Federal prosecutors revealed during Tuesday’s bail hearing for accused Jeffrey Epstein enabler and sex-trafficker Ghislaine Maxwell that Maxwell is married. It is unclear from the record to whom Maxwell is married or for how long she has been married. Though the law does contain protections which allow spouses to refuse to testify against one another, those protections are not absolute. That sets up a tantalizing possibility: assuming the spouse knows something relevant, they could wind up being forced to testify against Ghislaine Maxwell — if certain exceptions apply.
The existence of the spouse became public with this statement: “the defendant also makes no mention whatsoever about the financial circumstances or assets of her spouse — whose identity she declined to provide to Pretrial Services.”
Those words from Assistant U.S. Attorney Alison Moe during the Tuesday hearing set the world abuzz, with articles in the New York Post, the Daily News, the Guardian, The London Times, and elsewhere.
A flurry of internet sleuths attempted to find records of Maxwell’s marriage; unsubstantiated rumors swirled about who the husband may be. The tabloid questions are ignoring a much more serious question for prosecutors, for Maxwell’s defense attorneys, and for her putative spouse: if the spouse knows something relevant to the case, can they be called to testify about it? The Maxwell case may ultimately highlight shifts and rifts in the law.
The area of law at play is that of spousal privilege. There are really two spousal privileges: the confidential communications privilege and the spousal testimony privilege. They are not absolute. And, there are several key exceptions, recognized to varying degrees in varying jurisdictions, which can result in spouses testifying against one another in cases involving harm to children. Let’s walk through the relevant law.
(1) Confidential communications between spouses during a valid marriage.
The confidential communications privilege protects certain things said between spouses while they are married. This privilege can be invoked by either a witness spouse or by a defendant spouse, and that is important: a defendant can use the confidential communications privilege as a shield against unwanted or harmful testimony. However, the privilege is not ironclad. Either spouse can shut down testimony about confidential talks only if the conversation occurred during a valid marriage. Things said while dating or during an engagement don’t count. But even if the spouses later split up, confidential communications made during the marriage are legally protected as a matter of the policy. (The privilege is designed to protect the institution of marriage itself — not the witness or the defendant.) And, there is yet another caveat: only confidential communications are protected. A defendant spouse cannot stop a witness spouse from testifying about observations (e.g., seeing a spouse do something illegal) or communications which are not confidential (e.g., where other non-privileged parties were present). As to the former, the Second Circuit Court of Appeals said in a 1986 case that “[a]cts do not become privileged communications simply because they are performed in the presence of the actor’s spouse.”
(2) Testimony by a spouse while married to another.
The other spousal privilege, called the testimonial privilege, may be invoked under current U.S. law only by the witnesses spouse. The defendant cannot alone invoke it. The privilege is broad: it allows a currently married spouse to choose not to testify at all against his spouse who is a defendant in a criminal proceeding. The rationale for the privilege is that it is designed to preserve the marriage between the parties: a spouse can prevent a prosecutor from calling one to the stand to testify against the other. As such, the privilege does not survive the end of the marriage: if the parties divorce, one ex-spouse can be forced to testify against the other. The controlling law is contained in Trammel v. U.S., a unanimous 1980 Supreme Court case.
(3) Exceptions to privilege rules apply for spousal abuse and child victims.
Generally, spousal privileges cannot be invoked if the defendant spouse is charged with crimes against the witness spouse or if the spouses commit joint crimes together. Plus, in many jurisdictions, spouses must testify in cases involving crimes against children.
That latter point is important: Ghislaine Maxwell is accused of sex-related crimes involving minors. The sticking point is over the word “children” — and how it is defined and interpreted legally.
The Eighth Circuit Court of Appeals in 1975 carved an exception to spousal privilege rules in cases involving harm “done to a child of either spouse” (emphasis added). That exception to spousal privilege is not broad enough to involve the underaged individuals Maxwell is accused of trafficking, since they were not her children and are almost certainly not the children of her spouse. Yet the analysis does not end there.
The Ninth Circuit adopted the Eighth Circuit’s reasoning in 1992: “the marital communications privilege should not apply to statements relating to a crime where a spouse or a spouse’s children are the victims.” Yet nearly two decades later, in U.S. v. Banks (2009), a panel of three judges on the Ninth Circuit chided a lower district court for extending the exception to grandparents and grandchildren — all while vaguely suggesting the exception should be extended.
“Indeed, of the nine states within the Ninth Circuit, seven recognize a marital communications privilege exception including the functional equivalent of birth children or a somewhat broader concept,” the judicial majority wrote. “Considering the comparable familial ties, we conclude that violence against the functional equivalent of a child should be afforded the same protections as violence against the birth or step-child of a married couple” (emphases added).
Yet that did not include grandchildren — at least not in the case before the court. The majority explained:
Although these facts demonstrate a strong bond between the victim and his grandparents, they do not show the type of relationship that would be considered the functional equivalent of a birth or step-child’s relationship with his parents. Infrequent overnight visits are common to a large portion of grandparent/grandchild relationships, as are frequent visits with or even regular day-care services provided by the grandparents. This type of care, while admirable and important, does not carry the same indicia of guardianship and responsibility that a parent/child relationship carries.
Those are the thoughts of the Ninth Circuit Court of Appeals, but in some states, such as Nevada, the exceptions are even more broad. In that state, spousal privilege cannot be invoked where crimes are alleged involving a couple’s children or all children under a spouse’s “control.”
And that is strikingly close to what prosecutors have alleged Maxwell and Epstein did to young girls: took them under their wing, promised them money and/or social advancement, and trafficked them.
Maxwell’s case will be tried under federal law and in the Second Circuit, which as far back as 1975 noted that “[t]he mystical and religious foundations of the [spousal] privilege have long since eroded.” The controlling Federal Rule of Evidence, Rule 501, gives courts “common law” leeway to define privilege exceptions as they see fit, beholden to precedent and stare decisis paradigms which can at times change. And, in 1986, the Second Circuit said litigants in damaged or faltering marriages were not able to invoke the testimonial privilege: the courts, therefore, “may properly inquire into whether a marriage is vital enough to justify recognition of the adverse testimony privilege in each case.” In that same case, the Second Circuit noted that two other circuits “have refused to apply the privilege to ‘legally married’ couples whose marriages were either sham or moribund.”
If Maxwell’s spouse knows something relevant about the case, prosecutors may be preparing to argue an expansive exception to the spousal privilege laws which could require that individual to testify.
[Photo by Laura Cavanaugh/Getty Images]
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