By Robin L. Barton
The concept of “privilege” often arises in the criminal justice system, usually in the form of attorney-client privilege. However, there are other kinds of privilege that arise less often, such as doctor-patient or priest-penitent.
Another, less commonly, raised type of privilege is spousal privilege, which recently became big news when it arose in relation to the Bill Cosby cases.
The comedian has been accused by dozens of women of sexual assaulting and, in some cases, drugging them. The statute of limitations prevented the bringing of criminal charges or civil claims directly related to many of those alleged assaults.
So seven of Cosby’s accusers sued him in a civil lawsuit in Massachusetts for defamation, on the grounds that he and his representatives had branded them as liars. (In response, Cosby has countersued the women.)
The lawyers for the accusers wanted to depose Cosby’s wife Camille, claiming that she has information relevant to the lawsuit. But she raised spousal privilege.
Spousal privilege varies from state to state in terms of its name, scope and the proceedings in which it applies, i.e., criminal v. civil. But in general, there are two basic aspects of the privilege.
Testimonial privilege prevents one spouse from being forced to testify against the other. This type of spousal privilege usually applies only in criminal cases.
Marital communications privilege, which may apply in both criminal and civil cases, protects conversations between spouses during their marriage. It applies to both words and acts, such as gestures, that are intended to be private communications.
The reason for both kinds of spousal privilege is to protect the sanctity of marriage and allow spouses to speak candidly and confidentially to each other without fear that such conversations may later be used against them.
The marital communications type of spousal privilege is what’s at issue in the Cosby case.
US District Court Judge Mark G. Mastroianni ruled that Camille must answer questions at the deposition, explaining “[Camille Cosby] may possess a good deal of relevant, non-protected information which can be uncovered at a deposition.” But he added that she can refuse to answer those questions that seek information about their marital communications.
This ruling suggests that Camille could be compelled to answer questions such as whether she ever saw her husband in possession of the drugs he allegedly used to subdue his victims.
It’s not unreasonable to believe that Camille might have seen something relevant to this lawsuit.
After all, Barbara Bowman, one of the plaintiffs, claims that she blacked out after having dinner and a glass of wine at Bill Cosby’s New York City brownstone, where he had offered to mentor her and discuss the entertainment industry. When she came to, she was wearing only her underwear and a man’s T-shirt.
Since this alleged assault occurred in the Cosby home, it’s certainly possible that Camille observed something before, during or after the alleged incident that’s relevant.
In addition, Camille could be asked about her own actions, such as whether she picked Bill up from a hotel in which the sexual assaults allegedly took place or helped him in some way conceal such assaults.
But what makes this situation interesting from a legal standpoint is that Camille is not only Bill Cosby’s wife but also his business manager. Her dual role in his life raises the issue of whether spousal privilege should apply to all communications between Camille and Bill, regardless of whether they were between husband and wife or between manager and client.
Put another way: Does the fact that Bill and Camille Cosby are married automatically protect all of their communications regardless of the context in which those communications were made?
There are exceptions to the spousal privilege rule. For example, if a third party is present when spouses are talking, privilege doesn’t protect that conversation. So is there a business conversation exception to spousal privilege? If not, should there be?
In a footnote to his decision, Judge Mastroianni notes that the parties disagree on whether there’s an exception for conversations between spouses that were made in their capacities as business partners or as employer-employee.
The judge concludes that business conversations between spouses are included within what Massachusetts law calls “the marital disqualification rule.” Mastroianni rejects a state trial court decision that carves out an exception to the rule for “business communications between spouses acting solely in the capacity of employer and employee,” as conflicting with controlling precedent.
In the rejected case, Anderson v. Barrera, the plaintiff sued a doctor for malpractice and sought to depose the doctor’s wife, who worked as his nurse. The court in that case said that when a conversation occurs between spouses acting solely in their capacity as employer and employee, the marital relationship is only incidental to the employer-employee relationship. Because the two speakers, acting in their professional capacities, don’t fit the terms “husband and wife” in an important sense, excluding conversations made in an employer-employee relationship wouldn’t further most of the policy reasons behind the marital disqualification rule, concluded the court.
I agree with the court’s reasoning in the Anderson case.
Spousal privilege shouldn’t be a blanket protection, especially in this context. There’s no privilege between business partners. So any business-related communications between Camille and Bill Cosby shouldn’t be protected by spousal privilege simply because the business partners in this case also happen to be married.
Moreover, if Bill’s manager was some other third party, there’s little doubt that individual would be subjected to questioning as to what, if anything, he or she knows that’s relevant to the lawsuit.
So why should Camille be able to extend her spousal privilege to cover her business relationship with Bill?
Judge Mastroianni’s footnote concludes, “The court discerns no ability to isolate and parse conversations in which the spouses acted solely in their business-type capacities from their constant status of being married.”
Yes, it would be challenging to determine which communications between Camille and Bill are marital and which are business-related—but it wouldn’t be impossible.
For example, a conversation about Bill’s schedule of speaking engagements or appearances sounds like a business-related communication. And if that schedule puts Bill in a certain city at the time when an alleged sexual assault occurred there, the conversation could be relevant to the lawsuit.
The same principle already applies to other types of privilege.
For instance, suppose your doctor is also a friend. A discussion that you have with your doctor as a friend, say, in a bar and unrelated to your health or a medical condition wouldn’t be covered by doctor-patient privilege simply because you also have a doctor-patient relationship with your friend.
While drawing a bright line between doctor-patient and doctor-friend communications may be easier than distinguishing between husband-wife and business manager-client communications, courts should still try to do so.
Spousal privilege is intended to protect so-called “pillow talk,” not innocuous discussions about work one couldn’t reasonably argue were intended to be private—even if they happened to occur in private. Allowing an individual to use a privilege based on one relationship to shield communications made in the context of another relationship undermines public policy and may result in the exclusion of relevant information in a lawsuit.
Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.