by Renée L. Rold

I. Introduction

Spousal privilege exception statutes are used to compel the testimony of a spouse when one spouse has committed a crime against the other spouse. These statutes do not allow the victim spouse to claim spousal privilege, which in the past allowed spouses the right to refuse to testify against the other spouse with no repercussions. States without these statutes are unable to compel the testimony of a spouse and, therefore, in some instances cannot prosecute the crimes of one spouse against the other.

All states, including Missouri, should adopt compelled spousal testimony statutes because the enforcement of these statutes results in an increase in prosecution of domestic violence cases and less post-arrest violence to the victim.¹ Although some spousal victims of domestic violence voluntarily testify, the compulsion statute takes the decision to testify out of the victim's hands. The state should carry the burden of prosecution, not the victim.

This article analyzes the enforcement of spousal privilege exception statutes used to compel spousal testimony, the advantages and disadvantages of such statutes, and the advisability of other jurisdictions, such as Missouri, adopting similar statutes. Part II will examine the concept of spousal privilege and discuss the various statutes in jurisdictions enacted to enforce compelled victim testimony in spousal domestic violence cases. Part III will analyze the criticisms of these statutes and look at the benefits of these statutes. Part IV will look at existing spousal privilege exception statutes, while Part V will analyze important considerations and the problems states should address when enacting such statutes.

II. Concepts Behind Spousal Privilege Exception Statutes

Spouses of domestic violence frequently refuse to testify against their abusers.² Domestic violence victims have valid reasons for not wanting to testify, such as threats of physical violence by their abuser if they testify.³ Because these women have been abused in the past, their fear of abuse if they testify is reasonable.⁴ Other victims are convinced by their abuser that the violence will cease and the abuser will change. Still others are motivated by their economic situation. These victims fear a loss of income if the abuser goes to prison, and in many instances the abuser is the only provider.⁵

States have an interest in prosecuting domestic violence cases not only for the protection of the victims but also for economic reasons. Forty percent of police calls are related to domestic violence.⁶ Domestic violence consumes more police time than any other felony involving physical violence.⁷ American courts bear a heavy burden in disposing of domestic violence cases.⁸ Domestic violence "places great stress" on "medical personnel and mental health providers."⁹ Many domestic violence victims contribute to the homeless population, thus further increasing costs on society.¹⁰ In addition, domestic violence increases absenteeism in the work place and lowers employee productivity.¹¹ For these reasons, the state's best interest is to enact statutes that will deal properly with domestic violence and send the message to abusers that the state will prosecute. Prosecuting domestic violence offenders has a correlation with decreasing the number of future assaults by the offender on the victim.¹² The state can also prevent future cases of domestic violence by preventing the cycle from passing on to the next generation.¹³ Children growing up in abusive homes are likely to seek out abusive relationships or become abusers themselves when they become adults.¹⁴ By stopping the pattern and relaying the message that domestic violence will not be tolerated, the state can prevent these children from further perpetuating the cycle.¹⁵ A decrease in domestic violence not only helps the victims but also serves the state's economic interests.

The attrition rate for domestic violence cases has been documented as high as 80 percent in some jurisdictions.¹⁶ "One of the reasons for infrequent prosecution of spousal assault is that the defendant spouse coerces the victim spouse into invoking the privilege against her own desires...."¹⁷ For this reason, many states have enacted compelled spousal testimony statutes as part of their domestic violence prosecution policy. If the victim refuses to testify she will be held in contempt.¹⁸ However, some states have moved away from enforcing jail time as the punishment for contempt.¹⁹ The prosecutor may not take the contempt route with the victim and will instead introduce other evidence to build his or her case, such as: excited utterance exception; medical diagnosis exception; and state of mind exception.²⁰ These exceptions may be enough to build a case for the prosecution without the testimony of the spouse.

Cases do exist in which only the victim's testimony can provide the evidence to successfully prosecute the case, because she is the only witness to the crime.²¹ Many states have recognized this problem and have enacted spousal privilege exception statutes. The spousal exception statute is a vital aspect of compelled victim testimony, because many domestic violence victims are married to the abuser and will claim spousal privilege to avoid testifying.

A. Various Statutes

Most states define the victims of domestic violence as a family or household member, usually including a spouse.²² Spousal abuse is prevalent throughout our society, and no race, ethnicity, or economic class is immune.²³ Most states also have a statute stating that if one spouse is the victim of abuse by the other spouse, the victim's testimony can be compelled and spousal privilege cannot be asserted.²⁴ In 1995, Texas joined the majority of states by abolishing the spousal privilege in cases where one spouse is charged with a crime against the other spouse.²⁵ This amendment of the spousal privilege statute "sends a message that spousal violence is a crime against the state that society will not tolerate."²⁶ States that do not have compelled spousal testimony imply that domestic violence is not a crime that offends the state, but rather a matter between a husband and wife.²⁷

Treating spousal domestic violence differently than other violent crimes conveys the message that the state feels domestic violence is not as important and matters of the family should not be of concern to the state.²⁸ In every other crime, prosecutors compel testimony. Failure to enact statutes that create an exception to the spousal privilege sends the message that the state views wife beating differently than stranger assaults. This reflects societal attitudes that it is not a crime to beat a spouse, mainly a wife.²⁹ "Until the late nineteenth century, a man's right to use violence to manage his household was legally protected and socially condoned."³⁰ Women's shelters and statutes criminalizing domestic violence were not seen until the women's movement in the 1960's.³¹ "Yet an estimated four million women continue to be battered each year because attitudes that endorse the historical subordination of women remain embedded in both the male psyche and the response systems of society."³² A state can successfully prosecute domestic violence cases only if it abolishes spousal privilege. The state has a great interest in stopping and preventing domestic violence. Domestic violence is a burden on the state's economic status and the state has an interest in protecting women.

III. Responses to the Statutes

Critics claim spousal privilege exception statutes further victimize the victim by taking away her power to make decisions regarding the prosecution of her spouse. Advocates feel the compelled testimony takes the burden off the victim and places it on the state, thereby conveying to the defendant that the victim has no choice.

A. Criticisms

An Alaska case, where a victim was jailed after being held in contempt for refusing to testify against her husband, brought attention to the spousal compelled testimony issue.³³ Critics argued this further victimized the victim by taking power away from her and eliminating her ability to determine what is best for her and her family.³⁴ The critics' argument is that the victim spouse should be given the choice of deciding what is safest in her situation. Critics have also argued that, by taking away the choices of the victim these statutes further "erode a victim's self-esteem and sense of control."³⁵

Some critics have expressed fear that these statutes may result in "increasing risks of retaliation and discouraging victim reporting."³⁶ Opponents suggest that women will be dissuaded from seeking help to avoid their husband being sent to jail.³⁷ "Welcome back to the bad old days, when victims had to fear both their abusers and the system."³⁸ However, no data exists to support the theory that this fear will manifest. In fact "recent studies concluding that a failure to prosecute domestic violence increases the physical and emotional harm to victims and their children spurned a number of jurisdictions into tackling domestic violence, even when victims decline to voluntarily testify."³⁹ Victims do fear their abusive husbands; however, women commonly decide not to testify and thus return to the vicious cycle of abuse. The state has an interest in recognizing that these women need help to break the cycle and stop the violence.

Critics feel the marital privilege should not be abolished in spousal domestic violence because the exception will erode marital intimacy and marital privacy, and encourage marital discord.⁴⁰ However, none of these justifications is strong enough to outweigh the need for compelled spousal testimony. Although the state has an interest in fostering family unity, allowing the perpetuation of the cycle of domestic violence is too high a price to pay.

Marital testimonial privileges apply to both spouses.⁴¹ The immunity privilege rests with the testifying spouse and the communications privilege rests with the defendant.⁴² "When a witness currently married to the defendant spouse is called to testify regarding confidential communications made during the marriage, both privileges apply and either may be invoked to prevent testimony."⁴³ Waiving the immunity privilege allows the spouse to testify against the defendant spouse. The testifying spouse may not testify as to confidential communications made during the marriage if the defendant spouse claims the communications privilege.⁴⁴ States that have exceptions to these privileges allow and provide for compulsion of victim spousal testimony.

Critics who argue spousal privilege exception statutes do not foster marital intimacy assume that spouses know of the privilege.⁴⁵ The critics' justification rests on whether spouses know of the privilege and rely on it in their communications. Rarely do those outside the legal profession know the rules regarding marital privilege.⁴⁶ Spouses who do not know of the privilege do not rely on the privilege when dealing with their spouse. The spousal privilege does not affect marital conduct because normally spouses do not know of such privilege.⁴⁷

Courts have consistently rejected the constitutional privacy interest of spousal privilege.⁴⁸ The freedom promised by the right to privacy runs up against women's right to security in the home...."⁴⁹ The security of women is a greater interest than marital privacy.⁵⁰

Marital harmony is cited as a justification for not abolishing the spousal privilege in domestic violence cases, the theory being that reluctant spouses who are forced to testify will disrupt the relationship.⁵¹ This rationale is hypocritical because the exception actually fosters marital harmony. If marital harmony is to be protected, the spouses within the marriage must be protected from violence. Violence does not create marital harmony. The marital harmony justification assumes that a battered wife is on good terms with her husband and forcing her to testify would disrupt the peace in their marriage.⁵² "And if there were, conceivably, any such peace, would it be peace such as the law could desire to protect?"⁵³

B. Benefits

Advocates support spousal privilege exception statutes for various reasons. Statistics show that when women have to testify, they do so and rarely end up being held in contempt.⁵⁴ One study of the no-drop policy in the San Diego City Attorney's office found that, between the years of 1988 and 1993, only eight arrest warrants were issued for contempt. In addition, the study found that only two victims were actually jailed over-night out of the 400-500 cases their office prosecutes monthly.⁵⁵ These statistics show that a high percentage of victims do cooperate with the prosecution.

Compelled testimony policies relieve the victim of the responsibility for the conviction because the victim has no choice but to testify. Compelled testimony also shows the defendant that, regardless of his attempts to stop her, she will be forced to testify, and the defendant is, therefore, less likely to blame the victim.⁵⁶ In many cases, the defendant agrees to plead guilty to a lesser offense or the defendant pleads guilty because the defense knows that, with the victim's testimony, the state will proceed and likely win.⁵⁷

Many victims who at first wanted the charges dropped will end up cooperating with the prosecution.⁵⁸ Studies have found a decrease in the number of victims asking that the charges be dismissed upon learning the state will proceed with the violation and compel their testimony.⁵⁹ When the state treats domestic violence charges as a crime against the state, victims realize their abuser will be punished like any other criminal. Viewing the abuser as a criminal enables the victim to better understand why the state must move forward with prosecution.

III. Existing Statutes States Should Model

The first statute quoted below deals with the spousal privilege exception. The statute is Florida's husband-wife privilege statute, which it is concise and broad enough to cover a range of crimes.⁶⁰ This statute allows compulsion for crimes against spouses and is not limited to only violent crimes. Under this statute, compelled spousal testimony applies to not only domestic violence crimes but also to crimes such as arson, stalking, kidnapping, burglary, theft, etc. Some states have statutes that apply only to violence by one spouse against another spouse.⁶¹ In these states a victim can only be compelled to testify if she sustained physical injury by her spouse, which fails to recognize other forms of domestic violence such as stalking or violation of an order of protection.

(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

(2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.

(3) There is no privilege under this section:

(a) In a proceeding brought by or on behalf of one spouse against the other spouse.

(b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.

(c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made. (emphasis added)

The second statute (below) is California's newly enacted contempt statute. The statute is well received by critics and advocates of compelled spousal testimony because it does not enforce jail time on the first instance of contempt.⁶²

(a) Except as provided in subdivisions (b) and (c), when the contempt consists of the omission to perform an act which is yet in the power of the person to perform, he or she may be imprisoned until he or she has performed it, and in that case the act shall be specified in the warrant of commitment.

(b) Notwithstanding any other law, no court may imprison or otherwise confine or place in custody the victim of a sexual assault for contempt when the contempt consists of refusing to testify concerning that sexual assault.

(c) In a finding of contempt for a victim of domestic violence who refuses to testify, the court shall not incarcerate the victim, but may require the victim to attend up to 72 hours of a domestic violence program for victims or require the victim to perform up to 72 hours of appropriate community service, provided that in a subsequent finding of contempt for refusing to testify arising out of the same case, the court shall have the option of incarceration pursuant to subdivision (a). (emphasis added)

Florida's spousal privilege exception statute and California's contempt statute should be adopted by states that have yet to enact similar statutes. The spousal privilege exception statute is vital to the disposal of domestic violence cases because it enables prosecution. To secure the prosecution of related crimes, such as violation of an order of protection, states should adopt or amend their spousal privilege exception statutes to include all crimes. The Florida statute is broad enough to include all crimes against a spouse, and thus is an example other states should follow. California has recognized that holding a victim in contempt of court for refusing to testify may have some harm. The victim is not sentenced to jail on the first instance rather, she is sent to counseling or to do community service. The counseling or community service helps the victim realize the importance of her testimony. States should enact similar statutes to California's spousal privilege exception statute and Florida's contempt statute to successfully prosecute domestic violence cases and to protect the victim from jail time.

IV. Considerations When Enacting Spousal Privilege Statutes

The Texas legislature considered numerous factors when enacting their exception to spousal privilege. The Texas Senate created an Interim Committee on Domestic Violence due to the findings of a gender bias task force that reported that leaving the choice to testify with the victim gives the "batter a wedge to use" against her.⁶³ After public hearings, telephone conversations and much communication with the citizens of Texas, the committee recommended to "modify the statutes to remove the spousal privilege in cases where the spouse is the victim of domestic violence."⁶⁴ Committee reports indicated that more than 50 percent of all domestic violence cases in which the spouse refused to testify were not prosecuted, even in jurisdictions where there was a "No-Drop Policy."⁶⁵ In a thorough investigation, the committee acknowledged that retaliation against the victim might result from compelled testimony; however, "no backlash or contempt charges have resulted against unmarried victims where no privilege existed."⁶⁶ The committee's final report stated that the new law is intended to "relieve the pressures to drop charges placed on the married victim," and also claimed it will reduce the likelihood of the victim being battered for cooperating with the prosecution.⁶⁷ The committee's report motivated the Texas legislature to follow the majority of states and enact a spousal privilege exception statute.

The Texas legislature also considered future problems that may arise. For instance, rather than referring to domestic violence against a spouse by another, the legislature used the term crime against the spouse.⁶⁸ The Texas statute can be interpreted as extending beyond domestic violence or assaultive conduct.⁶⁹ The Texas statute thereby widens the use of the compelled spousal testimony in cases where violence is not involved. In addition, the Texas statute does not exclude enforcing the spousal privilege exception when one spouse's crime against the other involves an offense against a third party, and allows compulsion at the trial of all cases.⁷⁰ For example, if one spouse assaults the other spouse and, in addition, commits an offense against a third party, the spousal privilege exception would apply and the state could compel the victim to testify at the offending spouse's trial for the crime against the third party. A typical scenario involving a third party exists when the husband believes his wife is having an affair and, in a jealous rage, harms her and the person he believes is her lover.⁷¹ In some states the spousal privilege exception applies only to trials in which the defendant is accused of a crime against the spouse and not to trials involving third parties.⁷² States have an interest in compelling spousal testimony in these third party instances because crimes involving a victim spouse and a third party are usually related.⁷³

The Texas legislature also enacted other provisions related to domestic violence cases.⁷⁴ "Section 1 of the bill amended the Texas Code of Criminal Procedure to include language in witness' summons informing the witness that coercion, threats, and retaliatory harm to the witness are criminal offenses. Further, Section 3 requires trial courts to give priority docket settings to criminal actions involving family violence. Last, Section 4 relates to domestic violence training for prosecuting attorneys."⁷⁵ The provisions further protect the victim by letting the abuser and victim know that domestic violence is a punishable crime and by providing swift, knowledgeable prosecution of the case.

Texas has experienced impressive results since enacting their spousal privilege exception statute in 1995. The city of Houston had a 50 percent attrition rate before the enactment of the spousal privilege exception. Houston now disposes of 70 percent of all domestic violence cases through guilty pleas or convictions.⁷⁶ The increase in the disposal rate is due to the enactment of the spousal privilege statute. Defendants are more inclined to plead guilty because of the prosecution's ability to win cases by compelling victim spousal testimony.⁷⁷ The spousal privilege exception statute has proven to be a successful tool when used in the prosecution of domestic violence cases.

V. Conclusion

The attrition rates of domestic violence cases are an obvious problem in the United States. An estimated four million women are battered every year by their significant other.⁷⁸ Statistics from the Federal Bureau of Investigation "indicate that a woman is beaten every eighteen seconds, and according to the Surgeon General, abuse inflicted by intimates constitutes one of the leading causes of injury to women in the United States."⁷⁹ Of all the women killed each year in our country, 30 percent die at the hands of their male partners.⁸⁰

Many states have recognized the problem of domestic violence and have enacted statutes to improve prosecution of domestic violence offenders.⁸¹ States enforcing these statutes have a noticeable drop in domestic violence attrition rates.⁸² Enforcement of compelled spousal testimony statutes is necessary in many instances to win a domestic violence case. Although critics claim these statutes further victimize the victims, recent research indicates that such statutes aid the victims by removing the responsibility of winning the case from the victim and by letting defendants know that domestic violence cases will proceed.⁸³ Compelled spousal testimony "has allowed jurisdictions to move forward and prosecute domestic violence perpetrators with fewer concerns that victims will change their minds and refuse to testify, for the policy helps victims speak out by abating their fear of retaliation from their partner."⁸⁴ Incidents of further violence decrease when the spouse is compelled to testify.⁸⁵

Prosecutors in states with compelled testimony statutes proceed where the victim resists testifying by filing a motion under the state's spousal privilege exception statute. Although many cases can be won without the victim's testimony, in some cases the only evidence is the victim's testimony.⁸⁶ These statutes precipitate victims' cooperation. States that have yet to enact spousal privilege exception statutes should do so.

In considering how to enact statutes, states should consider the evils they want to rectify. The Texas legislature formed a committee that held a thorough investigation on the issue of compelled spousal testimony. However, given all of the current data, this may not be necessary. The problems that the Texas committee addressed have already been addressed by many jurisdictions that have enacted the spousal privilege exception statute. An important consideration for the legislature is the wording of the statute. States should follow the Florida model because it does not limit the spousal privilege exception to violence. The statute applies to all crimes committed by one spouse against the other and courts may interpret the statute to include crimes committed against third parties involving the victim.⁸⁷

States may also want to enact additional provisions regarding domestic violence, as Texas did. Provisions to train prosecutors and have priority docket settings enable swift prosecution of domestic violence. Language on the subpoena may help to inform both the victim and the abuser that further violence is a punishable crime.⁸⁸ Studies found that a uniform system of subpoenaing all women to testify works best because the "appearance of compulsion shields the woman from blame and pressure by the batterer to drop the case."⁸⁹ An interview with one man who abused his wife illustrates the effect of the policy on him:

I told her, "I may as well do all that stuff again since I'm going to jail for it. So she tried to get the charges dropped..... But the State picked up the charges and would not drop them. I don't know if I would have hit her. I think it helped her because I knew she tried and she couldn't drop them so I couldn't really blame her."⁹⁰

The abuser who gave this interview realized he could not coerce his victim to refuse to testify. The abuser received the message that the state will prosecute domestic violence cases as it would any other crime. Once the abuser realized he could doing nothing about her testimony, he did not blame her. Taking the blame away from the victim is the purpose of the spousal privilege exception statute.

States should also enact a statute similar to California's contempt statute because it does not enforce jail time for the first instance of contempt for refusal to testify.⁹¹ A victim either is sent to domestic violence counseling or ordered to perform appropriate community service.⁹² Only when the victim refuses to comply with these orders will she be sentenced to jail time.⁹³

Domestic violence affects all aspects of society and no race, ethnicity, or economic class is immune.⁹⁴ If domestic violence is not combated, the cycle of violence will perpetuate itself through generations to come, leading to enormous economic demands on society.⁹⁵ With the benefit of decreased attrition rates and decreased incidents domestic violence, prosecutors can rest assured that using a compelled spousal testimony statute is the correct response to a victim who refuses to testify. Although prosecuting a domestic violence case may involve more than the victim's testimony, the exception to the spousal privilege is vital to the prosecution in ensuring a conviction where the victim's testimony is the only evidence.

Endnotes

1 Angela Corsilles, No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?, 63 Fordham L. Rev. 853, 877 (1994).

2 Laurie Salame, A National Survey of Stalking Laws: A Legislative Trend Comes to the Aid of Domestic Violence Victims and Others, 27 Suffolk U. L. Rev. 67, 82 (1998).

3 Donna Meredith Matthews, Making the Crucial Connection: A Proposed Threat Hearsay Exception, 27 Golden Gate U. L. Rev. 117, 165 (1997).

4 This note refers to the pronoun "she", "women", "victim" as the victims of domestic violence. See U.S. Department of Justice, Bureau of Justice Statistics, Report to the Nation on Crime and Justice: The Data 21 (1983) (reported that 95% of all assaults on partners or ex-partners are committed by men). This is not meant to reflect any bias, merely the reality that women are the majority of domestic violence victims.

5 David M. Gersten, Evidentiary Trends in Domestic Violence, 72 Fla. B. J. 65 (1998). See also State ex rel. Williams v. Marsh, 626 S.W.2d 223, 229 (Mo. banc 1982).

6 Developments in the Law -- Legal Responses to Domestic Violence, 106 Harv. L. Rev. 1498, 1501 (1993).

7 Id.

8 Id.

9 Heather Fleniken Cochran, Improving Prosecution of Battering Partners: Some Innovations in the Law of Evidence, 7 Tex. J. Women & L. 89, 95 (1997).

10 Id.

11 Id.

12 See Corsilles, note 1 at 877.

13 See Cochran, note 9 at 122 n.43. (citing Eve S. Buzawa & Carl G. Buzawa, DO ARRESTS AND RESTRAINING ORDERS WORK? 1-3 (Eve S. Buzawa & Carl G. Buzawa eds., 1996). "The witnessing of spousal battery as a child may result in a tendency to experience or engage in domestic violence as an adult: Female victims of domestic violence are six times more likely to have seen their mothers being battered, and batterers are ten times more likely to have come from abusive homes.")

14 Id.

15 Id.

16 See Corsilles, note 1 at 857.

17 Malinda L. Seymore, Against the Peace and Dignity of the State: Spousal Violence and Spousal Privilege, 2 Tex. Wesleyan L. Rev. 239, 251 (1995) (quoting Steven Goode & M. Michael Sharlot, Article V: Privileges, 30 Hous. L. Rev. 489, 489 (1993)).

18 Id. at 856.

19 California statute that prohibits the judge to sentence jail time to a domestic violence victim the first time she refuses to testify; instead, he can order her to attend a support group. After a second contempt violation, the judge may order jail time. See Cal. Civ. Proc. Code § 1219 (West Supp. 1999).

20 There are many exceptions to the hearsay objection that can be used. See generally State v. Baker, 451 S.E.2d 574 (N.C. 1994). See also Gersten, note 5.

21 See Cochran, note 9 at 97.

22 Section 455.200(3), RSMo 1996 (defining "'Family or household member' [as] a spouse, a former spouse, person living with another person whether or not as spouses, parent, or other adult person related by consanguinity or affinity, who is residing or has resided with the person committing the domestic violence and dependents of such persons").

23 See Cochran, note 9 at 95.

24 Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849, 1910 n.205 (1996). All states with the exceptions of Alabama, Georgia, Massachusetts, Missouri, South Carolina, and Tennessee have a statute regarding spousal privilege.

25 Tex. Code Crim. P. Ann. art. 38.10 (West 1995).

26 See Seymore, note 17 at 240.

27 Id.

28 Id.

29 Id.

30 See Harvard L. Rev., at 1528.

31 Id.

32 Id.

33 John Riley, Spouse-Abuse Victim Jailed After No-Drop Policy Invoked, Nat'l L.J., Aug. 22, 1983, at 4.

34 See Corsilles, note 1 at 876.

35 Id.

36 Id at 857.

37 Anita K. Blair, No: Grandstanding Does Not Offer a Solution. (Domestic Violence: Should Victims be Forced to Testify Against Their Will?), 82 A.B.A. J. 77 (1996).

38 Id.

39 See Cochran, note 8 at 96.

40 See Seymore, note 16 at 247.

41 Id.

42 Id.

43 Id.

44 Id.

45 Id. at 248.

46 Id. at 249.

47 Id. at 248.

48 Id. at 249.

49 Id. at 250 (quoting Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex. L. Rev. 387, 392-93 (1984)).

50 Id. at 250.

51 Id. at 251.

52 Id. at 250.

53 Id.

54 Casey G. Gwinn & Anne O'Dell, Stopping the Violence: The Role of the Police Officer and the Prosecutor, 20 W. St. U. L. Rev. 297-317 (1993).

55 Id. at 317. (In practice, no warrant is issued unless the domestic violence prosecutor determines that the case cannot go further without the victim's testimony). See also Corsilles, note 4 at 856. ("Generally defined, a no-drop policy denies the victim of domestic violence the option of freely withdrawing a complaint once formal charges have been filed.").

56 See note 6, 106 Harvard L. Rev., at 1540.

57 See Corsilles, note 1 at 874.

58 Id.

59 Id.

60 Fla. Stat. Ann. § 90.504(3)(b) (West 1979).

61 Md. Code Ann., Cts. & Jud. Proc. § 9-106(2) (1997) (permitting spousal privilege exception where one spouse commits an "assault and battery" against another). Conn. Gen. Stat. Ann. § 54-84a (West 1994) (spousal privilege exception allowed where a spouse "received personal violence from the other").

62 Cal. Civ. Proc. Code § 1219 (West Supp. 1999).

63 See Seymore, note 17 at 256, 257. See also State Bar of Texas, The Gender Bias Task Force of Texas, Final Report 73 (Feb. 1994) (The final report found social workers, prosecutors, and judges would recommend the choice to prosecute rest in the state's hands rather than the victims.)

64 Id. at 257 (the committee held hearings in which members of the public and officials of the criminal justice system testified).

65 Id. at 258.

66 Id. at 259. (The committee also found that non-spouse victims of domestic violence were generally relieved when they learned the decision to testify is given to the court, not the victim.)

67 Id. at 275, 278 n.235.

68 Id. at 277.

69 Id.

70 Id. at 277, 278 (if this is not the result, courts would construe the statute in a manner that produces absurd results).

71 Id. at 277 (many domestic violence patterns involve fits of pathological jealousy toward someone with whom the husband believes the wife is having an affair or someone he believes is trying to interfere with his domination over her).

72 See generally People v. Love, 391 N.W.2d 738 (Mich. 1986). (This case involved a husband who thought his wife was having an affair. He shot the man he thought was her lover in her presence and kidnapped her. The court held that the state could not compel the wife's testimony in the husband's trial for murder because it was not a crime against her personally.)

73 See Seymore, note 17 at 277.

74 Id. at 258.

75 Id. at 259, 260.

76 See Cochran, note 9 at 97.

77 See Corsilles, note 1 at 874.

78 See note 6, 106 Harvard L. Rev,, at 1501.

79 Id.

80 Id.

81 See Hanna, note 24 at 1910 n.205.

82 See Cochran, note 9 at 97.

83 See note 6, 106 Harvard L. Rev, at 1540.

84 See Cochran, note 9 at 97.

85 See Corsilles, note 1 at 877.

86 See Cochran, note 9 at 97.

87 See Fla. Stat. Ann. § 90.504(3)(b) (West 1979).

89 See Seymore, note 17 at 259, 260.

90 See note 6, 106 Harvard L. Rev., at 1540, 1541 n.92 (citing Mary E. Asmus, Tineke Ritmeester & Ellen L. Pence, Prosecuting Domestic Abuse Cases in Duluth: Developing Effective Prosecution Strategies From Understanding the Dynamics of Abusive Relationships, 15 Hamline L. Rev. 115, 136 (1991).

91 Id. at 1540, 1551 n.118 (citing Mary E. Asmus, Tineke Ritmeester & Ellen L. Pence, Prosecuting Domestic Abuse Cases in Duluth: Developing Effective Prosecution Strategies From Understanding the Dynamics of Abusive Relationships, 15 Hamline L. Rev. 115, 136 (1991)).

92 Cal. Civ. Proc. Code § 1219 (West Supp. 1999).

93 Id.

94 Id.

95 See Cochran, note 9 at 95.

96 Id. at 95, 122 n.43.

Ms. Rold is a student at the University of Missouri-Columbia School of Law, where she will earn her J.D. in May of 2000. Ms. Rold is an intern at the Cole County Prosecuting Attorney's office in Jefferson City. She is also an executive board member of the Board of Advocates and will run the Negotiation Competition in the fall of 1999. She earned her bachelor degree in business with an emphasis in management from the University of Missouri-Columbia in December, 1996.

1999, Renee L. Rold