Alexandra Aparicio1A.B. 2018, Princeton University; J.D. Candidate, 2021, The University of Chicago Law School. The author thanks Professor Emily Buss and the staff of The University of Chicago Law Review for their helpful feedback on this essay.
On August 30, 2019, the New Mexico Supreme Court prospectively abolished the state’s spousal communications privilege. The privilege had previously granted defendants and witnesses “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.” When the New Mexico Supreme Court considered the privilege in State v. Gutierrez, the court concluded that, although every state in the nation recognized the spousal communications privilege, the privilege was a “vestige of a vastly different society than the one we live in today,” had been “retained . . . simply through inertia,” and should be abolished.
In the Gutierrez opinion, the New Mexico Supreme Court cited a number of law review articles criticizing the spousal communications privilege from a feminist perspective. In particular, the Court highlighted scholarship suggesting that the 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.” Indeed, the Gutierrez court’s discussion of the privilege implies that feminists are a unified force in favor of abolition. That is not the case.
This Essay examines spousal evidentiary privileges from the perspective of four distinct types of feminist jurisprudence, and ultimately concludes that there exists significant disagreement among feminists regarding the future of the privileges. Although liberal and radical feminists support abolition, relational feminists argue that the privilege should be preserved and expanded, and intersectional feminists believe that the privilege should be significantly modified rather than eliminated entirely.
After examining the relevant feminist jurisprudence, this Essay argues that spousal privileges should be modified so that the witness spouse alone holds the privilege and is considered competent to testify in all cases should he or she choose to do so. If the witness spouse declines to testify, the privilege should not allow a prosecutor to compel his or her testimony. This solution, I argue, strikes the best balance between “private-focused” feminist jurisprudence concerned with the coercion of women by their intimate partners and “public-focused” feminist jurisprudence concerned with the coercion of women by the state.
II. Background on Spousal Privileges
The United States recognizes two distinct evidentiary privileges applicable in criminal cases: (1) the spousal communications privilege and (2) the adverse testimonial privilege. The spousal communications privilege, which Gutierrez abolished in New Mexico, protects confidential communications between married couples.2R. Michael Cassidy, Reconsidering Spousal Privileges after Crawford, 20 Am. J. Crim. L. 339, 357 (2006) (“The typical prerequisites to the application of the confidential communication privilege are that 1) there was a communication (that is, words or utterances intended to convey a message); 2) between two persons who were married at the time of the communication; and 3) the communication was intended to be kept confidential (that is, not made in the presence of a third party or intended to be communicated to a third party).”). Before Gutierrez, all fifty states, the District of Columbia, and the federal system recognized the spousal communications privilege.3Ala. R. Evid. 504; Alaska R. Evid. 505(b); Ariz. Rev. Stat. § 13-4062; Ark. R. Evid. 504; Cal. Evid. Code § 980; Colo. Rev. Stat. § 13-90-107; Conn. Gen. Stat. § 54-84b; Del. R. Evid. 504; D.C. Code § 14-306; Fla. Stat. § 90.504; Ga. Code § 24-5-501; Haw. Rev. Stat. § 505(b); Idaho Code § 9-203; 725 Ill. Comp. Stat. 5/115-16; Ind. Code § 34-46-3-1; Iowa Code § 622.9; Kan. Stat. § 60-423; Ky. R. Evid. 504; La. Code Evid. art. 504; Me. Stat. tit. 15 § 1315; Md. Code Ann., Cts. & Jud. Proc. § 9-105; Mass. R. Evid. § 504(b); Mich. Comp. Laws § 600.2162; Minn. Stat. § 595.02(a); Miss. R. Evid. 504; Mo. Rev. Stat. § 546.260; Mont. Code § 26-1-802; Neb. Rev. Stat. § 27-505(1); Nev. Rev. Stat. § 49.295(1)(b); N.H. R. Evid. 504; N.J. Stat. § 2A:84A-22; N.M. R. Evid. 11-505 (withdrawn by State v. Gutierrez); N.Y. C.P.L.R. § 4502(b); N.C. Gen. Stat. § 8-57(c); N.D. R. Evid. 504; Ohio Rev. Code § 2945.42; Okla. Stat. tit. 12 § 2504; Or. Rev. Stat. § 40.255(2); 42 Pa. Cons. Stat. § 5914; S.C. Code § 19-11-30; S.D. Codified Laws § 19-19-504; Tenn. Code § 24-1-201; Tex. R. Evid. Rule 504(a); Utah R. Evid. 502; Vt. Stat. Ann. tit. 12, § 1605; Va. Code § 19.2-271.2; Wash. Rev. Code § 5.60.060(1); W. Va. Code § 57-3-4; Wis. Stat. § 905.05; Wyo. Stat. § 1-12-104. Both Rhode Island and the Federal Rules of Evidence protect confidential communications between spouses as part of common law privilege. See State v. Deslovers, 40 R.I. 89 (1917); see also Fed. R. Evid. 501; Stein v. Bowman, 38 U.S. 209 (1839). However, there exists significant doctrinal variation among the states. For example, while twenty-seven states recognize both spouses as competent to testify to the content of confidential communications,4These states are: Alabama, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Kentucky, Louisiana, Minnesota, Mississippi, Montana, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and West Virginia. For the applicable statutory provisions in each of these states, see note 3. For discussion of how the spousal communications privilege is held in Rhode Island, see State v. Angell, 122 R.I. 160 (1979). twelve states vest the privilege in the defendant spouse alone, allowing him or her to unilaterally block the witness spouse from testifying.5These states are: Alaska, Arizona, Arkansas, Colorado, Idaho, Kansas, Maine, Michigan, Nevada, Oklahoma, South Dakota, and Wisconsin. For the applicable statutory provisions in each of these states, see note 3. In some of these states, a witness spouse may assert the privilege on behalf of the defendant spouse. See S.D. Codified Laws § 19-19-504 (although only “[a]n accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication . . . . [t]he privilege may be claimed by the accused or by the spouse on behalf of the accused.”). In ten other states and the District of Columbia, neither spouse is competent to testify, so even if both spouses consent to disclosure, such testimony is non-admissible.6These states are: Illinois, Indiana, Iowa, Maryland, Massachusetts, Missouri, Nebraska, New Hampshire, North Carolina, and Wyoming. For the applicable statutory provisions in each of these states, see note 3.
The adverse testimonial privilege protects witness spouses from having to testify to both “facts observed and . . . matters communicated to [him or] her by the defendant spouse.” At the time of Gutierrez, New Mexico did not recognize the adverse testimonial privilege; however, thirty-one other states, the District of Columbia, and the federal system recognize the privilege today.7Ala. Code § 12-21-227; Alaska R. Evid. 505(a); Ariz. Rev. Stat. § 13-4062; Cal. Evid. Code § 970; Colo. Rev. Stat. § 13-90-107; Conn. Gen. Stat. § 54-84a; D.C. Code Ann § 14-306; Ga. Code § 24-5-503; Haw. Rev. Stat. § 505(a); Idaho Code § 19-3002; Ky. R. Evid. 504; La. Code Evid. art. 505; Md. Code Ann., Cts. & Jud. Proc. § 9-106; Mass. R. Evid. § 504(a); Mich. Comp. Laws § 600.2162(2); Minn. Stat. § 595.02(a); Miss. Code § 13-1-5; Mo. Rev. Stat. § 546.260; Neb. Rev. Stat. § 27-505(2); Nev. Rev. Stat. § 49.295(1)(a); N.J. Stat. § 2A:84A-17(2); N.C. Gen. Stat. § 8-57(b); Ohio Rev. Code § 2945.42; Or. Rev. Stat. § 40.255(3); 42 Pa. Cons. Stat. § 5913; R.I. Gen. Laws § 12-17-10; Tex. R. Evid. Rule 504(b); Utah R. Evid. 502; Va. Code § 19.2-271.2; Wash. Rev. Code § 5.60.060(1); W. Va. Code § 57-3-3; Wyo. Stat. § 1-12-104. Twenty-one states, the federal system, and the District of Columbia vest the privilege in the witness spouse alone.8These states are: Alabama, Alaska, California, Connecticut, Georgia, Hawaii, Idaho, Louisiana, Maryland, Massachusetts, Missouri, Nevada, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Utah, and Virginia. For the applicable statutory provisions in each of these states, see note 7. Six states grant both spouses the privilege.9These states are: Kentucky, Michigan, Mississippi, Nebraska, West Virginia, and Wyoming. For the applicable statutory provisions in each of these states, see note 3. Wyoming’s statute does not explicitly require the defendant spouse’s consent, but courts have interpreted Wyo. Stat. § 1-12-104 in that way. See Engberg v. Meyer, 820 P.2d 70, 83 (Wyo. 1991). In four states, the defendant spouse alone holds the privilege.10These states are: Arizona, Colorado, Minnesota, and Washington. For the applicable statutory provisions in each of these states, see note 3.
Many states restrict the circumstances in which spousal privileges may be invoked. For example, Maine provides that the confidential communications privilege does not apply in “a proceeding in which one spouse is charged with a crime against the person or property of . . . [t]he other spouse.” Thus, a wife whose husband has allegedly assaulted her may be compelled to testify to their confidential communications. If she refuses a court order to testify, she may be held in contempt of court and jailed for up to thirty days;11See Me. R. Crim. P. 42; Me. R. Civ. P. 66 (“For the purposes of this rule . . . ‘Contempt’ includes but is not limited to . . . failure to comply with a lawful judgement, order, writ subpoena, process, or formal instruction of the court . . . . The court may impose a punitive sanction that is proportionate to the conduct constituting the contempt. In a summary proceeding the court may imposes a punitive sanction that consists of either imprisonment for a definite period not to exceed 30 days or a fine of a specified amount not to exceed $5,000 or a combination of imprisonment and fine.”). See also State v. Kimball, 117 A.3d 585, 589 (Me. 2015) (“Kimball was charged with one count of domestic violence assault . . . . The victim, [Sheila Kimball,] although under subpoena, did not appear on the morning of trial. She was eventually brought to court under arrest to testify. Beyond acknowledging her name, the victim remained silent and would not answer questions asked by the State. The court ultimately issued a contempt order as a result of the victim’s refusal to testify and jailed her for twenty-four hours.”); Martha Neil, Domestic Violence Victim Put on Stand in Pajamas, Then Jailed Overnight for Refusing to Testify, ABA J., (June 3, 2014). if she refuses to attend court after being served with a subpoena, she may be jailed under Maine’s material witness statute.12See Me. Stat tit. 15 § 1104 (“If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that it may become impracticable to secure the presence of that person by subpoena, the court may order the arrest of that person and may require that person to give bail for that person’s appearance as a witness, utilizing the same standards for release as for a defendant preconviction bailable as of right under subchapter II.Subchapters IV and V also apply”). For an example of Maine’s material witness spouse being used to compel testimony in a domestic violence case—though not a domestic violence case involving married spouses—see Alex Barber, Prosecutor Orders Arrest of Woman as Material Witness to Testify against Her Alleged Abuser, Bangor Daily News, (Sept 20, 2013). The abolition of spousal privileges, then, is likely to increase the number of witness-spouses jailed for refusing to testify against their partners.13Faced with strong arguments against compelling witness-spouse testimony, some may argue that few women overall will be prosecuted and incarcerated for refusal to testify, because the few prosecutions which do occur will incentivize future women to testify. This argument, however, is circular: if abolishing spousal privileges incentivizes women to testify to avoid prosecution, that incentive will be greatly diminished if women are not actually prosecuted. I do not see how testimony can be obtained without regular prosecutions for contempt.
III. Feminist Jurisprudence and Spousal Privilege
When the New Mexico Supreme Court abolished the spousal communications privilege, they invoked pro-abolition feminist perspectives without acknowledging any feminist counterarguments; indeed, the Court seemed to assume uniform support for abolition among feminists. To test that assumption, this Part identifies four types of feminist jurisprudence—liberal feminism, relational feminism, radical feminism, and intersectional feminism—and analyses spousal privileges from the perspective of each.14Of course, these ideal types are by no means an exhaustive catalog of feminist scholarship, and any given feminist may be influenced by more than one of these perspectives, as well as other values. While I acknowledge that using ideal types may risk the over-simplification of some feminist jurisprudence, these “types” are useful insofar as they allow for the identification of key points of disagreement among feminists and thereby focus the debate.
A. Liberal Feminism
Liberal feminist jurisprudence can be read to support either (1) total abolition of spousal privileges or (2) modification of the privileges so that they are vested in both spouses. Both of these regimes place the witness spouse and defendant spouse on equal legal footing, fulfilling the liberal feminist vision of equality between the sexes.
The basic principles of liberal feminism were developed in the 1960s, and were influenced by classic liberal philosophy15See, for example, John Stuart Mill, The Subjugation of Women 41–42 (Savill, Edwards, and Co. 1870) (“[T]he principle that regulates the existing social relations between the two sexes—the legal subordination of one sex to the other—is wrong itself, and now one of the chief obstacles to human improvement; and [ ] it ought to be replaced by a principle of perfect equality, admitting no power or privilege on one side, nor disability on the other.”). and the evolution of the equal protection doctrine.16See, for example, Joseph Tussman & Jacobus tenBroek, Equal Protection of Laws, 37 Cal. L. Rev. 341, 342 (1949) (arguing that the crucial question for equal protection claims should be whether, under a given law, those who were similarly situated were similarly treated, and noting “[i]f we want to know if [legislative] classifications are reasonable, it is fruitless to consider whether or not they correspond to some ‘natural’ grouping.”). Read together, these sources provided ample ammunition for feminist litigators to argue that all differential treatment on the basis of sex should be rejected.17See, for example, Brief for Appellant, Reed v. Reed, No. 430, *40–41 (filed 1970). Indeed, many liberal feminists chose to selectively emphasize sex-based discrimination which harmed men. For example, in Frontiero v. Richardson, then-ACLU attorney Ruth Bader Ginsburg successfully argued against the constitutionality of a statute that allowed the female spouses of service members to receive benefits automatically, while male spouses had to prove that they were financially dependent upon their wives. Though the pre-Frontiero administration of benefits was arguably more favorable to women than men, the litigation is often described as part of a feminist project aiming to convince skeptics that discrimination on the basis of sex should be unconstitutional.
Thus, a liberal feminist committed to the principle of equal opportunity under law would argue against spousal privilege regimes in which only one spouse could invoke the privilege. In heterosexual marriages, liberal feminists would point out, such a rule flies in the face of the principle that law should apply equally to men and women.18As Professor Katharine T. Bartlett notes, when confronted with a seemingly sex-neutral law, liberal feminists ask “the woman question.” Katharine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829, 837 (1990). How do these legal rules implicate sex? When examining spousal privileges, liberal feminists might begin by pointing out that the terms “witness spouse” and “defendant spouse” are not sex-neutral at all, but are, in fact, placeholders for the terms “wife” and “husband.” Indeed, because of gender imbalances in prosecution rates, wives may be more likely to be witness spouses than defendant spouses. However, a liberal feminist critique of spousal privileges is unlikely to stress this point, given the jurisprudence’s strategic choice to emphasize formal legal equality instead of the practical effects of particular laws. A regime in which both spouses hold the privilege would be acceptable, however, as would total abolition of the privileges. Both solutions make man and woman equal under law, “admitting no power or privilege on one side, nor disability on the other.”
B. Relational Feminism
Relational feminist jurisprudence supports expansion of the spousal evidentiary privileges. Recognizing that adverse testimony and the disclosure of confidential communications can injure healthy marriages, relational feminists contend that privileges are necessary to protect the bond between spouses. Relational feminists believe, however, that other bonds also merit such protection, and argue that that spousal privileges should be extended beyond married couples to cover unmarried couples, family members, and close friends.
Relational feminism emerged in large part as a response to liberal feminism’s emphasis on the similarities between men and women. Criticizing the “sameness model” “as male-biased, serving women only to the extent that they could prove they were like men,” relational feminists “urge instead a concept of legal equality in which laws accommodate the biological and cultural differences between men and women.” Part of this project involves accommodating the female ethical perspective, which Professor Carol Gilligan famously argued was unique for its emphasis on “problem[s] of care and responsibility in relationships rather than [on problems] of rights and rules.” The law, relational feminists believe, should be designed to recognize and honor this “ethic of care.”19See, for example, Leslie Bender, From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care in Law, 15 Vt. L. Rev. 1, 37 (1990) (“The justice-oriented problem-solver seeks a distanced stance from which to make objective decisions by applying formal rules of equality and other general principles of justice . . . . Gilligan observed, however, that some people solve moral dilemmas using a different, but equally adequate, methodology. This . . . ethic of care[ ] focuses attention on the unique context of the dispute and the parties’ on-going relationships and interdependencies.”).
Reimagining spousal privileges subject to the ethic of care, relational feminists like Professor Kit Kinports have built on humanist arguments by arguing that all intimate relationships valued by women merit protection from governmental interference. Marriage is only one such relationship.20See generally Mary Gergen & Kenneth J. Gergen, Marriage as Relational Engagement, 13 Feminism & Psychology 469 (2003) (responding to the critique that marriage is an instrument of oppression against women, and arguing that the contemporary institution of marriage can be “a way of creating a relational bond. . . . [that] allows us, in a sense, to ‘go beyond ourselves’, to cross the borders of self-containment and self-absorption”). As Professor Kinports writes:
The privilege rules tend to shelter relationships accorded a high status by traditional, male norms, even though the policy considerations used to justify those privileges support extending protection to analogous relationships. For example, the marital privilege is limited to legally recognized marriages and therefore does not apply to people . . . whose lifestyles do not conform to traditional norms. Moreover, the privilege does not protect confidential conversations between family members or best friends, even though women may consider those relationships as confidential and intimate as the marital relationship.
Thus, relational feminism would prefer that the spousal communications privilege be preserved and extended. Accordingly, a relational feminist might advocate for a general confidential communications privilege, administered by a legal standard which takes the intimacy of the relationship between the communicating parties into account.
C. Radical Feminism
Radical feminist jurisprudence supports (1) the abolition of spousal privileges and (2) the classification of witness spouses as competent and compellable. Radical feminists believe that abolition is necessary to combat the coercion of women by defendant spouses, a goal which they argue cannot be fully achieved by reform-minded statutes vesting the privilege in the witness spouse or incorporating spousal violence exceptions.
Radical feminism is informed by a critique of liberal and relational feminism as failing to address how both perceived differences and perceived similarities among the sexes are harmful products of male-dominated culture.21See Nancy Levit & Robert R.M. Verchick, Feminist Legal Theory: A Primer 20 (New York University Press 2d ed. 2016); D. Kelly Weisburg, Feminist Legal Theory: Foundations (Temple University Press 1993) (Radical feminists argue that “the inequalities women experience as sex discrimination in the economic, political, and familial arenas result from patterns of male domination. This theory says that men are privileged and women are subordinated, and this male privileging receives support from most social institutions as well as a complex system of cultural beliefs. Law is complicit with other social institutions in constructing women as sex objects and inferior, dependent beings.”). As Professor Catharine A. MacKinnon writes, radical feminists “are critical of both femininity and masculinity serving the interest of men,” and radical feminism “attempt[s] to create a social reality, a social identity, that is bound up with neither.”
In the legal academy, radical feminists have worked to (1) identify institutions and practices which reinforce male dominance, and (2) leverage the law against such domination. For example, radical feminists have sought to combat institutional apathy towards violence against women by designing mandatory arrest policies, which police must follow when responding to any call about a domestic dispute. Radical feminists argue that such state intervention is necessary to shed light on violence previously considered “private,”22Liberalism considered domestic disputes to be “presumptively outside the legitimate bounds of government coercion and regulation,” and so liberal legislation avoided criminalizing such disputes. See Robert H. Mnookin, Comment, The Public/Private Dichotomy: Political Disagreement and Academic Repudiation, 130 U. Penn. L. Rev. 1429, 1429 (1982). Radical feminists argue that these spheres are not distinct, that “the personal is political.” See generally Carol Hanisch, The Personal is Political (1969). and because battered women are not always able to advocate effectively for themselves; some even sympathize with their abusers. Radical feminists also contend that women may internalize the beliefs of patriarchal society to such an extent that they develop “false consciousness,” under which they “voluntarily accept, defend, and even choose roles that help perpetuate the gender hierarchy.”
Thus, radical feminists reject the argument that spousal privileges are necessary to preserve marital privacy.23As the Gutierrez court noted, radical feminists argue that “the rhetoric of ‘privacy,’ . . . ignores the fact that women are all too frequently the victims of a pernicious form of unseen and ‘private’ violence.” They also say that reforms stopping short of abolition do little to address the coercion of female witness spouses. Within the fundamentally oppressive institution of marriage,24See, for example, Sheila Jeffreys, The Need to Abolish Marriage, 14 Feminism & Psych. 327, 327 (2004) (“Marriage is, of course, just one aspect of heterosexuality as a political institution. It is the legal mechanism whereby women are tied to this institution.”). women remain perpetually vulnerable to patriarchal pressure and the development of false consciousness. As Professor Malinda L. Seymore writes:
A spousal immunity rule that gives the wife an election [whether to testify] simply leaves her to be harassed, threatened, and manipulated by her husband into invoking her privilege not to testify. The legal system, once again, tells the spouses that domestic violence is a private matter in which the state does not care to intervene.
Carrying this argument further, radical feminists argue that witness spouses should not only be competent to testify, but should also be compellable. Seymore writes that “[a]n appropriate spousal immunity statute must allow a spouse’s testimony in the broadest possible circumstances of domestic violence and must signify the importance of domestic violence to the state byallowing the state to use all measures to prosecute wrongdoers, including compelling a reluctant spouse’s testimony.”
D. Intersectional Feminism
Intersectional feminist jurisprudence can be read to support modifying spousal privileges so that they are vested in the witness spouse alone. Such a modification, intersectional feminists argue, would honor the decision-making capacity of the witness spouse and would prevent the state from compelling testimony through contempt proceedings, a practice which hurts rather than helps systematically disadvantaged women.
Intersectional feminism opposes radical feminism’s perceived gender essentialism and its “assumption that all women share the same experience, namely, that of victims.” Such gender essentialism tends to universalize the experience of privileged women while obscuring the experience of underprivileged women. To counter this tendency, intersectional feminists draw attention to the roles that race, class, and ethnicity play in women’s lives,25See KimberléCrenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color, 43 Stan. L. Rev. 1241, 1242–43 (1991) (coining the term “intersectionality” to refer to the ways that individual characteristics such as race, class, and gender overlap with and interact with each other). and intersectional feminist jurisprudence urges others to make “a deliberate choice to see the world from the standpoint of the oppressed.”
Seeing the world from the standpoint of the oppressed arguably requires us to pay greater attention to the experience of female defendant spouses.26Interestingly, scholars have concluded that climbing rates of female incarceration reflect “a criminal-processing fervor to treat men and women ‘equally,’ despite their asymmetrical involvement in criminal activity,” perhaps influenced by the tenets of liberal feminism. Lora Bex Lempert, Women Doing Life: Gender, Punishment and the Struggle for Identity 2 (2016). Notably, female defendant spouses are likely to be disadvantaged in other sociolegal arenas.27In 2007, 44 percent of women in state prison had neither graduated from high school nor received a GED. Half of all women in state prison did not work in the month prior to incarceration. Women in the Criminal Justice System: Briefing Sheetsat *2 (The Sentencing Project, May 2007). Many are women of color.28“Between 1980 and 2010 the population of incarcerated women increased 646% . . . . [B]lack non-Hispanic women are incarcerated at 2-3 times the rate of white women . . . and Latina women are incarcerated at 1.4 times the rate of white women.” Lora Bex Lempert, Women Doing Life: Gender, Punishment and the Struggle for Identity 1 (2016). Thus, an evidentiary rule that is harmful to defendant spouses compounds upon other harms. Intersectional feminists caution that these harms may weigh against the abolition of spousal privileges.29This argument is bolstered by recent critiques of “carceral feminism,” defined as “a view that promotes state-based responses to sexual violence (and gender violence more generally), primarily through the traditional criminal justice system and other appendages of the carceral state.” Nickie D. Phillips and Nicholas Chagnon, “Six Months is a Joke”: Carceral Feminism and Penal Populism in the Wake of the Stanford Sexual Assault Case, 15 Feminist Criminology 47, 50 (2018). Anti-carceral critiques have worked their way into a wide variety of contemporary jurisprudence, including the literature on “governance feminism” and “masculinities theory.” See generally Janet Halley, Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law, 30 Mich. J. Int’l. L. 1 (2008); Nancy E. Dowd, Masculinities and Feminist Legal Theory, 13 Wis. Women’s L.J. (2008).
Additionally, intersectional feminists critique the radical feminist argument that it is in the best interest of women to compel reluctant witness spouses to testify. To label the concerns of women who do not wish to testify as products of “false consciousness,” intersectional feminists argue, risks further marginalization of those whose perspective is most valuable. Intersectional feminists emphasize that women who decline to testify may not be doing so out of fear, but for reasons society should recognize as legitimate. Take, for example, the case of Renata Singleton. After a 2014 domestic violence incident, she expressed unwillingness to testify: “A mother of three, she told prosecutors she could not afford to take time off work. . . . [s]he said she had ended the relationship and simply wanted to move on.” In response, Ms. Singleton was arrested under Louisiana’s material witness statute, her bond was set at $100,000, and she spent five nights in jail. Intersectional feminists ask: Why should Ms. Singleton—or any other woman—be put to this choice? If we seriously consider the perspectives of such women, intersectional feminists argue, we must adopt a legal regime which honors their decision not to testify.30Note that Renata Singleton declined to testify against an ex-boyfriend, not an ex-husband. In this case, then, spousal privileges could not be invoked for two reasons: (1) Ms. Singleton and her ex were never married, and (2) the charge was one of intimate partner violence, which meant that Louisiana’s spousal privilege laws did not apply. See La. Code Evid. art. 504.
Though radical feminists argue for state intervention to address the problem of domestic violence, intersectional feminists question whether incarceration “solves” anything. The criminal justice system is not designed to address cycles of intergenerational abuse, drug abuse, or poverty—all of which are driving factors of domestic violence. In addition, requiring victims to give testimony may re-traumatize them without addressing the underlying reasons for the abuse.31See generally Negar Katirai, Retraumatized in Court, 62 Ariz. L. Rev. 81 (2020); see also Merrit Kennedy, Rape Survivor Sues After Texas Authorities Jailed Her For A Month, NPR, (July 22, 2016). Thus, intersectional feminists argue for legal rules which enable the witness spouse alone to invoke the privilege. Indeed, Professor Amanda Frost recommends “abolishing the privilege altogether, and replacing it with an exemption for the witness-spouse from the penalties that typically accompany being held in contempt of court.”
IV. Balancing Feminist Concerns: The Future of Spousal Privileges
As discussed in Part III, feminist jurisprudence is highly varied, and the different “types” of feminists do not agree on what the future of spousal privileges should be. There are three primary reasons for this disagreement: (1) the debate about essentialization,32The debate about essentialization is linked to a fundamental disagreement about whether it is appropriate to construct policy based on the experiences of most women. Some feminists, including radical and liberal feminists, would support a policy which helped the majority of women but hurt a minority; others, particularly intersectional feminists, would condemn the rule for the harm it caused to the minority. (2) the debate about false consciousness,33Feminists disagree about whether it is appropriate to compel women to testify over their own objections. Radical feminists, of course, argue that such compulsion may be necessary, because a given woman’s objections might be the product of “false consciousness.” Intersectional feminists argue that the idea of false consciousness is often used to dismiss women who may have socially legitimate reasons for deciding not to testify. This debate raises difficult empirical questions: How do we know whether someone is exhibiting false consciousness? Even if we could determine that question for certain, though, it would remain unclear that the remedy is compulsion: perhaps education is more appropriate. and (3) the debate about the role of the state.34Whether women should be compelled to testify raises a question about how feminists should understand the role of the state. The prevailing debate is, again, between radical feminists and intersectional feminists. Radical feminists are private-focused; their aim is to prevent coercion in intimate relationships. Intersectional feminists are public-focused; their aim is to prevent women from being coerced by the state. It is clear that some balance must be struck, but questions remain about which form of the privilege strikes the best balance. With these theoretical splits in mind, this Part argues that spousal privileges should not be abolished. Rather, the privileges should be modified so that they are vested solely in a witness spouse considered competent but not compellable. This solution, I argue, strikes the best balance between “private-focused” feminist jurisprudence concerned with the coercion of women by their partners and “public-focused” feminist jurisprudence concerned with the coercion of women by the state.
As an initial matter, I reject the view of relational feminists that the privilege should be expanded. With the legalization of same-sex marriage, the extension of the privilege is a less urgent matter, for it no longer excludes those who would choose to be married but for legal barriers. Expanding the privilege to other relationships creates a line-drawing problem; the applicable standard would be difficult to administer in practice, compromising judicial efficiency and opening the door to attacks on the privileges as a whole.
Neither should the privileges be abolished. Abolition renders witness spouses compellable, vulnerable to prosecution for contempt should they refuse to testify. As relational feminists stress, compelling testimony is likely to harm healthy marital relationships. In many abusive relationships, the issue is largely inapplicable, given the vast majority of states which have waived the privileges in situations involving domestic violence. The key question, then, is whether compulsion is appropriate in cases where the witness spouse and defendant spouse have a more subtly coercive relationship.
In such a context, I argue that the law should honor the wishes of the witness spouse—for, as intersectional feminists emphasize, he or she is best situated to decide whether to testify. Of course, this leaves open the possibility that some witness spouses will decline to testify not out of love, but out of fear. If that is the case, however, compulsion seems an inappropriate remedy: it would put the witness spouse to a difficult choice without providing him or her with therapeutic or other resources to address the underlying relationship dynamic. In other words, compulsion implicates feminist concerns about public coercion without sufficiently alleviating concerns about private coercion. Thus, if the privileges are retained, the witness spouse alone should hold the privilege and should not be compellable.35Professor Amanda Frost’s proposal to abolish the privileges and replace them with a doctrine of excuse—discussed in Part III.D—grants a similar degree of control to witness spouses. However, no jurisdiction has adopted Professor Frost’s solution, making privileges vested in the witness spouse attractive for their greater familiarity in the states. Indeed, twenty-two of the thirty-two jurisdictions which recognize the adverse testimonial privilege vest that privilege in the witness spouse alone. See Part II. Statutes and rules of evidence in these jurisdictions can serve as models for those wishing to modify either the adverse testimonial privilege or the spousal communications privilege in their state.
As radical feminists point out, concerns about the private coercion of female witness spouses remain. And as intersectional feminists argue, female defendant spouses may see worse case outcomes if they cannot invoke the privileges unilaterally. For those reasons, I emphasize that our legal system’s evidentiary privileges are not applied in a vacuum. While I believe that my solution best balances feminist concerns, its deficits highlight the need to find new ways to support witness and defendant spouses—though criminal justice reform, the expansion of mental health services, and increased support for domestic violence survivors.
Gutierrez is an unusual opinion. It notes approvingly that “[f]eminist scholars have vigorously attacked the privilege,” and cites several of these scholars. But is Gutierrez a feminist opinion? The answer is complex. Perhaps unsurprisingly, this Essay’s examination of feminist jurisprudence reveals that the task this jurisprudence seeks to undertake—“ask[ing] what, from a feminist perspective, is wrong with the world”— is highly contested. The “feminist perspective” is not monolithic, and how one understands this perspective shapes how one identifies problems and constructs solutions. Ultimately, I argue, future courts considering the privileges should aim to strike a balance among the concerns raised by feminist jurisprudence, construing the privilege so that witness spouses are neither silenced by their partners nor forced to speak by the state.
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A.B. 2018, Princeton University; J.D. Candidate, 2021, The University of Chicago Law School. The author thanks Professor Emily Buss and the staff of The University of Chicago Law Review for their helpful feedback on this essay.
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Photo credit to cmh2315fl. Pictured: The historic New Mexico Supreme Court building, now retired.