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Spousal privilege inapplicable in sex crime

By: dmc-admin//December 18, 2002//

Spousal privilege inapplicable in sex crime

By: dmc-admin//December 18, 2002//

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Vergeront
Hon. Margaret J. Vergeront

A married man charged with sexual assault of a child cannot invoke the spousal privilege to prevent his spouse from testifying against him, the Wisconsin Court of Appeals held on Dec. 12.

The court concluded that the exception to the privilege found in sec. 905.03(3)(b) applies, because the crime, besides being a crime against a third party, is also a crime against the spouse – adultery.

Two charges of sexual assault of a child were brought against Richard G.B., involving acts against his niece, Melissa N., who was 15 years old at the time. According to Melissa, in 1999, she was baby-sitting for Richard’s children at his home. According to the court, "After Richard and his wife came home, his wife went to bed and Richard engaged Melissa in acts of mouth-to-vagina and penis-to-vagina intercourse."

A couple months after this incident, Melissa was going to baby-sit Richard’s children at his home again. Richard picked up Melissa, and while driving back to his home, told her to look under the seat, where she found a vibrator.

Richard explained to her how the vibrator worked, and demonstrated by turning it on while he was driving. Melissa called her grandmother after she arrived at Richard’s house, and said she needed to get out of there. Her grandmother picked her up, and Melissa told her grandmother and an aunt about the vibrator and the prior sexual incident with Richard.

At trial, the State sought to present the testimony of Richard’s wife, Tracy. According to Tracy, Richard admitted to her that he bought the vibrator, but he told her that he bought it for her. He also told her that the vibrator slid out from beneath the seat of his car when he had to stop instantly, and Melissa found it.

Richard objected to admission of the testimony, asserting the spousal privilege, pursuant to sec. 905.05(1), which provides: "A person has a privilege to prevent the person’s spouse or former spouse from testifying against the person as to any private communication by one to the other made during their marriage."

Waukesha County Circuit Court Judge Michael O. Bohren held the privilege did not apply, however, citing the exception in sec. 905.05(3)(b): "In proceedings in which one spouse or former spouse is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a 3rd person committed in the course of committing a crime against the other."

The court reasoned that Richard’s having sexual relations with someone other than his wife constituted the crime of adultery, which was a crime against his wife. Richard was found guilty, and the court sentenced him to 18 years in prison on one count, and stayed a consecutive 18-year term on the second, placing him on probation for 20 years.

Richard appealed, but the court of appeals affirmed in a decision by Judge Margaret J. Vergeront.

The Privilege

What the court held

Case: State of Wisconsin v. Richard G.B., No. 02-1302-CR.

Issue: In a prosecution of a married man for sexual assault, can the defendant invoke the spousal privilege to prevent his spouse from testifying against him?

Holding: The exception to the spousal privilege in sec. 905.03(3)(b) applies, because the crime, in addition to being a crime against the victim, is also a crime against the spouse — adultery.

Counsel: Bridget E. Boyle, Milwaukee, for appellant; Lloyd V. Carter, Waukesha; James M.
Freimuth, Madison, for respondent.

The court began by reviewing the three instances in which a spouse can testify, despite the spousal privilege. They are: (1) when a spouse is charged with a crime against the other spouse; (2) when a spouse is charged with a crime against a child of either spouse; or (3) when a spouse is charged with a crime against a third person committed in the course of committing a crime against the other spouse.

At issue in Richard’s case is the third instance. The court reje
cted Richard’s argument that, because the acts that constitute a crime against the third person, Melissa, are the same acts that constitute adultery, the crimes against Melissa were not committed "in the course of" committing adultery.

Public Policy

The court concluded that the public policy considerations that support the spousal privilege do not support its invocation in Richard’s case.

The court noted that the spousal privilege is based on the public policy of encouraging marital confidence between husband and wife and thereby preserving the marital relationship.

However, its effect is to exclude relevant evidence and it should be applied, "only to the very limited extent that permitting a refusal to testify … has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth. (cites omitted)."

The court concluded that, by making two exceptions where the defendant has transgressed against his spouse (the first and third situations), "the legislature has determined that preventing a spouse from testifying against the accused spouse does not serve a public good that is more important than ascertaining the truth."

The court reasoned, "if one spouse has committed a crime against the other, the trust fundamental to a marriage has been severely damaged; the legislature has therefore concluded that sufficient justification for the privilege no longer exists."

As a result, the court deemed it irrelevant whether the acts of the defendant that constitute a crime against a third party are the same acts that constitute a crime against the spouse. The court further held it irrelevant whether the crime against the spouse is the "primary crime," or merely incidental to, or a necessary by-product of, the crime against the third party.

The court reasoned, "The purpose of the third-party exception in para. (3)(b) is best carried out if committing a crime against a third party ‘in the course of’ committing a crime against one’s spouse is interpreted to encompass conduct that is both itself a crime against a third party and a crime against one’s spouse. We therefore conclude that Richard committed sexual assaults against Melissa ‘in the course of’ committing a crime against Tracy within the meaning of sec. 905.05(3)(b)."

Adultery

Links

Wisconsin Court of Appeals

Related Article

Case Analysis

The court then addressed whether Richard’s adultery constitutes "a crime against" his wife.

Section 944.16(1) defines adultery as, "A married person [having] sexual intercourse with a person not the married person’s spouse."

The court acknowledged that, "It may be that adultery is no longer prosecuted as a crime, and that many people no longer view adultery as deserving of criminal punishment. But adultery is nevertheless defined as a crime under the statutes of this State, and therefore it plainly is a ‘crime’ within the meaning of Wis. Stat. sec. 905.05(3)(b)."

The court further found no ambiguity that Richard’s adultery was a crime "against" the spouse. The court concluded, "Certainly she is injured, although not physically, by her husband having sexual relations with a person other than herself. … When a married person commits a sex crime against a third person, that married person has transgressed against his or her spouse as well as the third person, and the justification for preventing one spouse from testifying against the other no longer outweighs the interests of ascertaining the truth."

Finally, the court reviewed Richard’s sentence, and found the trial court did not erroneously exercise its discretion. Accordingly, the court affirmed.

Click here for Case Analysis.

David Ziemer can be reached by email.

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