Module X: Marital Privilege and Confidentiality of Victim Records
Key Points: Marital Privilege and Confidentiality of Victim Records
- Spousal immunity no longer prevents a victim-spouse from testifying against her spouse if she so chooses; she cannot, however, be compelled to do so.
- Although marital privilege operates to block disclosure of confidential communications made during the marriage, the majority of states have a statutory or caselaw exception where the communication concerns a crime committed by one spouse against the other.
- In cases of extreme violence and "confidential communications" respecting future crimes against other family members, courts have compelled unwilling spouse-victims to testify and rejected a husband's claim of marital privilege to silence his wife.
- Confidentiality of communications between victims of intimate partner sexual abuse and those who assist them—counselors, advocates, medical personnel—is of fundamental importance. Without assurances of confidentiality, a victim may find her safety compromised even further when she tries to obtain help.
- Laws governing confidentiality are both legislatively and judicially created. They vary significantly from jurisdiction to jurisdiction. Whenever possible, a court should construe the laws of its jurisdiction to support confidentiality of communications for victims of intimate partner sexual abuse who have sought assistance and safety.
- If disclosure is nevertheless required, the court should take every possible measure to ensure that the safety of the victim is protected, as well as the safety of those who have assisted her.
- Documents should be reviewed in camera prior to disclosure to the defense. Any identifying information that could compromise the victim's safety, such as her address, phone number or the location of a secret domestic violence shelter, should be redacted.
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