LEGAL GUIDE
Written by attorney Elisabeth K. H. Pasqualini | Feb 7, 2013

Texts Messages from One Spouse to Another Admitted in Child Abuse Prosecution In PA

By Shaffer & Engle Law Offices, LLC posted in Child Abuse on Thursday, February 7, 2013

The Spousal Privilege that protects confidential communications between spouses is outweighed in child sexual and physical abuse prosecutions. Text messages from one spouse to another were admissible at trial against the sending spouse.

By ** Attorney Elisabeth K.H. Pasqualini**, Sex Abuse Defense Attorney, Harrisburg, PA

In Commonwealth v. Hunter, ---A.3d---(2013), 2013 PaSuper 7, 2013 WL 150779 (January 15, 2013), the Superior Court of Pennsylvania concluded as follows:

"[T]hat where a defendant-spouse is the alleged perpetrator in current child abuse proceedings and where that abuse forms the basis of criminal proceedings against that defendant-spouse, the section 5914 privilege shall not apply at the defendant's criminal trial to preclude admission of spousal communications. We believe that the spouse cannot maintain a reasonable expectation that the martial communications she made will remain confidential under such circumstances."

Factually, the step-mother, who was the defendant, was charged with several crimes related to the abuse of an infant. The child had suffered a severe brain injury and later a cardiopulmonary arrest. During this time, the defendant sent about 50 texts to the Husband and the child's father regarding the incident. The authorities sought to admit the text messages at her trial as evidence of guilt. A pre-trial motion was filed seeking to exlude the statements as protected by the spousal privilege.

What is the Spousal Privilege?

In a criminal proceeding neither a husband nor a wife is competent or may be permitted to testify as to confidential communications made by one to the other, unless this privilege is waived upon the trial. In order for a confidential communication between spouses to be protected, knowledge must be gained through the marital relationship and in the confidence which that relationship inspires, with the intention it not be divulged. The common-law prohibition on testimony following termination of a marriage extends only to confidential communications made by one of the partners to the other; the prohibition does not apply to matters coming to one's knowledge through the marital relationship if the information is distinct from confidential communications. Confidential communications cannot be divulged without the consent of the other spouse.

Why the Exception Here?

In 1989, the legislature enacted the section 5913 privilege, which provides an exception to the general prohibition of spouses testifying against each other when the criminal proceeding involves bodily injury or violence attempted, done or threatened upon the minor children of husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them. 42 Pa .C.S.A. § 5913(2). This provision takes priority in child abuse prosecutions (physical or sexual) over the spousal privilege found in §5914.

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