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Hastings Constitutional Law Quarterly

Authors

Laurie S. Kohn

Abstract

Why doesn't she leave? This is a commonly asked question by people confounded by the phenomenon of women who stay in battering relationships despite the abuse they endure. Social scientists have offered many explanations to elucidate this seemingly paradoxical behavior. This article, however, focuses on a pervasive and previously unexamined explanation: the victim's fear that the batterer will publicize truthful confidential information about her. Typically, the batterer will threaten that if the victim leaves him, he will disseminate information such as the victim's HIV status, sexual orientation, or immigration status. The stakes are high. The victim will fear, often rationally, that as a result of the publication, her job will be in jeopardy; that she or her children will be ostracized; or that she will be deported. Under state law, most judges have the authority to address this threat by issuing domestic violence protection orders that direct batterers not to divulge certain information to specific audiences. But are these restrictions constitutional? This article examines the potential constitutional barriers to the issuance of this relief. Looking to analogous constitutional jurisprudence, this article analyzes blackmail, privacy, child welfare, and prior restraint case law to determine the viability of such an order. Finally, the article concludes by arguing that although such injunctions might encounter significant legal challenges, they are normatively important and constitutionally sound relief.

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