The spousal privilege is the privilege I understand the most. It’s the privilege that, to me, seems most grounded in real, equitable concerns. Sure, the attorney-client privilege is necessary from a pure “process” standpoint. Other privileges allow other professional classes to their jobs free of criminal concerns. But that spousal privilege just seems like a thing that gets to the heart of keeping the state out of your life. The fact that nothing you say to your spouse can be used against you in a court of law makes me feel safe. If you ask me, I think the spousal privilege should extend to Alexa.
According to the state of New Mexico, not only am I wrong, but I am advocating for a misogynistic anachronism that no longer tracks with the real world. The New Mexico Supreme Court has become the first court in the nation to abolish the spousal privilege! The fact that this isn’t somehow front page news leading the entire legal press perhaps shows just how out of touch I am. From the ABA Journal:
The court said the privilege “has outlived its useful life,” report the Legal Profession Blog and the Associated Press. Justifications that have been cited for the privilege “seem little more than soaring rhetoric and legally irrelevant sentimentality,” the court said in its Aug. 30 opinion.
“We believe that the privilege is a vestige of a vastly different society than the one we live in today and has been retained in New Mexico simply through inertia,” the court said in a majority opinion by Chief Justice Judith Nakamura.
I mean, sure, the spousal privilege can be abused. So can all privileges. And sure, it comes from an inherently flawed view that a “wife’s” legal existence was inseparable from her husband’s. That’s bad. If that was sum total of the privilege’s continued existence, we should burn it to the ground. But the court goes this far:
But the privilege rests on assumptions that spouses are aware that the privilege exists, and that they rely on it when deciding how much information to share, the New Mexico Supreme Court said. Those assumptions are untested and do not survive scrutiny, according to the court.
Look, if we judged privileges by whether people know they exist and how they work, no privileges would exist. Whether a person knows that post-coital pillow talk (with your spouse) is inadmissible should be irrelevant. The issue should be whether people have a reasonable expectation that their communications are private. I’d argue that the confines of one’s relationship is where the expectation of privacy is the strongest. I don’t have to know how it works to know, and justifiably rely upon the fact, that when I fantasize with my spouse the six people I’d like to see die in a structure fire, that’s not going to come back on me if one of those people ends up falling down an elevator shaft in our building. I don’t think that because I went to law school, I think that because I know the difference between private and public speech.
We don’t need to abolish the marital privilege because it started from a place of sexism and traditional relationships, we need to expand it to include all of the private relationships we now have that aren’t officially licensed marriage. I can think of nothing more relevant to the modern world than expanding the scope of privacy that we can justifiably rely upon, given technology’s ever present encroachment on our private lives. You shouldn’t have to be “married” to expect that the things you say to your partner while you’re both getting ready for work are subject to some basic legal privileges. I mean, as long as you keep it to yourselves and don’t act like social media is also private, the privilege should extend to a wider array of relationships and choices.
On the other hand:
The court also noted that the privilege was adopted at a time when the wife’s legal existence was deemed to be suspended during marriage or incorporated into the husband’s legal existence. Critics point to that history and say the privilege creates a disparate gender impact because it is more often invoked by men than women and is often used to isolate families from state interference, the court said.
“The misogynistic history of the privilege is obvious and odious,” the court said.
I mean, they’re not wrong. I’m arguing about how the privilege should be used, the court is arguing about how the privilege has been used. The court has the right of that battle.
And if people would like to agree with me, maybe the New Mexico state legislature could re-write this thing along more progressive and modern lines.
Spousal communication privilege ‘has outlived its useful life,’ state supreme court says [ABA Journal]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at firstname.lastname@example.org. He will resist.