Jennifer Kelly

Document Type




This Note argues that federal courts, in considering the applicability of either the spousal communications privilege or the adverse testimonial privilege, should look to the type of crime alleged against the defendant and should carve out an exception rendering these privileges unavailable wherever the defendant has been charged with a sex crime, regardless of the victim’s age or relationship to the defendant. This Note discusses and explains the uniquely heinous nature of such crimes, their markedly devastating effects on victims, and the inherent challenges and difficulties in successful prosecution, in order to emphasize the importance of allowing them special evidentiary consideration.

Part I discusses the history of spousal privileges, the two types of spousal privileges, and the justifications most often cited in support of their continued application. Part II reviews the evolution of the spousal crime exception and how different federal courts have broadened or expanded the scope of the exception in the context of cases involving crimes allegedly committed against a child victim. Part III discusses Federal Rules of Evidence 413, 414, and 415—landmark changes to federal evidentiary law reflecting Congress’s special concern for admitting certain probative evidence in sexual assault and child molestation cases. Lastly, Part IV argues that, in light of the unique characteristics of sex crimes—namely, their particularly reprehensible nature, their lasting effects upon both victims and society at large, the inherent difficulties in prosecuting them, and the pressing need to successfully and correctly convict sex offenders—which set them apart from other crimes, the traditional justifications behind spousal privileges fail to support their continued application to cases involving alleged sex crimes.



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