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Spousal Privilege in Domestic Cases in Virginia

Sept. 1, 2021

In domestic cases when the police are called and a spouse is charged with a crime, such as domestic assault, one of the most common questions of the accused is whether their spouse can testify against them. This question arises out of what many people understand as spousal privilege, also known as marital privilege and husband-wife privilege. The privilege provides spouses protection from being forced to testify against each other in criminal or related cases. The reason for this privilege is to protect marital relationships from the harm that could ensue if spouses are compelled to testify against each other. But there are exceptions.

Exceptions to Spousal Privilege

When it comes to domestic criminal cases, there are exceptions to the privilege. The exceptions can be found under Va. Code § 19.2-271.2 and Va. S. Ct. Rule 2:504(b).

A spouse can be compelled to be called as a witness against the other under the following circumstances:

  • Where a spouse commits an offense against the other spouse

  • Where a spouse commits an offense against a child (either theirs or of the other spouse)

  • Where a spouse commits an offense against the property of either

  • Where a spouse is charged with forging the other’s name or uttering or attempting to utter a writing bearing the other spouse’s forged signature

  • In cases of criminal sexual assault and crimes against nature involving a minor as a victim

  • In cases of incest and child abuse, where the defendant and the victim are not married to each other

The Failure of a Spouse to Testify

A spouse who is subpoenaed to testify under one of the above listed exceptions may be held in contempt it they refuse to testify. However, such a failure to testify cannot be used as a presumption against the accused in the criminal proceeding.

Just because a spouse cannot raise spousal privilege to avoid having to testify, does not mean that there might be some other protection for the spouse who does not want to testify. If testifying could lead to self-incrimination, anyone can refuse to testify by “pleading the fifth.”

Virginia Domestic Case Lawyer

If you’re facing criminal domestic charges, you need an attorney who has experience with handling these types of cases. Such an attorney can make sure you get the best outcome in your case. Bryan J. Jones is committed to his clients and will develop a defense strategy tailored just for you. Contact Bryan J. Jones, LLC today.