Women and privacy

Women’s reasonable expectations of privacy are often infringed upon differently than those of men. Privacy most fundamentally means the right and ability to keep others out. Women, like men, have longed for and sought freedom from unwanted intrusion and forced intimacy. However, only recently have such forms of privacy become realities for many women. Certain invasions into private bodily spaces are uniquely female, including unwanted pregnancies and nonconsensual sexual intercourse. Through the availability of effective contraceptives, women now can often control whether and when to become pregnant. Through changes in laws, men who rape women they know (who are the group that sexually assault women much more frequently than do strangers) are now subject to criminal prosecution.
Women in the United States have greater control over what kind of privacy they choose to have and choose to reject than women in many other cultures. In particular, reproductive rights and freedom have played a large role in increasing American women’s privacy by allowing them to decide when to have children and how many to have. Four important constitutional privacy cases of the late twentieth century are Griswold v. Connecticut, 381 U.S. 479 (1965), and Eisenstadt v. Baird, 405 U.S. 438 (1972), which held that the ability to obtain and use contraceptives involves the fundamental right to privacy; and Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey (1992), which based the right to abortion on the constitutional right of privacy.
Invasions of privacy are often gender specific. Women are denied the right to safely walk alone on public streets and beaches or in parks or forests. They continue to have to consider the time of day or night and what they are wearing when alone in public. These rights of privacy in public spaces are denied women because strangers threaten them with a serious risk of intrusion on their private space and bodily integrity. Similarly, cellular telephones with webcams that film up women’s skirts, street harassment such a catcalls and whistles, cyber stalking, peeping toms, and obscene phone calls are violations of the right of privacy that women endure much more frequently than men.
Sexual violence, when it involves nonconsensual sexual intercourse, is a stark example of a sex-based invasion of privacy. The act of rape in many cases creates the risk of the further intrusion of an unwanted pregnancy. If a woman reports her rape, she will likely be subjected to an invasive physical examination to confirm that she was raped. She will also be subjected to intrusive questioning by law enforcement officers and prosecutors. The victim may also experience unwanted and embarrassing publicity concerning the rape and her conduct that led up to it. Finally, if the case goes to trial, the rape victim will likely be subjected to prying, hostile, and humiliating questioning by the accused’s attorney, described by many sexual assault victims as being raped again. While there are more legal protections concerning publicity and questioning today than in the past, the criminal justice system remains highly invasive of a rape victim’s privacy.
Privacy remains double-edged for women. In 1890 Louis Brandeis and Samuel Warren wrote the first scholarly article in which a legal right to privacy was asserted. The privacy they argued for was the “right to be left alone.” They asserted that every man needs a place of solitude, a retreat from the hustle and bustle and competition of public life. While women value the right to be left alone as much as do men, social norms have traditionally relegated women to the private world of home and childrearing, where they experience little personal privacy. The darkest side of privacy for some women still is isolation in violent homes where they are subject to sexual and physical violence.
In 1929 Virginia Woolf’s topic, A Room of One’s Own, explained why women, like men, needed a private space to engage in intellectual creativity and achieve self-fulfillment. Woolf’s demand that women have privacy in order to flourish has been partially answered by enforcement of laws enacted in the late nineteenth century giving women rights over their own finances and property. More recently broad public support for enforcing laws against domestic violence has provided women greater security in private spaces. In addition, date, acquaintance, and marital rape are all violent intrusions on women’s most intimate spaces that, like stalking and sexual harassment, have only been legally and socially recognized in the United States since the 1980s.
America’s recognition of a legal right to privacy began with DeMay v. Roberts, an 1881 case involving the privacy expectations surrounding childbirth. On a stormy night a doctor brought along a unmarried man to help him carry his medical equipment to a childbirth at a private home. When the doctor and the young man entered the home, the doctor failed to explain that the young man was not a medically trained assistant. During a paroxysm of pain, the laboring woman flailed uncontrollably and the doctor yelled “catch her” to the young man, who grabbed her hand briefly and then returned to a corner by the fire. After the child was delivered and the doctor left, the woman discovered that the man who held her hand during childbirth was not medically trained. She sued for this misrepresentation and its intrusion. The court in DeMay was the first to permit someone to sue for an injury based on the interference with her right of privacy.
While the facts of DeMay are somewhat dated, the concept of a woman’s reasonable expectation of privacy during childbirth remains. Women expect to be informed of and have control over who attends them when they are in labor. Invasion of this right is something that a man can never experience.
Recent cases that rely on the DeMay case as precedent for women’s right of personal privacy also involve specifically feminine privacy interests. In a 1984 case, Harkey v. Abate, a court held that a hidden viewing device in a public women’s restroom at a skating rink violated women’s rights of privacy. In Lewis v. LeGrow (2003), a court held that three ex-girlfriends could sue the defendant for invasion of privacy for secretly videotaping his consensual sexual encounters with them. In Sanchez-Scott v. Alza Pharmaceuticals (2001), a breast cancer patient was allowed to sue a male drug salesperson for invading her privacy by his attending a breast exam given by her oncologist.
A 2006 Kansas case demonstrates further how certain kinds of invasions of privacy are specifically targeted at women or more often affect them. In Alpha Medical Clinic v. Anderson, the Kansas Supreme Court invalidated a demand by the Kansas attorney general that clinics provide him with the names of all their patients who had late-term abortions. The attorney general demanded the names because he alleged that some of these patients might have committed the crime of child abuse by terminating their pregnancies without legal justification. Holding that this demand was an unconstitutional invasion of the women’s privacy, the court found that three rights of privacy were at issue: the right to maintain the privacy of certain personal information; the right to obtain confidential health care; and a woman’s right to obtain an abortion without the government imposing an undue burden on that right.
Feminist theorists have argued that women have a greater need and preference for connection and intimacy than do men. Carol Gilligan’s topic In a Different Voice, published in 1982, has been the basis of claims that women see the world through a connection lens while men value separation from others. Robin West, in her article Jurisprudence and Gender, asserts that men value separation and fear connection while women value connection and fear separation. Even if there is factual basis for such claims, it is only chosen connection and intimacy that women value; often connection and intimacy are imposed on women instead.
Anita Allen in her 1988 topic Uneasy Access examines the lack of meaningful privacy for women. She discusses how women’s positive values, such as caring, connection, selflessness, and intimacy, often conflict with their ability to experience the kind of privacy that men assume as their right. The economic realities for women, especially battered women and single mothers, often continue to make decisional privacy and a room of her own very hard to achieve.
Women in the United States today often have far more chosen privacy than women had in the past. Nevertheless, they continue to confront certain invasions of privacy that affect them much more than they affect men.