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Spousal Privilege, § 905.05(3) – 3rd-Party Exception

State v. Richard G.B., 2003 WI App 13, PFR filed 1/13/03
For Richard G.B.: Bridget E. Boyle

Issue: Whether the “third-party exception” to spousal privilege — which overrides the privilege for crimes committed “against” the spouse, § 905.05(3) — is triggered by sexual assault of a non-spouse, on the theory that such an act amounts to adultery, § 944.16(1), hence a crime against the spouse.


¶15. In light of the purpose of both the privilege and exceptions in Wis. Stat.§ 905.05(3)(b), we conclude it is irrelevant whether the acts of the defendant that constitute a crime against a third party are the same acts that constitute a crime against the spouse or different acts. It is also irrelevant whether a crime against the spouse is the “primary crime” rather than incidental to, or a necessary by-product of, a crime against the third party. The purpose of the third-party exception in para. (3)(b) is best carried out if committing a crime against a third party “in the course of” committing a crime against one’s spouse is interpreted to encompass conduct that is both itself a crime against a third party and a crime against one’s spouse. We therefore conclude that Richard committed sexual assaults against Melissa “in the course of” committing a crime against Tracy within the meaning of § 905.05(3)(b).

¶16. Richard may also be contending that adultery is not “a crime against” his wife. However, he apparently concedes that adultery is defined as a crime by Wis. Stat. § 944.16(1), which provides:

Adultery. Whoever does either of the following is guilty of a Class E felony:(1) A married person who has sexual intercourse with a person not the married person’s spouse….

It may be that adultery is no longer prosecuted as a crime, and that many people no longer view adultery as deserving of criminal punishment. But adultery is nevertheless defined as a crime under the statutes of this State, and therefore it plainly is a “crime” within the meaning of Wis. Stat. § 905.05(3)(b). We also see no ambiguity concerning whether adultery is a crime “against” Richard’s wife. Certainly she is injured, although not physically, by her husband having sexual relations with a person other than herself. Even if we assume, for purposes of argument, that there is an ambiguity on this point, we conclude that construing a “crime against the other [spouse]” to include adultery is more consistent with the purposes of the privilege and exceptions in para. (3)(b). When a married person commits a sex crime against a third person, that married person has transgressed against his or her spouse as well as the third person, and the justification for preventing one spouse from testifying against the other no longer outweighs the interests of ascertaining the truth.

¶17. Accordingly, we conclude that under Wis. Stat. § 905.05(3)(b) Tracy’s testimony is admissible despite Richard’s invocation of the spousal privilege because he was charged with crimes of sexual assault against a third party, Melissa, committed “in the course of” committing the crime of adultery “against the other [spouse],” Tracy.

The holding should not be taken as the final word. To the contrary, both reasoning and result are highly problematic and should be challenged rather than accepted, especially in light of Lawrence v. Texas, 02-102 (same-sex sodomy statute penalizing acts in privateon its face violates the due process right to privacy). Indeed, the Virginia supreme court has held that a statute criminalizing fornication must meet the fate as the Lawrencesodomy statute, at least to the extent that it forbids consensual acts between adults in private:

 Martin v. Ziherl, VA SCt No. 040804, 1/14/05. In other words, Wisconsin’s adultery statute isn’t sustainable as a matter of federal due process — and that makes theRichard G.B. foundation not only rickety, but subject to re-visiting. Of course, the cited instances deal with fornication and sodomy: is adultery meaningfully distinguishable? In the first place, of course, a same-sex couple may each be married (to other partners); they could not be charged with sodomy; does it make any sense that they could nonetheless be charged with adultery? That little conundrum aside, the logic of Lawrence extends inexorably to adultery. Compare this Findlaw commentary shortly after Lawrence, cautioning that a broad “reading would throw laws against fornication, adultery, and even adult incest into question” and was thus “probably too simplistic”; with a post-Ziherl commentary by the same author, singing a different tune, and concluding that fornication statutes in other states indeed “are equally doomed, under Lawrence – for just the reasons the Virginia court gave”; and, more immediately pertinent: “to the extent an adulterous affair is conducted in private, it may well fall within the bounds of the private, intimate relationships with which the government is not supposed to interfere.”Some states, it should be noted, bar prosecution of such an archaic “offense” as fornication as a matter of state constitutional right of privacy, which is to say, quite apart from Lawrence, see e.g., In re: J.M., 276 Ga. 88, 575 S.E.2d 441 (2003) (fornication statute violates Georgia’s state constitutional right to privacy). Wisconsin doesn’t have a specific privacy provision – and no, Art. I, § 21, “Rights of suitors,” doesn’t apply, speaking instead to something quite distinct – but perhaps the Wisconsin constitution’s due process clause might be put to that use. Moreover, the conceded absence of adultery prosecutions triggers the doctrine of “desuetude”: “a statute may be abrogated because of its long disuse.” The statutory exception doesn’t speak of “transgressions against” — which has a broad, even moralistic coloration — but of “crime(s) against,” which clearly suggests something more technical; that is, there first must be a crime. If the “crime” relates to a statute which has been abrogated through non-use, then is it really a “crime”? More: the court seems to have very casually created a sexual assault exception to spousal privilege, and who knows what other crimes will be squeezed into this category; haven’t you “transgressed” against your spouse by committing a fraudulent act that threatens financial ruin? In short, the result in this case is desperately seeking a rationale.

And what about this: Matter of Blanchflower, N.H. 2003-50, 11/7/03 (because “adultery” is defined as intercourse between a man and woman, it does not encompass homosexual acts)? Does this mean that Richard G.B. doesn’t apply where the extramarital sex is homosexual (because, in that instance, the crime of “adultery” has not been committed)? If it seems silly to ask such a question, it is because the Richard G.B. result is so very questionable.

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