Does the statute that enables a spouse to not testify against their spouse carry over into divorce if the alleged crime took place during the marriage? 

I don’t know the rules as they apply in different jurisdictions, but I can tell you what the rule is in Utah, where I practice divorce and family law. 

In Utah, the rule is as follows (see Utah Rules of Evidence (URE) 502): 

Rule 502. Husband – Wife. 

(a) Definition. 

(a)(1) “Confidential communication” means a communication: 

(a)(1)(A) made privately by any person to his or her spouse; and 

(a)(1)(B) not intended for disclosure to any other person. 

(b) Privilege in Criminal Proceedings. In a criminal proceeding, a wife may not be compelled to testify against her husband, nor a husband against his wife. 

(c) Statement of the Privilege. An individual has a privilege during the person’s life: 

(c)(1) to refuse to testify or to prevent his or her spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage; and 

(c)(2) to prevent another person from disclosing any such confidential communication. 

(d) Who May Claim Privilege. The privilege may be claimed by: 

(d)(1) the person who made the confidential communication; 

(d)(2) the person’s guardian or conservator; 

(d)(3) the non-communicating spouse to whom the confidential communication was made may claim the privilege on behalf of the person who made the confidential communication during the life of the communicating spouse. 

(e) Exceptions to the Privilege. No privilege exists under paragraph (c) in the following circumstances: 

(e)(1) Spouses as Adverse Parties. In a civil proceeding in which the spouses are adverse parties; 

(e)(2) Furtherance of Crime or Tort. As to any communication which was made, in whole or in part, to enable or aid anyone to commit; to plan to commit; or to conceal a crime or a tort. 

(e)(3) Spouse Charged with Crime or Tort. In a proceeding in which one spouse is charged with a crime or a tort against the person or property of: 

(e)(3)(A) the other spouse; 

(e)(3)(B) the child of either spouse; 

(e)(3)(C) a person residing in the household of either spouse; or 

(e)(3)(D) a third person if the crime or tort is committed in the course of committing a crime or tort against any of the persons named above. 

(e)(4) Interest of Minor Child. If the interest of a minor child of either spouse may be adversely affected, the Court may refuse to allow invocation of the privilege. 

You can learn more about the spousal privilege by clicking this link to commentary on URE Rule 502. 


Utah Family Law, LC | | 801-466-9277 

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