The Spousal Testimonial Privilege and Harm to a Child

Social Services Law ' 383-b was repealed in 1973. Still, in State v. Gomez, 112 A.D.2d 445 (1985), a case decided 12 years after the repeal of ' 383-b, the court cited to Allman for the broad proposition that when there is a charge of child abuse, there is no privilege against the testimony of confidential communications between a husband and wife. What the Gomez court may have meant was that no such privilege applies in New York in some child abuse cases.

The Child of the Spouse

Once Social Services Law ' 383-b was repealed, one who wanted to testify against a spouse despite his or her protest could turn to a variation on the maxim that one who harms a spouse cannot assert the spousal privilege to prevent the spouse's testimony in a proceeding that concerns that harm. There exists a common-law tenet that one who harms a spouse's child (either their shared child or the perpetrator spouse's step-child) may not impose silence on the marital partner when the matter goes to court. People v. Rossi, 185 AD2d 401 (1992). The rationale behind this is that, like a direct injury to the spouse, an injury to that partner's child is a personal one that has already caused at least as much destruction to the fabric of the marriage as an injury to the spouse would have caused. (In Gomez, the defendant was convicted of various counts relating to the sexual abuse of his 13-year-old stepdaughter. As the victim was his wife's child, the common-law rule that he could not prevent his wife from testifying against him applied.)

Although the spousal privilege may be invoked even in cases where the charge involves child abuse ' so long as the child in question is not the child of the spouse whose testimony the defendant wants precluded ' there are sometimes ways to get around this. In the case of People v. Rossi, 185 A.D.2d 401 (3d Dept. 1992), a man convicted of abusing three boys unrelated to himself and his wife sought review of County Court's decision to admit his wife's testimony over his objection. She testified to witnessing her husband sleeping in the same bed as the three children. The appeals court found no error because the supposed confidential act of sleeping in the same bed as the boys was not in fact confidential, having been performed in the presence of others: the three boys.

Thus, when a spouse is allowed to witness an act involving child abuse (or even harm to an adult), the Rossi reasoning may permit that witness to testify over the objections of the perpetrator spouse. However, using the Rossi scenario, if the perpetrator merely tells his wife that he slept with the three boys, she could be precluded from testifying to the contents of that conversation, so long as she is not the parent of the three boys and the admissions were made in confidence to her in reliance on the marital bond. In the family practice area, the Rossi exception could come into play when a witness spouse testifies concerning harmful acts perpetrated in his or her presence against a third person in the family, even if the victim is not the witness's child ' such as a grandchild, sibling or relative living in the marital home.

Some courts have carved out another extension of the child-of-the-witness exception to the marital privilege, though the issue seems not to have been addressed by New York state courts or the U.S. Court of Appeals for the Second Circuit. The Ninth Circuit case, U.S. v. Banks, 556 F.3d 967 (9th Cir. 2009), offers a good explanation of this “functional equivalent to a child of the witness” approach. In Banks, a man was convicted, inter alia, of producing and disseminating a pornographic film taken while he was changing his two-year-old grandson's diaper. In the film, the man's ring, watch and couch could be seen. The defendant also admitted to changing his grandson's diaper. At trial, the defendant's wife testified that the ring and watch were her husband's, and that the couch was in their home. After conviction, the man appealed, claiming, among other things, that his wife should not have been permitted to testify against his wishes. The trial court had allowed the testimony, determining that the victim was the functional equivalent of a child of the defendant and his wife. It came to this conclusion after noting that the child and his parents had lived with the grandparents for six months after the child was born. In addition, the grandparents babysat the child on frequent occasions, and he spent some weekends in their care. The Ninth Circuit Court of Appeals concluded that the wife's testimony should not have been admitted, but upheld the conviction after finding the error harmless. The court explained:

Although [the] facts demonstrate a strong bond between the victim and his grandparents, they do not show the type of relationship that would be considered the functional equivalent of a birth or step-child's relationship with his parents. Infrequent overnight visits are common to a large portion of grandparent/grandchild relationships, as are frequent visits with or even regular day-care services provided by the grandparents. This type of care, while admirable and important, does not carry the same indicia of guardianship and responsibility that a parent/child relationship carries. Further, while the district court noted that [the grandson] had resided with the Banks for the first six months of his life, it is an important qualifier that his parents had also resided in the home and that this living situation had ended well over a year before the alleged molestation.

This is not a case in which a child was raised by grandparents and, therefore, could be said to share a parent/child relationship with those caretakers. Rather, this situation demonstrates a strong grandparent/grandchild relationship. Although such a relationship is important to building strong extended families and improving society, it is not the type that creates the same overriding policy concerns that led us to limit the marital communications privilege to protect children of the marriage.

Conclusion

There are some other exceptions to the spousal testimonial privilege ' such as when a communication between a husband and wife relates to an ongoing or planned criminal enterprise ' but these edge further away from the realm of family law. For family practitioners, questions surrounding the spousal privilege will likely come up in the areas of spousal or child abuse ' areas in which the privilege is severely curtailed. Still, there may be cases in which the well-being of family members is affected by criminal or other activity perpetrated by someone in the household or extended family, yet the perpetrator may prevent his or her spouse from testifying about their communications pertaining to the harm inflicted. It is an area of law that continues to develop.

Janice G. Inman is Editor-in-Chief of this newsletter.

As discussed last month, married parties are generally permitted by the common law, and sometimes by statutory law, to keep their spouses from testifying against them. The common-law basis of this spousal privilege was society's interest in promoting the strength of marriage by encouraging open communications between husbands and wives. Siveke v. Keena , 110 Misc.2d 4 (1981). The State of New York has codified the spousal confidentiality privilege at subdivision (b) of Civil Practice Law & Rules (CPLR) ' 4502. It states: “(b) Confidential communication privileged. A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.”

An Exception, Now Repealed

CPLR ' 4502's grant of a confidentiality privilege allowing one spouse to keep the other from offering evidence of communications between them was tempered between 1967 and 1973 by subdivision 5 of section 383-b (numbered 383-a between 1969 and 1973) of the Social Services Law (L. 1967, ch. 631, eff. Sept. 1, 1967). It read, “Neither the physician-patient privilege, as set forth in section forty-five hundred four of the civil practice law and rules, nor the privilege attaching to confidential communications between husband and wife, as set forth in section forty-five hundred two of the civil practice law and rules, shall be a ground for excluding evidence regarding a child's injuries, abuse or maltreatment, or the cause thereof, in any judicial proceeding resulting from a report pursuant to this section .” This provision was applied in the matter of People v. Allman , 41 AD2d 325 (2d Dept. 1973), a case in which a man was convicted of killing his and his wife's four-year-old child. The wife was permitted to testify that she had seen her husband strike and bodily throw the child several times, and that her husband prevented her from telephoning for help when it became obvious the child was seriously injured. The couple instead put their daughter to bed, where she died overnight. The wife testified that, after the they discovered their child had died, her husband coached her to tell the authorities that the victim had fallen from a window. Following conviction, the defendant appealed, claiming his wife's testimony should have been barred, as it pertained to confidential communications between a married couple. The Appellate Division, Second Department, found that because Section 383-b “evinces a clear public policy to permit the testimony of one spouse against the other where child abuse is the subject of a judicial proceeding,” there was no error in the trial court's decision to permit such testimony.

Social Services Law ' 383-b was repealed in 1973. Still, in State v. Gomez , 112 A.D.2d 445 (1985), a case decided 12 years after the repeal of ' 383-b, the court cited to Allman for the broad proposition that when there is a charge of child abuse, there is no privilege against the testimony of confidential communications between a husband and wife. What the Gomez court may have meant was that no such privilege applies in New York in some child abuse cases.

The Child of the Spouse

Once Social Services Law ' 383-b was repealed, one who wanted to testify against a spouse despite his or her protest could turn to a variation on the maxim that one who harms a spouse cannot assert the spousal privilege to prevent the spouse's testimony in a proceeding that concerns that harm. There exists a common-law tenet that one who harms a spouse's child (either their shared child or the perpetrator spouse's step-child) may not impose silence on the marital partner when the matter goes to court. People v. Rossi , 185 AD2d 401 (1992). The rationale behind this is that, like a direct injury to the spouse, an injury to that partner's child is a personal one that has already caused at least as much destruction to the fabric of the marriage as an injury to the spouse would have caused. (In Gomez, the defendant was convicted of various counts relating to the sexual abuse of his 13-year-old stepdaughter. As the victim was his wife's child, the common-law rule that he could not prevent his wife from testifying against him applied.)

Although the spousal privilege may be invoked even in cases where the charge involves child abuse ' so long as the child in question is not the child of the spouse whose testimony the defendant wants precluded ' there are sometimes ways to get around this. In the case of People v. Rossi , 185 A.D.2d 401 (3d Dept. 1992), a man convicted of abusing three boys unrelated to himself and his wife sought review of County Court's decision to admit his wife's testimony over his objection. She testified to witnessing her husband sleeping in the same bed as the three children. The appeals court found no error because the supposed confidential act of sleeping in the same bed as the boys was not in fact confidential, having been performed in the presence of others: the three boys.

Thus, when a spouse is allowed to witness an act involving child abuse (or even harm to an adult), the Rossi reasoning may permit that witness to testify over the objections of the perpetrator spouse. However, using the Rossi scenario, if the perpetrator merely tells his wife that he slept with the three boys, she could be precluded from testifying to the contents of that conversation, so long as she is not the parent of the three boys and the admissions were made in confidence to her in reliance on the marital bond. In the family practice area, the Rossi exception could come into play when a witness spouse testifies concerning harmful acts perpetrated in his or her presence against a third person in the family, even if the victim is not the witness's child ' such as a grandchild, sibling or relative living in the marital home.

Some courts have carved out another extension of the child-of-the-witness exception to the marital privilege, though the issue seems not to have been addressed by New York state courts or the U.S. Court of Appeals for the Second Circuit. The Ninth Circuit case, U.S. v. Banks , 556 F.3d 967 (9th Cir. 2009), offers a good explanation of this “functional equivalent to a child of the witness” approach. In Banks, a man was convicted, inter alia, of producing and disseminating a pornographic film taken while he was changing his two-year-old grandson's diaper. In the film, the man's ring, watch and couch could be seen. The defendant also admitted to changing his grandson's diaper. At trial, the defendant's wife testified that the ring and watch were her husband's, and that the couch was in their home. After conviction, the man appealed, claiming, among other things, that his wife should not have been permitted to testify against his wishes. The trial court had allowed the testimony, determining that the victim was the functional equivalent of a child of the defendant and his wife. It came to this conclusion after noting that the child and his parents had lived with the grandparents for six months after the child was born. In addition, the grandparents babysat the child on frequent occasions, and he spent some weekends in their care. The Ninth Circuit Court of Appeals concluded that the wife's testimony should not have been admitted, but upheld the conviction after finding the error harmless. The court explained:

Although [the] facts demonstrate a strong bond between the victim and his grandparents, they do not show the type of relationship that would be considered the functional equivalent of a birth or step-child's relationship with his parents. Infrequent overnight visits are common to a large portion of grandparent/grandchild relationships, as are frequent visits with or even regular day-care services provided by the grandparents. This type of care, while admirable and important, does not carry the same indicia of guardianship and responsibility that a parent/child relationship carries. Further, while the district court noted that [the grandson] had resided with the Banks for the first six months of his life, it is an important qualifier that his parents had also resided in the home and that this living situation had ended well over a year before the alleged molestation.

This is not a case in which a child was raised by grandparents and, therefore, could be said to share a parent/child relationship with those caretakers. Rather, this situation demonstrates a strong grandparent/grandchild relationship. Although such a relationship is important to building strong extended families and improving society, it is not the type that creates the same overriding policy concerns that led us to limit the marital communications privilege to protect children of the marriage.

Conclusion

There are some other exceptions to the spousal testimonial privilege ' such as when a communication between a husband and wife relates to an ongoing or planned criminal enterprise ' but these edge further away from the realm of family law. For family practitioners, questions surrounding the spousal privilege will likely come up in the areas of spousal or child abuse ' areas in which the privilege is severely curtailed. Still, there may be cases in which the well-being of family members is affected by criminal or other activity perpetrated by someone in the household or extended family, yet the perpetrator may prevent his or her spouse from testifying about their communications pertaining to the harm inflicted. It is an area of law that continues to develop.

Janice G. Inman is Editor-in-Chief of this newsletter.