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.
In Part II, I make a normative argument in favor of allowing most domestic violence victims to choose not to engage with the criminal justice system. (9) To support my view that victims' choices should matter, I re-examine the concept of privacy. (10) Because privacy was historically used to shield batterers from state intervention, its benefits for domestic violence victims have been ignored. The concept of privacy is already strongly valued in American culture and jurisprudence, and it is the foundation for significant women's rights such as contraception use and abortion. (11) Instead of accepting the notion that the concept of privacy is always detrimental to domestic violence victims, I draw upon this tradition to describe the aspects of privacy that could be valuable. With respect to domestic violence victims and the criminal justice system, two forms of privacy are at stake. The first is the type of "restricted access" privacy defined by Anita Allen as a "degree of inaccessibility of persons, of their mental states, and of information about them to the senses and surveillance devices of others." (12) The second is "decisional privacy," or the freedom to make choices in family matters with limited state intervention. (13) Both types of privacy are essential to preserve victims' personhood and to ensure they are treated with dignity and respect. More privacy also limits the threat of state abuse. Poor victims and victims of color are particularly at risk for privacy violations. (14)
Part III argues when one acknowledges the interrelatedness of the public and private spheres, it is not theoretically inconsistent to provide affirmative protection to victims while preserving some of their privacy. With this is mind, Part IV urges policymakers, feminist activists, and victims' advocates to consider the possibility the criminal justice system can be more effective without imposing mandatory policies. Furthermore, a potential line-drawing problem in determining when to intervene in a violent relationship is not an excuse to ignore victims' privacy. Finally, a grassroots approach must work in conjunction with a criminal justice solution in order to help a greater number of victims. (15)
How THE BATTERED WOMEN'S MOVEMENT CHANGED THE NATIONAL CONVERSATION ABOUT DOMESTIC VIOLENCE
Physically chastising one's wife was once legal in the United States. (16) Even though "wife beating" was eventually defined as a crime, (17) it would be decades before state actors took serious steps to enforce these laws. (18) Influenced by liberal theorists such as John Locke, state actors believed domestic violence was a matter that should be handled within the privacy of the home. (19) Locke is associated with the view that there are two separate spheres of life: the public sphere, which is appropriate for government intervention, and the private sphere, in which government intervention is inappropriate. (20) Family life was included in the private sphere. (21) What was most significant about this view of privacy was that Locke's "formulation of citizen-as-head-of-household" led judges "to recognize the right of privacy only for the heads of households [, which] made this particular privilege a specifically patriarchal one." (22) This view was reflected in the actions of social workers, the police, and prosecutors. For much of the twentieth century, "judges and social workers urged couples to reconcile, providing informal or formal counseling designed to preserve the relationship whenever possible. Battered wives were discouraged from filing criminal charges against their husbands [and] urged to accept responsibility for their role in provoking the violence...." (23) Similarly, on those occasions when the police were called to the home, the typical response was to give the husband an opportunity to cool off, and the police would then leave it up to the couple to resolve their differences. (24) Even if the wife wanted stronger intervention measures, such as arrest and prosecution, the police and prosecutors routinely ignored these cries for help. (25)
Feminist scholars and activists involved in the women's liberation movement in the late 1960s and 1970s vehemently challenged this theoretical dichotomy between public and private life. (26) First, they highlighted the fact that it has never been the case that the state had no role in family life. (27) Indeed, determining what constitutes a family and what rights and privileges a family possesses has always been the role of the state. (28) Thus, the state selectively chose when to intervene, and by ignoring the plight of women in the home, affirmatively maintained their subordination. (29) In other words, it was complicit in the violence these women were experiencing. (30) Furthermore, by treating domestic violence as a personal matter, the state advocated the notion that the phenomenon was merely the result of personal squabbling between husband and wife. (31) If each woman were to look inside herself, so it was commonly thought, perhaps she could figure out how she was contributing to her situation. (32)
Feminists involved in the women's liberation movement convincingly made the case, however, that so-called "personal" issues such as domestic violence were actually political issues. (33) Women were not victims of violence because they were lousy homemakers or because they mouthed off too much to their husbands. (34) Instead, they were victims because of the political subordination of women as a class in society. (35) In her influential essay, "The Personal is Political," Carol Hanisch argued "[w]omen are messed over, not messed up! We need to change the objective conditions, not adjust to them." (36) Within the context of these consciousness-raising groups, (37) women began to realize violence in the home was a prevalent political problem and political solutions would be necessary to overcome it. (38)
The battered women's movement grew out of this political milieu. (39) Similar to the women's liberation movement, the battered women's movement was initially a grassroots one. (40) Shelters were created, often by women who...