Hastings Law Journal


Suzanne A. Kim


Feminist legal theorists have long debated the proper role of privacy in women's lives. They have generally discredited the formalist division of society into "public" and "private" spheres to the extent that this model has historically permitted male abuse of women under the mantle of "domestic privacy." Indeed, the critique of the public-private dichotomy has been a central concern of feminist legal theory and the domestic violence movement. The critique has given rise to disputes among feminist legal scholars, however, about the utility and desirability of asserting women's rights claims on privacy grounds. While radical feminists reject privacy-based claims because of the gender-coercive heritage of the public-private distinction, liberal feminists argue that privacy supports women's selfhood and thus advances sex-equality goals.

A leading class action lawsuit brought by domestic violence victims and their children presents an opportunity to advance this debate. In Nicholson v. Williams, the plaintiffs challenged the constitutionality of a child protection agency's routine practice of removing children from their mothers' custody solely because the children had witnessed or could have witnessed their mothers being abused. A federal district court preliminarily enjoined the policy on, among other bases, substantive due process grounds based on the mothers' and children's fundamental right to "family privacy." Through its robust privacy rhetoric, the district court's decision presents an untapped opportunity to think more broadly about how the intersection of domestic violence victims' interests and those of their children implicates ongoing dialogue about the optimal relationship between privacy and family.

Scholarship about this high-profile case has failed to consider the case's potential for bridging the space between competing feminist conceptions of privacy. This Article argues that the court in Nicholson rehabilitates privacy as a means of promoting the autonomy and selfhood of domestic violence victims, reconstructing family privacy apart from its gendered origins. The Article argues further, however, that over-reliance on family privacy as exemplified by Nicholson could jeopardize children's interests in protection by relying on concepts of parental control and by reproducing a sphere of nonintervention that inures to parents' benefit at the expense of beneficial governmental intrusion that falls short of custody removals.

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