Protecting “Any Child”: The Use of the Confidential-Marital-Communications Privilege in Child-Molestation Cases

Abstract

Imagine a grandmother who wants to testify in a criminal trial that her husband confessed to her that he molested their two-year old grandson, but she is prevented from doing so. This is a true example of how a defendant can invoke the confidential martial communications privilege. Federal courts and half of the state legislatures have created exceptions to the confidential martial communications privilege in narrow situations. If a defendant has committed a crime against “the child of either” spouse, or against a “child residing in the home,” then the defendant cannot bar testimony based on the confidential marital communications privilege. However, if the defendant has molested a neighbor’s child or child unrelated to the family at the neighborhood park, and confessed that crime to the spouse, then the confession is privileged. This article sets forth reasons why limiting the marital privilege exception to “the child of either” spouse or to the “child residing in the home” is unreasonable. All children, regardless of their connection to the family, should be protected, particularly in child molestation cases which are often difficult to prosecute given the lack of witnesses and physical evidence. Jurisprudence, public policy, and legal theory all lead to the same conclusion: that courts and state legislatures should adopt an exception to the confidential marital communications privilege in cases involving the molestation of “any child.” The first half of the article sets forth the legal history of the marital privilege and the current landscape of exceptions to it in child abuse cases. The Appendix to the article groups the exceptions of all federal and state jurisdictions into three categories. The second half of the article sets forth reasons why the “any child” exception should be adopted and also how federal courts and state legislatures can do so. As part of this analysis, I have drafted proposed legislation.