Superhero Spouses

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).

D. Exceptions

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.

III. Conclusion

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.

13 Responses to Superhero Spouses

  1. what would happen in the case of say the movie ‘The Incredibles’ – in which it was publicly acknowledged there were superheros – just their identity was ‘secret’ – more so with Mr Incredible getting sued.

    Also in the case of the Incredibles there was a government department that knew/endorsed the secret identities – so would the official secrets act statute kick in and could their identities be revealed after 50 years for example, and what implications would that have on the statute of limitations for crimes or percieved crimes in relation to the supers actions while alive?

    • In that case multiple people knew the secret identities, so the marital communications privilege would not apply, at least not if the questioner knew that other people knew. This really only applies to a superhero with a very, very secret identity. Basically, an identity so secret that it is not even known who knows. The marital privilege gives such a superhero an additional layer of protection if they share their identity with their spouse.

      So, for example, in many continuities Superman’s identity is a pretty well held secret. Sure, the Kents know the truth, but almost no one knows that they know. So if Superman married another superhero and told her his secret identity, then she could not be questioned about Superman’s real identity.

  2. my above comment was in relation to a third party and the spouse knowing.

    also do third parties include children/offspring?

    • Yes, though the child has to be old enough to comprehend the communication. If Superman and his hypothetical wife have a three year old who overhears them talking about his secret identity, it’s probable that that wouldn’t waive the privilege, since a three year old probably couldn’t really comprehend what was being communicated.

  3. This is very interesting. Has spousal privilege become more restricted in the past fifty years? The reason I ask: I read a lot of Perry Mason books (written in the range 1930-1970 or so) and some of them have had plots involving people getting married so that they couldn’t be compelled to testify against their spouse – which wouldn’t hold water under the definition of spousal privilege as you’ve described it here.

    • The marital privilege is different from spousal immunity. In a criminal case the defendant’s spouse doesn’t have to testify at all. That’s probably what you’re thinking of from Perry Mason.

      • Ah, that would certainly explain it, because the cases were certainly criminal cases. Thank you very much!

  4. This may be a stupid question, but isn’t it already too late, in the case you suggest? If you know who Superman is married to, then whether she divulges his identity or not, you probably have a pretty good idea of who he is, too.

    Or does “spouse” somehow include “Superman’s Girlfriend Lois Lane”? By which I mean, the costumed hero is known to be intimate with a particular person and the connection is only known in that context.

    Otherwise, it seems like claiming spousal privilege would be rather damning evidence as to the hero’s private identity.

    • Again, consider if it’s known that Superman is married to another superhero, but both of their identities are a secret. Then if they testified at the trial of a villain, they could not be compelled to reveal each other’s secret identities, so long as it was confidential between them.

      Alternatively, consider if it’s known that Clark Kent has married Lois Lane and they are testifying for some reason. Then an attorney who suspects Clark Kent’s identity can’t use the opportunity to compel Lois to reveal it.

      • But wouldn’t that still result in the whole world knowing anyway. Defense attorney, “Ms. Lane, is your husband Superman?” Lois, “Uh, I invoke marital immunity to not answer that.” Everybody knows then that Clark Kent is Superman. It would be like pleading the 5th. Legally you won’t be convicted on your own testimony, but it won’t look good to the public, and what the public sees is all that matters here.

      • “But wouldn’t that still result in the whole world knowing anyway?”

        In practice the question would never be asked, or an objection would be raised before Lois responded. Issues surrounding evidentiary privileges are generally hashed out prior to the trial proper (each side will make what are called ‘motions in limine’ (‘motions at the threshold’) to argue that various things are or aren’t protected). This approach keeps the jury from being tainted by pointed or leading questions; judges know that although they can instruct the jury to ignore something, in reality once they’ve heard it it’s probably too late.

  5. This may be a bit of a baroque question… but if the *knowledge* of the spouse’s secret identity were important to a case, could that be covered by marital privilege?

    For instance: Lois Lane knows her husband’s secret identity, but so does Batman and the entire rest of the Justice League, so just his identity wouldn’t be covered. But if she were asked, under oath, “Did your husband tell you he was Superman?” Would she be able to invoke marital privilege for that?

    (I can’t think of circumstances where she would want to invoke that privilege, but my imagination is admittedly limited. I’m not even sure why I’m asking this question.)

  6. One other question about superhero spouses; if said superhero kept their profession secret from their spouse prior to/during the marriage, would that constitute grounds for an at-fault divorce if it came out later?

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