Spousal privilege

Abstract: The epidemic of spousal abuse has garnered considerable attention since John Stuart Mill railed against men "little higher than brutes" who were able to obtain a ready victim "through the laws of marriage." Americans today have "'discovered' family violence in the sense that Columbus 'discovered' America, although the discovery was no news to those who already lived there." Despite this attention, the epidemic grows. Much has been written about the reluctance of police to arrest in domestic violence cases and the reluctance of the state to prosecute such cases. Part of that reluctance may be caused by prevalent societal attitudes that diminish the importance of spousal violence. In a number of jurisdictions, the reluctance to pursue criminal sanctions against married abusers is caused by the difficulty of procuring the battered spouses' testimony. In those jurisdictions, the prosecutor cannot compel a reluctant spouse's testimony because of the spousal privilege not to testify against a defendant spouse. Even in jurisdictions that have some exceptions to the privilege, including spousal violence exceptions, the prosecuting authority may find it legally, as well as practically difficult to procure the spouse's testimony. This simple evidentiary rule-spousal privilege-illustrates why evidence law matters. Rules of evidence are frequently thought of as simply "neutral" rules of procedure related to courtroom control and trial tactics. Rules of evidence can tell us much more, however, about the legal system's attitude toward women. Because the legal system was created by men, it inevitably ignores the lives of women. Courts and commentators may declare loudly that domestic violence is no longer tolerated in this society, and that married women have the right to feel secure in their homes, but such rights, with little way to prove entitlement to the rights, echo emptily. Those jurisdictions that refuse to give the prosecution the right to compel testimony in domestic violence cases the way they can in every other crime send an obvious message: When a man beats his wife it is not a crime that offends the state-it is simply a private matter between the two of them. Even those jurisdictions with a spousal violence exception leave married women unprotected by the legal system because of very narrow and uninformed views of what constitutes spousal violence. This article critiques the spousal immunity doctrine from the perspective of feminist legal thought and includes the voices of battered women discussing the spousal privilege.

Abstract: In Australian Crime Commission v Stoddart (2011) 282 ALR 620 the High Court held that a privilege against spousal incrimination does not exist at common law. This means that at common law a spouse can no longer invoke a privilege to refuse to answer a question, the answer to which may risk incriminating her or his spouse. This case note provides a brief outline of the key issue and the case, and an in-depth summary of the three High Court judgments. Finally, a short comment on the significance of the decision is provided, as well as an argument that the Court should have considered the policy justification behind the supposed privilege before deciding not to recognise it.

Abstract: In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court's new "testimonial" approach to the confrontation clause. Examining the Court's trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court's new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider their spousal privilege rules in light of Crawford - many of which are poorly conceived, confused, and outdated - and should reform these statutes to add a spousal crimes exception to both the adverse testimonial privilege and the confidential communication privilege.

Abstract: The Secrets of Law explores the ways law both traffics in and regulates secrecy. Taking a close look at the opacity built into legal and governance processes, it explores the ways law produces zones of secrecy, the relation between secrecy and justice, and how we understand the inscrutability of law's processes. The first half of the work examines the role of secrecy in contemporary political and legal practices-including the question of transparency in democratic processes during the Bush Administration, the principle of public justice in England's response to the war on terror, and the evidentiary law of spousal privilege. The second half of the book explores legal, literary, and filmic representations of secrets in law, focusing on how knowledge about particular cases and crimes is often rendered opaque to those attempting to access and decode the information. Those invested in transparency must ultimately cultivate a capacity to read between the lines, decode the illegible, and acknowledge both the virtues and dangers of the unknowable.