 PM

I ♥ Bill's comment.
I'm taking his free legal advice to ♥.

A few years ago my ♥spouse♥, now 45+ yr married, chastised me as I read a Columbus Dispatch business article quoting Forbes' statement that Britney Spears was a top earner with the sales of her CDs.

I was in trouble one millisecond after "s" #2 in "Spears" left my lips.

9 Nov 2011 Wed 12:51:07 –0500
Bill Otis: "Never let your wife catch you reading an entry titled, "Marriage as Punishment."

Posted by: JAG | Nov 10, 2011 3:09:16 PM

I got the best information to over here. Great post love to read your post.

Posted by: tshirts bedrukken | Nov 11, 2011 1:58:47 AM

The colors are so gorgeous Sandy! I am sure your quilt will be perfectly lovely! Wishing you a wonderful week! Angie xo

Posted by: Basketball Sneakers | Aug 6, 2012 5:41:12 AM

Many might not understand why we consider that marriage is a punishment. But it is for me when I wrongly married my husband.

Posted by: Melissa Boyle | Oct 16, 2012 1:28:14 PM

is marriage really considered as a form of punishment among women? if you happen to apply for a divorce then why worry about it? i simply dont get it. marry only the man that truly loves you!

Posted by: caskets | Nov 6, 2012 11:57:50 AM

I agree with JS. Forcing the man (who seduced) to marry the woman is not actually the man who is punished, it is the woman.

I just hope that "marriage as punishment" will not happen to anybody.

I am happily married with 2 kids ;-)

Posted by: Stormer Gaspar | Feb 19, 2013 9:10:08 AM

Marriage is a holy union that should be taken seriously not for granted. It will be a marriage as a punishment if and only if the couples are not anymore happy with each others' company. When they are only saving their marriage because of their reputation or for the sake of their children. In this case, this kind of marriage is a sacrifice and a punishment to each of them.

Posted by: Suzanne Buckner | Feb 20, 2013 4:12:35 AM

I believe that, no people will be seduced if they are not willing to be seduced. Get it? :)

Posted by: Hartl Loftus | Feb 25, 2013 2:51:32 AM

Marriage has never been a punishment for me. Since I got married, there was never a day that I regretted from being married.

Posted by: Naples Maness | Mar 5, 2013 8:34:21 AM

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