As I was learning about Evidence law today, an exception to the Marital Communications Privilege and Spousal Immunity (Spousal Testimony Privilege) made me think of a song by Queen Ifrica entitled "Daddy Don't Touch Me There." (Click link for music video). I had first heard this song in a van in Sierra Leone (Click link for photos from my trip) when I traveled there for a project with some fellow law students (one of which is also blogging bar studies--probably more entertaining - click here for it) and our professor as part of the Fordham School of Law Walter Leitner International Human Rights Clinic.
We had been grooving to the song (it should be noted that it was playing on what sounded like a strained audio cassette as we drove on a rather bumpy gravel road thus making the lyrics somewhat difficult to fully grasp) until someone said something to the effect of "Wait, is this song about a girl who was sexually abused by her father?" As such our enjoyment of the song was diminished once we had knowledge of the song's lyrics. Fortunately, the tape also included a song by Busy Signal (our drivers really liked Jamaican artists apparently) entitled "One More Night" (Click link for music video, bonus--2 songs in one video--first "Night Shift," second "One More Night"). Alright, back to Evidence...
Returning to "Daddy Don't Touch Me There," let's assume that the girl who is the subject of the song is unable to testify to the abuse she was experiencing. Let's also assume that there is no "nosy neighbor" who observes and reports this bad behavior as in the song lyrics. What if the only other person with knowledge was the mother, can the mother testify about this abuse?
As mentioned at the outset there are two privileges relevant to this scenario. First, the Marital Communication Privilege protects confidential communications between married spouses. Either spouse can invoke the privilege (i.e., prevent the other spouse from testifying as to such marital communications) and in order to waive the privilege both spouses would have to agree to waive it. This privilege protects those confidential communications made during marriage and the protection of those communications lasts even after a marriage dissolves (but not communications made after the marriage dissolves) and also after death of one of the spouses. Presumably the abusive father in the song would not be willing to waive this privilege, which would prevent the mother from testifying as to marital communications regarding the abuse. It is important to note that the privilege only protects communications, but would not prevent the mother/spouse from testifying, if she wished to do so, as to actions or observations surrounding such abuse. Additionally, as will be explained further below, there is an exception to this privilege that would allow the mother/spouse to testify as to even the communications.
The second privilege is Spousal Immunity (Note: This is not a recognized privilege under New York law). This privilege only applies in a criminal case and precludes a prosecutor from compelling a defendant's spouse to testify against the defendant spouse. This privilege differs from Marital Communications in several important ways. First, it is limited only to criminal cases. Next, if the marriage ends, then the privilege no longer applies and as such an ex-spouse can be compelled to testify against the ex-spouse defendant (except as to confidential marital communications). Finally, although a spouse cannot be compelled to testify, a spouse can voluntarily testify against the defendant spouse (except as to confidential marital communications) without the consent of that defendant spouse. As a result, this privilege would not prevent a mother/spouse who wished to voluntarily testify as to actions or observations surrounding abuse by the father/spouse defendant.
Related to these privileges is a helpful exception. Both the Marital Communications Privilege and Spousal Immunity can be overridden by acts that are destructive to the family unit. Child abuse is considered to be an act that is destructive to the family unit. As such, related to the storyline of the song, a mother/spouse could voluntarily testify or be compelled by a prosecutor in a criminal case to testify as to communications (even confidential marital communications) or acts related to child abuse by the father/spouse defendant.
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