Gender and the legal order in Imperial Russia

guaranteed women independent ownership of their fortunes, when disputes between spouses arose, it was not uncommon for legal authorities to distort the law and declare that husbands were the custodians of their wives’ dowry during marriage.43 Despite ample archival evidence that the courts upheld the property rights of women across the social spectrum,44 the prevailing view among legal scholars and officials was that married women stood little chance of administering their assets unless their husbands permitted them to do so.

Gender in criminal law

Criminal law, as well as the law of property, made few concessions to female weakness in the eighteenth century. Indeed, in cases of adultery or spousal murder, the law displayed far less leniency for women than for men.45 Over the course of the nineteenth century, however, as Russian legal reformers became increasingly familiar with Western European law, notions of sexual difference intensified. The progressive legal order that evolved after 1861 emphasised female dependence and associated women with the domestic sphere to an extent never before witnessed in Russian law. As Laura Engelstein argues, although women could be tried in court and were subject to the rule of law, as late as 1903 they ‘remained the objects of . . . custodial solicitude . . . Like children and the mentally incompetent, women continued to be marked by special disabilities in relation to the law.’46

Throughout the eighteenth and early nineteenth centuries, legal authorities made virtually no distinctions between women and men, meting out similar punishments regardless of sex. Prompted by the confession of a fourteen-year- old peasant girl to the axe-murder of two children, a decree of 1742 set the age of criminal accountability at seventeen years for offenders of both sexes, making them liable to exile, corporal punishment, and the death penalty.47 Women were flogged in public and subject to torture under interrogation, sometimes so severely that they died in the process.48 Nor were noblewomen exempt from brutal treatment when they dabbled in political intrigue: Empress

43Zamechaniia o nedostatkakh deistvuiushchikh grazhdanskikh zakonov (St Petersburg, 1891), no. 109.

44Marrese, A Woman’s Kingdom, pp. 84–97; Worobec, Peasant Russia, p. 64.

45Engel, Women in Russia, 1 7 00–2000, p. 13.

46L. Engelstein, The Keys to Happiness: Sex and the Search for Modernity in Fin-de-Siecle` Russia

(Ithaca: Cornell University Press, 1992), pp. 71–2.

47PSZ, vol. 11, no. 8.601 (23.08.1742). Children under seventeen years of age could be whipped in public and sent to a monastery for fifteen years of hard labour.

48E. Anisimov, Dyba i knut: Politicheskii sysk i russkoe obshchestvo v XVIII veke (Moscow: Novoe literaturnoe obozrenie, 1999), pp. 399, 405, 409, 411.

339

Russian society, law and economy

Elizabeth ordered Countess Natalia Lopukhina to have her tongue cut out and then exiled to Siberia when she indulged in subversive gossip.49 Peter the Great took the step of exempting pregnant women from torture until giving birth – for the sake of the child, however, rather than the accused. The sole advantage female convicts enjoyed after 1754 was freedom from being branded and having their nostrils slit when transported to hard labour. Empress Elizabeth and the Senate did not revise the law on grounds of female weakness, however, but because they believed that women were less likely to flee exile than men.50

By the second quarter of the nineteenth century, in keeping with the European ‘discovery of the sexes’,51 legal authorities demonstrated new concern with sexual difference in the context of criminal law. The growing significance of motherhood in official and public discourse prompted officials to spare pregnant women and nursing mothers from corporal punishment until their children could be weaned. In the 1830s, the Senate decreed that children should not be separated from exiled mothers. Special arrangements were to be made for mothers during transport to exile or who were in prison.52 For their part, contemporaries greeted these innovations with approbation, singling out for praise provisions that made allowances for the ‘sensitivity’ of the female sex.53

Well into the nineteenth century, exemption from corporal punishment hinged on social rank and standing in the family, rather than gender: thus, noblewomen, along with their husbands, were freed from corporal punishment in the 1785 Charter to the Nobility; wives of merchants of the first and second guilds received similar immunity in Catherine II’s Charter to the Towns.54 The wives and widows of priests and deacons were granted exemption in 1808, seven years after their husbands received this privilege, while their children gained immunity only in 1835.55 By the middle of the nineteenth century, however, appeals were heard in the Senate that all women should be spared corporal punishment by virtue of their weakness, both physical and mental, relative to men. These arguments portrayed women as infirm and passive, hence incapable of bearing severe floggings. Moreover, critics of corporal

49The Memoirs of Catherine the Great, trans. Moura Budberg (London: Hamish Hamilton, 1955), p. 62; E. Anisimov, Elizaveta Petrovna (Moscow: Molodaia gvardia, 1999), p. 128.

50Schrader, Languages of the Lash, pp. 125–7, 135.

51T. Laqueur, Making Sex: Body and Gender from the Greeks to Freud (Cambridge, Mass.: Harvard University Press, 1990), pp. 149–92.

52Schrader, Languages of the Lash, pp. 128–30.

53I. V. Vasil’ev, ‘O preimushchestvakh zhenshchin v Rossii po delam ugolovnym’, Damskii zhurnal (1827), no. 11: 242–3.

54PSZ, vol. 22, no. 16.187 (21.04.1785), otd. A, arts. 5, 6, 15; otd. Zh., art. 107; otd. Z, art. 113.

55B. Mironov (with Ben Eklof ), A Social History of Imperial Russia, 1 7 00–1 91 7 , 2 vols. (Boulder: Westview Press, 2000), vol. I, p. 92.

340

Gender and the legal order in Imperial Russia

punishment argued that women were incapable of governing their emotions and thus less accountable than men for the crimes they committed. Some authorities objected to the display of women’s naked bodies being flogged in public: the sight of a woman naked and bleeding evoked sympathy in witnesses to her ordeal and was potentially subversive of the social order. According to other reformers, because women were inherently more virtuous than men, they were less likely to commit crimes in general and they suffered more than the men from the public display of their humiliation.

Ultimately, the significance of sexual difference was accentuated to a new extreme in criminal law. Women were portrayed as fragile, passionate, and even prone to insanity, yet with a highly developed sense of virtue lacking in their male counterparts.56 Officials also reaffirmed the bond between women and the domestic sphere, arguing that the subjection of women to corporal punishment violated female modesty and subverted the familial order and pointing out that the vast majority of crimes committed by women – infanticide, homicide and prostitution – took place in the private realm.57 Conversely, criminal law depicted men not only as capable of bearing physical suffering, but also able to govern their emotions and assume accountability for their actions.

An edict in 1863 finally pronounced all women, with the exception of female exiles, exempt from corporal punishment. Female exiles waited until 1893 for immunity from floggings, while male peasants remained subject to beatings as late as 1904.58 Legal reformers, along with the educated public, perceived the end of corporal punishment for women as a symptom of progress, since ‘respect’ for the female sex was the hallmark of ‘every educated society’.59 Women’s liberation from physical punishment was not, however, necessarily a mark of special favour. As Engelstein observes, ‘The edict of 1863 did not mean that peasant women had been admitted to a higher status than men of their class . . . Women’s exemption functioned, in fact, as a mark of the peasant male’s improved standing, constituting the family as his inviolable domain and reinforcing the wife’s ‘private’ status.’60 The intrusion of Western European

56Schrader, Languages of the Lash, pp. 157–61.

57S. P. Frank, ‘Women and Crime in Imperial Russia, 1834–1913: Representing Realities’, in M. L. Arnot and C. Usborne (eds.), Gender and Crime in Modern Europe (London: University College London Press, 1999), p. 95. As Frank points out, however, although women represented a small percentage of accused felons, they were accused of the same range of crimes as men.

58Engelstein, The Keys to Happiness, p. 74.

59B. F. Adams, The Politics of Punishment: Prison Reform in Russia, 1 863 –1 91 7 (DeKalb: Northern Illinois University Press, 1996), p. 27.

60Engelstein, The Keys to Happiness, p. 74.

341

Russian society, law and economy

legal norms and gender conventions thus laid the foundation in Russia for a social order that prescribed increasingly rigid gender roles for both sexes and intensified male domination in the family.61

In short, by exempting women from corporal punishment, authorities deemed them incapable of responsibility for their actions and, by implication, undermined their potential for full citizenship. Although reformers acted out of a genuine desire to protect women from abuse, they also deprived women of agency, reinforcing their subordination to their husbands and excluding them from the civic order. By contrast, a far more even-handed and inclusive approach to gender difference persisted in the law of property. During debates over the introduction of the income tax at the turn of the century, members of the State Council argued that women, as owners of property and wage earners, should be taxed along with their male counterparts. Taxation, by treating women as individuals, would serve as their ‘introduction to civic life’.62

Conclusion

Over the course of the imperial era, Russian women’s legal status continued to be distinguished far more by disabilities than privileges. In the law of property, women’s standing remained secure. Lawmakers persevered in their defence of women’s control of their fortunes, insisting that ‘not only does the property of a wife not become the property of her husband, but he does not even acquire through marriage the right to use or manage it’. Yet gender neutrality proved an elusive goal even in property law. Early in the twentieth century, members of a commission for a new codification of the law reiterated the responsibility of men to provide for their wives, while stating that a wife ‘is not obligated to seek independent earnings to support [her] husband’. Legal reformers also fell short of granting women equal inheritance rights in the revised law of succession in 1912.63 In other respects as well, the position of women failed to improve or even deteriorated. Until 1917 women remained personally subject to male authority: the Orthodox Church resisted attempts on the part of the state to introduce more liberal divorce legislation, although growing numbers of women gained separation from their husbands through the office of the

61For an account of changing gender relations in Western Europe, see Isabel Hull, Sexuality, State, and Civil Society in Germany, 1 7 00–1 81 5 (Ithaca: Cornell University Press, 1996).

62Y. Kotsonis, ‘“Face-to-Face”: The State, the Individual, and the Citizen in Russian Taxation, 1863–1917’, SR 63, 2 (2004): 231.

63Wagner, Marriage, Property, and Law, pp. 207, 164, 364–71.

342

Gender and the legal order in Imperial Russia

Imperial Chancellery for the Receipt of Petitions, which granted separate passports to women at the emperor’s discretion.64

Most striking, however, was the trend in legal codes to highlight gender difference and to locate women firmly in the domestic sphere. Although legislators did not succeed completely in abolishing sexual asymmetry in property relations, the distinction between women and men in the law of property remained minimal. Women continued to control their fortunes independently, to litigate against kin and neighbours, and were afforded little protection on the grounds of ‘feminine weakness’. At the same time, gender hierarchies in family and criminal law became increasingly pronounced. From the end of the eighteenth century, women’s ‘unlimited obedience’ to their husbands was enshrined in written law, while women’s dependence on their husbands for the right to work or travel and for sustenance was articulated in legal codes. Even the willingness of legal reformers to support marital separation was predicated on the ‘presumed natural weakness of a wife’, since the courts made separation contingent upon a husband’s failure to fulfil his marital obligations.65 Finally, criminal law accentuated sexual difference to the greatest degree, making concessions to female frailty, but at the same time situating women on the margins of civic life. In short, far from fostering women’s equality with men, the efforts of imperial authorities to create a more progressive legal order served only to underscore women’s precarious standing in the law.

64Freeze, ‘Bringing Order to the Russian Family’, p. 744.

65Wagner, Marriage, Property, and the Law, pp. 217–20.

343