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Gay Marriage and Spousal Privilege August 14, 2013

Posted by Sobek in Law.

An interesting little story from Ace yesterday.

A man named George Murphy allegedly sexually assaulted Bobbie Jo Clary with a hammer.  Clary then allegedly took the hammer from Murphy and beat him to death with it, then stole Murphy’s van (I don’t know why the theft is even part of this story, all things considered, but whatever).  Clary also allegedly told her partner, Geneva Case, what she had done.

Clary is now on trial for murder in Kentucky.  Prosecutors want to compel Case to testify against Clary.  Case says no way, we’re practically married – they had gone to Vermont in 2004 to get a civil union – and married people get a privilege against testifying against one another, but Kentucky (gasp!) doesn’t recognize civil unions.  Therefore, argue the prosecutors, there is no spousal privilege for the lesbian couple, and Case can be compelled to testify.

The reason for the spousal privilege is that lawyers and judges figured that whatever benefit there might be to the fact-gathering function of the court, it was outweighed by the need to keep government from jeopardizing the marriage relationship.  But as the saying goes, where the reason for the rule ends, there ends the rule.  So if you don’t have that protected kind of marriage relationship, you don’t have a privilege.  I worked a case where opposing counsel, stupidly, had what should have been a privileged conversation with his client in the presence of her (the client’s) ex-husband.  No spousal privilege, so no attorney-client privilege (as it turned out, we didn’t press the point, but it was dumb of the lawyer to open himself up like that).

Does the reason for the rule extend to cover a lesbian civil union?  Obviously it’s true that compelling testimony will create tension in the relationship (as argued by Clary’s attorney).  But the same is true of a boyfriend-girlfriend relationship, or a roommate relationship, or an employer-employee relationship.  Keep in mind that the spousal privilege doesn’t depend on whether the spouses actually like one another; the soon-to-be-ex-wife may have less to lose than the soon-to-be-ex-employee.  It’s marriage, not the presence or lack of tension in the relationship, that is the first and last word in the privilege.

So Clary and Case can argue that Kentucky must recognize their Vermont civil union as the functional equivalent of marriage, especially as it was the most they could have gotten out of Vermont in 2004.  But Vermont allowed full marriage in 2010, and Clary and Case don’t seem to have availed themselves of that institution.  Did they have to in order to get the privilege?

Again, Kentucky does not recognize homosexual relationships at all, let alone full marriage.  Case can point to the Full Faith and Credit clause of the U.S. Constitution and argue that Kentucky must recognize the valid legal acts of Vermont, including the conclusion of homosexual civil unions.  My response to that, is that Kentucky amended its constitution to define marriage as between one man and one woman in 2004 – doesn’t Vermont have to give full faith and credit to Kentucky’s actions?  If we’re locked in a battle between giving credit to the actions of one state over another, why should Kentucky yield rather than Vermont?

Of course, Case’s argument isn’t so much about Full Faith and Credit as it is about Equal Protection under the Fourteenth Amendment.  Because the Kentucky law provides a benefit to heterosexual spouses, it cannot refuse that benefit to homosexual couples.  I’d point out that such an argument is clearly not within the plain language or the original intent of the Fourteenth Amendment, but to do so I’d have to pretend that judges care about either thing, and obviously that’s not the case.

Rather than provide a clear yes or no answer to whether the privilege does or should apply in this case, let me ask a slightly different question: if Murphy sexually assaulted Clary with a hammer and Clary then beat Murphy to death with it, why is Clary on trial in the first place?


1. thirdnews - August 14, 2013

Never mind the self-defense, does federal law trump state law in this argument? Kentucky recognizes common-law heterosexual marriage, and they were cohabiting before they amended their constitution.

2. Michael - August 14, 2013

It’s not self-defense if the sexual assault on Clary was over when the homicide occurred. But it sure sounds more like voluntary manslaughter than murder to me. If I were the prosecutor, I’d think twice before I tried to stick a murder rap on a victim like Clary.

thirdnews - August 14, 2013

Couldn’t it be argued Clary feared another attack?

3. Michael - August 14, 2013

It could, but if she had the hammer and he wasn’t attacking, that might be a tough sell. Depends on the particular facts, which we don’t know, but at first blush it looks like vengeance. It sure doesn’t help her case that she stole his van instead of calling the police. (Which, Sobek, is why the theft is actually a very relevant part of the story, because it is indicative of her mens rea at the time.)

4. Michael - August 14, 2013

If I had to bet on the outcome of this case, I’d put my money on a plea bargain. She agrees to voluntary manslaughter and a light sentence. The prosecutor avoids the embarrassment of losing a murder case because the jury decided “WTF, who cares if she’s guilty, he had it coming.”

5. geoff - August 14, 2013

because it is indicative of her mens rea at the time

I love dirty lawyer talk.

thirdnews - August 14, 2013

I disagree Michael. We don’t know if the residence had a phone, or if she had a cel, and having the hammer in your hand doesn’t exclude fearing for your life -neither does a gun for that matter.

Even is Clary was medically qualified to determine his death, any evidence of repeated blows can be argued as a refusal to psychologically process his inability to continue the attack.

Further, if he didn’t live alone, there was a risk from any other occupant, and thus Clary leaving the scene with his van is arguable too. Does the victim of a crime have a duty to seek permission to take away the perpetrator’s weapon or transportation?

I’d like to see the case argued but the political climate, with respect to gay rights, is likely to trump the process.

6. OBF - August 14, 2013

How to Destroy the Institution of Marriage in the Modern World
Step 1 – Call it a civil right
Step 2 – Change the definition of marriage that had been accepted for a few thousand years.
Step 3 – Convinve the world that gay marriage is just like hetrosexual marriage by showing the wonderful couples in everyday life. You will need to avoid the probable facts that homosexual relationships are in fact quite different than hetrosexual marriages with a greater degree of open relationships in the former.
Step 4 – Point out that marraige for hetrosexual couples really stinks with lots of cheating, anger and unhappiness.
Step 5 – Accept no other view and beat the crap out of anyone who disagrees with your point of view. Homophobe seems to be a wonderful catch-all phrase to destroy the opposition.
Step 6 – Since gay marriage and a gay lifestyle is just like traditional marriage…traditional marriage must be just like gay marriage. This should logically lead to traditional marriages embracing a more hedonistic approach as in “Come on. You know ya wanna.”
Step 7 – The new social experiment and acceptance of adultry (by whatever name you would to call it.) is now in place and in 25 or so years we’ll see how this all turns out.

In the meantime let’s look at polyamory, marriages for specific time frames and the government taking a much larger role in raising children with the appropriate indoctrination.

Its a great time to be alive.

Just hit the 40th marriage anniversary with my wife. I love her now more than ever. This old and antiquated concept of marriage is very, very sweet.

(None of this has much to do with the original post. I just thought how complicated we are making much of our interpersonal relationships by going done a path that I don’t recall having seen before…except on the frescoed walls of Pompei.)

7. Sobek - August 14, 2013

“Which, Sobek, is why the theft is actually a very relevant part of the story, because it is indicative of her mens rea at the time.”

Yes, which is only relevant if you’re arguing self-defense, but self-defense is not the key issue in the article. The article is only about the privilege.

“Never mind the self-defense, does federal law trump state law in this argument?”

Federal constitutional law trumps state constitutional law, per the supremacy clause.

8. skinbad - August 14, 2013

I’m glad I get to exercise spousal privilege once in awhile.

9. Michael - August 14, 2013

Yes, which is only relevant if you’re arguing self-defense

Or no, if she’s going to argue that at most she’s guilty of the lesser included offense of manslaughter, rather than full-blown “malice aforethought” murder. That’s probably why Kentucky is real anxious to find out what she told her girlfriend after she fled the scene. There’s something odd here that we don’t know; the state must have some reason to suspect she killed him in cold blood, never mind the alleged sexual assault.

10. Tushar - August 14, 2013

>>Kentucky does not recognize homosexual relationships at al

Hmm, so if the AG of Kentucky sees two dudes exploring each other’s oeuvre like there is no tomorrow, will he say: what the hell are they doing? I don’t recognize this peculiar activity at all!

thirdnews - August 14, 2013

Tushar, are you willing to give expert testimony? 😉

11. Retired Geezer - August 14, 2013

…so if the AG of Kentucky sees two dudes exploring each other’s oeuvre like there is no tomorrow…

Some sort of thread winner, I reckon.

12. family - January 17, 2014

Unfortunately this isn’t just a legal argument, message board fun topic. It’s real life and she has a family and she’s loved. Something shitty happened to her and she was given the choice…. sign a plea deal admitting and get the chance to get out in 17 years, or risk getting life without parole from a conservative jury. How is that justice? She’s the victim and she’s paying. Of course she left the scene, she was scared to death. Who wouldn’t be in a similar situation, especially if it had also happened earlier in your life.

13. geoff - January 18, 2014

..and what does that have to do with our legal argument, message board fun topic site? There are awful tragedies every day that we don’t have the time, energy, or interest to follow. On this site we chose to examine the legal ramifications of a case with some odd circumstances, not get personally involved in a murder case.

I can understand that you found our discussion cold and abstract on a topic that appears to affect you personally. But that’s what this site is for – this isn’t Facebook.and it’s not the “Friends of Clary Support Site.” We don’t really care if she’s innocent or guilty – this is our site and the only thing we found interesting about this awful case was the odd legal angle.

14. Cathy - January 18, 2014

Yea. What Geoff said!

15. Retired Geezer - January 18, 2014

What Geoff said!

I could use that one a bunch… in fact, I do.

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