Marital Privilege Research Articles

An analysis of spousal competence and non-compellability in terms of section 198 of the Criminal Procedure Act

Marital privilege is founded on the biblical principles of the union between man and wife. Thus wives were not competent or compellable witnesses against their husbands. Over the years the privilege developed in English common law. South Africa codified the privilege through Section 198 of the Criminal Procedure Act 51 of 1977 which states that spouses cannot be compelled to testify against each other unless the crime for which the accused spouse is charged appears in the categories listed in Section 195 of the Act. There are many criticisms against affording a privilege to a particular class of persons - notably that the non-compellability exception given to spouses is unconstitutional as it violates the right to equality in terms of section 9 of the Constitution. Recent media coverage at the Zondo Commission highlighted this conundrum when the ex-minister's spouse was asked to testify. This article examines the merits of the unconstitutionality argument and concludes that spousal non-compellability fails to withstand the test against unfair discrimination on the basis of marital privilege. Finally, recommendations are proposed in this regard which examine the nature and evolution of spousal competence and non-compellability in South African law.

The Ideal Job‐Seeker Norm: Unemployment and Marital Privileges in the Professional Middle‐Class

AbstractObjectiveTo understand how heterosexual US married parents interpret and respond to a spouse's unemployment and subsequent job‐searching.BackgroundThe pervasiveness of employment uncertainty, and unemployment, may propel families to embrace gender egalitarian norms. Quantitative research finds that this possibility is not borne out. Qualitative research has sought to illuminate mechanisms as to how gender norms persist even during a time that is optimal for dismantling them, but these mechanisms remain unclear.MethodSeventy‐two in‐depth interviews were conducted with a nonrandom sample of heterosexual, professional, dual‐earner, married, unemployed women, men, and their spouses in the United States. Follow‐up interviews were conducted with 35 participants. Intensive family observations were conducted with four families, two of unemployed men, and two of unemployed women.ResultsUnemployed women, men, and spouses acknowledge that a set of time‐intensive activities are key for reemployment (the ideal job‐seeker norm). Couples with unemployed men direct resources such as time, space, and even money to facilitate unemployed men's compliance with the ideal job‐seeker norm. Couples downplay the importance of women's reemployment and do not direct similar resources to help unemployed women job‐search.ConclusionCouples preserve a traditional gender status quo, often in defiance of material realities, by actively maintaining men's position at the helm of paid work and women's at unpaid work.ImplicationsLinking unemployment and job‐seeking with the institution of heterosexual marriage reveals novel insights into social and marital processes shaping job‐seeking.

Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? Part 2

Although South Africa has not directly grappled with whether to extend the protection of the marital privileges to cohabitant life partners, Canada has. The ‘marital privileges’ refer to spousal testimonial privilege and marital communications privilege, collectively, in this article. In 2015, the Canadian legislature abolished spousal testimonial privilege. The marital communications privilege has been retained, and the Canadian courts have considered whether to extend it to cohabitant life partners or abolish it. To gain perspective on whether the marital privileges in South Africa should be retained but reformed, the authors discuss the position in Canada, a constitutionally comparable democracy. The authors consider the scope and applicability of the marital privileges before and after the 2015 Canadian amendments,1 which abrogated spousal testimonial privilege. The authors discuss the abrogation of spousal testimonial privilege in Canada and consider its relevance in the South African context. Also considered is why the marital communications privilege has been retained. This research suggests that while the central rationale for retaining the marital communications privilege is to foster marital relationships and protect the right to privacy, the rationale of dignity also plays a key role. The authors also consider the decision of the European Court of Human Rights dealing with marital communications privilege in The Netherlands. Finally, it will be submitted that whichever view one takes, the marital privileges in South Africa should not be retained in their current form.

Sham Marriage and Privilege

United States v. Fomichev, 899 F.3d 766 (9th Cir. 2018), discusses the effect that a sham marriage has on marital privileges. The court draws a line between the spousal immunity (or spousal witness) privilege and the marital communications privilege.

Marital privilege: Bias against divorced patients in medical decision-making

Social support consists of the emotional, informational, and instrumental resources we receive from others, and buffers against negative health outcomes. However, as an eligibility criterion for scarce medical resources, such as organ transplants, it can be vague, subjective, and vulnerable to bias. In three studies, we examine bias associated with marital status, and assess whether those with nonspousal relationships with their caregivers (e.g., divorcees) and those without documented primary caregivers experience bias in transplant listing evaluations. We found evidence of bias against those with nonspousal relationships with their caregivers. Divorced patients were perceived as having less durable and adequate social support than those who were married to their caregivers. Divorced patients were also perceived as less deserving of a transplant and were less likely to be recommended for transplant wait-listing. Recommendations for avoiding bias in social support evaluations are discussed.

Women at Work in Sudan: Marital Privilege or Constitutional Right?†

Women at Work in Sudan: Marital Privilege or Constitutional Right?†

Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege

Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege

Beyond Bobby Jo Clary: The Unavailability of Same-Sex Marital Privileges Infringes the Rights of So Many More Than Criminal Defendants

Confusion over the applicability of marital privileges invoked by same-sex spouses from one jurisdiction to the next has a chilling effect on the full and frank communication marital privileges seek to encourage. With the growing number of jurisdictions recognizing same-sex marriages in the wake of United States v. Windsor, conflicts between state marriage laws embracing marriage equality and state versions of the Defense of Marriage Act (“mini-DOMAs”) will similarly increase. Section 2 of the Defense of Marriage Act (“DOMA”) permits a state with a mini-DOMA to invalidate a marriage validly celebrated in another. So, too, may a state with a mini-DOMA refuse to recognize a marital privilege otherwise available to opposite-sex couples to protect a same-sex marriage celebrated in another state or a confidential communication held in another state. A conversation in New York, which would recognize a valid marriage between same-sex partners and thus apply any available marital privilege, may never be had for fear that future litigation in Texas, which maintains a mini-DOMA, may force one spouse to reveal those confidential communications while testifying adversely to her spouse.To provide the certainty needed to fulfill the purpose of the marital privileges, federal court intervention is required to strike section 2 of DOMA and all mini-DOMAs as unconstitutional violations of the Equal Protection Clause of the Fifth and Fourteenth Amendments, as well as the Full Faith and Credit Clause of the Fourteenth Amendment. With reasonable certainty that their marriages will be deemed valid in all jurisdictions, same-sex couples can take comfort in knowing they will not be forced to testify adversely to one another or reveal confidential communications they shared. Same-sex marriages, like their opposite-sex counterparts, will be strengthened by the benefits such privileges afford.

Beyond Bobby Jo Clary: The Unavailability of Same-Sex Marital Privileges Infringes the Rights of so Many More Than Criminal Defendants

Confusion over the applicability of marital privileges invoked by same-sex spouses from one jurisdiction to the next has a chilling effect on the full and frank communication marital privileges seek to encourage. With the growing number of jurisdictions recognizing same-sex marriages in the wake of United States v. Windsor, conflicts between state marriage laws embracing marriage equality and state versions of the Defense of Marriage Act (“mini-DOMAs”) will similarly increase. Section 2 of the Defense of Marriage Act (“DOMA”) permits a state with a mini-DOMA to invalidate a marriage validly celebrated in another. So, too, may a state with a mini-DOMA refuse to recognize a marital privilege otherwise available to opposite-sex couples to protect a same-sex marriage celebrated in another state or a confidential communication held in another state. A conversation in New York, which would recognize a valid marriage between same-sex partners and thus apply any available marital privilege, may never be had for fear that future litigation in Texas, which maintains a mini-DOMA, may force one spouse to reveal those confidential communications while testifying adversely to her spouse.To provide the certainty needed to fulfill the purpose of the marital privileges, federal court intervention is required to strike section 2 of DOMA and all mini-DOMAs as unconstitutional violations of the Equal Protection Clause of the Fifth and Fourteenth Amendments, as well as the Full Faith and Credit Clause of the Fourteenth Amendment. With reasonable certainty that their marriages will be deemed valid in all jurisdictions, same-sex couples can take comfort in knowing they will not be forced to testify adversely to one another or reveal confidential communications they shared. Same-sex marriages, like their opposite-sex counterparts, will be strengthened by the benefits such privileges afford.

Marital Privileges Rationales: A Suggestion to Reconsider the Status Quo

This article examines rationales of marital privileges. Although marital privileges are firmly established concepts, they are also heavily criticized. Much of this critic comes from the uncertain policy justifications of the privileges. The article demonstrates through an analysis of relevant law and doctrine that the current rationales for the privileges do not account for many complexities present in marriages as compared with other privileged relationships and therefore, are not adequate for the marital privileges. The article argues that, unlike other privileges, marital privileges should be grounded on human dignity. This leads in turn to important amendments like unification of the privileges into one, eliminating some of the current restrictions, and extending it to other categories.

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

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.

Editors' Note: New Mother

This special issue, titled Mother, aims to present a complex picture of the categories of mothering, motherhood, and mothers. Through our own personal experiences of negotiating academic career paths as mothers, we have become acutely aware of the intensely controversial issues affecting the politics of motherhood. The term is steeped in cultural and historical meaning, but it is also semantically unstable. Today women find themselves affected by powerful, contradictory expectations that mothers will be stay-at-home caregivers and also, paradoxically, that they will be well educated and have meaningful careers. They face judgments of their parenting from friends and strangers alike and participate in passionate debates about everything from childbirth to feeding to discipline. Policy issues related to child care, familial leave, and maternal and children's health remain unresolved. In light of challenges to traditional notions of family raised by reproductive technologies, transnational adoption, and queer parenting, there are also new ideological debates regarding what it means to mother and parent. Despite three waves of feminist activism in the United States and elsewhere, it may be that is as fraught as ever. At least one point seems certain to us: in the intensive mothering paradigm that dominates American culture today, social norms about mothers and are shaped by assumptions of white, middle-class, heterosexual marital privilege. One of the aspects of Mother of which we are most proud is the way its contributors insist on alternatives, including single breadwinning mothers, father activists, immigrant parents, mothers on welfare, and women who do not wish to parent. Motherhood writing has exploded in recent years, with mothers' memoirs, collections of essays, publications by political groups, and alternative parenting magazines. This issue of WSQ, guest edited by poet and novelist Nicole Cooley and sociologist Pamela Stone, was designed to showcase what has become one of the hottest areas of feminist thought and writing. A great deal of writing takes the form of the personal memoir, and we are pleased to offer the works of Carolyn Kraus and Leslea Newman as wonderfully complex examples of that genre. Poetry on motherhood is also flourishing, and in this issue we offer the poems of Mary Jo Bang, Jennifer Anna Gosetti-Ferencei, Martha Rhodes, Jessica Fisher, Meena Alexander, Stephanie Cleveland, Heidi Lynn Staples, Miranda Fieldjeanne Marie Beaumont, and Ericka Eckart, aU of whom provoke readers to imagine motherhood as an imaginative space, not necessarily a dutifuUy autobiographical one. In moving beyond the celebratory language of popular culture, these texts offer poignant representations of suffering, loss, and ambivalence associated with the question of whether to bear children, as weU as insights into the nuances and complexities of women's positive experiences with mothering. While we felt W-7SQ needed to represent contemporary motherhood writing, we also wanted WSQ to chaUenge and reshape it. We wanted to give those readers steeped in popular discourse on motherhood access to different voices, including deeply researched, historicaUy and sociologicaUy informed writing on mothering, mothers, and motherhood. In so doing, we attack the popular conception of motherhood as the epitome of natural femininity. EquaUy, we fight academia 's infamous tendency to ignore the bodily requirements and familial responsibiUties of its participants. Instead, Mother reads these realms together. The articles here use the tools of academic theory to dissect essentiaUzing assumptions, while simultaneously using the experiential daily work of child care to rethink academic protocols. Tamara Mose Brown and Erynn Masi de Casanova demonstrate how motherhood shapes our academic work, while Caryn E. Medved and Cynthia Edmonds-Cady reveal how academic work helps us understand constructions of motherhood. …

INTRAFAMILIAL COMMUNICATIONS

Although testimonial privileges undermine the general rule that all relevant evidence is admissible at trial, legislatures and courts have recognized certain privileges primarily to protect. In these cases, the courts and legislatures have balanced the competing interests of full disclosure, on one hand, and the preservation of valued relationship, on the other, and have found that the latter outweighs the former. The attorney‐clint privilege, for example, exists to encourage truthful communications between attorney and client so that the client may obtain complete and accurate legal advice. Likewise, the marital privilege protects confidences between spouses to preserve the institution of marriage. The parent‐child relationship, while certainly valuable to society, has not been afforded the same protection. This note argues that a parent‐child privilege should exist. Basic constitutional principles, as well as comparative and social policy arguments, support the recognition of a parent‐child privilege.

The Marital and Physician Privileges: A Reprint of a Letter to a Congressman

I am much disturbed by the treatment given to privilege, in Moore and Bendix, Congress, Evidence and Rulemaking.' My disturbance centers mainly on their treatment of the marital and physician privileges. As to the first of these (the marital privilege) I am surprised at the seeming suggestion2 that the proposed Court Rules advocated by Moore and Bendix (and rejected by Congress) pretty much supported the husband-wife privilege. Actually, that privilege would have been cut to the bone and into the bone by the Court Rules, leaving only the most meager protection to the privacy of this most intimate human relation.

Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege

Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege

Evidence Excluded by State Interest

The general rule is established that anyone may lawfully be called to give evidence and to produce every document in his possession, unless he can show a just ground for refusal. In a number of instances the law relieves a witness from the duty of replying, or of producing a document. These are exceptional cases, however, and the burden of establishing their applicability lies on the party claiming the exemption. The modern legal tendency is, so far as possible, to restrict the claims of privilege.Rules of evidence recognize mainly the privilege against self-incrimination, the legal professional privilege, the marital privilege, and “State secrets”, when the Administration objects to the disclosure of information relating to public security, foreign relations or other important public interests. This article deals with the last mentioned privilege—a “thorny topic”, in more than one country. Both case law and doctrinal writings have, over the years, held various views on this problem. In England, the House of Lords' opinion on it has undergone a radical change within the last twenty-five years and it is also under present examination of the Law Reform Committee. The question arose before the Israeli courts on several occasions and the Ministry of Justice drew up three separate bills aimed at its solution, the last of which is now before the Knesset for consideration.

Marital Privileges and the Right to Testify

Marital Privileges and the Right to Testify