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Gays Get Spousal, Marital Privileges in Fed. Court: DOJ

By Brett Snider, Esq. | Last updated on

Married gay couples can claim spousal and marital privileges in federal court, with the Department of Justice planning to uphold these rights.

In a memo released by the DOJ on Monday, Attorney General Eric Holder espoused the belief that same-sex married couples should be treated the same as their opposite-sex counterparts. And part of that includes being able to claim certain privileges in federal criminal court.

How can the spousal and marital privileges be used by gay spouses?

Same-Sex Spouses Can Refuse to Testify

The spousal privilege has historically allowed husbands and wives to refuse to testify against one another in court. Contrary to popular perception, in federal court, one spouse cannot prevent the other spouse from testifying; rather, the other spouse can choose not to testify if he or she so desires.

In the past, this has meant that the wives or husbands of defendants accused of federal crimes have had the right to decline to testify against their spouse. This privilege does not apply in domestic violence cases or cases where the spouse may have been involved in the alleged crimes, and the privilege only lasts as long as the marriage does.

This was a problem for a Kentucky woman and her lesbian partner in 2013. A state court determined that since the couple was not technically married under Kentucky law, there could be no spousal privilege, the ABA Journal reported.

According to the new DOJ memo, legally married same-sex spouses can now refuse to testify against one another in federal criminal court, even in states where same-sex marriage is not legally recognized.

Protecting Communications Within Marriage

The marital privilege -- also called the marital communications privilege -- differs from the spousal privilege because it can last even if the couple is no longer married. In federal criminal (and civil) court, married couples can object to confidential martial communication being introduced at trial.

Prior to the U.S. Supreme Court's decision in Windsor, this privilege in federal courts only applied to private communication between a husband and wife. Now, regardless of the views of the couple's home state, a legally married gay couple can object to evidence of secrets shared between the two spouses.

Just like church confessions, these confidential communications become allowable in court if a third party overhears them.

This shift in policy may give gay-married defendants a new line of criminal defenses.

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