by: CHERYL L. DAYTEC-YANGOT
All over the world, the traditional family is regarded as the most rudimentary social institution and is the bedrock of society. It is also regarded as the place of shelter to which its members run when they need to withdraw from the pressures of the public world. Traditionally, it has been regarded as a private space, cloistered from State interference or intrusion.
Unfortunately, vesting the family with a private character and taking it out of the realm of the private sphere has perpetuated male dominance and the subjugation of women.
As it has been socially constructed, the family has become a woman’s prison. Her space for action, for making choices, even for thought has been limited. While she has set foot on the public realm and is struggling to have her sameness with men recognized, within the roofs of the home, she bears the greater burden of raising the family. Her multiple burden puts her on unequal footing with her partner.
Privacy and the Family
MacKinnon labels the proposition that the family is a private institution “as a right of men to be left alone to oppress women one at a time.” Indeed, the veil of privacy shrouds what happens inside the home from the public and erects a border that shields it from state interference. But the evil of privacy is that it supplies the lifeblood on which domestic abuse thrives: the culture of silence. Victims of domestic violence rarely complain to the authorities, and when they do, the police are reluctant to intervene in “private matters.”
Prof. Osiatynski posits that the moment a woman enters the institution of marriage, she surrenders the rights she holds against strangers. The family is a kingdom of love and compassion. The long arm of the State should invade the bedroom as well, but not to violate the exercise of a woman’s autonomy. As MacKinnon argued, “when the law of privacy restricts intrusions into intimacy, it bars changes in control over that intimacy” further entrenching the distribution of power and resources skewed towards the subjugation of women.” In arguing for legislations protecting women, Osiatynski justifies himself by saying that women should have a fallback when the love and compassion at home vanish.
Balistreri v. Pacifica Police Department, a United Staes Federal Circuit Court case, illustrates the evils of the legal construction of the family as a private institution. A battered wife obtained a restraining order against her husband who still beat and harassed her as the police folded its arms. The court said there was no special relationship between her and the police, which thus had no duty to protect her.
Consider likewise the very sad case decided by the US Supreme Court: DeShaney v. Winnebago County  involving a four-year old child serially battered by his father in whom the court awarded custody after divorce. While the state intervened during some of the acts of violence, it did not remove the child from his father. The child was eventually abused to a state of comatose. According to the Court, the Constitution does not impose a special duty on the State to provide services to the public for protection against private actors if the State did not create those harms.
These two cases illustrate how the issues of women, and by extension, children are reduced into non-public concerns because of the public/private dichotomy. Thus, while women will argue that marital rape is rampant, in most societies it does not exist as a crime because it is not punished. The principle nullum poena sine lege operates in favor of male dominance. In the Philippines, for instance, it was only in 1997 that marital rape was penalized after years of intense lobbying by the women’s movement. But to date no one has yet been prosecuted for marital rape. The ideology of privacy and its complementary silence remain formidable in shutting the mouth of women.
Boyd laments that equally in the international arena, women’s issues “are overlooked as a result of the mandate of international law to deal only with 'external' or public' matters of the state.”
The Family as a Social Institution
Through legislations, a State defines marriage, its nature, incidents and consequences. Through judicial acts, it has the final word on whether it is legitimate or void. By such acts, the State ultimately makes decisions in the marriage as though it were a third party to it. Thus it cannot be said that the family belongs to the private sphere. As the Family Code of the Philippines puts it,
Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation xxx.
If marriage is “the foundation of the family and society without which there can be neither civilization nor progress” then the state cannot leave the family in the private realm. The family has always been subjected to state regulation, at times eroding women’s equality. Why can’t it be subjected to state regulation to enhance its role in society as a basic institution?
The Constraints in Women’s Opportunities and Freedoms
The inequality that women suffer from is a consequence of the treatment of the family as a private kingdom with walls so high beyond the reach of the long arm of the law. The State with the use of its coercive power has reinforced male dominance and pushed women further back to the seclusion of the domestic sphere. This appears to be a compelling reason why the State should break into the barriers of privacy of the family. It has the power to rectify the wrongs it helped perpetuate. The law, with its coercive nature, can create new attitudes and new opportunities for women.
The patriarchal-virilocal complex that legal systems have reinforced ties women to the demands of domesticity and fosters economic dependence on the men. In industrial societies, there is ample demonstration of how women’s role in parenting has restricted the pursuit of their careers or shortened their career paths. This has resulted in perpetuating women’s dependence on their male partners, subjecting them to the risk of poverty when the marriage is dissolved. This is especially tragic and is aggravated if they will have primary custody of the children and are thus saddled with the primary burden of supporting the latter.
In poor societies where women are totally relegated to domestic concerns and their male partners are the sole breadwinners, this dependence has even more horrifying impact. As a lawyer, I handled two cases of minor children raped by their own fathers. While the cases were in progress, the mothers decided to withdraw the complaints. With their husbands in jail, their families were going hungry.
Indeed economic power is political power. While women are dependent on their male partners, they are prone to physical, sexual or psychological abuse by the latter. This dependence ties them to the marriage or partnership, and deprives them of any bargaining leverage, while their partners wield more power and dominion. The State should step in to eliminate this dependence or share in the burden of dependency so that women can make decisions for themselves including the decision to leave an abusive relationship.
A Woman’s Privacy Right in The Family as a Public Institution
In arguing that the family is a public institution, I do not take the position that there are no privacy rights in the family. Allen argues against the position that “privacy imposes an inherent threat to women” and defends that it advances women’s concerns, opposing MacKinnon’s privacy critique. I see the merit in Allen’s argument and reject MacKinnon’s critique. However, I categorically assert that this privacy which must be defended should be the privacy of the woman, not the family. She must be regarded as separate and distinct from the family. After all, she does not lose her identity the moment she becomes a wife or mother and should be left alone to exercise her autonomy.
The woman should be left alone to decide to have a child, to use or not to use contraceptives, or to refuse to engage in copulation or to have an abortion within that period when it is safe for her to have one and the fetus in her womb is not yet viable. Any law that intrudes into the exercise of this autonomy violates her dignity. It assumes that she is irresponsible, a reflection of the patriarchal view of women being in possession of fundamental irrationality and moral weakness thus in need of “outside control” and protection.
In this short paper, I echoed the view of MacKinnon that the family should be regarded a public institution and bailed out from the shadows that cast it in the private realm. This is because its nature, incidents and consequences are defined by law anyway. Moreover, the privacy accorded to families has perpetuated the oppression of women by patriarchy. I also stated that considering that States through their legal systems have put women in positions of subordination, States should take responsibility for rescuing women from the abyss of oppression and abuse to rectify the wrongs done upon them.
While taking the position that the family is not part of the public realm, I however argue that as part of the family, a woman retains the right to privacy in the exercise of her autonomy. These rights are not family rights, but her rights as an individual separate and distinct from the family. She can be a wife and mother, but still be herself. cldy/18may2010
Catherine MacKinnon, “ Roe v Wade: A Study in Male Ideology” in ABORTION: MORAL AND LEGAL PERSPECTIVES (Jay L. Garfield and Patricia Hennesey, eds, 1984).
 Lecture delivered by Prof. Wiktor Osiatynski in his class on Individual and Human Rights, Central European University, 5 November 2009.
 Supra n. 1, at 193.
 489 U.S. 189 (1989).
 Literally, it means there is no penalty for an act if there is no law punishing it.
 SUSAN B. BOYD, CHALLENGING THE PUBLIC/PRIVATE DIVIDE: AN OVERVIEW IN CHALLENGING THE PUBLIC/PRIVATE DIVIDE 11 (1997).
 Article 1, Family Code of the Philippines.
 Maynard v Hill, 125 US 190.
 MARTHA A. FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995).
 Under the Family Code of the Philippines, the custody of a child who is under 7 is automatically awarded to the mother, unless there is a compelling interest not to. At such age, a child needs more care and as the main provider of that care, the woman’s freedom is indubitably restricted.
,BARBARA BERGMANN, THE ECONOMIC EMERGENCE OF WOMEN (1986).
 Amartya Sen, “Gender and Cooperative Conflict” in PERSISTENT INEQUALITIES (Irene Tinker, ed., 1989).
 Martha Albertson Fineman, What Place for Family Privacy, GEO. WASH. L. REV. (June-August 1999).
 Id., at 7.
 Joan C. Williams, “Deconstructing Gender” in FEMINIST LEGAL THEORY (K.T. Bartlett and Roseanne Kennedy, eds, 1991).