II. Physical assault (1904)
In wide circles, even in educated circles, there is the opinion that the husband still has the right to punish his wife within the bounds of moderation. This opinion was voiced to the author in various places and by persons from various circles of the population. Some time ago, a female teacher turned to the editors of this journal and asked for advice on how to help a worker’s wife who was being continually abused by her husband; she, too, held the view that the husband had the legal right to beat his wife. We must conclude from these experiences that the belief in the husband’s right to punish still has a great many followers and that a lot of women silently put up with treatment that finds no justification in the law. Therefore, it is necessary for us to note that, according to the law as it applies to all of Germany, the husband is not authorized to beat his wife or apply other means of punishment against her, not even within the bounds of moderation, and by raising this point we hope to help enlighten wide circles. Our Civil Code contains no sentence from which a husband’s right to punish could be deduced. Rather, one can infer from paragraphs 1352 ff. that the German wife stands alongside the husband as a co-equal and as a person who is equal before the law. To be sure, the right of decision-making is granted to the husband on matters pertaining to their shared life, and within these boundaries the wife must obey the husband’s will. But she is not obligated to follow the husband’s decision if it represents an abuse of his right. Moreover, the husband may not on any account use physical coercion to enforce his will. The means of punishment that parents are entitled to with respect to their children don’t apply to spouses, for the simple reason alone that the husband is not raising and educating the wife. So even if the wife resists the husband’s wishes and commands, even if she leads a dissolute life or violates her marital obligations in some other way, the husband does not have the right to beat her. Any assault by the husband on the wife is a violation of the law; the body and honor of the wife are as much under the protection of the law as the body and honor of all other people. That is why a wife who has been beaten by her husband can demand that he be punished for premeditated battery and assault. Unfortunately, such complaints are rarely lodged at this time, and if so then only in cases where repeated and intolerable acts of abuse have already taken place: after all, a woman must fear her husband’s revenge if he is punished in response to her complaint. If such punishment occurred more frequently, the lot of many women, especially in the lower strata of the population, would improve significantly. But perhaps the clarification alone that the husband has no right to beat his wife – and that he is criminally liable if he does so anyway –, may lead to a diminishment of the abuse that is unfortunately still so prevalent in the city and the countryside. That is why everyone should regard it as his duty to thoroughly root out the fable of the husband’s right to punish!
Source: Ernst Goldmann, “Das Züchtigungsrecht des Ehemannes“ [“A Husband’s Right to Punish his Wife”], in Die Frau: Monatsschrift für das gesamte Frauenleben unserer Zeit [Woman: Monthly Magazine for all Aspects of a Woman’s Life in our Times], 11 (1904), pp. 461-62.
Original German versions of the above texts appear in Jens Flemming, Klaus Saul, and Peter-Christian Witt, eds. Quellen zur Alltagsgeschichte der Deutschen 1871-1914 [Source Materials on Everyday Life in Germany 1871-1914]. Darmstadt: Wissenschaftliche Buchgesellschaft, 1997, pp. 105-07.
Translations: Thomas Dunlap
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