Marital Privilege Law Sends Wrong Message

Victims of domestic violence often suffer in silence long before the nature of their victimization is ever exposed. Many of them will endure battering from their romantic partners or spouses thinking that the resultant violence is only the result of the abuser's bad day or mood and that, in time, the situation will improve. The reality is that it never does; it only gets worse. Though the majority of victims are female, there are male victims who reluctantly acknowledge their abuse due to feelings of embarrassment and humiliation.

The continuous abuse of victims is perpetuated by two integral components that encompass domestic violence--power and control. The abuser maintains power over the victim by controlling and limiting potential options the victim may have to escape the situation. Domestic violence victims are fragile in many ways because they have endured abuse for so long that their self-esteem has significantly diminished, and they have little or no self-confidence in being able to take control of their own lives. As a consequence, victims feel they have few alternatives other than to remain in the situation and endure the abuse though, over time, it has a profound impact.

In many instances, the abuse is not reported to law enforcement authorities until it reaches an extreme point in which the victim may be in real fear for personal safety, significantly injured, or if witnesses hear or see the abuse taking place and call for emergency assistance. When police respond and once the abuser is arrested, the process is set in motion for the possibility of criminal prosecution.

Some states are very proactive in the prosecution of domestic violence cases particularly when the evidence is strong and police-based reporting exists. There are states, however, that have a law known as Spousal or Marital Privilege, in which a legally married victim who is abused by a spouse has a legal option to choose not to testify against the spousal abuser. Consequently, the case is dropped. In jurisdictions where this law exists, the number of times this option can be used varies. For example, in Washington, D.C., the privilege can be exercised without limitation, whereas in the state of Maryland the option can be used only once.

The Marital Privilege law is detrimental to domestic violence victims as well as the entire criminal justice system, regardless of whether it is employed once or innumerable times. The privilege increases victims' vulnerability and can be physically and emotionally damaging. Though victims are asked, under oath, if they have been coerced or influenced to utilize this privilege, they usually respond in the negative. They are often fearful of repercussions by the abuser who has commonly threatened them with more severe consequences of abuse or harm if they do not express willingness to drop the charges.

Marital or Spousal Privilege does not change the abusive situation. To the contrary, use of the Marital Privilege provision sends the wrong message to the abuser, the victim, and the community at large. When this privilege is exercised, the abuser is not held accountable and, as a result, has no consequences for the criminal behavior that has transpired. The abuser is afforded no intervention to deal with potential anger issues or possible alcohol or drug abuse that could be contributing to the situation. The victim receives no further support or extended victim assistance and, therefore, all parties involved return to the same familial situation involving the cycle of violence. Consequently, the community assumes that domestic violence is not taken seriously and that abuse is tolerated.

The Marital Privilege law presents a dichotomy. On the one hand, communities will frequently take a stance in which they proclaim they are employing preventive and enforcement strategies regarding domestic violence; on the other hand, when Marital Privilege exists and is used, it negates the proactive law enforcement efforts that have been employed to abate abuse in the community. Police officers who respond to domestic violence calls make concerted efforts to deal with these types of incidents on the street and subsequently spend a significant amount of time in court. They become discouraged when they feel their time and efforts are wasted and when the case is dismissed due to Marital Privilege. It is not surprising that officers can develop a "Why bother?" attitude, because they only end up returning to the same home again with recurring violence.

Prince George's County, Maryland State's Attorney, Glenn F. Ivey, was inspired by one of his employees to try to effect change regarding the Marital Privilege law that exists in Maryland. In an attempt to have the law repealed, he instructed his prosecutorial staff to draft legislation, he obtained political sponsors, and he had employees in his Domestic Violence Unit testify before the Maryland General Assembly in 2004. Despite all these dedicated efforts, the legislature chose not to repeal the law at that time.

Mr. Ivey, however, has not renounced the undertaking. He has, again, initiated efforts to have this Maryland law repealed in 2007. Mr. Ivey states,

"The Maryland General Assembly should repeal the Marital Privilege. The 'once punch' rule, as I call it, allows spousal abusers to influence their spouses to invoke this privilege either by persuasion or coercion. From the prosecutor's perspective, the case often becomes untenable at the point where the abused refuses to testify. We must be able to use previous statements and any previous testimony to prosecute the abuser. This pervasive problem of domestic violence must be addressed through education, intervention, and prevention as well as strong enforcement and tough prosecution."

The goal to repeal the Marital Privilege law in Maryland is warranted. It is important to understand that for victims of domestic violence it is frequently very difficult to extricate themselves from the abusive situation-- much less report it-- and go forward with prosecution. It is critical that victims obtain the necessary legal support and victim assistance from the criminal justice system that is crucial in breaking the ongoing cycle of violence that has notably destructive and deadly consequences.