Marital Disharmony: Examining the Adverse Spousal Testimonial Privilege and Its Impact in Washington State

Abstract: In Washington State, RCW 5.60.060(1) provides that “[a] spouse or domestic partner shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner.” This evidence rule, known as the adverse spousal testimonial privilege, allows a defendant to exclude witness testimony by their spouse under most circumstances. A product of common law tradition, this privilege stems from a time when the law treated women as chattel with no independent legal rights. Since Washington State codified the adverse spousal privilege, the United States Supreme Court amended the federal spousal testimonial privilege by vesting the power to determine whether to testify or not in the witness-spouse. That is, a witness-spouse may choose not to testify against the defendant- spouse, but the defendant-spouse cannot prevent the witness-spouse from willingly testifying. After this landmark decision, most states followed suit and amended their evidentiary rules to reflect the federal standard. However, Washington State remains one of four states that still retains the common law tradition as it once was, allowing the defendant-spouse to prevent spousal testimony (with a few specific exceptions). This Comment contrasts the evolution of the adverse testimonial privilege at the federal level with Washington State. It examines how Washington courts are slowly chipping away at the edges of this statutory privilege in the absence of legislative action. This Comment argues that despite legislative efforts to modernize the privilege by creating certain exceptions, the Washington rule remains overly burdensome for testifying witness-spouses to overcome and perpetuates historical inequities for women, who are often the witnesses and victims of their husband’s crimes. Finally, this Comment recommends that the Washington State Legislature follow federal precedent and vest the privilege solely in the witness-spouse.