Privilege Case Analysis

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The initial reaction to the decision is that, whenever a married man is charged with a sex crime, he cannot invoke the spousal privilege to prevent his wife from testifying.

The court’s repeated references to "sexual relations," and "sex crimes," generally, rather than the more specific "sexual intercourse" support this interpretation.

However, the effect of the decision is not that broad, and the statutes do not support such an interpretation. Except in cases of traditional penis-to-vagina intercourse, such cases will involve legal wrangling over the definition of "sexual intercourse" reminiscent of the Clinton administration.

The problem arises from the differences in definitions between the ancient and long-unenforced adultery statute, and modern sex crime statutes.

The adultery statute prohibits "sexual intercourse" between a married person and someone other than his or her spouse. For purposes of the adultery statute, "sexual intercourse" is defined in sec. 939.22(36), which states, "‘sexual intercourse’ requires only vulvar penetration and does not require emission."

Thus, the adultery statute only applies to traditional intercourse. It could be argued that penetration with the mouth, fingers, or an inanimate object, could be included within the ambit of the statute.

However, the reference to emission of semen clearly indicates that was not the legislative intent. Rather, it was to make clear that ejaculation during traditional intercourse was not necessary for completion of the crime.

Furthermore, in every other statute in Chapter 944, sexual acts other than intercourse are referred to as "sexual conduct," see sec. 944.21. Finally, to interpret the adultery statute to include any form of vulvar penetration would include finger-to-vagina, and mouth-to-vagina intercourse as adultery, but exclude fellatio, a result most would consider absurd.

	Links Wisconsin Court of Appeals Related Article Spousal privilege inapplicable in sex crime

By contrast, the modern statutes that criminalize sexual assault and sexual assault of a child are broader and very explicit as to what is prohibited.

Section 940.225(5)(b), the sexual assault statute, defines "sexual contact" generally to encompass touching for purposes of sexual gratification. Subsection (c) defines "sexual intercourse" to include "sexual intercourse" as defined above in sec. 939.22(36), plus fellatio, cunnilingus, anal intercourse, or any penetration of genitalia or the anus.

The same definitions of "sexual contact" and "sexual intercourse" are also used in sec. 948.02, the sexual assault of a child statute, via reference to sec. 948.01(5) & (6).

As a result, there are a host of activities that constitute sexual assault or sexual assault of a child that would not constitute adultery, and thus, would not abrogate the spousal privilege; only if the crime involves traditional intercourse is the privilege lost.

Accordingly, some of the court’s broad statements that suggest the privilege is lost whenever the defendant is charged with any sex crime must be read narrowly to apply only if one of the charged crimes involves traditional intercourse.

– David Ziemer

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David Ziemer can be reached by email.