It's Complicated: Privacy and Domestic Violence
Bailey, Kimberly D., American Criminal Law Review
This Article challenges the notion that there is no role for privacy in the domestic violence context. Privacy is a complicated concept that has positive and negative aspects, and this Article examines the value more privacy could provide for domestic violence victims. While privacy was historically used as a shield for batterers, more privacy for domestic violence victims could protect their personhood, ensuring they are treated with dignity and respect. In addition, current mandatory criminal justice policies have become so intrusive in many victims' lives that limitations are needed to prevent the threat of state abuse. These protections are particularly important for poor victims and victims of color who are more vulnerable to such abuses. In many cases, a domestic violence victim's choice not to pursue the arrest and prosecution of her batterer should be respected by state authorities. In addition, no victim should be required to cooperate as a witness against her batterer.
INTRODUCTION I. HOW THE BATTERED WOMEN'S MOVEMENT CHANGED THE NATIONAL CONVERSATION ABOUT DOMESTIC VIOLENCE II. PRIVACY AND DOMESTIC VIOLENCE VICTIMS A. Privacy and the Supreme Court B. What is at Stake for Domestic Violence Victims ? 1. Valuing the Domestic Violence Victim's Personhood 2. The Anti-Totalitarian Value of Privacy a. Mandatory Policies and State-Imposed De Facto Divorce b. Economic Vulnerability c. Safety d. Loss of Children e. The Stigmatic Nature of the Criminal Justice System III. THE PRIVATE AND PUBLIC ASPECTS OF DOMESTIC VIOLENCE IV. WHAT'S NEXT? A. A Criminal Justice System Without Mandatory Policies B. When Should the Victim Have a Choice: A Line-Drawing Problem C. A Grassroots Approach CONCLUSION
"I swear I won't call no copper If I'm beat up by my papa Ain't nobody's business if I do." (1)
It was not that long ago that the legal system did very little to protect women from domestic violence because state actors believed violence between intimates was a private matter that should be handled within the family. (2) Activists in the women's liberation and early battered women's movements, however, strongly critiqued the use of privacy to shield batterers from legal intervention and made significant strides in changing the public's perception of the state's role in this area. (3) Now, whenever there is a news story highlighting yet another brutal injury or murder of a woman by an intimate partner, there is a public outcry demanding to know why no one did anything to prevent it; state intervention is now viewed as a necessary tool in combating violence in the home. (4)
Still, although the general public tends to believe domestic violence is a public issue that should be handled by the criminal justice system, many victims view the violence they experience as a personal or private matter. (5) According to National Crime Victim Surveys, twenty-two percent of victims reported they did not seek help from the police after experiencing violence for precisely this reason. (6) One of the reasons feminists argued so forcefully in favor of the conception of domestic violence and other crimes against women as public matters was because there were so many victims who wanted assistance from the police, but were nevertheless ignored. (7) It appears, however, there are actually a significant number of women who do want to be ignored--at least by the criminal justice system. (8)
In Part I of this Article, I describe in detail how the activism of feminists in the women's liberation and early battered women's movements changed the cultural and legal view of domestic violence. I also describe the creation of mandatory arrest and prosecution policies, which require the intervention of the criminal justice system regardless of the wishes of the victim. …