[Bella’s intro: This past semester, Craig Wynne, who has written a guest post for Unmarried Equality, taught a composition course at Hampton University with the theme of marriage and singlehood. One of his students, Lauren Frick, a journalism major, wrote an essay that was so terrific, he sent it to me for consideration as a guest post here. I took one look and agreed! So did everyone else I showed it to. Wouldn’t it be nice if we had a new generation of journalists who cared about these kinds of issues? Thank-you, Lauren, for your great work and for sharing it with UE. And thank-you, Craig, for inspiring Lauren.]
The Need for the Elimination of Spousal Privilege in the Court System
By Lauren Frick
The motivation behind marriage that is widely accepted by society is that people get married for love. Getting married for the sole purpose of money or higher social standing is generally looked down on by society, However, this does not change the fact that married people obtain benefits simply for being married (Jacobson). The slip of paper known as a marriage license stands for much more than just love. Married people receive ample benefits regarding taxes and retirement funds as compared to their paperless, single counterparts. There is one benefit married people receive that not many people may know about. A married individual will only exercise this benefit while in a court case. Married people have testimonial privilege, meaning they do not have to testify against their spouse. The spousal marital privileges need to be eliminated from the United States court system because this privilege ignores other important relationships and is detrimental to victims in domestic abuse situations.
What privileges do married people receive in court?
Cornell University Law School gives a break down of marital communication privileges in the court system. The Supreme Court has recognized two different types of marital privileges: testimonial privilege and communications privilege. Testimonial privilege refers to criminal cases specifically. In these cases, one spouse is not required to testify against their spouse who is a defendant as a witness. The witness spouse has the choice to testify if they choose, as affirmed by Trammel v United States (1980). The second type of marital privilege is the communications privilege. This privilege can be exercised in criminal and civil cases. All communication, including words and acts, intended to be private between spouses is protected under this privilege. The only situation where these privileges are stripped is when the spouses are the two parties are in an action against each other, such as a divorce proceeding (“Marital Privilege”).
Testimonial Privilege and Domestic Violence
The marital testimonial privilege has the capability of silencing the voice of domestic violence victims, who are overwhelmingly women. Some authorities estimate that every 18 seconds, a woman is beaten in the United States and over four million women are victims of domestic violence each year. The FBI estimates that one in every two women will be in an abusive relationship in her lifetime (Seymore). Domestic violence, like other incidents of assault, can involve a court case if the victim is able to escape his or her abuser and prosecute them. In these cases, the best form of evidence is the testimony of the spouse being abused. The spousal testimonial privilege can lead to this witness being elusive from their case, however. Through intimidation and fear, the abusive spouse can force the spouse who is the victim to exercise their testimonial privilege. One woman experienced this exact situation prior to testifying against her husband in court. She gives her first-hand account of how an abuser can pressure the victim to not testify in court:
“ I met Daniel and the kids on the street accidentally. The kids wanted to come with me but he said no. Later, I was sitting on a favourite park bench and he came up to me, without the kids. He told me not to tell the truth in court that if I did, he would take the kids and hide them. He started yelling, then pushed me against the bench. I started to lose my balance, then he pushed me on the chest and I twisted my leg as I fell. He then said if I told the truth I would never be able to talk again, and then he left. My leg was badly damaged and I had to wear a leg brace and use crutches. I was afraid to report to the police” (Cochran).
A domestic violence case without the testimony of the victim is a difficult one to win. If the testimonial marital privilege is eliminated, then no more victims will go without justice due to fear and threats.
What about other relationships?
Marital privileges in the court system exclude several other important relationships. With these privileges, the United States court system is indirectly promoting that a marital bond is stronger than all others. Does this mean that individuals who are not married are not capable of relationships where the bond is so strong it can defy the law? What about a relationship between lifelong friends or between siblings? Fifteen-year-old Devin and fourteen-year-old Michael were in desperate need of a parent-child privilege when they found themselves in legal trouble and were unable to talk to their mother without fear of incriminating themselves. The two minors got into trouble with the law when they attacked an older man and stole his phone at a Metro station in the District of Columbia. The boys were so young that they were confused about the legal proceedings regarding their case. They wanted to talk to their mother about the situation, but they could not because anything they said to her could be used against them in their court cases (Libson). The lack of testimonial privilege added even more stress to what was already an unfortunate situation. By only offering a testimonial privilege to married couples, several other important relationships are ignored. Other relationships can have as strong of a bond as a marriage, such as a child and their parent or the relationship between two siblings. Testimonial privilege should no longer be available to spouses because if not every important relationship can be allotted this privilege, then no relationship should have it.
Australia Did It
Australia realized the cons surrounding marital privileges in the court system and overturned spousal testimonial privilege in common law. This means that at common law, a spouse can no longer refuse to answer a question, in fear of incriminating their spouse. In a separate case, Louise Stoddart refused to testify against her husband who was on trial for tax fraud. A separate case then started to evaluate spousal testimonial privilege in common law, Australian Crime Commission v Stoddart (2011). In a five to one majority decision, the High Court held that spousal privilege does not exist in common law (Fearis). On a radio show in Australia, Jeremy Gans, Associate Professor at the University of Melbourne’s Law School, shared why he supported the overturning of these marital privileges:
“If we were any other country in the world, if we were Canada or the United States or the UK, the argument in the court would have been about matters of high policy, whether it’s right – it’s a good thing that spouses can be forced to incriminate their partners, whether it’s a appropriate that such a privilege only applies to married people as opposed to all family members, whether a statute that abolishes the right against incriminating yourself should also be seen as abolishing the right against incriminating your spouse” (“High Court”).
The United States needs to eliminate marital privileges from the court systems. These privileges enable abusers in domestic violence cases to continue to yield power over their victim and avoid justice. Spousal testimonial privilege also excludes and does not protect other important relationships such as the one between a mother and her child. Marital privileges in the court system exclude a large portion of Americans, who are not in a relationship made official by a certificate. America prides itself on its equality and opportunity afforded to all. However, how can our court system be equal if so many Americans are excluded from certain privileges just for not having a marriage license? The United States needs to follow Australia’s lead and do away with marital privileges in the court system.
References
- Cochran, Heather. “Improving Prosecution of Battering Partners: Some Innovations in the Law of Evidence.” Berkman Klein Center, 1997, cyber.harvard.edu/vaw00/cochran.html.
- Fearis, Edward. ” Australian Crime Commission V Stoddart: The End of Common Law Spousal Privilege.” QUT Law Review[Online], 12.2 (2012): n. pag. Web. 26 Feb. 2019
- Hastingslegal. “Spousal Immunity: Does My Husband or Wife Have to Testify Against Me?” Jeff Hastings | Criminal Civil Defense Law Attorney Cleveland Ohio, 1 Aug. 2017, hastingslegal.net/spousal-immunity-does-my-husband-or-wife-have-to-testify-against-me/.
- High Court Rules Spouses Have No Right To Privacy. Performance by Ashley Hall, Australian Broadcast Company, 30 Nov. 2011.
- Jacobson, Ivy. “13 Legal Benefits of Marriage.” Theknot.com, The Knot, 8 Nov. 2017, www.theknot.com/content/benefits-of-marriage.
- Libson, Brittany. “Promoting parental guidance: an argument for the parent child privilege in juvenile adjudications.” American Criminal Law Review, Winter 2016, p. 137+. Opposing Viewpoints in Context, http://link.galegroup.com/apps/doc/A443887856/OVIC?u=hampton_main&sid=OVIC&x id=da73df9a. Accessed 26 Feb. 2019.
- “Marital Privilege.” LII / Legal Information Institute, Legal Information Institute, 5 Aug. 2017, www.law.cornell.edu/wex/marital_privilege.
- Seymore, Malinda, Isn’t it a Crime: Feminist Perspectives on Spousal Immunity and Spousal Violence, 90 Nw. U. L. Rev. 1032 (1996).
ABOUT THE AUTHOR:
Lauren Frick is a freshman journalism major from Lancaster, Ohio. She currently attends Hampton University in Hampton, Virginia, and is a member of their soccer team.
[The opinions expressed in this essay are Lauren Frick’s and do not represent the official position of Unmarried Equality.]
About Bella DePaulo
