Sexual Activity as a Confidential Marital Communication

Is having sex with your spouse “communication”? The court of appeals addressed this issue in State v. Godbey, a child sexual abuse case. The victim alleged that the defendant engaged in specific, unusual sexual acts with her. The court considered whether the defendant’s wife could be compelled to testify that the defendant engaged in similar acts with her, or whether those acts were covered by the confidential marital communication privilege. Summary of Godbey. The defendant was charged with sexually abusing his stepdaughter. She alleged, among other things, that the defendant “would turn her over and ‘hump’ her back until he ejaculated.” The defendant’s wife – and the victim’s mother – later told law enforcement that “when defendant engaged her in sexual activity, he would do the same ‘back humping’” that the victim described. The trial judge ruled that sexual acts between spouses normally fall under the confidential marital communication privilege, but that in this case the acts fit within the exception to the privilege for “evidence regarding the abuse or neglect of a child.” G.S. 8-57.1. The judge also determined that the acts were admissible under N.C. R. Evid. 404(b) as evidence of the defendant’s modus operandi. The court of appeals affirmed, as explained below. The two marital privileges. Remember that there are two distinct martial privileges. The first belongs to a spouse who may be called as a witness: he or she generally may refuse to testify against his or her spouse. G.S. 8-57(b). The second belongs to both spouses [...]