Isn't it a Crime: Feminist Perspectives on Spousal Immunity and Spousal Violence
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Much has been written about the reluctance of police to arrest in domestic violence cases and the reluctance of the state to prosecute such cases. Part of that reluctance may be caused by prevalent societal attitudes that diminish the importance of spousal violence. In a number of jurisdictions, the reluctance to pursue criminal sanctions against married abusers is caused by the difficulty of procuring the battered spouses' testimony.5 In those jurisdictions, the prosecutor cannot compel a reluctant spouse's testimony because of the spousal privilege not to testify against a defendant spouse. Even in jurisdictions that have some exceptions to the privilege, including spousal violence exceptions, the prosecuting authority may find it legally, as well as practically difficult to procure the spouse's testimony. Part I of this Article discusses profiles of batterers and victims as a predicate for analyzing applications of spousal immunity. Part II explores the common-law spousal privilege and spousal violence exceptions to the privilege. Part III explores modem applications of spousal immunity in cases of domestic violence. Next, Part IV critiques the spousal immunity doctrine from the perspective of feminist legal thought and includes the voices of battered women discussing the spousal privilege. Finally, Part V proposes a solution to the problems caused by spousal immunity in domestic violence cases.
