It is inevitable that, as more states recognize same-sex marriage, a host of collateral conflicts will arise over the use of such marriage licenses. One is at the heart of a controversy in Kentucky. Geneva Case, 49, has invoked spousal privilege to shield her from testifying against her spouse. It just so happens that her spouse is another woman: making this the first known spousal privilege claims for a same sex couple. The privilege is being invoked in a murder trial in Kentucky.
Case does not want to testify against her partner, Bobbie Jo Clary (left), 37, who is charged with beating George Murphy, 64, to death with a hammer in 2011 and then stealing his van. She is also charged with tampering with evidence.
Prosecutors insist that Case heard Clary confess and saw the blood-soaked interior of the van. Clary insists that she was merely defending herself after a sexual assault.
The problem is that Kentucky has not legalized same-sex marriage and the state constitution limits marriage to the union of a man and a woman.
Case and Clary secured a civil union in 2004 in Vermont.
This could create a case under the full faith and credit clause, where states are expected to recognize the contracts and licenses of other states. That is likely to be the most promising battleground for the expansion of gay rights in the United States. However, there remains a difference between civil unions and marriages. The advantage in this challenge likely rests with the prosecutors in my view.
However, in a prior Maryland case, a woman was successful in invoking spousal immunity by citing a license in Washington D.C. despite the fact that Maryland did not recognize such marriages. The court ruled that she did not have to testify.
Here is the Kentucky provision on immunity:
KRE 504 Husband-wife privilege
(a) Spousal testimony. The spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage. A party has a privilege to prevent his or her spouse from testifying against the party as to events occurring after the date of their marriage.
(b) Marital communications. An individual has a privilege to refuse to testify and to prevent another from testifying to any confidential communication made by the individual to his or her spouse during their marriage. The privilege may be asserted only by the individual holding the privilege or by the holder’s guardian, conservator, or personal representative. A communication is confidential if it is made privately by an individual to his or her spouse and is not intended for disclosure to any other person.
(c) Exceptions. There is no privilege under this rule:
(1) In any criminal proceeding in which sufficient evidence is introduced to support a finding that the spouses conspired or acted jointly in the commission of the crime charged;
(2) In any proceeding in which one (1) spouse is charged with wrongful conduct against the person or property of:
(A) The other;
(B) A minor child of either;
(C) An individual residing in the household of either; or
(D) A third person if the wrongful conduct is committed in the course of wrongful conduct against any of the individuals previously named in this sentence. The court may refuse to allow the privilege in any other proceeding if the interests of a minor child of either spouse may be adversely affected; or
(3) In any proceeding in which the spouses are adverse parties.
(d) Minor Child. The court may refuse to allow the privilege in any proceeding if the interests of a minor child of either spouse may be adversely affected.