This post was inspired by an email from Andy, who wanted to know how the law affects the spouses of superheroes, who may or may not be superheroes themselves. We’ve previously touched on how the surviving spouse of a deceased superhero could collect life insurance or inheritance without giving away the superhero’s secret identity (short version: wait the prescribed number of years, have the spouse declared dead, and then collect). But there are other issues affecting married superheroes. For example, maybe a superhero can’t be compelled to testify as to his or her secret identity, but could the superhero’s spouse?
You may have heard of something called the spousal privilege, spousal immunity, or the marital privilege. Here we’re talking about the marital privilege, which protects confidential communications between spouses. This is separate from spousal immunity, which allows a person to refuse to testify against his or her spouse in a criminal case. We’re not quite so interested in spousal immunity because generally superheroes testify against villains; superheroes are rarely criminal defendants themselves (though there are exceptions).
I. The Marital Privilege
The marital privilege is usually the product of a state statute, though it has common law origins and some states still follow the common law rules. The hybrid common law / statutory approach used in federal courts is given in Federal Rule of Evidence 501.
A. The Scope of the Privilege
So what does this privilege cover, exactly? Obviously there are limits, since married people do not simply have carte blanche to refuse to testify about all and sundry. Indeed, the privilege generally only applies to confidential communications between spouses, which fits with the rationale behind the privilege: “The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.” Wolfle v. U.S., 291 U.S. 7, 14 (1934).
So what’s a confidential communication between spouses? There are two major approaches, the ‘expectation test’ and the ‘intentions test,’ as the Supreme Court of Wyoming explained in Curran v. Pasek, 866 P.2d 272, 275-76 (Sup. Ct. Wyo. 1994).
Courts that apply the “expectation test” ask whether the conduct was undertaken in reliance on the confidences of the marital relationship, i.e., whether there was an expectation of confidentiality; and, if there was, the conduct is deemed a confidential marital communication … . The courts that apply the “intentions test” ask whether the conduct was intended to communicate a confidential message to the other spouse; only conduct intended to convey a confidential message qualifies as a confidential marital communication under this test.
A person revealing his or her secret identity to his or her spouse would seem to pass either test. Certainly one would expect the information to be kept in confidence, and likewise the intent to communicate a confidential message seems clear as well.
B. Confidentiality: A Big Caveat
Now we come to, as they say, “the catch.” The marital privilege only applies so long as the communication is confidential between the spouses. That means that only the spouses may know the content of the communication. If a superhero goes and tells somebody else his or her secret identity, all bets are off, at least if the party questioning the spouse knows about it. So this privilege is only going to work if the secret identity is a real secret, known only to the superhero and his or her spouse.
C. Who Owns the Privilege?
This is a more important issue than it may seem at first. Is the privilege owned by the testifying spouse or by the spouse being testified against / about? Or both? If it’s owned solely by the testifying spouse, then he or she has the choice to testify or not. If it’s owned by the other spouse, then he or she controls whether the testifying spouse may testify. Of course, in this case it’s likely that both spouses have an interest in keeping secret identities secret, so the question of ownership is less important than it might otherwise be.
The precise answer to this question varies from state to state. In the federal system, though, the privilege is controlled by the testifying spouse, under the theory that if one spouse is trying to use the privilege as a gag on the voluntary testimony of the other, then there’s probably not much marital harmony left to preserve. Trammel v. U.S., 445 U.S. 40 (1980).
There are exceptions to the privilege, but they likely do not apply here, where there is a happily married couple trying to preserve a superhero’s identity. Most of the exceptions deal with cases in which the spouses are legal adversaries or cases of alleged child abuse or neglect.
II. What if the Privilege Doesn’t Apply?
If, for some reason, the privilege does not apply, then all is not necessarily lost. As in the case of a testifying superhero, a superhero spouse may still be able to plead the Fifth Amendment because admitting knowledge of a superhero’s secret identity could implicate the spouse in a crime such as conspiracy or being an accessory after the fact. Again, although immunity could be forced on the witness by a prosecutor in order to compel his or her testimony, that seems unlikely here. The superhero is almost certainly testifying against a villain and so is already cooperating with the prosecution. Questions about the superhero’s identity are likely to come from the defense, which cannot offer immunity.
The marital privilege protects a superhero’s spouse from being forced to testify about the superhero’s secret identity, but only if the identity is a secret known only to the superhero and the spouse. So while it won’t solve all of a superhero’s secret identity problems, at least he or she can tell his or her spouse.