The privilege belongs to the person that is on trial. Just like the psychiatrist can't testify to crimes that you may have confessed in session, the spouse can't testify to marriage pillow talk.

See, in doctor patient privilege, I get that. There's a dichotomy there--hell it's part and parcel for me why you don't schtup your doctor--to maintain that remove. I get most of the things they do to protect the accused lawyer/client, priest/supplicant, doctor/patient but they all have two different roles. So it parses out to me that the wife can't testify against her husband. Very few shows seem to play it so that it ever comes up that it's a matter of the husband testifying, and it just reinforces a hierarchy in the relationship.

Marriage pillow talk of "I made purses out of their genitalia and sold them for thousands of dollars back to their mothers." deserves no privilege I don't want to give it. I would like to have the right to run screaming very loudly away.

I would like to have the right to run screaming very loudly away.

you may, and you can even talk about it in your divorce proceeding, because the privilege only applies to criminal cases.

I was randomly in this thread b/c of earwax...anyway there are two privileges -- the right to prevent a spouse from testifying, and the privilege of communications between spouses.

In federal court the witness spouse can choose not to testify. In most state courts the party spouse can elect not to have the spouse testify.

As for the second privilege, it's more complicated -- it belongs to the person who communicated the material, unless it is a criminal case where the victim in the spouse or a civil case between spouses.

Oh, I'd like to be able to run to the nearest police station. Of course, if the crime is against me, I can testify, of course, and if it's against our family, right? What about if my husband is abusing my sister? My sister's husband's child?

It's not about things done, is it, so much as things said, right? So if he comes back to me and said he assaulted my daughter, I can testify? He says he assaulted my sister's daughter? I can report him and get the whole ball rolling? If he assaulted some girl I don't know? Then no?

eta:

unless it is a criminal case where the victim in the spouse

The right doesn't trickle down through the family any?

The right doesn't trickle down through the family any?

I should have said "where the victim is the spouse or the children" so you got me there.

So if your husband beat up your sister or daughter, you can testify in federal court, but maybe not in every state court.

You can tell the police whatever you want because spousal privilege would not bar you there (if you told the police something *you* wanted to keep secret, then it's no longer privileged, though.)

I am reassured by the earwax discussed. At some point in grad school i was in casual conversation with several designers and mentioned that i have excessive earwax production which requires regular ear lavages. One of the scenics looked at me very deadpan remarked "And you wonder why you're single?"

So i am glad to see that there are people out there, happily not-single, with excessive earwax.

Me? I love the earhook. It is so much faster and less unpleasant than lavage. Mostly now i just use the murine "loosening" drops once a month to soften up any clumps and let em work their own way free. It works sometimes. I really really dislike the lavage process. It does horrible things to my equilibrium for hours.

So if your husband beat up your sister or daughter, you can testify in federal court, but maybe not in every state court.

That seems broken to me. What core value of the legal system or the country is stronger for a rule that says that maybe I can't testify that my husband told me he killed my daughter?

Spousal privilege is controversial, and state court laws often lag federal ones. The stated justification is promotion of the sanctity of marriage -- there's lots of backwards legislation that use that as a justification.

Not that I'm trotting down the aisle any time soon, but spousal privilege bothers me more than the wrong pre-nup or no pre-nup at all. I mean, we have all these ideas about the sanctity of marriage, but just about any straight couple can do it with minimal effort, realise legal benefits, and then there's the icky privilege tangle which is really not a way I want to get bound up with anyone.

Sanctity of marriage sailed when it became obvious that divorce was required. It's not an unbreakable hallowed bond forged by your deity of choice. It's a legal agreement, and as such I don't really think civilisation will collapse if it's not all the way up at the top of the driven snow.