Sixth Circuit Recognizes Child Abuse Exception to Marital Communications Privilege

The marital communications privilege allows a defendant-spouse to preclude testimony by his or her spouse regarding confidential marital communications. The privilege has exceptions, of course, as do all privileges, and the Sixth Circuit recognized a child abuse exception in United States v. Underwood.

Underwood was charged with sex crimes perpetrated against his step-granddaughter, who was between eleven and twelve years old at the time. On appeal he challenged admission of testimony over his assertion of the marital communications privilege from his wife (1) that she became concerned about defendant’s favoritism toward their step-granddaughter; (2) about an incident when she found that defendant had changed the bed linens while he and the child had been at home alone; and, (3) regarding text messages and voicemails she received from defendant where he did not deny sexually assaulting the child and “apologized for not being a perfect man.”  

The Court principally relied on decisions from the First and Tenth Circuits, United States v. Breton, 740 F.3d 1 (1^st Cir. 2014), and United States v. Bahe, 128 F.3d 1440 (10^th Cir. 1997), to recognize and apply a child-abuse exception to the marital communications privilege. The child-abuse exception rests on four considerations: (1) a crime against a spouse or a spouse’s child profanes the trust and bond of marital partners and disrupts family harmony; (2) parental testimony is particularly necessary in child-abuse cases, because child abuse occurs most often in the home at the hands of a parent or parent-substitute; (3) the marital privilege, like all privileges, must be interpreted narrowly; and, (4) overwhelming state legislative and judicial authority that the marital communications privilege does not apply where the crime is against a spouse’s child.

Applying these considerations in a “fact-intensive inquiry” the Court explained as follows: (1) defendant’s sexual abuse of his wife’s granddaughter profaned the marital relationship and disrupted family harmony; (2) defendant sexually abused his spouse’s granddaughter while serving as a parental-substitute; (3) that the child was a granddaughter as opposed to a daughter made no significant policy difference; and, (4) that the crime occurred in defendant’s “sleeper truck,” as opposed to their home made no difference since the truck was the functional equivalent.

The Court also upheld admission of testimony from defendant’s daughter concerning his sexual assault on her more than 20 years prior to the trial pursuant to FRE 414.

Robert L.Abell
Zach Turpin