Applications Of Feminist Legal Theory

The Violence of Privacy

..·S) The Violence ofPrivacy ELIZABETH M. SCHNEIDER ... THIS ESSAY explores the ways in which concepts of privacy permit, encourage, and reinforce violence against women, focusing on the complex interrelationship between notions of "public" and "private" in our social understandings of woman-abuse.I Historically , male battering of women was untouched by law, protected as part of the private sphere offamily life. Over the last twenty years, however, as the battered women's movement in this country has made issues of battering visible, battering is no longer perceived as a purely "private" problem and has taken on dimensions of a "public" issue . There has been an explosion of legal reform and social service efforts: the development of battered women's shelters and hotlines, many state and federal governmental reports and much state legislation. New legal remedies for battered women have been developed which have been premised on the idea of battering as a "public" harm. However, at the same time, there is widespread resistance to acknowledgment of battering as a "public" issue.... The concept of privacy poses a dilemma and challenge to theoretical and practical work on woman-abuse. The notion of marital privacy has been a source of oppression to battered women and has helped to maintain women's subordination within the family . However, a more affirmative concept of privacy [may be developed]. Historically, the dichotomy of "public" and "private" has been viewed as an important construct for understanding gender. The traditional notion of "separate spheres" is premised on a dichotomy between the "private" world of family and domestic life (the "women's" sphere), and the "public" world of marketplace (the "men's" sphere).2 Nadine Taub and I have discussed elsewhere the difference between the role of law in the public and private spheres.3 In the public sphere, sex-based exclusionary laws join with other institutional and ideological constraints to directly limit women's participation. In the private sphere, the legal system operates more subtly. The law claims to be absent in the private sphere and has historically refused to intervene in ongoing family relations. 23 Conn. L. Rev. 973 (1991). 388 Copyrighted Material The Violence ojPrivacy I 389 Tort law, which is generally concerned with injuries inflicted on individuals, has traditionally been held inapplicable to injuries inflicted by one family member on another. Under the doctrines of interspousal and parent-child immunity, courts have consistently refused to allow recoveries for injuries that would be compensable but for the fact that they occurred in the private realm. In the same way, criminal law fails to punish intentional injuries to family members. Common law and statutory definitions of rape in most states continue to carve out a special exception for a husband's forced intercourse with his wife. Wife beating was initially omitted from the definition of criminal assault on the ground that a husband had the right to chastise his wife. Even today, after courts have explicitly rejected the definitional exception and its rationale,judges, prosecutors, and police officers decline to enforce assault laws in the family context.4 Although a dichotomous view of the public sphere and the private sphere has some heuristic value, and considerable rhetorical power, the dichotomy is overdrawn.5 The notion ofa sharp demarcation between public and private has been widely rejected by feminist and Critical Legal Studies scholars.6 There is no realm of personal and family life that exists totally separate from the reach of the state. The state defines both the family, the so-called private sphere, and the market, the so-called public sphere. "Private " and "public" exist on a continuum. Thus, in the so-called private sphere of domestic and family life, which is purportedly immune from law, there is always the selective application oflaw. Significantly, this selective application of law invokes "privacy" as a rationale for immunity in order to protect male domination. For example, when the police do not respond to a battered woman's call for assistance, or when a civil court refuses to evict her assailant, the woman is relegated to self-help, while the man who beats her receives the law's tacit encouragement and support.7 ... The rhetoric ofprivacy that has insulated the female world from the legal order sends an important ideological message to the rest ofsociety. It devalues women and their functions and says that women are not important enough to merit legal regulation.... Definitions of "private" and "public" in any particular legal context can and do constantly shift. Meanings...