Spousal Privilege and CDV in South Carolina
Generally defined, spousal privilege is a legal rule that prevents one spouse from being forced to testify against the other.
This article provides a brief introduction to how this legal principle applies to the prosecution of Criminal Domestic Violence cases in South Carolina.
Spousal privilege is based on S.
C.
Code ยง 19-11-30.
It provides that spouses cannot be forced to testify regarding communications.
In the context of a CDV trial, the spousal privilege is "owned" by the spouse who is the alleged victim or other witness.
This means that it can be waived at their discretion.
This is different from other types of legal privilege, such as lawyer-client that can only be waived by the client.
Spousal privilege only applies to those who are currently legally married.
One requirement for a domestic violence charge is that a household member relationship exist between the defendant and the alleged victim.
Household members including spouses, former spouses, those with children in common and those who now or formally have cohabitated.
This broad definition covers many relationships where spousal privilege would not be applicable.
A South Carolina CDV can be based on one of three different types of allegations:1) An unwanted touching was made; 2) an attempt was made at an unwanted touching; or 3) a threat that an unwanted touching would occur.
Examples of unwanted touchings would include such things as snatching cell phones out of someone's hand, throwing objects, pushing, pulling, or actual hitting.
There is no requirement that the unwanted touching actually result in any physical harm.
South Carolina's spousal privilege only applies to communications between the spouses.
This covers things like conversations, e-mail, letters and text messages.
Our statute does not extend to observations made by a spouse regarding physical acts, or their knowledge of other events independent of communications had with their spouse.
Because the privilege only applies to communications, and not physical acts, it does not cover testimony regarding CDV allegations involving unwanted touching or attempting unwanted touching.
It does however extend to communications involving a threat of an unwanted touching.
For example hitting your spouse with a pillow, or throwing the pillow but missing would both constitute potential instances of domestic violence for which the spousal privilege would not apply.
But someone telling their spouse "I'm going to hit you with a pillow" would be a communication, and a Court couldn't require a spouse to testify to that communication.
Knowing whether or not to raise the spousal privilege is a decision that can only be made by the spouse who has been called as a witness by the prosecution.
It cannot be raised by the defendant or defendant's attorney.
It is however important at the defendant, though legal counsel, be prepared to provide the legal authority in support of spousal privilege being raised in trial.
This article provides a brief introduction to how this legal principle applies to the prosecution of Criminal Domestic Violence cases in South Carolina.
Spousal privilege is based on S.
C.
Code ยง 19-11-30.
It provides that spouses cannot be forced to testify regarding communications.
In the context of a CDV trial, the spousal privilege is "owned" by the spouse who is the alleged victim or other witness.
This means that it can be waived at their discretion.
This is different from other types of legal privilege, such as lawyer-client that can only be waived by the client.
Spousal privilege only applies to those who are currently legally married.
One requirement for a domestic violence charge is that a household member relationship exist between the defendant and the alleged victim.
Household members including spouses, former spouses, those with children in common and those who now or formally have cohabitated.
This broad definition covers many relationships where spousal privilege would not be applicable.
A South Carolina CDV can be based on one of three different types of allegations:1) An unwanted touching was made; 2) an attempt was made at an unwanted touching; or 3) a threat that an unwanted touching would occur.
Examples of unwanted touchings would include such things as snatching cell phones out of someone's hand, throwing objects, pushing, pulling, or actual hitting.
There is no requirement that the unwanted touching actually result in any physical harm.
South Carolina's spousal privilege only applies to communications between the spouses.
This covers things like conversations, e-mail, letters and text messages.
Our statute does not extend to observations made by a spouse regarding physical acts, or their knowledge of other events independent of communications had with their spouse.
Because the privilege only applies to communications, and not physical acts, it does not cover testimony regarding CDV allegations involving unwanted touching or attempting unwanted touching.
It does however extend to communications involving a threat of an unwanted touching.
For example hitting your spouse with a pillow, or throwing the pillow but missing would both constitute potential instances of domestic violence for which the spousal privilege would not apply.
But someone telling their spouse "I'm going to hit you with a pillow" would be a communication, and a Court couldn't require a spouse to testify to that communication.
Knowing whether or not to raise the spousal privilege is a decision that can only be made by the spouse who has been called as a witness by the prosecution.
It cannot be raised by the defendant or defendant's attorney.
It is however important at the defendant, though legal counsel, be prepared to provide the legal authority in support of spousal privilege being raised in trial.
