Same-Sex Couple Denied Protection Of Spousal Immunity In Kentucky Murder Trial

article-2383436-1B1DFDAD000005DC-662_306x423In torts, I often discuss the collateral consequences for same-sex couples not having recognized marriages from intentional infliction of emotional distress claims (which are limited to close family members in seeking third-party claims) to spousal immunity claims. Kentucky last week demonstrated the problem for such couples with the opinion below. Bobbie Jo Clary (left) and her domestic partner, Geneva Case, claimed spousal immunity on the basis for a civil union in Vermont in 2004. However, Judge Susan Schultz Gibson ruled that they could not claim spousal immunity in a criminal case because they do not have a marriage recognized under Kentucky law. It is an example of the type of “full faith and credit” cases that could lead to a showdown before the Supreme Court. Normally, states are required to give full faith and credit to the contracts from other states, including out-of-town marriages.

article-2383436-1B1DCFDC000005DC-453_306x423Complicating this case is that the couple had only a civil union rather than an actual marriage. In the murder trial of Defendant Bobbie Jo Clary, the women claimed the right to be immune from testimony but the prosecutors opposed the claim. Clary is charged with the murder and robbery of George Murphy in 2011. Clary reportedly confessed to Case (shown right) that she beat Murphy to death with a hammer but said that she was defending herself from a rape.

Gibson found that the civil union had not been converted into a marriage and thus did not meet the threshold requirement of a privilege assertion:

“At a minimum, the privilege granted by the Commonwealth of Kentucky would require that the parties be actually married. Ms. Case and the Defendant are not, under the law of either Kentucky or Vermont. The fact that Vermont may extend the marital privilege to couples who have entered into a civil union does not require Kentucky to do so.”

article-2383436-1B1DCFD6000005DC-389_634x505Since the couple went to Vermont for a civil union and did not covert the relationship to a marriage, the ruling is likely to stand on appeal. In 2009, a marriage option was added to Vermont law. Because privileges are narrowly construed under state law, the judge felt obligated to deny the claim in this case.

However, the final line of the decision is the most interesting. Vermont appears to extend the protection to civil unions, but the court states that no state is required to adopt the statutes of other state when it conflicts with its own laws. It is not clear if that is a reference to the use of civil unions as the basis for testimonial privilege (which is the most direct interpretation) or more broadly the recognition of a marriage status for the same-sex couple (which has broader full faith and credit implications). The Court states that “at a minimum” the couple must have a marriage license to claim such a privilege.

I would expect the ruling to be upheld based on the narrow rationale of the difference between a civil union and a marriage under Kentucky law. However, this type of conflict is likely to create a new front in ongoing effort to establish protections for same-sex couples. In that struggle, a murder trial is hardly the ideal context for a definitive challenge. Accordingly, same-sex marriage advocates may prefer to see this case decided on the basis of the narrow interpretation of state law.

Here is the opinion: bobbijo

102 thoughts on “Same-Sex Couple Denied Protection Of Spousal Immunity In Kentucky Murder Trial”

  1. “I know most people seem to see me as serious, but in my gut I’m just a kid who likes to play all the time.”

    That’s why we love you, Mike. You’re the kid on the playground always up for a game of kickball. 😀

    And I agree on pete. I honestly think he could write comedy professionally if he wanted. His timing and sense of the absurd are impecible. One doesn’t develop that without having something else interesting going on “under the hood”.

  2. What is spousal immunity? Is it the right not to testify? If so, take the Fifth, then the Ninth, then the Fourth Symphony. In D minor.

  3. Mike/Slarti,

    In order: Stranger In A Strange Land, Starship Troopers, The Door Into Summer, Methuselah’s Children, Time Enough For Love/The Moon Is A Harsh Mistress (tie).

  4. Mike,

    Get groked? Don’t mind if I do! 😀 But computers change every week it seems like. Don’t get me started on the switch from BIOS to UEFI. It’s been annoying enough to make me want to use a typewriter taped to a TV instead. I know at some point, probably soon, I’m simply going to quit caring about the details of how it works and only care about if it does what I want it to.


    Nobody expects the Spanish Inquisition, but our chief weapons are fear, surprise, ruthless efficiency, an almost fanatical devotion to the Pope and nice red uniforms. You think you are strong because you can survive the soft cushions? Biggles! Get the comfy chair!

  5. Mike,

    I believe that, strictly speaking, you probably don’t need strikethrough and that, in the greater scheme of things, it doesn’t really mean all that much, but it can be handy with the sarcasm snark.

    1. “strictly speaking, you probably don’t need strikethrough”


      Strictly speaking I’ve never needed help with snark. My technical deficiencies aren’t an age thing since OS out-dates me age-wise, but then again like you he’s a scientist. Gene could well have been if he wanted to and Darren keeps surprising us day by day as he reveals more and more of his skills. Blouise is an artist whose art requires certain intellectual adeptness. Now Pete, the blogs master of snark, has far more skills then he let on thus far. As for me, while I have some minor scientific knowledge, it has always been about the emotions and I’m lazy when it comes to details. When I needed to become computer literate for work way back then I did it, but after awhile I no longer needed to know DOS etc. and could just let myself play. I know most people seem to see me as serious, but in my gut I’m just a kid who likes to play all the time. The serious demeanor, even on line is merely self protection.

  6. Mike,

    Door Into Summer and Starship Troopers are two of my absolute favorite Heinlein stories (I read far more of his books at a formative age than was probably good for me…). Throw in The Moon is a Harsh Mistress and you’ve definitely got my top 3 (well, add Double Star and call it the top 4… our four weapons are surprise, fear, ruthlessness, and an almost fanatical devotion to the Pope…

    Was I going somewhere with this?

    So it goes…

    1. “Door Into Summer and Starship Troopers are two of my absolute favorite Heinlein stories (I read far more of his books at a formative age than was probably good for me…).”


      I’ve always known we were kindred spirits since we started getting in touch off blog. What is interesting about it is that I’ve got at least 20 years on you so we hail from different generations, but Heinlein is timeless, even if if time surpasses the ostensible dates of his tales.

  7. Darren, the attack of the angry, vengeful sloth (Vengeful Sloth, a great name for a band!)

  8. Gene: “we all know pete will use his new great powers with great responsibility”
    He might but it would be the waste of a great new toy. 🙂

    Right, sugar, you just stick with that story, uh huh, uh huh…

  9. Well shiver me timbers!

    It’s in OED too. Ol’ Bob must be proud his neologism took hold.

    So I guess all those words were indeed real words, Mike.

  10. I thought Grok was an onomatopoeia that meant “Sound made by angry vengeful muddy slough when a trapped, knee deep fisherman successfully pulls his boot out of muddy snare, causing the mud’s enraged vocalization of Grrrraawwwk”

  11. Merriam Webster says Grok is a word. How could it not be, “Conversate” is a word in the Merriam Webster dictionary.

    And don’t call Gene “Shirley”.

  12. ¡¡¡¡¡¡¡¡¡¡¡¡sʞloɟ llɐ sʇʇʇʇɐɐɐɥɥɥɥɥʇʇʇʇ ˙sıɥʇ llɐ ɯoɹɟ ǝɥɔɐpɐǝɥ ɐ ǝʌɐɥ ı

  13. Gene,

    It’s in my online dictionary as well as being a valid scrabble word. Seems pretty real to me.

    Next you’ll be trying to tell me that Mike (Holmes, not Valentine Smith) isn’t real…

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