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66 Dep't of Just. J. Fed. L. & Prac. 105 (2018)
Marital Privilege in Domestic Violence and Child Abuse Cases in Federal Courts: Exceptions to the Privilege and Compelling Testimony

handle is hein.journals/usab66 and id is 107 raw text is: 

Marital Privilege in Domestic Violence

and Child Abuse Cases in Federal

Courts: Exceptions to the Privilege

and Compelling Testimony

Sasha  N. Rutizer
Trial Attorney
Human   Rights and  Special Prosecutions
United  States Department  of Justice

Ex turpi causa non oritur actio
Latin- from a dishonorable cause an action does not arise.

I. Introduction

       Domestic violence and child abuse often occur inside the home, outside the presence of others,
and depend on secrecy, shame, and fear. These reasons and untold others frequently keep victims from
reporting their abuse. When victims do come forward, they are often faced with internal and external
pressure not to testify against their abuser. What happens when the best evidence or the only evidence of
a crime comes from the victim? In cases of domestic violence and child abuse, this is all too often true. In
these cases, defendants may seek to prevent the introduction of the most damaging evidence against them
by asserting that anything their victim-spouse would testify about is privileged. As well, the
victim-spouse may even claim marital privilege and refuse to cooperate or testify.
       As an initial matter, it is important to recognize that the term marital privilege actually
encompasses two distinct privileges-adverse testimony and marital communications.' The adverse
testimony privilege allows a spouse to refuse to testify against the defendant-spouse. However, the
privilege only exists during the lifetime of the marriage; thus, divorce and often separation will negate it.2
The breadth of the privilege includes statements made prior to or during the marriage. The marital
communications privilege bars testimony concerning statements privately communicated between
spouses.3 Either spouse may assert the marital communications privilege, and it survives termination of
the marriage.
       Prosecutors faced with cases involving an assertion of marital privilege by either spouse would
benefit from understanding the development of the marital privilege in common law, the breadth and
limitations of the marital privilege as they exist today, and how courts have handled the issue of whether a

' The adverse testimony privilege has also been referred to as the anti-marital facts privilege. Likewise, the marital
communications privilege has also been referred to as the confidential communications privilege. For simplicity this
article solely uses adverse testimony and marital communications.
2 There are a number of other instances in which the privilege does not apply, though they are beyond the scope of
this article.
' United States v. Marashi, 913 F.2d 724, 729 (9th Cir. 1990).

United States Attorneys' Bulletin

January 2018


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