The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Say that you tell something in confidence to your spouse, and in a future criminal or civil case the spouse is asked to testify about that statement. Under American law, you generally have the privilege to bar such testimony (and your spouse can likewise refuse to provide it). That's similar to how American law treats confidential statements to lawyers, to psychotherapists, or to clergy members. Many states recognize some exceptions, especially for domestic violence prosecutions, but that has been the general rule.
New Mexico, though, just rejected that rule a couple of weeks ago (in State v. Gutierrez). Part of its rationale was the general principle that the law is entitled to every person's evidence, and that privileges should therefore be viewed skeptically. Another part was that the practical arguments for this privilege (promoting free communication between spouses) are empirically questionable. I have no firm opinions on these aspects of the analysis, or on the broader privacy questions; I think they are difficult matters on which reasonable minds differ.
But a big part also seemed to be what the court framed as a feminist argument—and one that in this instance strikes me as quite misguided, largely for reasons described by Justice Ivey in the dissent. (I find many feminist arguments to be quite sound, but just not this one.) Consider it for yourselves, though; here is Chief Justice Judith Nakamura's majority opinion:
Rule 11-505(B) NMRA, New Mexico's spousal communication privilege, provides that "[a] person has a privilege to refuse to disclose, or to prevent another from disclosing, a confidential communication by the person to that person's spouse while they were married." This privilege "prohibits one spouse from testifying as to conversations or communications with the other spouse made in confidence during their marriage." The privilege protects confidential communications at the time they are made and may, therefore, be invoked after the termination of the marital relationship….
The administration of justice is coextensive with the pursuit of truth, and but for certain well-defined exceptions, all persons can be compelled to appear in court and give testimony to accomplish this end. Limitations on this fundamental rule shall be recognized "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence" produces a "public good" that transcends "the normally predominant principle of utilizing all rational means for ascertaining truth." … We thus consider whether the spousal communication privilege promotes "sufficiently important interests to outweigh the need for probative evidence." …
More than one hundred and eighty years ago, the United States Supreme Court described the policy concerns giving rise to the spousal communication privilege in the following manner:
"This rule is founded upon the deepest and soundest principles of our nature. Principles which have grown out of those domestic relations, that constitute the basis of civil society; and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence."
The[se] principles … developed into what most commentators characterize as the traditional justification for the privilege: it "is needed to encourage marital confidences, which confidences in turn promote harmony between husband and wife." The traditional justification for the privilege is considered to be an instrumental or utilitarian rationale because it views the privilege as a way to promote "the public good" by protecting the marital relationship.
In addition to the traditional justification, a variety of humanistic and privacy arguments have been offered to support the spousal communication privilege. Unlike the traditional justification, which views the privilege "as a means of promoting the public good," the privacy and humanistic "theories focus on the value of protecting individual rights."
One such justification offered for the spousal communication privilege is that it eliminates the " 'natural repugnance' " that would necessarily flow from forcing a person to testify against a spouse. Leading treatises surmise that this "matter of emotion and sentiment" has, in fact, been "the prime influence in creating and maintaining" the spousal communication privilege.
The protection of informational privacy and avoidance of unwarranted governmental intrusion are offered as alternative justifications for the privilege. This "rationale recognizes that it is morally repugnant to require the disclosure of certain private information or to force an otherwise honest and decent person to choose among betraying his or her spouse, lying, or going to jail." One federal court quite persuasively made the case for the privacy justification for the privilege.
"Over at least the past decade, the circle of privacy surrounding each of us has drawn smaller with each new governmental incursion and each new technological advance. Courts have sought to preserve inviolable some small island of privacy as a refuge for the human spirit where government may not intrude. Here the question is whether one such sanctuary, protected by the common law for centuries, shall be breached, rendering the secrets told to wives by husbands fair game for government investigators."
The United States Supreme Court has recognized that married people have a constitutional right to privacy in their intimate relationships. Thus, commentators have relied on this right to privacy to conclude that "the abolition of the [spousal communication] privilege would offend the spirit of the constitutional guarantees." …
[But w]hen scrutinized, the traditional justification for the spousal communication privilege is not as forceful as it may initially seem. One of its principal weaknesses is that it rests on two untested assumptions: that (1) married people know the privilege exists, and (2) they rely on it when deciding how much information to share. Critics argue "that there is no empirical evidence to support [these] factual assumptions." …
In a relationship involving a layperson and a professional [such as a lawyer or a psychotherapist], the absence of a privilege protecting confidentiality could chill beneficial communication because the layperson might refuse to communicate with the professional. And in a professional relationship that depends heavily on confidentiality, "there is an evidentiary wash—while evidence might be excluded at trial pursuant to a privilege objection, but for the privilege the evidence would not have come into existence." Unlike communication between a professional and a layperson, communication between spouses does not depend on a legal guarantee of confidentiality and does not come into existence because of that guarantee….
As with the traditional justification, questions have been raised as to whether the privacy and humanistic rationales are sufficient to justify recognition of the spousal communication privilege. For example, Wigmore argued that the natural repugnance people feel about compelling one spouse to testify against the other is nothing "more than a sentiment" and that sentimental feelings do not justify interference with courts' truth-seeking function. Others have "argued that married couples no longer care about privacy as it was supposed they did in an agrarian society." The increasing frequency with which modern Americans share their marital and familial problems with a public audience provides "contemporary confirmation for the claim that marital privacy is no longer an esteemed value."
To the extent that protecting marital privacy is a legitimate goal of a rule of evidence, the spousal communication privilege has been criticized as inadequate and under-inclusive. As the privilege has been construed to protect only those "interactions through which one spouse intends to convey a message to the other," the privilege does not apply to "some of the most personal and intimate interactions between spouses." For instance, the privilege would not permit a spouse to decline to testify as to whether his or her spouse uttered inculpatory remarks in their sleep or if they exhibited other irrepressible behaviors like nervousness, tiredness, or illness. This is significant as "it is precisely at these private moments when the social mask is removed, and a spouse engages in unguarded, unfiltered behavior[.]"
This point highlights the obvious fact that marriage is a very different endeavor and involves communication quite distinct from that which occurs in a relationship between laypersons and professionals, like doctors and lawyers. Married couples necessarily engage in a nearly unlimited range of possible communicative acts the spousal communication privilege might never reach. Communication between laypersons and professionals, on the other hand, "are essentially and almost exclusively verbal in nature, quite unlike marriage." So, while the efficacy of the privileges protecting the communications between laypersons and professionals seems quite sensible and self-evidently efficacious, the efficacy of the spousal communication privilege to protect and foster frank communication between spouses appears, in contrast, quite doubtful.
Critics have also looked to the ancient origins of the spousal communication privilege and its disparate gender impact to argue that the privilege has outlived its purpose…. [M]odern theorists have attacked the spousal privileges and the familial privileges more generally as relics of "ancient origins" that should be a "source of scorn rather than admiration" and derided these "sentimental relics" as patently incompatible with the modern and "changed social context" of present society (internal quotation marks and citation omitted …. Blackstone described the legal principles—which by contemporary values can only be deemed misogynistic—that coincided with the creation of the privilege as follows: "By marriage the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage or at least is incorporated or consolidated into that of the husband." These words make obvious why some commentators suggest that "the most serious concern about the privilege is its disparate gender impact[.]"
Despite drastic changes in law and society since Blackstone's day, "the spousal communication privilege perpetuates the role of male domination in the marriage because a husband usually invokes the privilege to prevent his wife's disclosure of confidential communications, thereby benefitting men more often than women." … "[I]n practice, marital privileges are more likely to protect male confidences than female confidences" and [there is] evidence that indicates that ninety percent of spousal privilege cases involve wives testifying against husbands ….
Feminist scholars have vigorously attacked the privilege suggesting that it was "created to protect men, who are often reluctant to share their personal thoughts and therefore may need the assurance of protection that the privilege rules supply, rather than women, who are more likely to decide to confide in others independent of the evidentiary safeguard." They contend that "privacy is frequently used as an excuse to isolate the family from interference by the state, perpetuating traditional gender hierarchies and power imbalances." The rhetoric of "privacy," these theorists contend, simply ignores the fact that women are all too frequently the victims of a pernicious form of unseen and "private" violence and that appeals to privacy have rhetorical value in the abstract but are nothing short of repressive when applied to the actual social circumstances confronting women in our society.
"Privacy says that violence against women is immune from sanction, that it is permitted, acceptable and part of the basic fabric of American family life. Privacy says that what goes on in the violent relationship should not be the subject of state or community intervention. Privacy says that it is an individual, and not a systemic problem. Privacy operates as a mask for inequality, protecting male violence against women." …
The traditional justification for the spousal communication privilege is premised on assumptions that do not withstand scrutiny. The privacy and humanistic justifications, when closely examined, seem little more than soaring rhetoric and legally irrelevant sentimentality. The misogynistic history of the privilege is obvious and odious. And it appears that the existence of the privilege perpetuates gender imbalances and, most critically, may even be partly responsible for sheltering and occluding marital violence that disproportionately affects women in entirely unacceptable ways.
Our review of the justifications for and criticisms of the privilege leaves us in agreement with Wigmore: "the occasional compulsory disclosure in court of even the most intimate marital communications would not in fact affect to any perceptible degree the extent to which spouses share confidences." …
Justice Barbara Vigil dissented for various reasons, including some procedural ones (for instance, that the matter should have been referred to a committee set up by the New Mexico Supreme Court that proposes changes to the Rules of Evidence). But here is her substantive analysis:
The spousal communications privilege serves to protect the private conversations that occur within a marriage. Marriage bridges several facets of the human experience. It is both a legal contract and a sentimental, and for some, religious, promise of fidelity and love. As a legal status, marriage grants a couple myriad benefits and protections offered by the state and federal government. As a solemn vow of unity, marriage creates for many a sacred space to share oneself with a chosen other. That space should remain free from state intrusion and compulsion that would demand one spouse to reveal the intimate secrets of the other.
While the Majority argues that the spousal communications privilege "has outlived its justifications," I contend that the privilege retains value in guarding the privacy of the marriage. I am not alone in my belief that the spousal communications privilege should remain a rule of evidence. With the Majority's decision in this case, New Mexico will be the only state in the nation that does not recognize any form of marital privilege. This gives me pause. The Majority's argument that the spousal communications privilege cannot be justified on privacy grounds without ignoring the private pain of domestic violence victims, itself ignores that New Mexico has abrogated the spousal communications privilege in cases where one spouse is accused of inflicting harm on the other….
While the Majority suggests that the long history of the spousal communications privilege "should be a source of scorn rather than admiration" and cites critics who would label the privilege a "sentimental relic … [that is] patently incompatible with" our modern lives, other scholars have argued that the privilege's longevity demonstrates that it "must encapsulate some basic human values[,]" allowing it "to survive despite all of the rationalistic attacks that have been made … and the many changes in the surrounding legal culture that have occurred over the centuries."
I am convinced that the durability of the spousal communications privilege is tied to our society's view that marriage is sacrosanct and should be guarded from excessive state intrusion. "In a liberal democracy, the spousal relationship is deemed one of the most sacred. In a democratic society, it is particularly abhorrent and repugnant for government to intrude upon the privacy of that relationship." The Majority acknowledges the moral repugnance in forcing one spouse to divulge the secrets of the other, yet casts aside the humanistic and privacy rationales for the privilege as "soaring rhetoric and legally irrelevant sentimentality." I respectfully disagree. The want to safeguard marital privacy is not a legally insignificant appeal to sentimentality.
As noted, marriage has a substantial impact on our society and is widely considered to create one of the most important relationships in life. According to the 2010 census data, husband and wife families comprised roughly 45% of total households in New Mexico. Presumably, this wide swath of the state's population has strong feelings about the private matters they share with their spouses. In a democracy, far-reaching public sentiment deserves substantial consideration in the imposition of public laws and rules. We cannot ignore the humanistic rationale for the spousal communications privilege simply because the marital relationship takes root in notions of love and commitment. There is inherent value in protecting the private conversations between spouses from compulsory disclosure in our courts.
It is the "intrinsically private character" of a marriage and the "reciprocal indecency of invading that privacy" that justifies the spousal communications privilege under a humanistic rationale. The marital promise—both legal and emotional—to support and love one another creates a relationship "as impervious to state control as we suppose our innermost thoughts are." Eliminating the spousal communications privilege spells "nearly complete destruction of the privacy of marriage, in the interest of the conduct of ordinary litigation."
Absent the spousal communications privilege, a testifying spouse must either disclose the intimate, private, and perhaps embarrassing secrets of the other spouse or risk being held in contempt of court…. [F]orcing a testifying spouse into this quandary may easily lead "any decent person … either to lie or to go to jail." … In weighing the equities of the judicial pursuit of truth and the freedom of married couples to share confidences absent government interference, I must conclude that marital privacy is more valuable than the collection of evidence in a given case….
Following this decision, New Mexico will stand alone in its refusal to offer protection for confidential marital communications in its courts. The broad support across the country for the spousal privileges emphasizes the importance of protecting a basic privacy right of married couples, one that should not be abandoned by the Majority….
The Majority argues that the spousal communications privilege shields the family from state interference, allowing the justice system to turn a blind eye to private violence against women because the victims are unable to testify against their abusive spouses. I am sensitive to this concern but am confident that New Mexico's spousal communications privilege adequately protects victims of domestic violence. The Majority's argument conflates the spousal communications privilege with spousal immunity.
Spousal immunity bars spouses from testifying against each other and is not recognized in New Mexico. ("Spousal immunity works as a complete bar to testimony, regardless of the subject matter of the testimony."). In contrast, the spousal communications privilege allows one spouse to take the stand but prevents him or her from disclosing what the other spouse said in confidence. In New Mexico, the privilege does not apply when one spouse is charged with a crime against the other spouse or the children of either spouse. Thus, the spousal communications privilege would not block the testimony of an abused spouse in a domestic violence case, even if that testimony disclosed confidential marital communications. I share the Majority's concern for victims of domestic violence but find that this concern is adequately addressed in the exceptions to the privilege articulated in Rule 11-505(D) and therefore cannot support abolishing the spousal communications privilege in its entirety…
The sacred bond of marriage forms the foundation for personal happiness and is the bedrock of our civilized society. The spousal communications privilege protects that bond. Given the historical significance of marriage and the indecency of forcing one spouse to reveal the confidences of the other, I am not convinced that the privilege must be abolished in toto….
Justice Charles Daniels agreed with the majority but dissented on the procedural grounds I mentioned; I believe this is the last opinion he ever wrote—he died two days after it was handed down, and apparently knew he was dying while he was writing it:
I write in brevity for two reasons. One is that few additional words are needed. The other is that I have few words left for my beloved Court and beloved colleagues. [Justice Daniels was apparently dying at the time the case was being decided, and indeed died two days after the opinion was handed down. -EV]
I concur fully with the views expressed in the opinions of my colleagues affirming Defendant's convictions. I share the views of the majority, views that I have held for a long time as a courtroom lawyer, as an evidence professor, and as a jurist, with regard to considering abolition or severe evisceration of the husband-wife communication privilege. That privilege obstructs the truth-seeking mission of our courts in order to protect criminals and other law-evaders and tort-feasors from being held responsible for their unlawful actions. And all this to hold sacred the marriage of Bonnie and Clyde?
But I must agree with Justice Vigil one last time. Her preference is that a change to an evidence rule, particularly a significant change unnecessary to a dispositive outcome in litigation before us, should be handled through our established rules process, with input from the rules committee, with input from the larger legal community, and with input from the state we serve.
With my profound respect for my colleagues who view the issue otherwise, I therefore dissent solely from using this appellate opinion to lay aside the regrettable marital communication privilege….