Gay marriage and spousal privilege...

Law and Order reminded me of one of the privileges of marriage that’s not easily duplicated in another legal way, besides taxes: spousal privilege.

Does the legalization of gay marriage automatically confer the ability to refuse to testify against one’s spouse in court, assuming a marriage license and all that jazz? If gay marriage bans are later reinstated, and the marriages voided, what does that do to any ongoing or ended court proceeding that involved the evocation of said privilege? Any other implications I’m not thinking of right now?

That’s one of the reasons the gay community refused to settle for ‘civil unions’; there are so many rights connected with marriage it’d be very easy to miss some important ones. Easier to just call it ‘marriage’.

I presume SSM includes all the rights, privileges, and responsibilities as a DSM.

Is “DSM” the proper abbreviation for a heterosexual marriage?

That might not matter up here much longer (not sure if the legislation has been passed yet).

At a Federal level, this BBC article suggests that the Justice Department has been instructed to same-sex marriages full and equal recognition, including spousal privilege.

In the UK, the passage of equal marriage law has thrown up some minor asymmetries between SSM and opposite sex marriage. For example, adultery cannot be cited as grounds for divorce between a SSM couple as it requires a definition of same-sex sexual intercourse. All the wise heads in Whitehall struggled to come up with a workable definition of intercourse other than penis-in-vagina, so adultery was left out of same-sex divorce.*

Similarly, failure to consummate a same-sex marriage is not grounds for divorce, unlike its straight equivalent.

  • Seriously… couldn’t they have just asked for a practical demonstration?

[url=]A wikipedia article[/url=] indicates that spousal privilege was available to civil partners just as it was to married partners, and that this was not an unlimited privilege for either CP’d or married couples, but with no distinction between them.

The Wiki for the England section is uncited, however, and I can’t find anything conclusively citing it either way. However, when I was previously looking up the differences between civil partnerships and gay marriage in the UK this was not one that came up so I’m inclined to believe it wasn’t one of them.

IOW, it would depend on the law where you live. Legally-valid civil partnerships have some parts of the law for marriages, but not all, and that does depends on where you live. I think that in the US the finer parts of the law (like this one) re marriage vary state-to-state, too.

I think that’s irrelevant to the OP unless you can show that this is one of the asymmetries that came up. This is a specific question.

The old story goes that male homosexual activity (buggery) was made illegal in Britain, but not lesbian activity - because nobody could figure out a way to explain what that was to Queen Victoria.

Besides, it’s an interesting question - whatever definition they come up with for lesbian adultery might expand the definition of what heterosexual couples can claim as adulterous activity.

I assume the spousal privilege comes from several reasons: depending on circumstances, the spouse may be heavily inclined to lie one way or the other - to get even or more likely to protect their spouse; plus it puts them in the awkward position of having to snitch, and then possibly to live with the person afterwards.

Based on the fact that states did not rewrite divorce and inheritance laws, or any other significant laws relating to marriage privileges, presumably the same privileges apply elsewhere unless explicitly stated as different… Simply allow two members of the same sex to enter into a union same as two members of the opposite sex.

I assume one of these days the issue of states that don’t recognize gay marriage being forced to accord another state’s marriage legal recognition - that issue will make it to SCOTUS eventually.

Can someone briefly explain the limits of spousal privilege?

In The Sopranos, Christopher the mobster’s girlfriend snitch marries him because she thinks she won’t have to testify against him. Someplace I read that that doesn’t apply-or maybe on the show she found out–but I forgot for what reason.

I think she can be forced to testify to what he told her before they were married. Spousal privilege only applies to conversations that took place after the couple were married.

There’s two different aspects: compellability and privilege.

Compellability refers to the power of the prosecutor to compel a witness to testify by subpoenaing the witness. Normally, once served with a subpoena, the individual must come to court and testify.

However, in some jurisdictions, a spouse cannot be compelled to testify against another spouse. There can be a number of exceptions to this principle (particularly in cases of domestic violence involving the spouses or the children), but if the non-compellability rule applies, the spouse can’t be forced to testify against their spouse.

Spousal privilege is different. It is a privilege that applies to communications between spouses. The exact scope of the privilege depends on the law of the jurisdiction. In some cases, it’s the privilege of the spouse who made the communication; in other cases it’s the privilege of the spouse who received the communication. In some cases the privilege does not survive a divorce; in other cases it may.

There’s a lot of variation in how these two issues are treated in each jurisdiction, so it’s not really possible to say much more than that.

If the communication was made before they were married, it wouldn’t be covered by spousal privilege.

However, depending on the law of the jurisdiction, she may be non-compellable - the prosecution may not be able to compel her to testify against him.

There are two forms of spousal privilege in the U.S. Spousal communication privilege can be invoked by either the defendant spouse or the potential witness spouse but only applies to communication that occurs while the couple is married. This continues to be true after the marriage has ended. That is, the privilege applies to communication during a marriage, and the defendant can forbid a spouse to testify about what what said.

Testimonial privilege means that a spouse cannot generally be compelled to testify about observed actions against his/her spouse. This privilege belongs to the one testifying. Spouses can testify if they so wish.

This is an over-simplification and it may or may not apply in civil cases depending on individual state law.

I’ve usually seen OSM (opposite sex marriage).

In the US these are referred to the other way around: the spousal privilege is an unqualified right for a spouse to refuse to take the stand against her spouse. The marital communications privilege is the right to refuse to testify about confidential communications made during the marriage.

I thought the story was that she refused to believe such a thing could exist.

I’ve heard it both ways. Either way, it’s a folk story and the truth is more likely patriarchal - in that the male politicians of the day didn’t want to draw attention to the fact that such a thing went on by making legislation about it.

Forgot to mention: the spousal privilege applies in criminal cases, not civil. The marital communications privilege applies in both.

It’s even more patriarchal than that. They were aware that such a thing went on, but they saw no need to legislate about it because it was not important enough - it didn’t threaten the fabric of society the way male homosexuality was supposed to. It didn’t, typically, threaten the inheritance of property through family generations (because family property did not often pass through women), military discipline was not threatened by it, etc, etc. The people involved were, after all, only women.

More likely, they did not care. It’s not like a woman had the right to refuse to do her wifely duties, regardless of orientation or recreational activities…

Miss USA - apology to Trump after being accused of inappropriate behaviour bringing other men and women to her room: "We all have our personal demons to deal with…"

Jon Stewart: *“The difference is, my personal demons would pay to watch your personal demons.”[/*QUOTE]

I suppose, too, the act of buggery is very specific; the question would be, at what point, what sort of lesbian activity would you define to be as serious as penetration in buggery or heterosexual rape, the two “gold standards” of offense in those days? would fondling count? Total nudity - of one or both? Digital penetration? Cigar tubes? Oral sex? (Did buggery by the husband with another man count as adultery in a heterosexual divorce proceedings?)

The rape laws in most places were redefined decades ago to include all sorts of other acts, in recognition that often sexual assault did not include penetration. To allow a claim of adultery in a gay relationship, do you have to allow a complete redefinition of adultery that would, in fairness, also extent to heterosexual activity.

The problem is that in most marriages, failure is rarely one-sided. Using blame for activities of one or the other ignores the fact that often, the pair just drift apart, and adultery or something close to it is just the symptom. (Recall an article by a long-ago divorce lawyer when couples that wanted a quick divorce would hire a prostitute and take photos, in the days before no-fault divorce. One day his client had to do a quickie photo shoot (so to speak) because the original set did not develop and they needed the pictures in court that afternoon.)