Domestic violence is one of the more common criminal charges brought in the State of Utah and one of the primary defense against such charges is the spousal privilege. Domestic violence is “any criminal offense involving violence or physical harm or threat of violence or physical harm…” when committed by one cohabitant against another. The very definition of “domestic violence” is what makes it so prevalent. When people live together, they form a connection that can be more intimate and more emotional than most relationships. It can involve spouses, partners, siblings, parent-child, and roommates.
Many domestic violence charges stem from legitimate abusive relationships and others derive from a disgruntled person who is seeking revenge or to “stick it to” the other person. Others may originate from a soon-to-be ex-spouse who is trying to get the upper hand on his or her spouse in a divorce proceedings. Still others may have some legitimacy but the spouses intend to work through their relationship issues and put the past behind them. In the latter example, spouses have a powerful privilege they can rely on to not be forced to testify against their spouse if they so choose. This is known as a “marital privilege.”
Utah recognizes two kinds of marital privileges. Both are envisaged in article 1 section 12 of the Utah Constitution:
• Privilege against Forced Testimony – this privilege provides that no spouse can be compelled to testify against the other spouse in a criminal trial. In the many cases in which the domestic violence chargers are trumped up or purely false, the spousal privilege against enforced testimony can be exercised to ensure protect the defendant against being convicted. Of course, the privilege can be used to exonerate a guilty individual as well, but the privilege is that of the victim spouse and he/she can exercise it as he/she sees fit.
• Spousal Communications Privilege – This is another marital privilege codified in Utah law. This privilege provides that any form of communications made by spouses during their marriage is confidential. Therefore, one spouse cannot be coerced to reveal confidential communications made during their marriage without the other’s consent.