Privacy

N.M. Abolishes Marital Communication Privilege, Based in Large Part on Feminist Arguments

New Mexico will apparently now be the only state in which spouses may generally testify about confidential statements made during the marriage.

|The Volokh Conspiracy |

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….

 

NEXT: The mischief and the statute 5

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  1. This is a horrible, activist opinion, and very troubling; but it is nothing new.

    The feds qualified wives as witnesses against their husbands with the Edmunds-Tucker Act of 1887. Wives testified against their husbands in the federal prosecutions of Mormons for plural marriages (adultery, bigamy and polygamy, etc.).

    1. Edmunds-Tucker Act of 1887

      You mean the Edmuds-Tucker Act that was repealed in 1978?

      1. Yes, one and the same. It was used a lot early on, but was on the books for 90+ years.

  2. How about eliminating the right of husbands to prevent their wives (or wives to prevent their husbands) from testifying against them, but retaining the right of wives (or husbands) to decline to testify against their spouses if they so choose? There is no reason that these two aspects of the spousal privilege need to stand or fall together.

    1. You appear to be talking about the spousal communication privilege – the part that this opinion abolished.

      1. Then am I correct in thinking that a spouse in New Mexico may still refuse to testify against his or her spouse? Did the court say that a party may not bar his or her spouse from testifying to a confidential communication, but a spouse called as a witness may still invoke the privilege and refuse to testify to such a communication?

        1. As best I can tell, New Mexico law doesn’t recognize a spouse’s privilege to refuse to testify against the other spouse.

          1. Like you, I’m unpersuaded by the majority’s reasoning. Certainly the privilege shouldn’t be used to protect men who abuse their spouses, but that can be achieved by creating an exception for such cases, as in California. The idea that men confide in their wives but not vice versa reflects a 19th century stereotypical view of the husband-wife relationship; it doesn’t describe my marriage and I suspect many others would say the same. Even if the privilege was originally created by men and initially inured primarily to their benefit, I doubt that’s still the case.

            1. ” The idea that men confide in their wives but not vice versa reflects a 19th century stereotypical view of the husband-wife relationship”

              The legal theory at the time was that wives were just a part of their husband… a marriage was one person who shared two bodies, and the one who did all the talking for the pair was the one that looked like a man. Marriage was a partnership of unequals.

              The law, and most of the populace, has changed its view of the nature of marriage… it is a joining of equals. It is no longer “two become one”.

              1. “…and the one who did all the talking for the pair was the one that looked like a man.”

                Difficult to imagine such a world!

                “It is no longer ‘two become one’.”

                Well, philosopher, people have all manner of metaphorical takes on marriage, including a merging of two equals.

                1. ” people have all manner of metaphorical takes on marriage, including a merging of two equals.”

                  People have lots of ideas about lots of things.

                  Not all of them get set into law.

                  1. Important that you recognize the difference.

  3. New Mexico will apparently now be the only statute in which spouses may generally testify about confidential statements made during the marriage

    I think you mean “state” rather than “statute.”

    1. Yes, sorry, thanks!

  4. “…I have no firm opinions on these aspects of the analysis, or on the broader privacy questions; I think they are [empty space]”

    You think they are what? Did something get inadvertently deleted?

    1. Sorry, “I think they are difficult matters on which reasonable minds differ”; I had thought I’d included that part at first, but obviously I must not have — just added it.

  5. “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.”

    What if it’s two guys getting married to each other?

    Or two women – which of them is the female victim and which of them is the stand-in for male oppression?

    1. That is a rhetorical question, right?

      1. Doesn’t it seem a bit unfair to chip away at the sacred and imprescribable right of same-sex marriage…pretty much just as soon as it’s been won?

        And blaming straight white guys for why they are forcing two lesbians to testify against each other?

    2. Considering that multiple studies have found female abuse of husbands is as frequent or more frequent than the other way around (due to the huge social stigma one way and active social support for the other), I find the judge’s statement actively offensive.

      Not two years ago, we were a few states away from putting a known domestic abuser in the White House (from multiple White House staff and secret service personnel memoirs, the Clinton fight after the Lewinsky scandal broke got violent on Hillary’s part, and Bill had a serious gash on his forehead the next day).

      However, somehow, Trump’s rude language was more important than Clinton’s active attack on her husband.

      1. If you’re giving credence to tabloids on Clinton, I’ve got bad news regarding what they have to say about Trump and sexual abuse.

  6. A feminist argument for making contraceptives illegal?

    The decision portrays the original reasoning behind Griswold v. Connecticut as not merely archaic, but anti-woman.

    1. One wonders how a challenge under Griswold would fair. The original privacy cases, after all, had conservative implications. You could at least make an argument hat the state is intruding on the couple’s privacy.

      I don’t think the court’s privacy cases have any legitimacy. But this is not to say a lawyer shouldn’t use all defenses available.

  7. I have only started reading the opinion, but I wonder if the defendant’s threats of violence against his ex-wife and his estranged wife might be sufficient to put the testimony within one of the exceptions to the privilege.
    Also, ex-wife didn’t just hear a statement from her then-spouse. She went back to the crime scene and helped him look for a spent shotgun shell. She had more to testify about than just what he told her; she had her own observations. I suppose the privilege could extend to his actions in taking her to the crime scene to look for a spent shotgun shell.

    1. …and after a little more reading, I see that the privilege generally extends acts done by either in the presence of the other.

  8. I agree with Professor Volokh’s view that the dissent states a good objection to the majority’s opinion. Also, since marriage is no longer just between a man and a woman, the argument that the privilege benefits men to the detriment of women seems obsolete.

    1. It was obsolete long before that, since even when marriage WAS still between a man and a woman, both had access to the privilege.

      1. While the Majority argues that the spousal communications privilege “has outlived its justifications,”

        Isn’t this a job for the elected legislature to decide in a democracy?

        I’m fine with changing attitudes increasing personal freedom via court ruling. But increasing government power, no.

        Just…no. Increases to government power should come about by the deliberative process (and constitutional amendment for big issues.)

        Here the court is repealing a law created by the legislature to protect a right. “Nope. The judicial branch, acting as an activist legislature, hereby repeals that, giving government more power, because we don’t like it as policy.”

        1. According to the opinion, the New Mexico constitution assigns the determination of which privileges to recognize to the Supreme Court rather than the legislature.

          1. And the Supreme Court justices are elected, for what’s that’s worth.

    2. And what exactly is the proof for this assertion that the privilege “disproportionately benefits men against women,” and the proposition that women are more likely to confide in their husbands without the privilege than vice versa, thus making the privilege a male benefit? Or do these assertions of “fact” come from the same place as the false allegation that 20% of college women are victims of sexual assault, or that more assaults against women occur on Super Bowl Sunday then any other day?

  9. This goes to show that the goal of the left was to destroy marriage as an institution. Giving “marriage” licenses to homosexuals was just a stepping stone to that.

    1. So, now that marriage is destroyed because nobody wants one if the gays can get one, the end of civilization can’t be more than a month or two away. Better start burying ammunition and Krugerrands in the back yard.

  10. They’ve really jumped the shark with this nonsense.

    Additionally, they’re quick to point out that men more often benefit from spousal communication privilege, yet they fall short of drawing it to its logical conclusion. Men benefit from it more often because men commit crimes more often than do women. A lot more often, as in 95% of the crimes committed are done by men. How can this be in a world where men and women are the same but for the patriarchy?

    1. Well it can be because we have not managed to get rid of the patriarchy yet 🙂

      But your main point is well made. Since men do commit far more offences than women, it is not just the marital communication privilege that is sexist and must go. We need to get rid of all privileges that assist male defendants more than female defendants, ie….all protections, period. So that’ll be the 4th, the 5th, the presumption of innocence, jury trial – everything. They’re all sexist.

      1. Without that damn patriarchy, we would finally see crime rates where they should be – about twice the current rate.

  11. One more wedge driven into the concept of family unity and sanctity. Now in N.M. you have to guard your words around your spouse for fear that your cohabitant might flip on you or be compelled under penalty of contempt to do so. Most true and loyal spouses would fall on their sword (plead out) rather than expose their mates to that shame and embarrassment. This is not jurisprudence, it is result driven revisionism and part of a burgeoning judocracy. Personally, I am going to plug the key holes in my bedroom door so the children cannot turn me in for speaking against Big Brother in my sleep.

    1. To the extent that your concept of family unity is one that is designed to empower murderers and assist them in silencing key witnesses to their crime, it’s a concept that could stand to have a few more wedges driven into it.

    2. “One more wedge driven into the concept of family unity and sanctity”

      How is this different from the fact that anyone on your crew might be flipped, and testify against you, which has been true all along?

  12. 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.

    The distance between theorists and the actualite is particularly striking here. The reality is that the male partner is much more frequenty the victim of domestic violence than the female partner. However since men are usually much stronger, they do much more damage on the rarer occasions when they are violent, than women do on the more frequent occasions when they are violent.

    Sociologically, of course, female on male domestic violence is unimportant because it’s rarely the subject of a criminal complaint (less serious damage, and it’s humiliating for a man to complain.) But purely as a matter of fact, even if females suffer more serious injuries as a result of domestic violence than men, men are more frequently victims of domestic violence than women.

    1. Can you elaborate on the source you’re deriving this claim from?

      1. Since you asked, you might look at
        June 2014, Vol 104, No. 6 | American Journal of Public Health,
        “The Sexual Victimization of Men in America: New Data
        Challenge Old Assumptions” by Lara Stemple, JD, and Ilan H. Meyer, PhD

    2. ” The reality is that the male partner is much more frequenty the victim of domestic violence than the female partner”

      You may be revealing more about the nature of your marriage than you think you are.

      1. It’s a tough topic to research, being one of those topics where the acceptable conclusion has already been arrived at, and any research which challenges it can end a career.

        But, for instance, Dominance and symmetry in partner violence by male and female university students in 32 nations

        “The results in the first part of this paper show that almost one-third of the female as well as male students physically assaulted a dating partner in the previous 12 months, and that the most frequent pattern was bidirectional, i.e., both were violent, followed by “female-only” violence. Violence by only the male partner was the least frequent pattern according to both male and female participants.”

        1. “It’s a tough topic to research, being one of those topics where the acceptable conclusion has already been arrived at, and any research which challenges it can end a career.”

          Rough gender symmetry in PV has been confirmed by dozens of studies since the 1970s. You just cited an article from 11 years ago. The “widely held beliefs” are held by the public not researchers. More recent studies are easy to find. Truth is not the victim here.

    3. Could you be more specific on what you mean by “much more frequently”? How much more frequent? A source would be helpful as well.

  13. I’m confused. Isn’t abortion protected because of privacy rights? Since the court decided privacy rights are misogynistic does that mean they will strike down the laws that permit abortion?

  14. I’m deeply skeptical of the utility or desirability of the spousal communication privilege. But I agree that the feminist theory articulated here seems fairly in persuasive.

  15. I’m deeply skeptical of the utility or desirability of the spousal communication privilege. But I agree that the feminist theory articulated here seems fairly unpersuasive.

  16. The main feature of spousal communication privilege is preserving the marriage going forward. As modern Americans are less likely to demand (or even support) the notion that marriage is for life, so too with support for the privilege. Serial marriage replacing single marriage has consequences. (And no, you can’t pin this one on the gay people getting married nowadays.)

    Of the two forms the privilege can take (the accused spouse excluding the testimony of the spouse, or the spouse declining to testify against the accused), the former will likely go first, because it removes individuality from the spouse. The latter preserves it… if the spouse wants to preserve the marriage, he or she can decline to testify, and if not, open the floodgates.

    1. Those are great arguments…for a legislature to consider in repealing its law protecting this.

    2. The spousal communication privilege does not preserve marriage. It applies to divorcees. Its existence makes it more likely that a marriage will end, not less.

      The argument in favor of the spousal immunity privilege has nothing to do with making sure the marriage remains intact. It’s waivable. And if the state were able to compel spouses to testify, there wouldn’t be much for the non-testifying spouse to be angry at their testifying spouse about.

      The bigger issue here is about encouraging spousal communication. Spousal immunity is important because I need to know that my wife will have the right not to testify against me, and vice versa. Spousal communication privilege affects me not. I share things with my wife not because I need to use the state to prevent her from testifying against me in the future. I confide in her because I trust her. If I didn’t trust her, I wouldn’t. Co-conspirators do this too, and there is no co-conspirator privilege. I also confide privately with my brother, my parents, my friends, etc.

  17. This is a mistake.

    One of the benefits (among many) of a marriage is a close partner that you can share your thoughts, feelings, actions, and expressions with. Being able to communicate these things, especially items that are troubling, is extremely valuable from a mental health perspective. It also provides a second opinion in confidence on actions or thoughts that need one.

    It is the same reason that conversations with priests, psychologists, psychiatrists, and others are kept in confidence. To allow for this ability to communicate and seek second opinions and thoughts on troubling matters.

    By removing this entirely sensible law, New Mexico has destroyed a common avenue for helping its citizens mental health….

    1. Apparently Mr. Gutierrez felt the need to tell (the first) Mrs. Gutierrez that he should murder her if she divulged his “troubling” disclosure (that he had already murdered somebody else).l, notwithstanding the existence of the privilege at the time. Should that sort of threat receive a similar level of protection? We wouldn’t want Mr. Gutierrez to put his mental health in danger, after all.

    2. Reading through this thread makes me wonder how many people here are actually married. Have you ever divulged confidential information to a person who you did not have an absolute privilege to prevent from testifying? A close friend maybe? Your parents? Maybe an ex-girlfriend/boyfriend that you were not married to? If you are married, did you keep most things secret about yourself until the paperwork was completed on your marriage, so you could depend on the state’s spousal communication privilege?

  18. Maybe I’m just old and old-fashioned, but I’ve always assumed that the spousal privilege was derived from the Fifth’s protection against self-incrimination and the idea that “man and wife” constitutes one entity. You know, the whole “two becoming one” thing people used to believe in back when they used to believe in “the sacred bonds of holy matrimony” as well. The opinion seems to strictly treat a married couple as two distinct people and a marriage as a contract just the same as any other business contract.

    1. Now that would be an interesting argument in an appeal. That government’s insinuation of itself into marriage, long limited to basically divorce and tax policy, i.e. crap of no consequence to the concept of marriage itself, a religious concept, is now having the religious part stripped by force by this decision.

      Government doesn’t get to do that. It sticks its nose in for a few practical reasons, but otherwise is just a late interloper to the game of millenia.

      As I said to people opposed to gay marriage, government doesn’t solemnize the marriage — God does. Government is just there to pick up the pieces.

      Here it attacks the solemnity via religion directly — the parts of a marriage government has no business in.

      A decicion that God may not solemnize the marriage, only the state, could hardly be more idiotic.

      And I’m an atheist.

      1. “As I said to people opposed to gay marriage, government doesn’t solemnize the marriage — God does.”

        If God objects to the government policy, He can say so. Thus far, He has chosen to remain silent.

    2. Since one of the two witnesses was no longer married to the defendant when she testified, I’m not sure why she wouldn’t be treated as a “distinct person”.

    3. That would be spousal immunity. The spousal communication privilege has nothing to do with “two becoming one” since it applies to two who are no longer one due to divorce.

  19. “(I find many feminist arguments to be quite sound, but just not this one.) ” Don’t be such a wuss Eugene. You don’t have to genuflect to feminism before criticizing this garbage.

    Nakamura really wants to ignore the fact that the privilege doesn’t extend to acts of violence against the spouse or the children. The dissent makes that very clear:
    “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. ”

    But that doesn’t slow down this wacko:
    “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.”

    Other than the fact that it doesn’t shelter marital violence at all, good point.

    1. Nice of you to assume Prof. Volokh secretly agrees with you but is lying about it due to having been cowed by feminism.

      There are other types of abuse than direct violence.

      1. She says it shelters marital violence. It doesn’t. Try to read more carefully.

        1. In this case it would have prevented the defendant’s ex-wife from testifying about his threat to murder her.

          1. I doubt that. Death threats would be classified as a form of violence, unlike Sarcastro’s harsh words or raised voice.

            1. Whether death “threats would be classified as a form of violence” is irrelevant. The spousal communication exception only applies if the defendant has been “charged with a crime against the other spouse”. Just because threatening to murder your wife is a crime against the other spouse, doesn’t mean you’ll be charged with it. And the statute of limitations can run on the underlying crime, too.

              The point is, while there are some circumstances in which the spousal communication privilege will not be used to shelter marital violence, there are some situations where it will be used to shelter marital violence.

          2. According to the dissent:
            ” 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.” A death threat is a crime.

            1. You’re not going to believe this, but sometimes people commit crimes but are not charged with them.

              1. The act itself is not sheltering violence. If a spouse commits a crime against you you are not barred from trying to have them charged with that crime. If you don’t do it out of fear or whatever then that’s too bad but it doesn’t impact the act as sheltering violence.

                1. The text of the exception is narrower than the dissent’s description. You can’t claim the spousal communication privilege in “proceedings in which one spouse is charged with a crime” against the other. Rule 11-505D(1). “Don’t press charges or I’ll hurt you” if taken seriously would be an effective way for an abusive spouse to avoid the exception to the rule.

      2. I probably agree with Eugene about feminism–some things yes, some no. But so what? When I respond to you I don’t feel compelled to say, “Gosh Sarcastro I sometimes agree with what you say, just not this time.” BTW that’s just to illustrate a point.

  20. Here’s the kernel:
    ” “privacy is frequently used as an excuse to isolate the family from interference by the state,”
    and the jurists signing on to this opinion want nothing more than to have the state omnipresent.
    Next up, a documentary glorifying Pavlik Morozov.

    1. “Privacy is frequently used as an excuse to isolate the woman’s body from interference by the state”

      Situational ethics: assigning high value to philosophical principles when it supports your political desires, and low value when it doesn’t, even if you must 180 degrees change value weightings when moving on to a different policy.

  21. Yet another under-examined, under-researched reactionary post by Eugene on a subject outside his area of expertise.

    The opinion doesn’t strike me as especially “feminist.” It seems to make its point quite logically, by distinguishing the putative justifications for the marital privilege from other kinds of confidentiality-promoting privileges. It correctly notes the misogynistic character of the marital privilege’s origins, and accurately characterizes modern defenses as undersupported and sentimental. Meanwhile, the dissent turn out to be deeply ironic, since it (like Eugene) fails to venture much beyond those hoary, sentimental defenses and respond to the substance of the court’s critique.

    The problem, in a nutshell, is this: we want to defend the marital privilege because it comports with our intuitions about the “unity” of marriage and how “self-incrimination” applies in that context. These intuitions, however, have a deeply misogynistic history and are hard to square with modern understandings of marriage. So the modern “defense” of the marital privilege seeks to describe it as analogous to other forms of privilege that are designed to promote confidentiality. But there is no reason to believe that such protection is necessary to promote “marital confidences.” The court here seeks to resolve the tension here by revoking the privilege.

    Reactionary arguments to the effect of “but it’s always been that way!” are not effective. Get your nose out of the casebooks.

    1. Speaking of long, long history and not learning from its silly, archaic nature, rmember this decision is heavy about marital violence, even though that is excepted in most places.

      In other words, government increases its power using one argument, then immediately starts misusing it.

      Some time down the road:

      “Ma’am, you are sworn in now. Did your husband tell you he stole that thing? You must testify now because some other guy in some other case beat up his wife.”

      1. “government increases its power using one argument, then immediately starts misusing it.”

        Odd that you consider providing accurate information to a criminal trial to be a “misuse” of power.

      2. “Ma’am, you are sworn in now. Did your husband tell you he stole that thing? You must testify now because some other guy in some other case beat up his wife.”

        This case is about the spousal communication privilege. You’re thinking of spousal immunity. The state cannot compel a spouse to testify against another. That privilege protects state compulsion.

        The spousal communication privilege is the exact opposite. It is the state giving one person the right to prevent another person who wants to testify from testifying. The guy’s ex-wife was one of the witnesses. Spousal immunity didn’t even apply to her.

        But your argument is asinine for another reason. It’s against compelled testimony at all. The defendant’s parents (who also knew about his murder) could be compelled to testify. Every ex-girlfriend he ever had but did not marry could be compelled to testify. His friends could be compelled to testify. And he’d be powerless to stop them. Except if it is his ex-wife, he can order the state to prevent her from testifying even if she wants to testify.

        1. protects *against* state compulsion.

  22. Well “feminists” spent the last 30 years trashing the institution of marriage so I think it is only natural that our own governmental institutions pretty much say “marriage doesn’t matter” anymore.

    But that was the end goal of feminists anyhow, to make marriage “outdated”. Just look back to the radical feminist agenda of the 1970’s. That was a written goal. They won. Now we get this. Hope everyone is happy.

    1. Why do you believe that 1970s feminists wanted to attack the institution of marriage? Can you think up of a few reasons?

  23. I think the defendant is going to jail because he murdered somebody.

    1. No, no, “because feminists” fits the narrative better.

  24. I’m not a lawyer. How is this law applied? Does it only apply to spousal communications that occur after the ruling? Do communications prior to the ruling fall under previous law? If you are testifying in N.M. are spousal communications that occur outside of N.M. under N. M. law or the law of the state in which they occurred?

    1. “Does it only apply to spousal communications that occur after the ruling?”

      The abolition of the spousal communication privilege is prospective, “effective for all cases filed on or after the date of this opinion[.]” It is as if the Rule on which the defendant relied was repealed effective August 30, 2019. (The Court went on to find that although the district court erred in permitting the testimony of the defendant’s ex-wife, that error was harmless given the other evidence that was not covered by the privilege; the Court found that the defendant failed to establish that the rule applied to his wife, since the evidence was that he might have told her before they were married.)

      “Do communications prior to the ruling fall under previous law?”

      No. Since there is no longer a spousal communication privilege to invoke, the fact that the communications were made prior to the ruling is of no moment.

      “If you are testifying in N.M. are spousal communications that occur outside of N.M. under N. M. law or the law of the state in which they occurred?”

      Assuming “testifying in N.M” means testifying in a New Mexico court, it will be the law of New Mexico, which no longer has a spousal communication privilege. It will not matter if the statements were made in a jurisdiction that recognizes a spousal communication privilege, since that other jurisdiction’s evidentiary rules do not ordinarily apply to New Mexico proceedings.

      1. There’s one permutation left… what if a couple married in NM are haled into court in another state? Do they still get to avail of the other state’s communication privilege?

        1. Yes, unless that other state’s communication privilege is limited to communications that would be privileged in state court proceedings in other states. My state does not have such a carve out. The only elements to invoke the rule are (1) confidential communication (2) made to the person’s spouse (3) while they were married. There is another issue if State A does not recognize certain marriages in State B. I think this probably comes up most, now, when common-law marriages are invoked, since different states have different common law rules. I’m not a family lawyer. But to answer your question, if a couple married in NM are haled into State A’s court, and State A recognizes NM’s marriage, and State A has a spousal communication privilege, the couple haled into State A’s courts can invoke State A’s evidentiary rules.

          1. So there you have it, married NM criminals. Go out of state to commit crimes.

  25. . (I find many feminist arguments to be quite sound, but just not this one.)

    Which ones are those?

    1. I agree, Amos. Feminism is bad and women are wrong about everything. They’re not even people. They’re just ribs.

      1. If you’re a woman then you support feminism. Got it.

        And they say nonfeminists are sexist.

        1. “If you’re a woman then you support feminism. Got it.”

          Where did you “got it” from? It seems you just made it up.

  26. Oh, good lord.

    A relatively obscure privilege, whose rationale is not the strongest (See NToJ), and whose operation varies from state to state, suddenly becomes a vital national interest because the court mentioned feminism, and now y’all wanna get your culture war on.

    Did this get linked somewhere? Lots more one-off crazies than usual.

    1. Just calling out the obligatory curtsy to feminism before you criticize it as a mindless religious ritual no different from excessive ‘thoughts and prayers’ or ‘I have gay friends but’. Usually people who do this don’t really have any gay friends or ‘sound arguments’, they just say it because its socially instilled, and in the latter two cases they’re terrified of blowback from inquisition. I’m just trying to help Eugene out.

      1. I wasn’t replying to you, but I’m sure Prof. Volokh is touched by your concern that he’s not as extreme as you due to being terrified.

  27. The rules of evidence do not further the pursuit of justice or the pursuit of the truth. They further the goals of those who want to pretend – and persuade the gullible public – that the legal system is devoted to fairness and justice. Responsible individuals will figure out that the legal system is rigged to produce outcomes that judges, lawyers, cops and politicians can impose by force, and that most of the public will accept as valid. Responsible individuals who want to protect their rights and liberties will not trust this legal system, and will learn how to see through the rules of evidence and other rules, procedures, and laws that are designed to justify infringements on their liberty.

  28. “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.””

    And that’s all the proof you need. Radical feminists are sexist against men.

    1. “Radical feminists are sexist against men.”

      Egad! Fetch my fainting couch…

  29. Basically, this decision is laughable.

    In Griswold v. Connecticut, the Supreme Court found that there is a marital right to privacy in the US Constitution. That, of course trumps the state granted privilege.

    “It is one thing when the State exerts its power either to forbid extramarital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.”

    1. The right to privacy does not extend to a right against having evidence introduced against you in court.

  30. Did this get linked somewhere? Lots more one-off crazies than usual. Judi QQ Online

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