7. The Rule of Thumb: Do Women Enjoy Equal Justice Under the Law?
Do Women Enjoy Equal Justice under the Law?
I long to hear that you have declared an independency. And, by the way, in the new code of laws . . . I desire you would remember the ladies and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could. If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.
ABIGAIL ADAMS TO JOHN ADAMS, MARCH 31, 1776
Martin Luther King Jr. Day, 2015. Sybrina Fulton, the mother of the late Trayvon Martin, was the featured speaker for a daylong Dr. King commemoration at Grand Rapids Community College. I heard about her address from an excited reporter, granddaughter Kayla, who is on the staff of the college newspaper. She edged her way forward after the event and had managed to get a few comments from Ms. Fulton.
For someone who has never lost a child, I cannot comprehend her sorrow. Only those who have entered that dark realm can understand. She stood her ground to give her message, as Kayla explained, but not without tears. Since that night when George Zimmerman killed her son and was exonerated by the courts, he has been back in court more than once on charges of domestic abuse, and one wonders why an abused woman doesn’t simply stand her ground.
Indeed, a good question: Could an abused woman stand her ground and kill the abuser and walk out of court scot-free? A South Carolina case illustrates how callous some prosecutors are in cases of domestic violence:
South Carolina is one of more than 20 states that has passed an expansive Stand Your Ground law authorizing individuals to use deadly force in self-defense . . .
In the cases of women who claim they feared for their lives when confronted with violent intimate abusers, prosecutors say the Stand Your Ground law shouldn’t apply . . .
Most recently, [prosecutor Culver] Kidd raised this argument in vigorously pursuing a murder case against Whitlee Jones, whose screams for help as her boyfriend pulled her down the street by her hair prompted a neighbor to call the cops during a 2012 altercation. When the officer arrived that night, the argument had already ended and Jones had fled the scene. While she was out, Jones decided to leave her boyfriend, Eric Lee, and went back to the house to pack up her things . . . She packed a knife to protect herself, and as she exited the house, she says Lee attacked her and she stabbed Lee once in defense. He died, although Jones says she did not intend to kill him.
On October 3, Circuit Judge J. C. Nicholson sided with Jones and granted her Stand Your Ground immunity . . .
Kidd . . . is appealing the case to argue that Jones and other defendants like her can’t invoke the Stand Your Ground law so long as they are in their home.1
So here we have the February 26, 2012, killing of an unarmed black teenager shot by a heavyset twenty-nine-year-old man known for violence—no eyewitnesses—and he goes free based on his alleged fear for his own life. But in the November 1, 2012, killing of abuser Eric Lee, age twenty-nine, the prosecutor charged Whitlee Jones, age twenty-three, with murder—even though witnesses testified she was screaming for help when he was violently attacking her and even though she testified she was trying to protect herself.
I have studied neither case, but the very fact that Stand Your Ground applies in one case but not the other strikes me as seriously faulty justice. Historically, women have come out on the short end of the stick in the matter of justice—literally and figuratively, “rule of thumb” justice.
The rule of thumb: a husband may legally beat his wife with a stick no larger than the diameter of the base of his thumb. It was a law enacted by Romulus, the founder of Rome, hundreds of years before the Common Era, and it was made part of English common law that remained in force through the nineteenth century. True or false? The best historians now believe the entire story is mostly myth, a useful myth nonetheless. Most husbands have not needed a law to support their violence. If a case of abuse had gone to court, it was the husband’s word against the wife’s. As head of the home, he was typically counseled to be nice, she to be submissive.
The “rule of thumb” concept was cited by Harriet H. Robinson in her 1881 book Massachusetts in the Woman Suffrage Movement: “By the English common law, her husband was her lord and master. He had the custody of her person, and of her minor children. He could ‘punish her with a stick no bigger than his thumb,’ and she could not complain against him.” More than a decade earlier, a court case, State v. Rhodes, found the husband innocent because he had “a right to whip his wife with a switch no larger than his thumb.”2 But historical studies have shown that the rule of thumb appears never to have been enacted as law, whether in ancient Rome, medieval England, or early America.
The rule of thumb, as outlandish as that may seem, implies discipline, as though a husband would carefully measure a stick or broom handle before he thoughtfully punished his wife. Such a scenario is not true to life and does not capture the scenes of domestic violence. More often, they are vicious outbursts involving beating with the fist or slamming the wife into the kitchen counter or onto the floor. I recorded in my journal some of these very incidents in the 1980s when we were living in Grand Rapids. At no time did my ex-husband’s abuse remotely resemble measured discipline, even if we were to presume such “discipline” was the prerogative of a husband.
December 14, 1986
A week ago today we returned from NJ. It was a reasonably good trip going out, but the return trip was bad. . . [He] and I were arguing about something when he hauled off and hit me on the side of the head. He was driving fast, and I feared an accident. I got out of my seat in a daze, moved to the back [of our VW Westfalia van], and in the process [he] began to violently swerve the van back and forth on the road. I was thrown around and hurt my hand and hip before I was able to catch myself and get seated. [He] demanded Carlton come up front with him. [He] and I had virtually no conversation after that—and it continues today—except for absolute necessities. My hip is black-and-blue and has ached through the night as I’ve tried to sleep.
December 21, 1986
Today has been a violent day . . . Carlton saw it and picked up the phone to call the police. [His father] grabbed it out of his hands and tore it out of the wall and went back to hitting me. Carlton then grabbed a ball bat, threatening [him] if he continued to beat me. [His father] then hit him and beat me some more and threw me against the counter in the kitchen. He also knocked the door off the hinges in the den. This has been the worst Carlton has seen—he was extremely upset, threatening to do great harm to [his father].
December 22, 1986
It’s the morning after, and I am stiff and sore all over my body. I had trouble sleeping because every time I moved, I felt the pain. [He] did say he was sorry last night, and for the first time he sounded willing to try to make the marriage work—allowing me to have and express opinions that may be different from his.
Why didn’t I report the abuse to law enforcement and contact an attorney at this time—or years earlier? More than anything else, I feared he would do what he had threatened to do—kill me. When I told him once after he had beaten me that if it ever happened again, I would call the police, his response was chilling: “That would be fatal.” Carlton heard him and the next day accused him of threatening to kill me. He denied it.
But if I had reported the violence to law officers, wouldn’t I have been protected? Some people do not realize there is little that law enforcement can do in such situations unless the woman is beaten so badly she is taken to the ER. Otherwise, it is typically her word against his, and he is warned not to beat her again. The most dangerous hours for any battered woman are those following a police visit to the home. And even if he is locked up for the night, he’s back out as soon as he posts bond. Indeed, statistical studies have shown that more than 30 percent of “all women murdered in America are killed by their husbands, ex-husbands, or lovers.”3
Such numbers are shocking in light of an 1871 Alabama law making it a crime for men to beat their wives. Other states soon followed. “Yet, for a century after courts repudiated the right of chastisement, the American legal system continued to treat wife beating differently from other cases of assault and battery,” writes law professor Reva B. Siegel. “Men who assaulted their wives were often granted formal and informal immunities from prosecution, in order to protect the privacy of the family and to promote ‘domestic harmony.’ ”4
No longer. Today the “domestic harmony” and “privacy” arguments carry far less weight—except among religious subcultures, including some conservative evangelicals. How did this change come about? “In the late 1970s,” continues Siegel, “the feminist movement began to challenge the concept of family privacy that shielded wife abuse, and since then, it has secured many reforms designed to protect women from marital violence.”5 I was a beneficiary of that feminist campaign. By 1987, when I made my case before a judge, my story was all too believable. More women were graduating from law schools, some taking the cases of abused women pro bono and not being afraid to bring violent husbands into court. Others were stepping up to judgeships. Still other women were setting up crisis centers.
In 1994, as part of a federal Crime Victims Act, both houses of Congress passed the Violence Against Women Act. Though underfunded, it has provided training for law enforcement and court officials. Still, decades later, despite the progress made since the 1970s feminist initiatives, it is an understatement to conclude that violence in the household persists.
As much as modern feminism did to turn around public opinion and shine a spotlight on the crisis—this silent epidemic of domestic violence—many women in the nineteenth century risked far more to carry the message to an often-hostile public. In this realm, Elizabeth Packard stands tall. I cannot read her story without feeling chills up and down my spine. And to make matters worse, the story revolves around Calvinism. Why not some other belief system? Why don’t Lutherans and Unitarians make the headlines?
It was no secret in the small town of Manteno, south of Chicago, that Elizabeth and Theophilus had some differences of opinion. He was the local Presbyterian minister, she his wife, forty-three years old and mother of their six children. But whatever gossip might have been spread in the late spring of 1860, it was overshadowed by the big news capturing everyone’s attention. On May 18, Abraham Lincoln had been nominated in Chicago as the Republican candidate for president of the United States. Everyone in Illinois was chattering about sending their favorite son to Washington. Imagine that. People around town knew him personally or had heard him debate Stephen Douglas. Everyone had a story.
It was Monday morning, June 18, one month later. Mondays were marked as wash day. It was a long ordeal with a family of eight, scrubbing clothes soaked in a tub by hand on the washboard, rinsing them in another tub and hanging them out on the line, hopefully to blow in the breeze of a sunny day. But this would be no day of washing clothes for Elizabeth. The Reverend Theophilus Packard was taking her against her will to the insane asylum in Jacksonville, Illinois. Neighbors were stunned by the ordeal, and the children were crying out for their mother. But she had no recourse. “Married women,” according to Illinois state law, “who in the judgment of the medical [Jacksonville] superintendent . . . are evidently insane . . . may be entered or detained in the hospital on the request of the husband . . . without the evidence of insanity.”6
Indeed, under the law of the state of Illinois and under the law of God, Theophilus had no reason to doubt the rightness of his cause: “Illinois law had made him the arbiter of his wife’s mental state, God’s law made him the guardian of her soul. He was committing her to save her soul, to keep her from endangering the souls of their children, and to shield his creed from her criticism.”7 The theological issues went deep. The Packard differences were not spirited debates (of equals) on the merits of Calvinism versus Arminianism. Their disagreements were life-and-death matters that went to the very core of God’s character. She would have none of her husband’s harsh dogma. How could a loving God possibly send her little ones to eternal hell, even if they died in the very act of sinning, as in disobeying an order to stay away from thin ice on the pond? Nonsense.
Calvinism’s God was supreme, as was Calvinism’s husband. Male headship was the rule. Fairness was beside the point. Neither God nor husbands operated on a scale that took into account sympathy or sadness. So it was that the Packard children lost their mother, and Elizabeth lost her freedom. She was not without supporters, however. Theophilus was surely not the most popular man about town. In the days and months after Elizabeth’s disappearance, neighbors knew exactly what was going on. In fact, Theophilus had grumbled about the circumstances himself: “I never saw children so attached to a mother,” he lamented. “I cannot by any means wean them from her nor lead them to disregard her authority in the least thing . . . She seems by some means to hold them in obedience to her wishes just as much in her absence as in her presence.”8 His response was to forbid his children, ages eighteen months to eighteen years, to mention her name or try to contact her.
And what of Elizabeth, confined in an insane asylum? How did she survive the nightmare without actually going mad? Her reaction could be calculated in direct proportion to her sense of urgency to return to her children. Above all, she had to maintain her sanity. So she spent her time serving other women, who were in many cases actually insane, and she stroked the egos of administrators, sometimes in cordial conversations at their residence, dining at their invitation. When Dr. McFarland, the director, was questioned about her, he wrote that “for two years of the closest study . . . I could [not] discover any intellectual impairment at all, certainly nothing that deserves the name.”9
Finally in June 1863, three years after her incarceration, Elizabeth was released, a result of appeals made by her oldest son and her sister, but not to freedom. Theophilus still had evil tricks up his sleeve. Back in her own home, he locked her in the nursery and boarded the windows in a misguided attempt to enforce God-ordained discipline.
Here she was, free to leave the institution only to be incarcerated in her own home unable to fulfill her role as a mother. Why, I ask myself, wasn’t she set free by authorities to be a despot in her home, and why wasn’t Theophilus arrested for unlawful imprisonment? I’m convinced Paul would have sided with her. His words in 1 Timothy 5:14 are revealing (though the situation he wrote about was entirely different from Elizabeth’s): “I counsel younger widows to marry, to have children, to manage their homes and to give the enemy no opportunity for slander.” On the surface, his directive seems like ordinary first-century advice. But his use of the Greek word oikodespotēs (the term for the wife’s managing of the home) is striking.
I first learned about the radical nature of Paul’s words through the writing of Katharine Bushnell (1855–1946). She was a medical doctor who served as a missionary in China and, perhaps more important for posterity, was a recognized biblical scholar. In reference to this passage, she writes:
Men often talk of the father and husband as the “final authority” in the home. What says St. Paul on the point? The Greek word for “despot” (despotēs) furnishes us with our English word. Its meaning is precisely the same in Greek as it is in English. It means an absolute and arbitrary ruler, from whom there can be no appeal . . .
Oikos is a very ordinary word in Greek, meaning “house.” These two words, oikos and despotēs, unite to form the word oikodespotēs, which, as you can see, means “master of the house,” and it is so rendered, Matthew 10:25; Luke 13:25; and 14:21.10
With the apostle’s blessing, Elizabeth should have returned to her home and ruled as a benevolent despot. Instead, she was locked up. But she managed to slip a note out to a friend, who contacted a judge. No longer was the law on the side of Theophilus. The judge issued a writ of habeas corpus (“bring forth the body”). Now her case would go to trial before a jury.
The witnesses Theophilus asked to testify against his wife simply were not convincing. In Dr. Knott’s opinion, she was “partially deranged on religious matters,” though “on all other subjects she was perfectly rational.” Dr. Brown testified that “she exhibited no special marks of insanity,” at least in the realm of household affairs, but regarding her adamant denial of the Calvinist doctrine of total depravity, he declared with confidence that he “had not the slightest difficulty in concluding that she was hopelessly insane.”11 The jury deliberated for seven minutes. Elizabeth Packard was not insane.
Space does not permit sharing the rest of the story here, but her legacy has lived on. She was a strong woman, and in the years that followed, she became an activist for women’s rights. Women in succeeding generations benefitted from appeals to elected political bodies throughout the country. Her legacy of activism was summed up in her obituary in the Chicago Tribune: “Through the influence of her books, added to her untiring efforts, thirty-four bills have been passed by various legislatures, each benefitting the insane in some way.”12
In my book Leadership Reconsidered, I penned my own tribute to Elizabeth Packard:
Elizabeth is to me a kindred spirit. I too was the wife of a staunch Calvinist minister in a small-town Illinois church. And much of the abuse she suffered I knew all too well. But thanks to Elizabeth and others like her, the laws had changed by the 1970s. Committing me to an asylum was not an option—except the asylum behind closed doors in our home. It was not until 1987 that I escaped with my thirteen-year-old son.13
When I escaped with Carlton, I sued for separate maintenance and full child custody. After I testified before the judge, my attorney called Carlton (who had been waiting in the hallway) to the stand. The first questions were easy, getting-acquainted inquiries. Soon, however, with little prodding, Carlton was describing violent scenes I’d all but forgotten. He expressed remorse as well as helplessness in his inability to defend me against his father. When the judge asked him how he felt about his father having joint custody, his answer jolted me. Almost as though he were prepared for the question, he said without hesitation that he would run away to Chicago—that a friend had told him about a place he could stay on the north side near Moody Bible Institute. What is this all about? I was thinking. But that statement, as much as anything else, clinched the judge’s decision.
I did not sue for child support. I was well aware of my husband’s violent episodes that were triggered by far less than something like court-ordered support. More than anything else in the weeks and months that followed, I feared he would kill me. And what did my ex-husband have to fear if he did kill me? Was there a serious deterrent in Grand Rapids in the late 1980s for wife killing?
In the months following my court action for separate maintenance, I read about wives being killed. Then came the chilling headline of October 19, 1988. Judge Carol Irons had been fatally shot during lunch break in her court chambers by her police officer husband, Clarence Ratliff. Officer Ratliff was sentenced to two life terms for shooting at two other officers, putting shrapnel in one officer’s leg. But for killing a sitting judge? The verdict was manslaughter. Two of the jurors who later defended their rationale said she had provoked him (by suing for divorce).
What did my ex-husband have to fear if he killed me? I was no sitting judge, and I had provoked him many times. Manslaughter? Maybe five to eight years, out early on good behavior? Wife killing in Grand Rapids, it seemed, was simply not taken seriously. Word quickly spread. The headline in the Spokane Chronicle on October 20, 1988, casually characterized this heinous crime: “Judge begs for help before hubbie shoots.”14 So how do we unravel this episode? Did wifey provoke hubbie before hubbie shot and killed wifey as she was begging for help? Shame on those jurors. And shame on the Spokane Chronicle.
But failure to bring justice can go both ways. We should not judge court cases, as is true with personal stories of abuse, simply with blind gender loyalty. Just because I oppose domestic violence against women, should I believe any woman’s story without a serious investigation and sound hermeneutical principles? That is how it should be, and that is how I have viewed the court case against Officer Ratliff. I know the case well. He should have received a life sentence for killing his wife. But sometimes the situation is reversed. This is true in the case against Mary Winkler, though I view it at a greater distance and with less knowledge.
She was a battered wife who had no recourse but to stand her ground and kill her husband, so said her supporters. More than that, she was a preacher’s wife. Bob Allen, managing editor of EthicsDaily.com, reported the following:
Mary Winkler, a Tennessee preacher’s wife who shot her husband dead in March 2006, received a sentence of 210 days in prison and three years probation after a jury convicted her of voluntary manslaughter based on her defense of abused spouse syndrome. Winkler was initially charged with first-degree murder after confessing to shooting her husband, Matthew Winkler, pulpit minister of Fourth Street Church of Christ in Selmer, Tennessee.15
When Pastor Winkler did not show up at a Wednesday evening service, church members went to the home, where they found his blood-soaked body. He had been shot in the back. The weapon—a 12-gauge shotgun. Mary was nowhere to be found, though later she was located in Alabama with her parents—her three children, ages one to eight, with her. She admitted that her husband was still alive when she grabbed the children and drove them out of state. Under questioning, Mary confessed that she killed him, adding, “I guess that’s when my ugly came out.” She also admitted that some of the marital difficulties they had were “her fault.” In fact, she had become involved in a fraudulent Nigerian financial scheme without his knowledge. Her testimony was that of an abused wife: “He had really been on me lately criticizing me for things—the way I walk, I eat, everything. It was just building up to a point. I was tired of it. I guess I got to a point and snapped.”16
In June, a grand jury indicted her for first-degree murder. A team of attorneys agreed to defend her pro bono. With their help, she posted bond and was released from jail in August.
The Wikipedia account states the following:
On April 18, 2007, Mary Winkler took the stand in her own defense. She told a jury of ten women and two men that her husband often “berated” her and forced her to wear “slutty” costumes for sex. As proof, she displayed a pair of high-heeled shoes and a wig, at which those in attendance gasped.17
Men’s rights groups were outraged by the non-guilty verdict. But where were the women’s groups? Why were they sitting on their hands? Is there now open season on husbands who force their wives to wear slutty costumes, high-heeled shoes, and a wig? Sure, family members came to her defense, saying he had abused her. But where was his voice in this trial?
A jury found Mary not guilty. I have no doubt this preacher’s wife got away with murder. And it’s not just because I am able to see Matthew Winkler as my own son, born in 1974, the same year Carlton was born. Matthew’s voice was stilled, his reputation sullied, a congregation shocked, his wife set free. He was not only a preacher but also the father of Patricia, Mary Alice, and Breanna. He was the son of Dan and Diane Winkler, the brother of Daniel and Jacob.
Carol Irons was also much more than a professional—indeed, she was a very successful attorney, who in 1982 became the first female judge in Kent County, Michigan, where I have lived for nearly four decades. This is where she tied the knot with Clarence Ratliff—a garden wedding, a white dress. She looks happy in the photo posted online. Referring to the garden, Pulitzer Prize–winning syndicated columnist Ellen Goodman wrote the following:
Here, too, the judge used to invite kids in for a talk, because she said, “I think schoolgirls ought to have professional women as role models.”
Now, dead at 40, she has become a different sort of female role model: a victim. She has become Anywoman who ever “provoked” a man into murder.
To this distant ear, the marriage between Judge Irons and Officer Ratliff sounds like a chapter out of “Smart Women, Foolish Choices.” A second marriage for both of them, it didn’t last long, and was followed by a rancorous separation . . .
An outraged friend of the judge, Noralee Carrier Potts, calls this “the-bitch-deserved-it defense.” But, to be as frank as Carol Irons would have been, there is nothing unusual about this case. If the victim had not been a judge, the case might have passed unnoticed . . .
Last week in Grand Rapids, the men in Ratliff’s motorcycle club, the Dillywackers, were saying to reporters, “If there were 10,000 Clarence Ratliffs, all the communists would dig holes and bury themselves.”18
Goodman was correct in placing Carol Irons squarely among the smart women who make foolish choices. Carol had access to police records:
In 1975, Officer Ratliff broke into the home of his [first] ex-wife. Ratliff proceeded to pistol whip her, “causing at least three lacerations” in the back of her head. Ratliff was suspended from the department for five days for the assault.19
I did not know Carol Irons personally. I wish I had. She was a friend of my first attorney, who had done so much to calm my nerves and encourage Carlton, dropping my case only after she had been elected a judge and never billing me one dime for all her work. Through her, I felt a kinship with Carol, especially when I learned how she had gone to court at about the same time I was in court, both of us in an effort to escape violent marriages. I remember reading how she was spending time with friends trying to bring normalcy back into her life, taking piano lessons and joining a Bible study.
Many people in West Michigan called for renaming the district courthouse the Carol Irons Hall of Justice. Not surprisingly, it never happened. Ellen Goodman quoted one of Carol’s friends and then added her own voice to that call:
“We have a right to expect zero tolerance toward
domestic violence. There is no acceptable excuse. Not
alcohol. Not adultery. There’s no provocation for murder.”
Write it on the walls of the Carol
S. Irons Hall of Justice.20