1 Rape within marriage is a very new crime in the history of French penal law. [2] Compiling a criminal history of marital rape in the seventeenth and eighteenth centuries would therefore appear to be an unachievable, not to say anachronistic task. Firstly, because it was not considered an offence, this violence has left no trace, a priori, in judicial practice. And secondly, because it might appear irrelevant to study a notion that was absent from contemporary mentalities. However, the fact that a particular form of violence was not recognized in law does not mean that it had no social reality, or that people living at the time were not sensitive to it; nor does it mean that they did not recognize it in any way, culturally and socially. [3]
2 This study is based on the hypothesis that it is sometimes necessary to go beyond the boundaries defined by the law when analysing the judicial archives of the ancien régime, in order to comprehend historical issues that are still unexplored. Social and cultural sensibilities are then exposed to the light of day, and seen to be more delicate and subtle than those revealed at first sight by legal and judicial treatises. [4] Certain civil proceedings enable us to glimpse the intimacy of marital beds and to detect possible traces of violence in them. Proceedings for marriage annulment on grounds of lack of consent and sexual impotence have been identified for this research in the collections of the Officialité métropolitaine et diocésaine de Paris [Paris Metropolitan and Diocesan Office]; they cover the years 1609 to 1750, and are among the rare sources to document them. [5] The petitions studied involve women of all social categories who wished to annul their marriage either because they had not consented to it, or because of their husband’s inability to consummate it.
3 Other cases, such as requests for séparation d’habitation et de biens [separation of bed, board and property], refer to conjugal violence a priori unconnected with sexual matters. [6] This procedure meant that spouses could be freed from the duty of residing together and having conjugal relations. The complaints, mainly by women, describe serious physical violence but they also, from time to time, reveal sexual abuse.
4 An attentive reading of the discourse of parties involved in matrimonial proceedings, both secular and ecclesiastical, therefore enables us to identify a threshold beyond which conjugal sexual violence brought to the attention of the law could not escape repercussions. However, the patience required by the historian to gain access to this reality demonstrates the extent to which the women victims of this violence within marriage had to develop an intimate knowledge of the few means of legal action available to them, in order to obtain recognition of the intolerable nature of the sexual abuse they had suffered. [7] In fact, the words of women very rarely exceeded this threshold: women did no more than touch upon the crimes committed when they spoke of them, merely indicating that a barrier had been breached, but without saying anything more. It is this threshold between the tolerable and intolerable, the expressible and inexpressible that will be evaluated here.
5 This investigation is therefore doubly perilous. First, because cases are rare and can only be discerned because they constituted aggravating circumstances arising from conjugal faults of a different nature (e.g. impotence, physical violence). And second, because once these case-files have been identified, we are confronted by the silence of the female plaintiffs, who rarely make an explicit confession.
6 A lead is, however, offered through an analysis of the place of gender norms in the perception of this sexual violence within marriage. How did legal, moral, and cultural norms incorporate constraint into conjugal sexuality? All the cases that have been identified as implying sexual abuse within marriage involve violent acts committed by men against women. It will therefore be necessary to analyse the importance of gender roles in triggering such violence. In order to do this, we need to assess the extent to which the legal definitions of marriage – both ecclesiastical and secular – might have encouraged sexual violence on the wedding night as well as during the couple’s married life. How was consent to marital sex governed by the patriarchal gender order? Were there circumstances or sexual practices that these norms could tolerate, or legal loopholes that could be used by wives to protect themselves from a husband’s sexual violence? We shall therefore need to try and identify the legal and linguistic detours that enabled victims to gain acknowledgment of the sexual violence suffered at the hands of their husbands. Identifying those practices considered as violent in conjugal sex and, conversely, the practices among “mistreatment by husbands” that were considered to be sexual, will lead us to question seventeenth- and eighteenth-century definitions of conjugal violence.
The wedding night
Forced consummation
7 Thirteen files annulling forced marriages were discovered in the collections of the Paris Officialité. Eight court cases out of thirteen were brought by women, who had often been promised in marriage at a very early age by their parents or guardians, whom they accused of having forced their consent. Canon law, which was the only authority in the matter of validity of the sacraments, clearly established free and mutual consent as the founding principle of marriage, and this had been reaffirmed by the Council of Trent in 1563. [8] This point of doctrine gave officialités the ability to annul forced marriages, which they did not hesitate to do in the four judgments found among the set of eight files in the archives of the Paris officialité. In all likelihood, these rare petitions provide only minimal traces of the reality of forced marriages over the period. In order to take part in court proceedings, children had to be freed from the authoritative supervision of parents or guardians and, in the case of married women, from that of their husbands. They mostly did this many years after their marriage, especially as royal legislation since the sixteenth century, unlike ecclesiastical policy, helped to strengthen the power of parents over the matrimonial fate of minor children. Marriages of “children of [good] families” without parental authorization were considered as bride abduction and could be annulled by the royal courts, with severe punishment for the betrothed couple. [9] After the royal edict of 1556, they risked being deprived of the right of inheritance if they were of age.
8 The importance of strong economic and strategic interests could lead parents to force their underage children into marriage. Éléonore Thérèse De Lorme had the unfortunate experience of this. [10] The daughter of a review commissioner of modest fortune, living at Arc-en-Barrois, she was married in 1726 at the age of 17. Her very rich husband, Jean-Baptiste Rapally, was 37, and offered a dowry of 6,000 livres tournois (Tours pounds) of annuity, as well as a voluntary settlement of all his property. At the banquet organized after the wedding ceremony, Éléonore Thérèse escaped from the table and took refuge in her usual bedroom in order to lie down. But she had reckoned without the perspicacity of her mother, Nicole Parisel. Éléonore Thérèse testified that:
Her mother came to fetch her and, with two chambermaids, took her to the bedroom intended for Sieur Rapaly. Having been taken there against her wishes she told her mother that she did not wish to sleep with the said Sieur Rapaly because she was not his wife and did not recognize him as her husband. Her said mother had her undressed by her two chambermaids who put her in the bed intended for the said Sieur Rapaly, having kept her shift on. That soon afterwards Sieur Rapaly came into the room, and she replying that she was unwell was given eau de mélisse [an herbal concoction], and she remained in this state for about two hours. That when she recovered herself she saw nobody in the room, but saw the Sieur Rapaly lying next to her. That she did not sleep all night and did not allow the Sieur Rapaly to approach her. [11]
10 The bluntness of this account demonstrates the extent to which parents could participate in the sexual violence used against their children, precisely because of the authority they wielded over them and which they could abuse.
11 But why was the young girl forced to consummate the marriage in this way if it had been possible to drag a semblance of consent from her during the religious ceremony? Nicole Parisel’s conduct speaks of her strong attachment to a carnal definition of marriage that was very ancient. From the pontificate of Alexander III onwards, the doctrine of matrimonial consensus included the idea that physical consummation on the wedding night reinforced the practical indissolubility of the marriage: it went from initiated (initiatum) to becoming ratified (ratum). [12] Conversely, successful resistance by the wife on the wedding night confirmed her absence of consent to the marriage, and became proof of the abuse committed by her parents. [13] Relying on the attachment of canon law to copula carnalis, the husband who used force on the wedding night aimed to limit the risk of his forced marriage being legally annulled.
12 Before the wedding, however, Mademoiselle De Lorme’s mother and stepfather, Sieur Dupin, had appeared to waver and to listen momentarily to their daughter’s entreaties. Following the betrothal at the church of Saint-Eustache, the witnesses, friends and relatives of the future spouses had gathered in the garden of a Parisian caterer. Finding her parents on a seat, Éléanor Thérèse threw herself at their feet and implored them to postpone the marriage by at least a week. Her mother “appeared to share her pain, even telling her husband that he would be responsible for the consequences of such a marriage”, and thus making him weaken. But one of the guests at the meal, Sieur Ricard, then intervened and insisted that the union should be concluded speedily, telling Sieur Dupin “that he should use the authority he had over his wife and daughter”. Under the effect of this compelling call to order with its patriarchal tone, Sieur Dupin forced his stepdaughter to marry the following day at five in the morning, as planned. The mother, Nicole Parisel, then appears to have come round to the idea that young women’s resistance to their arranged marriages was the result of caprice and naivety and that, with time, they learned to love their husbands or at least respect their wifely duties. According to Éléonore Thérèse, her mother had forced her to write amicable letters to Rapally before her marriage, as a way of teaching her the art of being a good wife. [14] But the services of a good wife also consisted in satisfying her husband sexually. In the words of Nicole Parisel, the young woman “should henceforth be concerned solely with pleasing Sieur Rapally, & refusing him that which husbands have the right to expect of their wives would mean antagonizing him for good”. [15]
A rather inaudible resistance?
13 This inability to take a young girl’s resistance into consideration is also perceptible in the reactions of other spouses who were rejected in this way. Most of the husbands in these eight cases of forced marriage appear to pay very little attention to their fiancées’ actual consent. Jean-Baptiste Rapally hotly contested his wife’s version of events during their wedding night, causing Terrasson, the lawyer of the woman he claimed as his wife, to say that “he took the act [of consummation] for his own wishes, & the proof in his own love”. [16] In the eyes of Jean-Baptiste, the marriage had been consummated and the spouses were sexually satisfied. Another husband with little insight, François Parmentier, a 28-year old tailor, declared when he was examined on 26 September 1696, that he had not noticed any resistance on the part of his fiancée, Jeanne Tavillon, before she left him and disappeared, which led him to enlist in the army through “despair”. [17]
14 In exceptional cases, other forms of conduct were in evidence. Jacques Germont, a 30-year-old Parisian painter, explained on 24 May 1660 that Marguerite Verdavoine, aged around 14 at the time of their marriage, appeared “not to show him much affection but because of her youth he did not pay much attention and her mother said that fondness would grow”. [18] Marguerite’s account, twelve years later, reveals that her husband had shown understanding when faced with her refusals, “saying that she had to be left in peace”, whereas her mother tried to force her to submit. Unlike Sieur Rapally, he readily admitted that he had not been able to consummate his marriage during the six months they lived together.
15 Was this husband aware of the principle defended by some seventeenth-century moralists, according to which the approach to matrimonial alliance had to be reconciled with inclination, or at least with an absence of opposition by the future wife? [19] According to this ideal, parents had to make the best choice for their children and avoid the harmful consequences of a marriage based on mutual hatred and disgust, so as to preserve family honour. Women who were victims of forced marriages could therefore insist upon legal safeguards imposed on parental authority in order to have their marriage annulled, and possibly call on moral provisions too. But what happened to wives who had openly consented to their marriage and sometimes even loved their husbands, but were subsequently faced with sexual violence during the course of their life together? The legal window of opportunity available to wives of sexually violent husbands was extremely tiny and sources are particularly difficult to find, but they do nevertheless exist.
Violence and separations
“Enormous” sexual abuse that had to be hushed up
16 Spouses who underwent repeated and unjustified violence had the possibility of bringing an action for separation of person and property. These case files were received by the royal courts since, theoretically, the officialités had lost this jurisdiction in France since the early seventeenth century. Most of the requests were made by women, since there were very few men who applied for separation. [20] It meant that women requesting separation were no longer obliged to live in a marital relationship with a brutal husband and could regain their legal and financial independence. Living apart did not annul the marriage, however, and the spouses could not therefore remarry. [21]
17 Wives had to supply a huge amount of solid evidence and testimonies to support their applications. The judge would decide whether the woman had not “merited” correction by her husband. [22] Secrecy was in order for preserving family honour; thus “a husband is accountable to no-one for the way in which he punishes his wife when she deserves it”, the jurist François Dareau explained in 1765. [23] However, beatings were tolerated only as a last resort and in cases of extreme insubordination by the wife, in specific circumstances.
18 In principle, “good” women could ask to live separately for six reasons: “substantial and often repeated physical cruelty and ill treatment”; murder attempts; “if the husband has given the pox (syphilis) to his wife several times, and he continues to lead a debauched life”; “if the husband accuses his wife of adultery, and he succumbs to it”; if he is mad or raging; and, finally, if he “has developed a cardinal hatred for his wife”. [24] Thus, as may be seen, the husband’s sexual conduct could in some cases play a part in separation procedures when it was extra-conjugal and threatened the life and health of the woman making the request. [25]
19 Thanks to this legal definition of judicial separation, the boundaries regarding sexual violence within marriage become more clearly defined. Nothing was said about absence of desire on the wife’s part. Forcing her consent to marital sex was not seen as violent, since wives had a duty to submit to it. Once consummation had been accomplished, the initial consent to the marriage during the wedding ceremony turned into permanent consent to conjugal sex. Marital willingness, or affectio maritalis, a concept stemming from traditional Roman law and subsequently adopted by canon law, did not refer solely to initial consent; it also carried with it a set of instructions governing post-nuptial forms of conduct, which the married couple were then obliged to pursue throughout their life together. [26] These duties defined by theology and morality included the debitum conjugale which applied to both sexes: the duty to make one’s body available to the spouse without condition. [27] The doctrine was based on the first lines of Genesis (1-28), as well as on the content of Saint Paul’s Letter to the Corinthians (7: 3-4): “The wife cannot claim her body as her own; it is her husband’s. Equally, the husband cannot claim his body as his own; it is his wife’s”. The presumption of Christian marriage was therefore that each of the contracting parties would in a sense undertake to relinquish control and freedom of their own body, which would be entrusted to the other. The Council of Trent further recalled the importance of marriage as an outlet for sexual desire without falling into sin. [28] Refusing marital duty meant consigning the soul of one’s partner to damnation, pushing them into adultery and debauchery. Submitting to the other’s desire was therefore both a marital and a Catholic duty. [29] This doctrinal framework removed the spouses’ ability to consent to the carnal act over the course of their life together. Canon law thus recognized only the possibility that initial consent during the wedding night might have been forced, whereas consent to marital sex life from day to day could not be considered as forced within a marriage that had been freely contracted. [30] The arsenal of canon law therefore indirectly protected a husband who committed what would now be called marital rape, and even offered him the legal means of perpetrating it. Indeed, the Church enabled abandoned husbands to legally force their wives to “cohabit” with or “adhere” to them. [31]
20 If spouses of both sexes were mutually bound by conjugal duty, did this mean that they could accept anything from their partner? Although, as we have seen, the legal definition of separation of residence laid down certain limits to marital duties relating to sex, it is difficult to assess from the judicial sources the extent of marital sexual violence in Paris in the seventeenth and eighteenth centuries. [32] Several cases of judicial separation have been discovered in the Châtelet archives and the factums of the Bibliothèque nationale. Out of 29 judgments in favour of séparation d’habitation found in a sample from the archives of the Châtelet Chambre du Conseil between 1700 and 1740, only one makes any allusion to sexual abuse. [33] This was the case brought in 1720 by Margueritte Madeleine Gouhautz, the wife of Pierre Chalot. He was a drunkard who, during fits of temper and jealousy, brutally kicked his wife, punched her with his fists, and hit her with a stick to the extent of making her lose a child she was carrying. [34] Margueritte Madeleine took refuge at her parents’ home in Paris. These latter encouraged their son-in-law to join them and offered to help him restore peace in his household and prosperity in his affairs. But Pierre Chalot continued his violence, and “is said to have extended his passion and brutality to committing actions so odious and so unworthy of a husband and father that the said lady would not dare, besides which she would be horrified, to reveal them to the eyes of the law”. [35] Margueritte Madeleine’s inability to name what she had experienced and witnessed, together with her use of the term “passion”, all suggest that sexual crimes were involved here, which Pierre may have inflicted on both his wife and children. These “crimes so enormous and so horrible”, in the words of this woman’s lawyer, could not even be uttered. Their appalling nature generally prevented “abused” wives from naming them, for fear both of dishonouring themselves and offending God, the judges, and the public witnessing the proceedings.
21 A collection of celebrated defence speeches by the lawyer Antoine Le Maistre presents a similar case. Anne de Merelessart was married in 1629, at the age of 21, to Claude de Mailly, the lord of Fontaine-Notre-Dame, a village close to Saint-Quentin in Picardy. The couple belonged to two noble Picard families of ancient but modest stock; such a pattern was common in other trials, which leads us to pay particular attention to the economic and strategic implications of these procedures. Anne, like other plaintiffs in factums for séparation d’habitation, explained that the violence occurred following quarrels caused by her husband’s claims to her fortune and landed property. Shortly after her marriage, she tried to contact her mother, Claude Dupuy, to alert her to her husband’s violence and debauchery, but her mother’s reproofs had no effect. So with the aid of two gentlemen, the two women organized Anne’s escape from the matrimonial home, enabling her to flee to her father’s home in Paris. The husband reacted quickly and lodged a complaint for abduction with the royal provost of Ribemont. Anne then issued an appeal to the civil lieutenant of Saint-Quentin and to the Paris parlement in order to obtain a séparation d’habitation et de biens. Her lawyer, the famous Antoine Le Maistre, signed three pleas for the defence of his client’s interests. In one of them, he revealed dreadful abuse, which he dared not mention outright:
Sieur de Mailly gave her extraordinary caresses, certainly; but which the Court will judge more intolerable for a respectable woman than violence and cruelty; her modesty would forbid her to mention them, did the necessity of a just defence not force her to tell of them.
His embraces were such that he sometimes made her lie down at two o’clock in the afternoon & lay down with her; that he had peasants brought into her bedchamber, and forced them to kiss her & she to suffer it; that thus did he prostitute his wife’s face; that he wished the sun to shed light on what could not be covered by the darkest night, & gloried in having witnesses to an act that makes one blush even in the most secret seclusion […]
His embraces were performed in the presence of several people, he subjected her to a sort of indecency, whose proof lies in the investigations; but which no-one would dare tell the Court, not even by circumlocution, because the action is so horrible & so shameful, that it would remain so however one wished to disguise it; it is sufficient that witnesses have been forced to say it, because of the oath they swore to tell the truth. [36]
23 Le Maistre is using a classic form of rhetoric here, by announcing that he is unable to state precisely what sexual outrage Sieur Mailly caused his wife to suffer. But he suggests that this Picard aristocrat has crossed a threshold, descending into monstrosity through his practices. While it was possible for him to say that the husband acted as a procurer in forcing his wife to kiss men of lowly status in front of witnesses, he remains silent about the nature of the “indecencies” of which the witnesses spoke and which he cannot repeat in his factum. Our knowledge of this case stops here.
24 Other details, however, were provided a century later by François-Louis Jamet to whom we owe the preservation of this factum. This eighteenth-century bibliophile and collector adopted the habit of compiling extracts of court proceedings, engravings, and poems, which he cut out, stuck in a book or copied, with copious annotations in the margins. Alongside amused exclamations highlighting Antoine Le Maistre’s stylistic extravagance, he gives us his interpretation of the nature of this sexual violence, written in pen in the margin:
It concerns onanism, pederasty, and the combination that Horace and Martial call Ore allabonere: excesses to which debauchery, disgusted by natural beauty, sometimes brings a drunkard, but in which over-lascivious and over-sophisticated lovers also sometimes indulge. See on this subject the famous book by the Jesuit Sanchez, De matrimonio; Bayle, ant. Sanchez; Paloïsia, Le Portier, Aretino, and the case of the Jesuit Girard and la Cadière. [37]
26 We should understand that what are involved here are practices judged to be “against nature”: mutual masturbation, marital sodomy, and fellatio, suggested by the Latin expression “ore” (mouth). [38] It is interesting to note that, as sources of detailed documentation on these forbidden practices, Jamet refers to theological and philosophical texts, as well as to pornography and a famous case of spiritual incest. [39] Thus, only practices judged to be “against nature” were likely to be taken into account by the law in cases of separation of residence. Any penetration of the “appropriate vessel” (vas foeminum), even forced, was judged lawful. On the other hand, practices that were against nature could be invoked because they were non-reproductive and so contravened the purpose of marriage.
27 It is evident that the women applying for separate residence found it difficult to speak openly or give detailed accounts of the sexual violence they had suffered. The moral taboos surrounding these practices caused them to remain silent and many women preferred to limit their descriptions to the physical violence they had undergone. Antoine Le Maistre described the difficulty of proving sexual violence in these terms: “a husband does not sound the trumpet, to use the Gospel words, when he wishes to abuse his wife. He seeks secrecy & solitude”. [40] This, for him, was what made the sexual character of marital violence the most difficult to investigate.
The violation of marriage: bodies and souls possessed and damaged
28 Neither canon nor civil law considered that vaginal penetration between spouses might be considered as a forced carnal act. However, case-law permitted a woman requesting séparation d’habitation et de biens to clearly state that she had been forced to sleep with her husband while he was being treated for venereal diseases.
29 In most factums, the plaintiff’s lawyer would depict her husband as a debauched man, who was not in the least concerned about transmitting “loathsome diseases” to his respectable wife”. [41] Of the ten factums consulted, involving séparation d’habitation et de biens, three husbands had even transmitted such diseases deliberately to their wives, delighting in the effect produced on the women when they announced after coitus that they were diseased. The plaintiffs’ lawyers likened such actions to premeditated uxoricide. [42] Catherine de la Porte was forced by her husband Maximilien-Alpin, Marquis of Béthune, “to suffer the caresses of the marriage” when “he told her he had just slept that very same day with five debauched whores, & that he had [such women] in every corner of Paris”. She attempted to escape from him, but he sent his coachmen and lackeys to trap her in her room. When his own brother reproached him, he retorted “that he did not worry about arrest by the parlement, that he would always be master of his wife’s body to mistreat and torment her, & that he would put a ragged whore in her bed with her, & he would lie down in the middle in order to torment her”. [43] These justifications were regularly repeated in the testimonies and complaints of beaten wives, pointing out their husbands’ inability to respect “the marriage temple”, the “most sacred place in the household” as Maurice Daumas termed it, when speaking of the marriage bed. [44]
30 Lawyers, too, told of the pain and tears of wives who had been sexually assaulted, and the appalling psychological state in which they were left. This type of narrative is all the more noteworthy since it was virtually non-existent in cases of rape outside marriage, and this has fostered the idea of a “sexual ancien régime” which paid little heed to sexual violence, according to Julie Mazaleigue-Labaste. [45] In her view, it was only with the rise of individualism, the advent of “liberal formalization by contract”, and “an egalitarian democratic culture of sexuality” from the nineteenth century onwards, that an extreme sensitivity to rape developed. [46] But according to Michel Porret, the lack of interest by criminal judges in the psychological consequences of rape is easily explained: the penal system of the ancien régime offered “symbolic reparation for the benefit of God, the State, and the law” rather than compensation to injured persons, and this consisted in eliminating the criminal and restoring order. [47] On the other hand, some medical experts described the “despair”, “melancholia”, and nightmares of victims. [48] Porret’s work indicates that in order to assess a society’s sensitivity to sexual violence, the study of legal treatises and judicial decisions is not sufficient, and that the whole body of legal procedures and their side-issues have to be taken into account.
31 This means that in separation proceedings, fear, which was the consequence of physical and mental violence, constituted a valuable argument for the female plaintiff. This dialectical framework, which was common in judicial separation, enabled the talented Antoine Le Maistre to go further and to determine not only the immediate psychological consequences of the threats and blows, and the humiliation of enforced nudity, but also to consider their lasting effect and to appraise the woman’s experience of violence. He thus attempted to understand how mind and body were linked; [49] how Anne de Merelessart’s sullied, beaten, and humiliated body caused terrible torment to her soul:
And imagine, if you would, the extent to which the torments suffered in her imagination were more violent than those [inflicted] on her body, & what her thoughts were when she saw herself lying with a man who seemed intent on killing her; & who had the power to do so? How much must she have dreaded the fury that stalked her under the darkness of night; was she able to sleep soundly, since she did not sleep in safety; how many times was her sleep interrupted by hideous dreams & images of a tragic end; how many times did she think that her bed would be her tomb? [50]
33 The counsel’s address sought to identify the impact of the threats and psychological violence suffered by Anne de Merelessart. The term “imagination” that he uses was understood in the seventeenth century both as the soul’s power to conceive of an object and as an object in its own right, which today might be called a person’s psyche. [51] These “torments” are presented as more serious than the blows, “more violent than those [inflicted] on her body”. This can be easily envisaged in an early modern period that accorded great importance to the impact of the imagination upon the body, understood as the sum total of images produced by the soul. [52] Thus, when Anne dreams that her husband is killing her, or striking her, this image affects her emotions and is communicated to her body which experiences it directly. [53] The threat of being hit leads Anne to live in fear and to be unable to sleep. The husband therefore succeeds in fully “haunting” the mind of his wife. [54] This assessment of the grave physical effects of psychological violence is quite rare in legal texts. The fact that it is evoked in the context of marital intimacy is not insignificant, because sexuality and the procreation associated with it, along with dreams, were the major spheres in which confusion between body and soul was experienced. It also reveals a certain sensitivity to the violence occurring in the marital bed, which can also be found in the Paris officialité for cases of marriage annulment on grounds of sexual impotence.
Violence, impotence and domination
34 Since the physical consummation of marriage was considered by canon law as proof of the spouses’ free consent, impotence, defined as permanent inability to consummate the marriage, was considered an absolute impediment if claimed prior to the wedding; it then provided grounds for annulment of the marriage before the ecclesiastical courts. [55] The wives of men presumed to be impotent could file an application to annul the marriage by reason of impotence before the Paris officialité. The official, having received leave of the court for the plaintiffs, then summoned the husband to appear and proceeded to question him. He was also able to call upon medical experts to auscultate the genitals of both the defendant and plaintiff. [56] The ecclesiastical judge then delivered a judgment on the husband’s impotence: if this was acknowledged, the marriage was considered as never having existed and the wife was free to contract another marriage.
35 Out of 56 cases studied in the collections of the Paris and Saint-Germain-des-Prés officialités, two husbands accused of sexual impotence demonstrated conduct pertaining to sexual violence. Marie Madeleine Leveux, a Parisian domestic servant aged 42, declared on 1 December 1740 that on the night of their wedding, her husband, Gilles Maingueneau, a day labourer aged 40, showed no hurry in coming to her in their bedroom, and bade her “a scornful ‘bonsoir’ before turning his back on her”. [57] He remained in “this sort of lethargy” for 30 days and then, on the morning of 28 August 1732, decided to try and consummate the marriage, but without success. He repeated his attempts in the evening, “but to no avail although he made such violent efforts that his sweat was running everywhere”. The “rage and despair of his condition” led him to bite his wife’s forehead and nose while he was still lying on top of her. Then, in order to insert his penis more easily into his wife’s vagina, he tore “with his fingers (…) the said Leveux in her natural parts” and injured her “so grievously that she thought she would die of it”. Marie Catherine Chardon, an upholsterer’s daughter aged 16, underwent the same treatment at the hands of her husband Nicolas Sené, a grocer aged 29. Unable to achieve consummation, he began “like a madman to lacerate the plaintiff’s parts”. [58] Both women described the intense pain they experienced but, not wishing to strengthen their husbands’ defence, they avoided saying that they had struggled, as he might then have blamed them for the non-consummation. Marie Catherine Chardon remained passive and merely protested, asking her husband whether “through the pain he was making her suffer, he wanted to tear out her heart from her stomach”. These two cases allow access to some very rare evidence of women’s physical experience of conjugal sexual violence: the sensation of having one’s body delivered up to a madman, of it being ripped apart, and extreme pain suffered in its innermost recesses. This violent digital penetration illustrates the despair provoked in husbands by their inability to obtain an erection, and expresses their desire to leave their trace by other means than defloration.
36 By reporting this offence, the wives of men presumed impotent sought to expose their husbands’ monstrosity, which damaged their bodies and forced them to submit to practices that were dangerous for their souls. It was also a means by which they could protect themselves against the results of a medical examination ordered by the official. Marie Catherine Chardon, for example, declared:
[…] that she is a virgin in the sense that she has not had carnal relations with any man, not even with the aforesaid Sené, but she fears that the said Sené having torn her with his fingers several times to the point of drawing blood has caused her to lose the signs of her virginity, on which she is not, however, sufficiently informed. [59]
38 By “lacerating” the vagina with his fingers, the husband sought to destroy all evidence of his impotence when faced with medical experts, and thus seal the insolubility of his marriage. Marie Madeleine Leveux notes that during their wedding, her husband quickly turned to his mother saying “very loudly and pointing to the said Leveux, I have her now, she will not escape”. [60] This excessive desire for possession and domination was a driving force behind the jealousy and the physical, psychological, and sexual violence experienced by these women, and the result of a strong patriarchal culture. [61]
39 The fact that sexual violence within marriage was not criminalized under the ancien régime did not prevent civil legal action being taken by wives who experienced it. But the difficulty for historians to gain access to their words reveals a cultural desire to avert the gaze from this violence. These obstacles have a primarily doctrinal origin. The strong physical character of consent to marriage, the insistence of Catholic dogma on marital duty, and the force of parental control all contribute to obscuring contemporary understanding of personal consent to sex and turning it into collectively determined consent. A study of the judicial archives enables us to show that the gender stereotypes associated with young women, the discrete sexual roles and patriarchal domination within marriage meant that resistance by wives was barely heard by contemporaries, and especially by their husbands. This created particularly fertile ground for sexual violence within marriage, which was nevertheless rarely prosecuted in law. The scope for action by wives who had experienced it was very restricted, and conditioned by Christian sexual norms. Practices said to be against nature, such as penetration with the fingers and voluntary transmission of venereal diseases went beyond the limits of the tolerable and occasionally called for action by a judge. However, these practices, seen as “appalling”, could not be uttered aloud by the victims, and historians have to come to terms with this strange fragmented conversation as delivered by the royal and ecclesiastical legal archives.
40 But, in the end, these cases tell us a great deal. They reveal actions and practices by men that stem from ill-interpreted codes of marital domination. They thus illustrate the “act of possession”, the effort to gain the upper hand that was being played out behind marital sexual violence, and was a compensatory mechanism for deviant and alternative masculinities. [62] While anxious husbands did not all adopt violent practices, they all gave proof in their discourse of little consideration for female resistance to sexuality. This resistance was all the more difficult for them to understand because women were raised in a culture of sexual passivity and modesty, distanced from sexual knowledge, so that they could be protected from what was considered, until the early eighteenth century, as their “natural” inclination for pleasure and passion. Thus they developed a culture of abdication rather than of active and positive consent, contributing to a devaluation of their resistance. How, in this culture, could husbands distinguish a feigned position from a real refusal? [63] How could wives openly express their desire or absence of it? This unfathomability reinforced the powerlessness of ancien régime society to identify and think about the conjugal sexual violence rife within it.
41 What sexual practices between husband and wife were then thought of as violent by contemporaries? What was considered as sexual in a husband’s violence? Sexuality was not yet a continuum of practices dedicated to sensual pleasure or to procreation, occupying an important place in the development of individual identity and happiness. In the seventeenth and eighteenth centuries, sexual practices were seen only in relation to divine will and social legitimacy, with a distinction drawn between voluptuous pleasures that were sinful, illegitimate, or against nature, and procreative pleasures and duties within marriage. The question was therefore posed in terms that were very different from those of today: rather than an infringement of personal consent, it was the stain on marriage—vehicle of divine grace and fundamental social and sexual core of ancien régime society—that was at stake. Marital sexual violence was also an attack on the wife’s integrity and her spiritual and physical dignity. With certain practices, the husband was putting his wife’s earthly and heavenly future in jeopardy, depriving her soul of salvation and her body of longevity. Unlike extra-conjugal rape, defined as an infringement of female consent and family honour, marital sexual violence offended the sanctity of marriage, the instrument by which both church and state governed the souls and bodies of their peoples.
Notes
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[1]
Le Maistre 1656: 232-233.
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[2]
Chariot 2019: 9.
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[3]
For a defence of the use of contemporary concepts like that of marital rape for studying the past, and approval of a reasoned anachronism, see Dosse 2005; Loraux 2005; and Muller 2016.
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[4]
On the importance of judicial doctrine for taking account of sexual violence in the nineteenth century, see Vaneau 2019.
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[5]
Archives Nationales [AN] Z/1o. Officialités diocésaines et métropolitaines de Paris, officialité de Saint-Germain-des-Prés (1609-1750). The sample was put together by taking one box of documents for each decade between 1609 and 1627 (1609, 1619, 1627), and then one box every five years from 1627 to 1670 (1645-1656, 1658-1660, 1665-1666). The years 1670 to 1750 were scrutinized in their entirety.
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[6]
AN, Y, Chambre du Conseil (1700-1740). The sample was put together by selecting one year every twenty years from 1700 to 1740.
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[7]
Seidel Menchi & Quaglioni 2000; Charageat 2011.
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[8]
Gaudemet 1987; Noonan 1967.
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[9]
“Children or sons of [good] family” is a legal term used to describe minors living under “paternal authority”. The age of majority for marriage was 25 for girls and 30 for boys according to Paris custom. See Durand de Maillane 1761a: 731; and Haase-Dubosc 1999: 22-28.
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[10]
AN, Z/1o/167, De Lorme – Rapally case, 1727.
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[11]
AN, Z/1o/167, De Lorme – Rapally case, 1727.
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[12]
Gaudemet 1987: 175; Brundage 1993: 246; Madero 2015.
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[13]
The XXIInd consultation of the canonist and theologian Jean-Pierre Gilbert defends the idea that the consummation of marriage cannot provide “certain proof of its ratification” if it “was done while the violence still lasted”, Gilbert 1727: 80-90. However, no victim of forced marriage admits to having consummated the marriage – a proof of the strong presumption of consent in the case of an adult woman who has been raped, and which is also found in cases of extra-conjugal rape, Vigarello 1998: 54-58.
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[14]
Terrasson 1727: 24.
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[15]
Ibid.: 6.
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[16]
Ibid.: 25.
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[17]
AN/Z/1o/145/A, Tavillon – Parmentier case, 1696.
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[18]
AN/Z/1o/130, Verdavoine – Germont case, 1660.
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[19]
Le Blanc 1664: 19, 21; Villethierry 1699: 38-39.
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[20]
This is confirmed by contemporary legal experts and by recent studies of separation elsewhere in Europe, see Stone 1993; Seidel Menchi & Quaglioni 2000; Boucher d’Argis 2017 [1765].
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[21]
Living apart always presupposed a separation of property: the wife recovered her dowry, and her share of the common property owed to her; she was no longer required to repay her husband’s debts and regained a form of financial independence.
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[22]
Foyster 2005: 4.
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[23]
Dareau 1775: 333. Husbands who were over-zealous in their punishments were, however, condemned by the community, and neighbours could then intervene to protect the beaten wife, see Regina 2009.
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[24]
Ferrière 1740: 863.
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[25]
In the 147 cases of conjugal violence in eighteenth-century Marseille, identified by Christophe Regina, 63% referred to the lewdness of their violent husbands. Regina 2009: 63. See also Chojnacki 2000; Lombardi 2000.
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[26]
Noonan 1967; Gaudemet 1987: 59. The inequality between the rights of husband and wife is recalled by Martine Charageat (2011: 82).
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[27]
In a lecture given in 1975, Jean-Louis Flandrin highlighted the paradox of a society in which women were subordinate to men while giving equal rights to each sex over the body of their spouse. See Flandrin 1986: 127-128.
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[28]
Daumas 2004: 298.
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[29]
For a development of the question of marital duty for Protestants see Bels 1968: 204; Eurich 2017: 493.
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[30]
Brundage 1993: 255.
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[31]
However, ecclesiastical judges received requests for “adhesion” only very rarely during the course of the seventeenth century and they disappear from the Paris collection from the early eighteenth century. For an example of its application in the officialités of northern France, see Lefebvre-Teillard 1973: 199.
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[32]
For consideration of the disparity between medieval and contemporary judicial archives and the reality of marital violence see Butler 2007: 2, 259.
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[33]
I carried out a survey for the years 1700 and 1740, choosing to consult the boxes corresponding to one year in every 20 years.
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[34]
AN, Chambre du Conseil, Y//9006, Gouhautz – Chalot case, 1720; Minutes des Commissaires, Y//12887, Office du commissaire Soucy, Gouhautz – Chalot case 1709 and Y//15319, Office du commissaire Laurent, Gouhautz – Chalot case, 1719.
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[35]
AN, Minutes des commissaires, Y//12887, Office of Superintendent Soucy, Gouhautz – Chalot case 1709.
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[36]
Le Maistre 1656: 232-233.
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[37]
Ibid.: 233.
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[38]
Practices described by the authors cited by François-Louis Jamet: Sanchez 1617: 325-329 (Liber X, Disputatio IV); Latouche 1750: 38-39; Aretino 1909: 48, 195-197.
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[39]
Lamotte 2016.
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[40]
Le Maistre 1660: 300.
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[41]
Anon.1668: 178 vo.
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[42]
Porret 2000.
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[43]
Anon.1668: 178 vo-179 ro.
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[44]
Daumas 2004: 117.
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[45]
For the history of the concept of “sexuality” and its anachronism prior to the nineteenth century, see Foucault 1976: 168; Phillips & Reay 2011.
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[46]
Mazaleigue-Labaste 2014: 21-23. The inaccuracy of this idealized view of the Enlightenment and Revolutionary legacy regarding relationships between the sexes has been demonstrated by historians of gender and sexuality. See the debate that divided Joan W. Scott and Edward Shorter over the publication of his book The Making of the Modern Family, Shorter 1975; Scott 1977; Steinberg 2010.
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[47]
Porret 2000: 3-4.
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[48]
Ibid.: 12.
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[49]
For broad definitions of the violence used by contemporaries, see Foyster 2005: 36.
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[50]
Le Maistre 1656: 216.
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[51]
Furetière 1690b: 316.
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[52]
Gélis 1984: 359, 365. My thanks also to Sofia Zuccoli for her enlightenment on this issue.
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[53]
See Southgate 1992: 283, 290; Roux 2008.
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[54]
Sarah Handley refers to the moral value of ghost stories in English chapbooks: some of them mention the fate of violent husbands who, having become ghosts, appear to be marked by the punishment they receive in the hereafter, and return to haunt their beaten wives. See her excellent article on the appearance of the ghost of Mary Veal to Margaret Bargrave in 1705 at Canterbury, presented as a narrative strategy and a means “of protest against the physical, sexual, and psychological violence” experienced in the marriage (Handley 2018).
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[55]
Boucher d’Argis 1751: 638; Durand de Maillane 1761b: 217-218.
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[56]
Prior to 1678, the date when this form of proof was prohibited, sexual intercourse was authorized in a procedure called congrès. It consisted of testing, within the precinct of the court, the ability of the defending husband or wife to have physical relations with their partner. Darmon 1979; Breen 2013.
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[57]
AN, Paris Officialité, Z/1o/170/B and Z/1o/216 and Z/1o/20A, fo95, Leveux – Maingueneau case, 1740.
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[58]
AN, Paris Officialité, Z/1o/170/A and Z/1o/216 and Z/1o/80/A fo 60, 61, 62, 63, Chardon – Sené case, 1736.
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[59]
Ibid.
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[60]
AN, Paris Officialité, Z/1o/170/B and Z/1o/216 and Z/1o/20A, fo95, Leveux – Maingueneau case, 1740.
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[61]
The cases of marital sexual violence studied reveal the gendered character of power relationships between spouses. These results are contrary to the analysis of Christophe Regina in his article on conjugal violence in eighteenth-century Marseille: he considers that authority within the couple was not gendered, but governed by broader family concerns (Regina 2009: 54-55). Strategic family concerns had a real influence on conjugal power relations, but did not eliminate male domination within the marriage, which was one of the very principles of the sacrament (Ferrière 1740: 191).
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[62]
Vigarello 1998: 63.
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[63]
Bernard 2018.
