Spousal privilege is an interesting area of law that can intimidate many newly-married couples. Can you be forced to testify against your spouse in a legal matter? In the state of South Carolina, the answer is typically no. The idea behind spousal privilege is to protect the sanctity of marriage and not force someone to testify against their spouse during certain types of legal and court proceedings.
South Carolina recognizes spousal privilege, which is covered under South Carolina Code of Laws, Section 19-11-30. This section states that in any trial or inquiry related to a lawsuit, proceeding, or action in any court, or before any person having, by law or through the consent of the parties, authority to hear evidence or examine any evidence, spouses are not required to disclose any confidential, or in a criminal matter, any communication that was made between the spouses during the course of their marriage.
Notwithstanding the prior provisions, spouses are required to disclose any communication, privileged or not, made by one spouse to the other during the marriage where the court proceeding, action, or lawsuit has to do with child neglect or abuse, a child’s death, or any criminal sexual conduct involving a minor.
Exceptions to Spousal Privilege
As mentioned above, spousal privilege doesn’t extend to certain matters involving a child, and it does not protect physical acts of assault either. The reason for this is that the courts determined that the testimony would be related to observation of physical acts, not a verbal conversation or communication. This means you are required to testify, and if you refuse to, you could be held in contempt of court or even thrown in jail.
In most other cases, spousal privilege applies to almost any kind of communication around a criminal matter while the communication must be confidential in a civil matter. If the communication occurred in a public setting or took place with friends or relatives in a room, it would not be considered confidential.
Another way spousal privilege may not apply is if one spouse waives it. This means if one spouse wants to testify against the other, they have the right to. Privilege must be asserted, so if the spouse doesn’t assert it or doesn’t know how, it will be waived and testimony secured.
Spousal privilege is not as strong as attorney-client privilege. The reason is that spousal privilege needs to be invoked, or the spouse can choose not to assert it.
Examples of Spousal Privilege Situations
Situations will vary, which is why it’s important to speak with a South Carolina family law attorney to verify whether spousal privilege will apply. Some potential situations where you might be able to assert the right not to testify include situations where your spouse murdered another individual or was caught trafficking narcotics. If they embezzled funds from their job, you could assert spousal privilege as well.
Retaining a South Carolina Family Law Attorney
If you’re dealing with a situation where the question of spousal privilege could arise, contact Elliott Frazier Law Firm online or at 864-256-3553 to schedule a consultation.