Pillow talk: What conversations are protected between spouses?

In the United States, courts recognize that certain relationships are special and that communications made in the relationship are protected from being disclosed except under narrow exceptions. These protections include relationships between attorney-client, doctor-patient privilege, clergy-penitent, and spouses/domestic partners. The discussions between these people can be disclosed with the consent of the client, the patient, the penitent or either spouse/domestic partner.[1]

The marital (or spousal or domestic partner) privilege prevents a spouse from being called to testify against the other spouse without their permission (the testimonial privilege).[2] The martial privilege also protects confidential communications solely between spouses (the confidential communications privilege).[3] When the communication is made in the presence of a third party, it is not privileged.[4] Communications made in the presence of the spouses’ children or other intimate family are not protected, nor are communications made while someone is eavesdropping on the couple.[5] So if a police officer is listening in, or a marriage counselor is present, or a person is surreptitiously eavesdropping, then the communications are not confidential.[6]

The protection also does not exist for proceedings by one spouse against the other, or in a proceeding for a crime committed by one spouse against the other or against a child of whom accused spouse is a guardian, or in a criminal case where the marriage occurred after the filing of formal charges.[7] So the General Hospital mob marriage would not fix Sonny’s problem outside of fictitious Port Charles.

The marital privilege is designed to protect the confidential nature of the relationship involved.[8] “The privilege also reflects the ‘natural repugnance’ of having one spouse testify against the other, and prevents the testifying spouse from having to ‘choose between perjury, contempt of court, or jeopardizing the marriage.’”[9] The privilege exists so spouses can speak freely and openly with each other. But remember, pillow talk made in the presence of a third party is not protected by the marital privilege.

(NOTE: This is just a general overview and there are various nuances that might apply in a given case. For example, other privileges, such as the attorney-client privilege or doctor-patient privilege, may also apply and separately need to be addressed, as they may independently protect certain communications.)

[1] RCW 5.60.060.
[2] RCW 5.60.060(1).
[3] Wolfle v. United States, 291 U.S. 7, 14-15, 54 S. Ct. 279, 280, 78 L.Ed. 617 (1934).
[4] Id; Barbee v. Luong Firm, P.L.L.C., 126 Wn. App. 148, 156, 107 P.3d 762, 766 (2005) (the privilege applies to all “actually successful” confidential communications).
[5] . Wolfle, 291 U.S. at 16-17, 54 S. Ct. at 281; Ramsey v. Mading, 36 Wn.2d 303, 312, 217 P.2d 1041, 1046 (1950) (communications not intended to be confidential and those made in the presence of a third party are not protected); State v. Slater, 36 Wn.2d 357, 218 P.2d 329 (1950) (communications overheard by accident or design—such as an officer overhearing via wiretap—are not confidential).
[6] State v. Thorne, 43 Wn.2d 47, 260 P.2d  331 (1953) (defendant spoke to wife in the presence of an officer so there was not confidential communication); Redding v. Virginia Mason Med. Ctr., 75 Wn. App. 424, 428, 878 P.2d 483 (1994) (finding marital privilege did not apply to statements made by wife at a joint therapy session with husband because psychologist was present); State v. Barnhart, 73 Wn.2d 936, 940, 442 P.2d 959 (1968) (even if the third person heard the communication surreptitiously by eavesdropping, the communication is not confidential and the privilege does not apply).
[7] RCW 5.60.060.
[8] See Wolfle, 291 U.S. at 14, 54 S. Ct. at 280.
[9] State v. Burden, 120 Wn.2d 371, 375, 841 P.2d 758 (1992), quoting State v. Wood, 52 Wn. App. 159, 163, 758 P.2d 530 (1988).