End of Spousal Privilege

Lawmakers in Georgia are poised to change the balance of power in the prosecution of domestic violence. The Georgia House of Representatives approved HB 711 last month and sent it on to the Georgia Senate. The bill was approved without change and sent to the governor’s desk. Once it goes into effect, HB 711 will allow prosecutors to compel victims of domestic violence to testify against their abusive spouse. It also protects the communications between victims of domestic violence and sexual abuse and the agencies that are created to help them.

This changes an age-old loophole in the law that made it much more difficult for prosecutors to obtain convictions against battering spouses. The loophole, coupled with an 8-year-old opinion from the Supreme Court of the United States, severely tied the hands of domestic violence prosecutors and allowed batterers to go free. In recognition of the sanctity of marriage, a spouse has a general privilege as not to be compelled to testify against one another in criminal proceedings. This privilege became abused in the prosecution of domestic violence cases. Spouses, generally under pressure from their abusers, could refuse to take the stand to testify against the attacker. 

Until 2004, prosecutors were able to get around this privilege with some creative legal maneuvering. Once spouses exercised their privilege to refuse to testify, the witness could be deemed to be legally unavailable, allowing the admission of hearsay statements of the victim to 911 operators and law enforcement officers at trial. This exception to the hearsay rule allowed prosecutors to present some very powerful evidence. But the noticeable absence of the victim on the witness stand or the noticeable presence of the victim in support of the batterer sent an equally powerful message to a jury as well.

In 2004, prosecutors were dealt another blow when the Supreme Court held in Crawford v. Washington that the admission of hearsay statements of unavailable witnesses was a violation of the Sixth Amendment in that an accused has a right to confront his accuser in court. This left prosecutors without a witness to many brutal attacks, trying to piece together cases with photographs of injuries and 911 recordings.

The new law will allow prosecutors to compel these victims to take the stand against their abusive spouses. Even if they fail to testify honestly, once these witnesses have testified, their prior inconsistent statements to law enforcement can be admitted to as evidence in trial. According to Solicitor General David Cannon, Jr., “Georgia was the last state to allow this privilege in domestic violence cases, but this bill will allow us to put some real teeth into prosecuting these cases. We will be able to make a difference.”

Eric Ballinger is a private practice attorney in Canton, GA. He serves as the attorney training coordinator for the Cherokee Family Violence Center and handles may pro-bono cases each year for victims of domestic violence.