TOO MUCH INFORMATION? BALANCING DISCLOSURE AND PRIVACY INTERESTS IN MAKING DOMESTIC ABUSE A MATTER OF PUBLIC RECORD
By: April Will, Volume 102 Staff Member
In the modern age of internet and “app” dating, anyone can fire up a Google search and evaluate a potential partner. Savvy searchers can uncover anything from their love interest’s prior work history to photos from their senior prom. Serious researchers may even conduct searches in government databases, such as the Minnesota Court Information System (MNCIS), to find whether their date has a criminal record. Yet, even with this flood of information, public records relating to histories of domestic abuse remain hidden from the potential partners of the perpetrators of such abuse.
Since the beginning of the twentieth century, the United States has witnessed a vast increase in the number of government records kept about individuals, as well as a significant expansion in public access to these records. Court records in particular reveal a great deal of personal information which is then released into the public record whenever someone comes into contact with the judicial system. Under modern American common law, there is a limited right to access public records. And, in some states, even family court proceedings are made public, revealing intimate details of the parties’ marital relationships.
While courts have long held a presumption of privacy for matters involving the home, family, and sexuality, “[d]omestic violence advocates long protested that misguided notions about the privacy of marital and sexual relations led law enforcement authorities to disregard or downplay physical abuse by intimate partners.” However, the societal shift toward greater government involvement in matters previously considered private demonstrate how understanding of privacy interests are culturally contingent and change over time. Within the context of domestic violence, “[m]andatory and presumptive arrest policies have been among the most important initiatives in the field of domestic violence in the last three decades.”
Under current Minnesota law, a peace officer may arrest a person anywhere without a warrant, including the person’s home, if the officer has probable cause to believe that person has committed domestic abuse within the preceding twenty-four hours. If a person arrested for domestic abuse is not released on citation, a judge reviews the facts surrounding the arrest and detention at a hearing. The judge may then impose, as a condition of release, a requirement that the person have no contact with the victim of the alleged domestic abuse, issuing an ex parte temporary order for protection (OFP) or harassment restraining order.
Whether an arrest is made or not, an officer investigating an allegation of domestic abuse must make a written police report of the alleged incident. This record is then available, upon request, to the victim, the victim’s attorney, or organization providing services to domestic abuse victims. Yet, in our age of information, should these allegations and/or findings of domestic abuse be made available via the public record?
Domestic abuse advocates have shifted public perception: now, many view domestic violence as an issue for the criminal justice system rather than a private matter of the home. However, many victims continue to consider their experiences as highly personal and private matters. These victims may then fail to seek assistance from law enforcement after experiencing violence in the home. In short, a significant number of victims would rather avoid drawing attention to the incident. Some of them might even eschew the label of “victim.” Our adversarial criminal justice system tends to emphasize women’s roles as victims, even when they themselves may not identify that way. Further, documenting domestic abuse on the public record stigmatizes the abuser, which often has social and economic consequences for the entire family.
If domestic abuse records were accessible to the public, connecting abusers to their dating history could make victims more vulnerable to identification. Members of the public would know the year in which the incident occurred and may be able to determine which individual the perpetrator was married to or was dating. In this manner, curious members of the public could identify victims. These increased stakes for the abuser (by making the records readily available) may then further deter victims from reporting incidents of abuse to avoid the attachment of unwanted stigma to themselves or their families.
Another consideration in publicizing domestic abuse records is the impact of this publication on alleged abusers. While mandatory arrest removes victims from potentially threatening situations, it introduces alleged perpetrators of domestic violence into the criminal justice system which can be stigmatizing in and of itself. Further, given the relatively low evidentiary standard associated with Orders for Protection, there remains a possibility that judges may erroneously cast innocent persons as perpetrators. Beyond the burden of complying with a mistaken Order for Protection, these individuals would further suffer the stigmatization associated with being labeled as a domestic abuser.
In our modern context of information overload, members of the public may feel entitled to information concerning their prospective partners and any histories of domestic violence. Indeed, domestic abuse advocates have promoted mandatory arrest policies to increase publicity and accountability for the crimes committed by these abusers. Yet, beyond the privacy interests of abusers and the disclosure interests of future partners, policymakers must consider the interests of the domestic abuse victims themselves. Ultimately, bringing records of domestic abuse under a public disclosure regime, similar to that of the broader criminal justice system, may not adequately protect the privacy concerns of victims wishing to avoid social stigma. And while recognizing the public’s interest in protecting themselves from future abuse, any attempts to publicize domestic abuse records must work to first prevent inflicting further harm to past victims of such abuse.
- See generally Minnesota Judicial Branch, Access Case Records, http://www.mncourts.gov/Access-Case-Records.aspx (last visited Feb. 8, 2018). ↑
- See Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 Minn. L. Rev. 1137, 1141–1142 (2002). ↑
- See id. ↑
- See id. at 1157. ↑
- See id. at 1146. ↑
- William McGeveran, Privacy and Data Protection Law 59 (2016) (citing Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117 (1996)). ↑
- Id. ↑
- Drew Humphries, Reaction Essay, No Easy Answers: Public Policy, Criminal Justice, and Domestic Violence, 2 Criminology & Pub. Pol’y 91, 91 (2002). ↑
- Minn. Stat. § 629.341 (2017). ↑
- Minn. Stat. § 629.72 (2017). ↑
- Id. ↑
- Minn. Stat. § 629.341 (2017). ↑
- Id. ↑
- See Kimberly D. Bailey, It’s Complicated: Privacy and Domestic Violence, 49 Am. Crim. L. Rev. 1777, 1781–1785 (2012) (describing the role of the women’s rights movement in changing the national conversation about domestic violence). ↑
- See id. at 1785–86. ↑
- “It is estimated that up to eighty percent of domestic violence victims either recant or refuse to testify against their batterers.” Id. at 1785. ↑
- See id. at 1800. ↑
- See id. ↑