Isn't it a Crime: Feminist Perspectives on Spousal Immunity and Spousal Violence

Abstract

The epidemic of spousal abuse has garnered considerable attention since John Stuart Mill railed against men "little higher than brutes" who were able to obtain a ready victim "through the laws of marriage." Americans today have "'discovered' family violence in the sense that Columbus 'discovered' America, although the discovery was no news to those who already lived there." Despite this attention, the epidemic grows.

Much has been written about the reluctance of police to arrest in domestic violence cases and the reluctance of the state to prosecute such cases. Part of that reluctance may be caused by prevalent societal attitudes that diminish the importance of spousal violence. In a number of jurisdictions, the reluctance to pursue criminal sanctions against married abusers is caused by the difficulty of procuring the battered spouses' testimony. In those jurisdictions, the prosecutor cannot compel a reluctant spouse's testimony because of the spousal privilege not to testify against a defendant spouse. Even in jurisdictions that have some exceptions to the privilege, including spousal violence exceptions, the prosecuting authority may find it legally, as well as practically difficult to procure the spouse's testimony.

This simple evidentiary rule-spousal privilege-illustrates why evidence law matters. Rules of evidence are frequently thought of as simply "neutral" rules of procedure related to courtroom control and trial tactics. Rules of evidence can tell us much more, however, about the legal system's attitude toward women. Because the legal system was created by men, it inevitably ignores the lives of women. Courts and commentators may declare loudly that domestic violence is no longer tolerated in this society, and that married women have the right to feel secure in their homes, but such rights, with little way to prove entitlement to the rights, echo emptily. Those jurisdictions that refuse to give the prosecution the right to compel testimony in domestic violence cases the way they can in every other crime send an obvious message: When a man beats his wife it is not a crime that offends the state-it is simply a private matter between the two of them. Even those jurisdictions with a spousal violence exception leave married women unprotected by the legal system because of very narrow and uninformed views of what constitutes spousal violence.

This article critiques the spousal immunity doctrine from the perspective of feminist legal thought and includes the voices of battered women discussing the spousal privilege.

Keywords: domestic violence, spousal privilege, evidence