Sunday, February 18, 2007

another way the gays get shafted

Spousal Privileges -- brought to you by the letter "E" for Evidence.

Hapless people often wonder why the gays aren't just content with civil unions or flimsy domestic partnership recognitions. (Some hapless people wonder why the gays aren't just content to be allowed to live, but we won't worry about those people right now.) One reason the gays are all het up about marriage are the 500 million little rights and privileges that marriage automatically guarantees a couple under the law. Those same automatic goodies are not so bestowed on happy "civilly united" couples or those who are domestically partnerned. No.

But this post isn't intended to pick apart the inequality inherent in those less-than-marriage statutes. It's to tell you all about one of the many glorious privileges real, actual marriage can get you: the right not to have to testify against your spouse. There are actually two principles at work to help keep husbands and wives off the witness stand. The first is spousal immunity, the one that probably sounds most familiar.

Spousal immunity can only be invoked in criminal cases and only lasts during the marriage. The privilege conferred here belongs to the witness-spouse and only she can invoke it. If she invokes her privilege, she cannot be compelled to offer testimony against her husband. She can, however, waive it and her husband can't do a thing about it (if he's the one on trial) because it's not his privilege to invoke.

If she waives, however, she may still be prevented from testifying to certain things by the *other* privilege regarding confidential marital communications. This privilege applies both in civil and criminal cases and can be invoked by both spouses, regardless of which one is the witness. It applies to communications made during the marriage that were made in reliance on the confidentiality of the marriage. Thus, this one even applies after the spouses divorce. If they talked about it during the marriage, and they talked about it in reliance on the confidentiality of their marriage, it is a protected communication.

Back to the first example, if the wife choses to waive her spousal immunity and testify, she may testify to the fact that her husband came in late one night, drenched in blood and dragging a dead body behind him. But if he invokes his privilege concerning confidential marital communications, she may NOT testify about the conversation she had with him that night in bed when he wept and begged her to help him dispose of the body. He can protect that bit.

Unfortunately, if you're a homo, you CAN be compelled to testify against your partner and, as far as I know, there isn't any law out there that will help you. Perhaps some of these places that are creating civil unions have written language into their civil union legislation conferring similar benefits on same-sex couples, who knows. I do know that you will not find any protection in the Federal Rules of Evidence. Not one tiny bit. So be careful about sharing your dirty laundry with your partner, those conversations aren't as sacred as those of your straight, married counterparts.


Blogger reasonably prudent poet said...

ps -- now that i think of it, these spousal privileges may not be in the federal rules of evidence either... they may be common law. but i'm too lazy to look it up. waspy? shelley? doesn't really matter b/c the common law won't help the gays here either. so there.

6:48 PM  
Anonymous Recovering Straight Girl said...

My partner and I ran into something similar when my XH dragged me into court to have his spousal and child support reduced. She wasn't allowed to come in with me to the attorneys office or even come to court with me because she could have been called to testify against me or reveal things that were said between my attorney and myself. It really pissed me off.

10:44 AM  
Blogger reasonably prudent poet said...

that's fucked up. although, if it makes you feel any better, it might not have made much difference if you were straight and married, b/c the first privilge, spousal immunity, only applies in criminal cases and the second, the one concerning confidential marital communications, would only apply to communications made in reliance on the confidentiality of the marriage. the presence of third parties destroys privilege, as between husbands and wives or attorneys and clients. i may be misremembering this, but unless both the husband and the wife are clients of the attorney, the presence of one (as a non-client) during a meeting between the attorney and the client-spouse would destroy the attorney-client privilege. and the presence of the attorney would destroy the marital communication privilege. so, unless the non-client spouse was being asked to testify against the client spouse in a criminal trial, no privilege could be invoked to protect the communications between the spouses or with the attorney. shelley? waspy? pull me out of this hole if i'm wrong. thanks.

11:37 AM  

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