THE STATE AS RIGHTS-FACILITATOR: RECONCILING BRANCHES OF PRIVACY DOCTRINE THROUGH CONSENT.

• Author: Kobriger, Kate

INTRODUCTION

Scholars broadly acknowledge the tension between privacy's oppressive and liberative potential: domestic privacy (1) has traditionally hindered gender equality by shielding people from accountability for domestic violence, (2) while decisional privacy (3) can promote gender equality by preserving individuals' right to make decisions about their sexual and reproductive lives. (4) As this Note later quantifies, this tension allows for the perpetuation of patriarchal ideals, both for people experiencing domestic violence and people seeking to self-determine their reproductive life. Moreover, this tension excludes individuals who do not adhere to those ideals. The tension also yields a system in which progressive arguments under one permutation of privacy may be coopted to become regressive arguments under another permutation of privacy, thereby undermining progressive movements as a whole.

Part I reviews the development of the tension between privacy's simultaneously oppressive and liberative potential. Section I.A discusses domestic privacy's role in providing a safe haven for domestic violence, including how it became fodder for exceptions to progressive legal doctrines and justifies police inaction even when survivors explicitly seek police protection. This section seeks to illuminate how domestic privacy and these attendant patriarchal wrongs became ingrained in the American legal system by examining how courts implicitly Constitutionalized them through references to Fourth Amendment principles. Next, Section I.B analyzes the iterative erosion of domestic privacy through equal protection arguments, which ultimately succeeded in introducing some state support for individuals experiencing domestic violence. Finally, Section I.C compares this evolution of domestic privacy to the line of cases that developed decisional privacy, which is typically considered distinct from domestic privacy. Section I.C finds that courts' decisional privacy opinions, like the early cases involving domestic privacy, are rooted in logics of marital and spatial privacy. In other words, these opinions draw a barrier between the home and the state that simultaneously bolsters adults' autonomy in making decisions about home or family life and obviates state responsibility for harms sustained through traditionally home- or family-based relationships. Thus, Part I concludes that domestic and decisional privacy should be understood not as two distinct doctrines, but rather as two branches growing from the same doctrinal root.

Even if domestic and decisional privacy stem from the same root, implementing them in the context of gender equality generates tension between arguments against domestic violence and arguments for reproductive self-determination. Part II describes three ramifications of that tension. First, Section II.A describes how privacy has antithetical impacts on the domestic sphere and the reproductive rights sphere. Greater privacy in the domestic sphere means less state support for individuals seeking accountability for or escape from domestic violence. Advocates for domestic violence survivors therefore aim to reduce privacy. However, greater privacy in the reproductive rights sphere means less state interference in individuals' self-determination. Advocates for reproductive rights therefore aim to bolster privacy. Less state support for individuals seeking to escape domestic violence is antithetical to the progressive movement, while less state involvement in individuals' ability to self-determine squares with progressive ideals. As advocates in the domestic violence and reproductive rights spheres argue for their clients, they must reckon with the possibility that a successful argument in one sphere risks undermining progressive arguments in the other sphere; an argument that is effective at inviting state support into the "private" zone to protect against domestic violence may also be effective at inviting state interference into the "private" zone to prevent reproductive self-determination. Conversely, an argument that repels state interference in the "private" zone of reproductive self-determination may also permit state non-intervention in the "private" zone of domestic violence. Section II.B then introduces the state's inconsistent application of privacy doctrine to individuals of particular socially salient identities. The inconsistent application of privacy doctrine persists as a result of deference to judges, police officers, and other representatives of the state in their respective determinations regarding which relationships "deserve" to be treated as parcel to the home and whose homes should be considered private.

Part III reconciles the erosion of domestic privacy with the promotion of decisional privacy by finding that in each context, individuals' rights and agency are furthered through a framework that prioritizes consent. Sections III.A and III.B apply a consent framework to domestic violence and reproductive rights cases, respectively. Those Sections find that such a framework positions the state as a rights-facilitator in either setting, requiring the state to make itself available to those who seek assistance in effectuating their Constitutionally-protected decisions. The framework foregrounds welfare programs that combat coercion, provide resources, and empower survivors of domestic violence, while leaving important Constitutional rights intact. Section III.C concludes by exploring how a consent framework is entirely consistent with long-established state interests in health and life, and therefore furthers the interests of both individuals and the state.

Such arguments are unlikely to succeed at the federal level, given current political realities and the composition of the United States Supreme Court. For example, this consent framework runs counter to the United States Supreme Court's recent decision in Dobbs v. Jackson Women's Health Organization. Despite this current political reality, this Note seeks to chart a path for policymakers at all levels and for courtroom advocates working to expand self-determination at the state level. (5)

1. Privacy Operates as Both an Impediment to and Source of Gender Equality

   Privacy is an amorphous body of law and, as such, defies static definition. "Privacy" has different connotations and contours in a legal setting, compared to lay ideas about the term. In a 1998 article, Professor Jerry Kang referred to privacy as "a chameleon that shifts meaning depending on context." (6) He went on to define privacy in three clusters. First, "physical space" or "spatial privacy" includes, "in particular, the extent to which an individual's territorial solitude is shielded from invasion by unwanted objects or signals." (7) Kang identified spatial privacy with Fourth Amendment protections in areas closely associated with one's home. (8) Second, "decisional privacy" is "principally concerned with choice, an individual's ability to make certain significant decisions without interference." (9) Kang's definition of decisional privacy was intertwined with the landmark Roe v. Wade decision, which found a fundamental substantive due process right to abortion. (10) While the United States Supreme Court later altered the scope of decisional privacy in Dobbs, (11) Kang's words about "significant decisions" remain a guidepost in conceptualizing decisional privacy. Third, "information privacy concerns an individual's control over the processing--i.e., the acquisition, disclosure, and use--of personal information." (12) As an illuminating example, Kang offered that information privacy is invaded when someone "obtains sensitive medical data by rifling through confidential files without permission." (13)

   Kang clarified that these three clusters "are not sharply separate. They are functionally interconnected and often simultaneously implicated by the same event or practice." (14) Kang left space for additional clusters or even "a single abstract cluster," though he declined to explore the possibilities in that writing. (15) Family law scholars add the cluster of "domestic privacy"--sometimes reconfigured as "family privacy"--which is a historically "marital-based" "sphere of non-intervention and autonomy" that, in more modern reconstructions, can incorporate barriers to state intervention in caretaking relationships. (16)

   In its many forms, privacy doctrine has been both enemy and friend to the feminist legal movement. This Part reviews the development of privacy's dichotomous relationship to the movement, beginning in Section I.A by documenting how domestic privacy was built on and for ideals of patriarchal power. Section I.B then analyzes how equal protection arguments eroded domestic privacy, completing the foundation for a comparison in Section I.C of the doctrinal evolution of domestic privacy to the doctrinal evolution of decisional privacy. Part I ultimately concludes that domestic privacy and decisional privacy are rooted in the same logics, and therefore should be understood not as two distinct doctrines, but rather as two branches growing from the same doctrinal root.

   1. Domestic Privacy Often Functions as a Legal Tool for Enabling Domestic Violence

      Domestic privacy is the present-day culmination of several ancient doctrines--chastisement, coverture, marital unity, and marital privacy--and the underenforcement of more modern law against domestic violence. Implicit in the logic of domestic privacy is a reverence for the home as a private physical space, protected against state intrusion. But while significant scholarly analysis of these doctrines exists, those analyses infrequently employ a Fourth Amendment lens. The Fourth Amendment establishes an explicit nexus with domestic life by protecting people's right to security in their "houses." (17) Some of the most iconic language establishing domestic privacy builds on that nexus, invoking Fourth Amendment...