Every generation has preferred modes of self-disclosure. Not long ago, lovers revealed their thoughts, desires, and secrets over the phone and in letters. Today, they exchange personal histories and nude photos via text and online chats. Yet no matter the era's chosen mode of communication, the success of intimate relationships depends upon sexual privacy. Intimacy can develop only if partners trust each other to treat their self-revelations with discretion and care.
Self-disclosure, however, is difficult after one's nude photos have been posted online or one's intimate encounters have been videotaped without permission. Individuals refrain from dating for fear that their intimate revelations will again be surveilled and exposed in unwanted ways. Sexual-privacy invasions thus undermine the possibility of intimate relationships.
Law should punish intimacy-destroying invasions of sexual privacy, and market efforts should be trained on their prevention and mitigation. Some private responses, however, require a healthy dose of skepticism as they over-promise and under-deliver for sexual privacy.
TABLE OF CONTENTS INTRODUCTION I. SEXUAL PRIVACY: AN ESSENTIAL CONDITION FOR TRUST IN INTIMATE RELATIONSHIPS A. Sexual Privacy B. Intimacy & Trust II. SOWING DISTRUST A. Betraying the Trust of Intimate Partners B. Corroding the Project of Intimacy with Sexual-Privacy Invasions C. Harm III. ASSESSING THE TURN TO TRUST A. Enforcing Legal Commitments of Trust B. Veneer of Trust CONCLUSION INTRODUCTION
When Jane Smith began dating after her divorce, she never imagined that her ex-husband would sneak into her house and hide a video camera in her bedroom. (1) But that is precisely what he did. (2) Smith's ex had a copy of the key to her house in case one of their kids had an emergency. (3) She never gave her ex permission to enter her bedroom, let alone to videotape her there. (4) Her ex sent footage of Smith's intimate activities with another man to her parents and members of her church.
Much like Smith, we set boundaries around our intimate lives, and, much like Smith, we expect that those boundaries will be respected. We presume that no one is videotaping us in the bedroom unless invited to do so. And we assume that our sexually explicit photographs will not end up in family members' inboxes without our say so.
These sorts of social norms are essential building blocks of what I have called "sexual privacy." (5) Sexual privacy refers to the behaviors, expectations, and attitudes that mark the boundaries around intimate life. It concerns the ability to conceal the naked body and the seclusion afforded sexual intercourse and other intimate activities. It concerns the confidentiality of thoughts, digital communications, and online searches about sex, sexuality, and gender. It concerns personal decisions about the revelation of our naked bodies and intimate information. (6)
Sexual privacy should be recognized as a foundational privacy interest. (7) Sexual privacy is an essential precondition for sexual agency, selfdetermination, and intimacy, and its denial risks entrenching the subordination of women and marginalized communities.K It deserves special protection, much as do other crucial privacy interests like health privacy, financial privacy, communications privacy, children's privacy, and intellectual privacy. (9)
This Article explores a central reason for recognizing sexual privacy as a distinct privacy interest--its importance to intimacy. The protection of sexual privacy is essential for intimate relationships to thrive. Intimate relationships develop through a process of mutual self-disclosure and vulnerability. (10) Self-revelation, however, is only possible when partners can be trusted to handle intimate information with care. (11) Revealing intimate information is difficult after an ex-partner has been indiscreet with our confidences. (12) As Smith told me, intimacy can seem unattainable, and trust foolhardy, after being secretly recorded in the bedroom and that recording exposed to family and friends. (13)
Law should stand behind obligations of confidentiality assumed in intimate relationships. It should punish sexual-privacy invasions that sow distrust in the project of intimacy. Beyond law, private efforts should reinforce norms of sexual privacy. At the same time, we should be wary of market responses that over-promise and under-deliver for sexual privacy.
This Article has three parts. Part I explores the connection between sexual privacy, intimacy, and trust. It highlights the centrality of sexual privacy to trust in intimate relationships. It distinguishes invocations of "privacy" that shield sexual-privacy invasions from accountability and undermine sexual autonomy, equality, and intimacy.
As Part II explores, sexual-privacy invasions sow distrust. Victims find it difficult to forge new relationships after ex-intimates secretly record their naked bodies and exhibit their intimate information without consent. They feel unsafe in their bedrooms and in their relationships after strangers invade their sexual privacy. Part II lays out the costs to intimacy, emotional health, and professional life.
Part III evaluates an encouraging development in privacy law--the growing scholarly emphasis on trust in relationships. It considers the potential role for trust in remedying and preventing sexual-privacy invasions. It also assesses market efforts that trend in this direction. It ends with a note of caution about private-sector developments that claim to protect sexual privacy and trust but may risk both.
SEXUAL PRIVACY: AN ESSENTIAL CONDITION FOR TRUST IN INTIMATE RELATIONSHIPS
This Part starts with a brief overview of sexual privacy's significance to autonomy, identity, and equality. Then, it turns to the heart of the matter: sexual privacy's importance to intimate relationships. It describes relationships that count as intimate and their importance for human flourishing. It shows how sexual privacy serves as an essential precondition to the development of intimate relationships. It argues that the coerced revelation or concealment of intimate life is the conceptual antithesis of sexual privacy.
Managing the boundaries around our bodies, thoughts, activities, and personal information is a part of daily life. (14) We cover genitals with clothing and leave hands bare. We share certain thoughts with long-term partners but not with coworkers. (15) We keep some personal history to ourselves. (16) At certain times, we close bedroom and bathroom doors, and we open them at other times.
Whether privacy is warranted is determined by the settings, contexts, and expectations in which we set those boundaries. (17) Crucial to those settings, contexts, and expectations is sex--the human body; intimate activities; personal information about sex, sexuality, and gender; and personal choices about the body and intimate activities. (18)
I use the term "sexual privacy" to refer to the social norms that manage the boundaries around our intimate lives. (19) Sexual privacy concerns the visibility of the naked body and the parts of the body closely associated with sex and gender. (20) It involves the solitude afforded intimate activities, including but not limited to sex. It addresses the confidentiality of thoughts, communications, and online searches about sex, sexuality, and gender. It concerns decisions about the concealment of our sexual preferences, transgender status, or naked body. (21)
Consider these illustrations of sexual privacy. A man takes off his clothing in a hotel room, expecting no hidden cameras there. A couple has sex in their bedroom, uninhibited in their interactions because they believe that they are alone. A woman reveals her childhood sexual assault to her lover, assuming that he will be discreet with that information. A man texts nude photographs to his boyfriend on the understanding that the photos are for their eyes only. A woman walks into a store, assuming that employees cannot see, let alone videotape her, up her skirt.
The concept of sexual privacy has descriptive and normative dimensions. (22) The term captures how sexual privacy is currently experienced and how it should be experienced. (23) Sexual privacy, as I am using the term, secures "opportunities for ... privacy and private choice" that individuals expect and deserve. (24) Sometimes, law protects the boundaries that manage access to our bodies, intimate information, activities, and decisions. (25) At other times, it provides little to no protection, though it should. (26)
As I have argued, sexual privacy is crucial to sexual agency and self- development. (27) Individuals are free only insofar as they can determine the boundaries around their bodies and intimate lives. Sexual privacy allows people to decide whether their bodies are seen or taped; whether their thoughts, fantasies, and dreams are revealed; and whether their sexual preferences, gender, and sexual history are disclosed. (28)
Being able to reveal one's body in the way that one chooses is central to self-development. (29) The human body serves as a "basic reference" for identity formation. (30) It influences how people understand, develop, and construct gender identity and sexuality. (31) Sexual privacy gives people freedom to experiment with their bodies, sexuality, and gender before revealing them to others. (32) It gives them breathing room to explore sexual fantasies, thoughts, and wishes. It enables them to see themselves as the authors of their intimate lives, and it lets others see them as fully integrated human beings rather than as just intimate parts. (33)
Equality is at stake as well. In the present, as in the past, women and marginalized communities shoulder the brunt of invasions of sexual privacy. (34) In nineteenth-century America, enslaved individuals had no sexual privacy. (35) Enslaved "black women were taken into the town square to be...