The Solace of Marital Immunity


July 30, 1992|By JAN HOFFMAN

NEW YORK. — New York -- Perhaps no secular institution has had such a long history of looking at marriage with a fond and foolish regard as the courts. The marital relationship is ''the best solace of human existence,'' wrote the Supreme Court in 1839.

The awakening has been rude but slow. States began only 15 years ago to prosecute wife batterers and to declare marital rape a crime. Recently New Jersey finally gave a 500-year-old legal privilege for married couples a startled second look.

When legislators realized that Irene J. Seale could not testify in state court against her husband, Arthur, who faces kidnapping and felony murder charges in connection with the death of Sidney J. Reso, an Exxon executive, they rushed to dust off and rewrite the state's version of a legal doctrine known as spousal immunity.

In its unalloyed, most archaic construction, spousal immunity bars one spouse from testifying for or against the other -- still the law in Mississippi, Wyoming, and Ohio.

In New Jersey and 13 other states, the law says that the spouse who is the target of a prosecution -- Mr. Seale -- controls the privilege: even if the other spouse volunteers to provide damaging testimony, as Mrs. Seale did, he has the right to block her. Mrs. Seale is cooperating with authorities in exchange for reduced charges.

Proposals being drafted by State Sen. William Gormley and Assemblywoman Harriet Derman would shift the balance of power in New Jersey. In a version similar to the spousal immunity law in 11 other states, the testifying spouse, the one who is not the target of adverse testimony, would control the privilege.

But even if a proposal is passed before Mr. Seale goes to trial, the state still would not be able to compel Mrs. Seale to testify. The choice would be hers whether to go forward -- in effect, making a decision about whether to preserve the marriage by remaining silent or to risk the potential harm to it by speaking out.

The Supreme Court constructed just such change in the spousal immunity privilege in 1980. Because the 1980 case came through a federal, not a state court system, the court's spousal immunity ruling applies only to federal cases.

That is why the Seales find themselves standing on legal ice floes: When Mr. Seale appears in federal court to face charges of extortion, Mrs. Seale is expected to testify against him, but when appears in state court to face the kidnapping and felony murder charges, she is not.

The changes in spousal immunity privileges, amounting to a veritable crazy quilt of state laws, reflect a modern debate about whether society's interest in protecting the sanctity of marriage should outweigh its interest in law enforcement.

But feminists and legal experts also question whether the assumptions in any spousal immunity law adequately allow for the complexity of contemporary relationships.

Marital immunity, as it is sometimes known, dates back to medieval English ecclesiastical law, in which husband and wife were seen as a single, spiritually bound entity.

That principle extended into the common law, where the only legally recognized person in the marriage was the husband, since the wife could not own property nor partake in the responsibilities of citizenship.

From the outset, the spousal immunity privilege was understood to apply in practice to husbands as defendants.

In English common law, moreover, an accused man was never allowed to testify on his own behalf, because he presumably had a vested interest in the proceeding.

With the married couple a spiritual and secular monolith, the silence of the wife was guaranteed. For her to speak in support of him would aggravate the suspicion of vested interest.

And the prospect that she might speak against him -- or, in medieval thinking, that the spiritual entity might betray itself -- led to the understanding of spousal immunity as a protection against self-incrimination.

This theory persisted for centuries. It began to erode in the mid-19th century as states began to pass Married Women's Property Acts, which gave wives an emerging legal identity, with rights to property, to make contracts, and to sue and be sued.

But because marriage was becoming recognized as a bond between two individuals, spousal immunity was ''a rule in search of a rationale,'' says Josephine R. Potuto, a professor of constitutional law at the University of Nebraska's College of Law and a consultant to the Morris County prosecutor's office, which is handling New Jersey's case against the Seales.

The purpose of spousal immunity began to move away from protection against self-incrimination toward a social interest in protecting the relationship between two people.

By 1933, wives were deemed competent to testify for their husbands in federal court, but not against them.

In recent years, society's increasing demand to see the guilty convicted and the evolving nature of marriage have combined to chip away at the spousal immunity privilege.

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