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Professor’s Legislative Recommendation Changes Outcome of Criminal Prosecution

In 2003, Professor James Duane published The Virginia Supreme Court Takes a Big Bite Out of the Privilege for Marital Communications, 29 The Virginia Bar Association News Journal 8 (March 2003). His article gained the attention of a delegate in Virginia’s General Assembly, who arranged for Professor Duane to be appointed to serve on a committee that drafted a new version of Virginia’s law on marital privileges. His proposal was adopted by the legislature in 2005, and in December of 2007, that amendment directly affected the outcome of Carpenter v. Commonwealth, 654 S.E.2d 345 (Va. Ct. App. 2007).

In Carpenter, the defendant confessed to his wife that he had raped their teenage daughter. At his later trial, the wife wished to testify against him about that confession. Under the version of Virginia’s marital privilege in place at the time of his confession, his wife would not have been allowed to reveal what he told her, not even if she wished to do so. However, by the time of the trial and pursuant to Professor Duane’s recommendations, the law had been amended to make that privilege unavailable in any proceeding “in which either spouse is charged with a crime against the minor child of either spouse.” Virginia Code § 8.01-398. Virginia’s General Assembly agreed with Professor Duane that the law should not provide a sanctuary for criminals who commit crimes against their own spouses and children.

The Court of Appeals of Virginia held that this amendment applied retroactively to a confession made before the amendment was adopted, because the trial took place after the effective date of the change in the law. As a result, the appeals court concluded that the defendant’s objection to his wife’s testimony in Carpenter was properly overruled, and his conviction was affirmed.

“This result is clearly in accordance with one of my objectives in drafting the amended statute,” reports Duane. “Although I am a strong believer in the importance of the privilege for marital communications, I do not believe it should be employed to prevent a married woman from voluntarily testifying against a husband who confessed to her that he committed vile crimes against her children.”

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