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 Judiciary Committee considered Wednesday for the third time in as many years.
Del. Robin L. Grammer Jr., the measure’s sole legislative sponsor, told the panel that House Bill 210 would close a “loophole in the ‘spousal privilege’ which allows defendants, most of whom are male, to intimidate witnesses, most of whom are female, into fake marriages for the purpose of disqualifying the spouse as a witness” at trial.
The House of Delegates passed the measure overwhelmingly the past two years – by votes of 121-11 in 2021 and 132-4 in 2020. But the legislation died in the Senate, where it has lacked a sponsor.
The longstanding spousal privilege against testifying 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 Grammer, R-Baltimore County and a Judiciary Committee member.
Advocates for domestic violence victims joined Grammer in telling the committee that 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.
“Domestic violence is really about power and control and intimidation and fear,” said Dorothy J. Lennig, director of the legal clinic at House of Ruth Maryland.
“We at the House of Ruth have had multiple clients where their abusers have intimidated them, leaned on them, scared them, forced them into getting married before the trial so they would invoke their spousal privilege,” Lennig told the House panel
Melanie Shapiro, public policy director at the Maryland Network Against Domestic Violence, said that “not all domestic violence is physical; it is a pattern and behavior of power and control.”
“By prohibiting the spousal privilege if the parties marry after the crime in question for which the person is on trial occurs, this would hopefully reduce the risk that somebody could be coerced into marrying somebody in an effort to silence them,” Shapiro told the committee.
The committee’s consideration of HB 210 follows the Maryland high court’s October 2020 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.
However, the Court of Appeals in State of Maryland v. Darrayl John Wilson left the spousal privilege intact regardless of when the wedding occurred.
The high court was “essentially refusing to legislate from the bench” when it declined to limit the scope of spousal privilege, Grammer said. “The Court of Appeals has left this (legislative) body this question.”