In many states, including Virginia, the law protects communications between spouses in certain legal actions. In order to preserve the bonds of marriage and the importance of free communication between spouses, courts grant spouses certain privileges and immunities when it comes to testifying against each other. This article explains the nature of spousal immunity and the marital communications privilege, including its application and limits under Virginia Law.
Is Spousal Immunity Recognized in Virginia?
Under Virginia’s code of criminal procedure, “husband and wife shall be allowed, and … may be compelled to testify in [sic] behalf of each other, but neither shall be called as a witness against the other, except:
- In the case of a prosecution for an offense committed by one against the other, against a minor child of either, or against the property of either;
- In any case where either is charged with forgery of the name of the other…; or
- In any proceeding relating to a violation of the laws pertaining to criminal sexual assault, crimes against nature involving a minor as a victim and provided the defendant and the victim are not married to each other, incest, or abuse of children.”
Thus, courts in criminal cases may not require a spouse to testify against each other, unless the case involves a crime committed against the other spouse, their children, or their property. For example, the prosecutor may not call the defendant’s spouse as a witness in a DUI case. However, the defendant’s spouse may be called as a witness in a domestic violence case.
Virginia law does not recognize spousal immunity for a civil case. Thus, in a lawsuit for damages involving a car accident, the defendant’s spouse can generally be called as a witness for the plaintiff.
Spousal immunity terminates after a divorce. Thus, the defendant’s former spouse may be called as a witness in a criminal case.
Marital Communications Privilege
Under Virginia Law, “a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between his spouse and him during their marriage, regardless of whether he is married to that spouse at the time he objects to disclosure.” This privilege applies to both criminal and civil actions.
As a result, a person may refuse to testify as to confidential communications from their spouse. Furthermore, a person can prevent their spouse from testifying against them regarding confidential communications.
The marital communications privilege continues after separation and divorce. The privilege-holder may prevent the defendant’s former spouse from disclosing confidential communications made while they were married.
Thus, for example, if a CEO confessed to their former spouse that their company knew product X was dangerous, the CEO’s spouse cannot disclose that confession – even if they wanted to – if the confession occurred while they were still married. However, communications made after separation are not protected.
Legal Actions Against a Spouse
Under Virginia’s marital communications privilege statute, the privilege “may not be asserted in any proceeding in which the spouses are adverse parties, or in which either spouse is charged with a crime or tort against the person or property of the other or against the minor child of either spouse.”
Thus, if spouses in a divorce cannot prevent their former spouse’s testimony using the marital communications privilege. For example, a marriage counselor may testify as to their observations of the spouses during marriage counseling sessions before they separated. This is because divorce is an adverse action between spouses, and spousal support determinations require an evaluation of the spouses’ mental and physical conditions.
Furthermore, in a criminal action against the defendant for domestic violence, the defendant may not prevent their spouse from disclosing marital communications.
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