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Md. House strips spousal privilege from post-crime weddings

Attention shifts to Senate after 120-11 vote

The protection criminal defendants have against their spouses testifying against them would not apply in cases when the wedding occurred after the alleged crime was committed, under legislation the House of Delegates passed Tuesday.

With the House’s 120-11 vote, attention shifts to the Senate Judicial Proceedings Committee, which is expected to soon hold a hearing on the measure to limit the scope of the “spousal privilege” against testifying.

The privilege is based on the belief that the important bond of marriage – rooted in love, trust and intimacy – would become frayed if husbands and wives were compelled by the prosecution to testify against the other.

But neither that bond nor the need to protect it exists when the marriage occurs after the alleged crime because the belated nuptials raise the specter of a sham wedding for the sole purpose of preventing the newlywed spouse from testifying, said Del. Robin L. Grammer Jr., the chief sponsor of House Bill 268.

Limiting the spousal privilege to marriages that occurred before the alleged crime would also remove the incentive for criminal defendants to force – through physical violence or emotional abuse — an unwilling partner to marry them in order to prevent their testimony, said Grammer, R-Baltimore County.

“This is a well-known witness intimidation issue,” he told the House Judiciary Committee last month.

The Maryland Network Against Domestic Violence echoed Grammer’s concern in voicing its support for the bill’s timing restriction on spousal privilege.

“Not all intimate partner violence is physical,” Melanie Shapiro, the network’s public policy director, told the committee.

But Del. Debra Davis, who voted against the bill, said earlier this month that she objects to the reduction of spousal privilege and requiring wives to testify against their husbands, as they are more often the criminal defendant.

“I do believe that chipping away at spousal immunity is a bad thing,” Davis, D-Charles, said during the Judiciary Committee’s consideration of the bill. “It’s a bad idea for women and women’s rights.”

The House passed similar legislation last year. However, that measure was never considered by the Senate Judicial Proceedings Committee as the 2020 General Assembly adjourned 19 days early in an effort to stanch the spread of the COVID-19 virus.

The General Assembly’s consideration of the measure this year follows the Maryland high court’s October ruling that a criminal defendant’s marriage to a prosecution witness after the alleged crime occurred can be illegal witness tampering or obstruction of justice if a judge or jury determines the wedding was intended to prevent the newlywed spouse from testifying.

The Court of Appeals’ decision in State of Maryland v. Darrayl John Wilson, however, left spousal privilege intact regardless of when the wedding occurred.

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