Ghislaine Maxwell’s Secret Spouse May Not Escape Being Called to Testify Against Her
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 defendant also makes no mention whatsoever about the
financial circumstances or assets of her spouse — whose identity she declined
to provide to Pretrial Services,” Assistant U.S. Attorney Alison Moe said
during the Tuesday hearing.
That statement set the world abuzz, with articles in the New
York Post, the Daily News, the Guardian, The London Times, and elsewhere.
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 defendant also makes no mention whatsoever about the
financial circumstances or assets of her spouse — whose identity she declined
to provide to Pretrial Services,” Assistant U.S. Attorney Alison Moe said
during the Tuesday hearing.
That statement 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; 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 technical 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 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.
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