The Rules of Evidence have been increasingly criticized for serving as a tool to maintain patriarchy and White supremacy. Scholars have shown how rules such as relevance, excited utterance, character for untruthfulness, rape shield, or credibility discounting promote gender oppression. Similarly, they have uncovered how unregulated evidence, character evidence, and prior convictions have contributed to the carceral state and racial and economic inequality. Recently, however, two articles have come out advocating that instead of abolishing or reforming rules, we adopt new ones, specifically a new privilege, in the realms of pregnancy termination (Aziz Z. Huq & Rebecca Wexler) and children’s rights (Nila Bala).
Huq and Wexler advocate for a privilege to shield abortion-relevant data from “warrants, subpoenas, court orders, and judicial proceedings” to counteract the elimination of a federal abortion right after Dobbs. Bala goes even further, arguing for creating a testimonial and confidential child-parent privilege including digital and written communications not only to protect minors and parents against gender-affirming care and abortion criminal prosecutions but also in any other criminal, juvenile, or civil context. In addition to its broader application, Bala’s proposal struck me the most because her justification for creating the rule rests on a privileging resistance framework. In The History of Sexuality, Foucault observed that “[w]here there is power, there is resistance, and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power.” Bala’s forthcoming article greatly exemplifies this axiom.
She starts by recognizing that courts and scholars greatly disfavor privileges as the instrumental rationale to forego truth in favor of promoting privacy and relationships has been empirically disproven because most people are unaware of evidentiary privileges or misunderstand their scope and would share information regardless of the existence of the privilege. Consequently, scholars have argued that there is no reason to exclude this information from a trial.
Bala then turns to how women and children lacked judicial personhood and were considered property of the father/husband under coverture and how that was used to preclude women and children from testifying. As coverture disappeared, a spousal privilege emerged as a way to guarantee the interests of men. This privilege has been redefined and reinterpreted in an attempt to update it to our current goals of gender equality and purge it of its patriarchal character. The disappearance of coverture, however, did not bring a parent-child privilege (although it exists in a very limited form in a handful of states). Perhaps, as Bala aptly points out, the reason for it is that the United States continues to privilege marriage over other social relationships like child-parent and still treats children, in many respects, like parental property.
After disentangling this history of the child-parent privilege and patriarchal family structures, Bala proceeds to proffer a new instrumental justification for it. She argues that because the legal system relies on parents formally and informally as a legitimizing force in criminal and juvenile proceedings such as for Miranda waivers or access to other constitutional rights, they cannot be put in the conundrum of advising their children and being forced to testify or not providing advice to them to avoid testifying against their offspring. Although this argument is important, the most valuable contribution of her article comes when she offers non-instrumental justifications and embarks on describing how adopting the child-parent privilege is a tool of resistance.
First, she argues for the recognition of relational privacy (a conception of privacy resting on relational autonomy in which information can be shared with third parties but remain private for others outside that relationship) in the child-parent relationship to protect children rather than to shield parents’ decision making as the law has consistently done. This approach is crucial if we wish to rethink children’s rights. As Bala argues, we must recognize that even though children are not legally autonomous, we must foster the relationships that allow them to act upon their partial autonomy and become fully political adult actors. And we must provide legal means for children to do so.
This idea links directly with the privileging resistance framework that Bala advances in her article. She argues that adopting the child-parent privilege is a way to resist the oppressive legal system that separated Black and Native families in the United States and that continues to oppress them through the juvenile, criminal, and child welfare system. Protecting the communication between children and parents of these families is a way to honor their historical resistance strategy of teaching children to read and orally pass down traditions and to protect their intimate family spaces that have not been shielded from state intervention for so long. Taking as an example Australia, Bala also argues that the privilege would serve to decenter the carceral state as it would allow parents or anyone de facto or functionally in that position to engage with children in more successful approaches such as restorative justice by adding diversion opportunities from the legal system.
Similarly, the privilege would serve as a resistance tool in the healthcare context. Bala explains how, after targeting providers and allies, criminalization of abortion and gender-affirming care moves to the targeting of parents. As such, a child-parent privilege provides a way to resist an unjust law by foreclosing the use of evidence produced by the most involved parties.
Here lies, perhaps, Bala’s greatest contribution. Her approach challenges the implicit assumptions about the validity of the adversarial system and the substantive laws. In other words, her privileging resistance framework forces us to deal with the reality that the legal system will have unjust laws and that its design is unfair. Thus, we must build into the law resistance mechanisms that need not be justified under the validity of the legal system, but instead in its inherent injustice. I gladly accept her invitation to rethink the legal system always from the perspective of a locus of power in which privileging resistance is indispensable if we wish to construct a just society.
