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Wednesday, Sep. 25, 2002

On August 27, in the case of Commonwealth v. Kirkner, the Pennsylvania Supreme Court held that in domestic violence trials, a judge must force a battered wife to testify against her husband.

The decision overruled an earlier holding that gave trial courts discretion, in such cases, to decide whether to compel reluctant victim-witnesses to testify.

The impulse behind a domestic violence exception to the spousal privilege - which generally prevents married people from testifying against each other - is laudable. However, the practical impact of the recent Pennsylvania decision will likely be to cause further, unnecessary harm to battered women.

Historical Reasons for the Spousal Testimonial Privilege

Originally, the spousal privilege reflected the view that a married woman was not an entirely separate person from her husband. In marriage, the man and the woman became "one," and that one was the man. As a result, married women could not own property or sign contracts and, significantly, could not ordinarily go to the authorities to complain of marital violence.

Marital rape, for example, was legally protected, and husbands were vested with the right to apply "moderate chastisement" and "salutary restraints" to discipline their wives. Along with legal disabilities specific to married women, a spousal privilege sealed the lips of both spouses in a criminal trial of either one of them.

Historically, a person could not be called to testify in his or her own case. Defining husband and wife as one person therefore meant that an individual could not be called to testify in a spouse's case either. An exception to the disqualification, however, evolved for cases involving serious harm committed by one spouse against the other.

Modern Reasons for a Spousal Testimonial Privilege

Over time, laws that treated women as the property of their husbands fell into disfavor, and state legislatures eliminated many of the status-based disabilities that married women had formerly endured. The spousal privilege survived, however, on the basis of a more modern rationale: the preservation of marital harmony. If one spouse were to testify against the other, this act of betrayal would doom any marriage.

Though husband and wife were now understood to be separate, rights-bearing individuals, the protection of their bond was thought to require a testimonial privilege, one that would both reflect and foster the loyalty that married people should feel toward each other.

Under the new rationale, however, an exception to the privilege continued to apply in cases of domestic violence.

When the Domestic Violence Exception Does More Harm than Good

In theory, the inter-spousal battery exception to privilege makes sense. A victim of domestic violence should not be forced to sit by while her spouse gets away with his crimes.

It is likely, moreover, that without the testimony of the victim, a defendant will indeed avoid punishment for acts of domestic violence. That is because his wife will frequently be the only adult eyewitness to his crimes.

Finally, under circumstances of violent abuse, the harmony of a marriage - the modern rationale for the privilege - is in serious question and may not even be worth preserving.

All of these arguments weigh in favor of permitting a woman to testify against her husband without facing the obstacle of a spousal privilege. That right is fully protected, however, as long as the witness-spouse can decide whether to assert her privilege.

In federal court, for example, the Supreme Court's 1980 decision in Trammel v. United States gave a witness-spouse the choice of either asserting or waiving the spousal testimonial privilege. It did so for two reasons: first, if one spouse wishes to testify against the other, there is little marital harmony left to preserve; and second, the personhood of women requires that the ancient privilege evolve to reflect modern realities. The woman's choice, in other words, should be dispositive. Pennsylvania too has adopted this approach to the waiver of privilege, vesting the right in the witness-spouse.

In a domestic violence trial, a woman who decides not to testify against her husband might simply have forgiven him. Notwithstanding his victim's forgiveness, of course, it is still reasonable for the state to prosecute him. After all, criminal assault violates the laws of the state and should not be considered a private affair to be addressed or not, depending on a private party's wishes.

Forgiveness, however, might not be the primary motivating factor when a domestic violence victim refuses to testify. She could be frightened. She certainly has reason to be scared, given the violence that she has already suffered in the past.

If she testifies against her husband, she may realistically fear lethal retaliation. Even if convicted, her husband will eventually return to society (unless he has already killed her) and when he does, she might anticipate, her life could be in jeopardy.

If fear rather than domestic bliss motivates her silence, a court order requiring a battered woman to testify may not do any good. As between further violence and contempt of court, she may rationally choose the jail cell.

One consequence of Pennsylvania law - ordering women to testify against their batterers - may therefore, paradoxically, be to lock up the battered victim as a response to domestic violence.

To make matters worse, the woman might experience her jail cell as punishment for having called the police in the first place - and in a sense, it is. She would not be there had she not made the call.

Shortcomings of the Testimonial "Right to Choose"

Granted, critics of the "right to choose" can make a powerful argument against permitting victims to refuse to take the stand. If battered spouses were given the option whether to testify against their assailants, the result could be to permit the most dangerous and threatening offenders to return to their violence.

It may well be the most frightened victims - the ones who refuse to take the stand - who are in greatest need of legal intervention. It cannot be a satisfactory answer, moreover, to suggest that they have "chosen" to remain in violent households to forego the risks of testifying in court. What, then, can we do for them?

Alternative Evidentiary Solution

The law of evidence may yet have a role to play in reconciling the state's interest in effective prosecution with the victim's desire to remain silent at trial. Though a victim of spousal violence may refrain from cooperating, there are usually prior oral and written statements to the police that could be introduced in place of live testimony.

In the Pennsylvania case at issue, for example, the victim - Ms. Kirkner - told officers who responded to the domestic disturbance call, that her husband had choked her, hit her face, and shoved her to the ground. She also wrote a two-page statement for the police, describing her ordeal. This evidence, if admitted in court, could have been more than enough to convict the defendant of assault.

In a trial, however, such evidence would be inadmissible hearsay: a victim's out-of-court statements offered to prove their truth. To prosecute defendants such as Kirkner successfully, then, what Pennsylvania may need is an exception to the hearsay rule instead of an exception to the spousal privilege.

To be sure, the rule against hearsay - like the spousal privilege - serves important purposes. By excluding out-of-court statements, the law guarantees litigants access to truth-testing measures such as cross-examination and demeanor evidence, along with the oath by a witness to tell the truth. There are, however, exceptions to the ban on hearsay for situations in which either necessity or reliability tilts the balance in favor of receiving out-of-court statements.

In the case of reluctant victims of domestic violence, the need for alternative evidence is obvious, and the reliability of former statements can be established by officers' testimony regarding a victim's demeanor. An extremely frightened victim is, in this circumstance, a credible one.

There will also sometimes be physical evidence that both corroborates and illustrates the prior statements of a battery victim. On September 3, for example, the New York Times reported that digital photography could aid in the prosecution of domestic violence cases, because they expose bruising and other injuries that conventional cameras can miss.

Ultimately, decisions about where to create exceptions to evidentiary rules amount to judgments about what matters most to the law. Without some evidence of battery, the dangerous people who abuse their spouses will get away with their crimes.

One approach to this quandary is Pennsylvania's - forcing victims to testify on pain of contempt. Another would be to carve out an exception to the rule against hearsay for victim statements to the police.

With the help of out-of-court statements, oral and written, a battered spouse might not need to be subjected to threats and bullying by the state as an antidote to threats and bullying by her batterer.

Sherry F. Colb is a professor at Rutgers Law School.

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