A spousal communications privilege applies in civil and in criminal cases. … It covers communications made during the marriage, and cannot be invoked to protect confidential communications between currently married spouses which occurred prior to their marriage.

Generally defined, spousal privilege is a legal rule that prevents one spouse from being forced to testify against the other. This article provides a brief introduction to how this legal principle applies to the prosecution of Criminal Domestic Violence cases in South Carolina.

Spousal privilege means the right to not disclose confidential marital communications. The spousal privilege applies to any testimony of a spouse without the consent of the other so long as the parties continue to be legally married at the time of suit. It is usually asserted as a basis for not answering a question under oath. The spousal privilege recognizes that spouses are not ordinary witnesses when one is pitted against the other. A witness-spouse who voluntarily refuses to testify for or against the other spouse cannot be compelled to testify. The existence of the spousal privilege has been justified on the basis of the need to preserve marital harmony, which could be disrupted by requiring one spouse to testify for or against the other spouse when the non testifying spouse does not consent to such testimony. However, where the cause of action grows out of a personal injury or wrong done by one spouse to the other there is no just reason for preventing the victim-spouse from testifying. In such a case, the need to preserve marital harmony is no longer compelling; presumably the wrong or injury has already disrupted such harmony. It is for these reasons the spousal privilege does not apply where the cause of action grows out of a personal wrong or injury done by one spouse to the other. This exception was carved out for the benefit of the victim-spouse who wishes to testify regarding such a wrong or injury. The statutory exception to the spousal privilege is a permissive one. It allows the victim-spouse to testify against the defendant-spouse if the victim so desires.

Following is an example of a case law discussing on spousal privilege. “The spousal privilege is contained in Mich. Comp. Laws § 600.2162 (Mich. Stat. Ann. § 27A.2162), and states that a husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce and in cases of prosecution for bigamy, in cases of prosecution for a crime committed against the children of either or both, and where the cause of action grows out of personal wrong or injury done by one to the other. The statute vests the privilege of precluding spousal testimony in the nonwitness-spouse. The privilege can be asserted only while the spouses are legally married. It precludes all testimony regardless of whether the events at issue occurred before or during the marriage.”[ People v. Love, 425 Mich. 691 (Mich. 1986)].

Spousal privilege is based on S.C. Code § 19-11-30. It provides that spouses cannot be forced to testify regarding communications. In the context of a CDV trial, the spousal privilege is “owned” by the spouse who is the alleged victim or other witness. This means that it can be waived at their discretion. This is different from other types of legal privilege, such as lawyer-client that can only be waived by the client.

Spousal privilege only applies to those who are currently legally married. One requirement for a domestic violence charge is that a household member relationship exist between the defendant and the alleged victim. Household members including spouses, former spouses, those with children in common and those who now or formally have cohabitated. This broad definition covers many relationships where spousal privilege would not be applicable.

A South Carolina CDV can be based on one of three different types of allegations:1) An unwanted touching was made; 2) an attempt was made at an unwanted touching; or 3) a threat that an unwanted touching would occur.

Examples of unwanted touchings would include such things as snatching cell phones out of someone’s hand, throwing objects, pushing, pulling, or actual hitting. There is no requirement that the unwanted touching actually result in any physical harm.

South Carolina’s spousal privilege only applies to communications between the spouses. This covers things like conversations, e-mail, letters and text messages. Our statute does not extend to observations made by a spouse regarding physical acts, or their knowledge of other events independent of communications had with their spouse.

Because the privilege only applies to communications, and not physical acts, it does not cover testimony regarding CDV allegations involving unwanted touching or attempting unwanted touching. It does however extend to communications involving a threat of an unwanted touching. For example hitting your spouse with a pillow, or throwing the pillow but missing would both constitute potential instances of domestic violence for which the spousal privilege would not apply. But someone telling their spouse “I’m going to hit you with a pillow” would be a communication, and a Court couldn’t require a spouse to testify to that communication.

Knowing whether or not to raise the spousal privilege is a decision that can only be made by the spouse who has been called as a witness by the prosecution. It cannot be raised by the defendant or defendant’s attorney. It is however important at the defendant, though legal counsel, be prepared to provide the legal authority in support of spousal privilege being raised in trial.