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Friday, August 9, 2013

Spousal Privilege Doesn't Count When the State Doesn't Recognize Your Marriage

One indicator of heteronormative privilege many straight married couples take for granted is the spousal privilege law exempting spouses from testifying against one another in court. Frequently we also call this law "husband-wife" privilege, which further emphasizes how in many states such a privilege only applies to heterosexual couples. Typically what this means is that if you are married to one of the defendants in either a civil or a criminal case, and you choose not to testify against your spouse, then your right to do so is protected by state law. However, in states that do not recognize non-heterosexual marriages, like our own beloved Kentucky [totally stated without irony], partners who were married elsewhere may be forced to testify against their spouses.

Case in point: Bobbie Jo Clary and Geneva Case. Clary is charged with the murder of a Louisville man, George Murphy. Clary contends that Murphy was trying to rape her, and she used a hammer to defend herself. Then Clary stole Murphy's van, presumably trying to flee the scene of her rape and the violence she perpetrated in self-defense. Later, Clary admitted to her wife Case that she had killed the man. Normally, such an admission would be protected by spousal privilege, but since the events took place in Kentucky, the courts do not recognize their decade-old marriage from Vermont. See ABC local affiliate WHAS's video here.

This is because, as many of you know, in 2004 our legislators passed a law by referendum which bans all same-sex marriages and civil unions, making Clary and Case's marriage unconstitutional under Kentucky law. While the Jefferson County prosecutor's office fights to get Case to testify, the state Attorney General's office may well fight to protect Case's spousal rights. But, then again, they might not. Attorney General Jack Conway might be a Democrat, but he doesn't seem particularly liberal when it comes to women's rights and GLBTQ rights. For instance: while Conway supports legal, safe abortions, he opposes late-term abortions, i.e. anything after the first trimester. Likewise, while Conway says he abhors discrimination, particularly DADT, he still thinks marriage should be a sacred institution joining one man to one woman. Or at least this was the case in 2010 when he ran against Rand Paul for U.S. Senator.

Case's testimony is on hold until mid-August while the AG's office prepares its position, but Case's attorney Bryan Gatewood is willing to take this fight to the U.S. Supreme Court if necessary. Since DOMA has had its teeth pulled, we can certainly hope that the USSC will find in favor of Case's spousal privilege to not testify.  BUT - hope is not all we can do. Contact Attorney General Conway's offices and let them know what you think.

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