Maryland law has long recognized – with few exceptions – one spouse’s privilege to not testify against the other in a criminal proceeding.[1] The purpose of this privilege, referred to as the “spousal” or “marital” privilege, is “to maintain and foster the marital relationship.”[2] However, just like any other privilege, the spousal privilege can be – and has been – abused.[3] For example, some criminal defendants have entered into “sham marriages” with prosecution witnesses so that the witnesses may invoke their spousal privilege and refuse to testify at trial.[4]

In 2010, a Baltimore County District Court judge made headlines after he wedded a criminal defendant and the alleged victim in his chambers during the defendant’s domestic violence trial.[5] The defendant was charged with second-degree assault after the victim, the defendant’s fiancé, reported to police that the defendant hit her, kicked her, and “banged her head against the wall.”[6] At trial, the defense asked the judge for a postponement so the defendant and victim could “go out and get married, come back and resolve the case” by having the victim invoke her spousal privilege.[7]

Rather than questioning the impromptu nuptials, the judge offered to perform the ceremony himself.[8] Just minutes after the courthouse wedding, the bride invoked her spousal privilege and the judge ultimately found the defendant not guilty, stating, “I found you not guilty, so I can’t sentence you as a defendant in any crimes, but earlier today, I sentenced you to life married to her.”[9] 

While the judge’s conduct is alarming, the defendant’s use of the spousal privilege to escape criminal prosecution is unfortunately common.[10] Until recently, Maryland law allowed spouses of criminal defendants to invoke their spousal privilege even if the alleged crime occurred before they were married.[11] As a result, perpetrators of domestic violence often “coerced and compelled” their victims into marriage with the goal of “silencing them and preventing them from testifying.”[12] Fortunately, Maryland lawmakers have closed this dangerous loophole.[13]

On May 29, 2022, the Maryland legislature enacted House Bill 210, expanding the exceptions to the spousal privilege.[14] Now, a victim spouse can be compelled to testify against the defendant spouse in a criminal trial if the alleged crime occurred before the marriage.[15] This change represents an important step toward protecting victims of domestic violence as it puts abusers on notice that they can no longer evade criminal prosecution by coercing their victims into marriage.[16] Although the new law, which took effect on October 1, 2022, will limit the availability of the spousal privilege in Maryland and potentially increase the number of cases that will go to trial, proponents of the law believe that it will help stop a dangerous cycle of abuse.[17]

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Lindsay Keough is a third-year day student at the University of Baltimore School of Law and an Associate Editor for Law Forum. Lindsay received a Bachelor of Arts degree in psychology and a minor in Spanish language and culture from the University of Maryland, College Park. In the past, she has worked as a law clerk at the Law Offices of Elsa W. Smith, LLC in Annapolis and the Office of the State’s Attorney for Anne Arundel County. Currently, she is practicing as a Rule 19 Student Attorney at the Baltimore City State’s Attorney’s Office as part of the Criminal Practice Clinic. Upon graduation, Lindsay will serve as a Judicial Law Clerk for the Honorable Judge Donna M. Schaeffer in the Circuit Court for Anne Arundel County. She hopes to pursue a career in criminal law.

Read more: Maryland Closes Spousal Privilege Loophole for Post-Crime Weddings

[1] See Md. Code Ann., Cts. & Jud. Proc. § 9-106 (2022); Wilson v. State, 241 Md. App. 683, 688-89, 213 A.3d 655, 659 (2019) (“[T]he spousal privilege was first codified in Maryland in 1864.”).

[2] Johnson v. State, 156 Md. App. 694, 706, 848 A.2d 660, 667 (2004).

[3] See State v. Wilson, 471 Md. 136, 170-71, 240 A.3d 1140, 1160 (2020) (finding that the defendant married the witness “for the purpose of trying to have her invoke the spousal testimonial privilege”).

[4] Id. at 167-68, 240 A.3d at 1158.

[5] Nicole Fuller, Judge Marries Defendant to Alleged Victim, The Balt. Sun (Mar. 18, 2010, 12:00 AM), https://www.baltimoresun.com/maryland/baltimore-county/bs-xpm-2010-03-18-bal-md-judge18mar18-story.html.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] See Criminal Trials – Spousal Privilege – Exception: Hearing on H.B. 210 Before the S. Comm. on Jud. Proc., 2022 Leg., 444^th Sess. (Md. 2022) (testimony of Dorothy J. Lennig, Legal Clinical Director, House of Ruth Md.), https://mgaleg.maryland.gov/cmte_testimony/2022/jpr/10807_03232022_1072-638.pdf [hereinafter Hearings].

[11] Md. Code Ann., Cts. & Jud. Proc. § 9-106 (2014).

[12] Hearings, supra note 10(testimony of the Md. Network Against Domestic Violence).

[13] Act of May 29, 2022, ch. 486, 2022 Md. Laws (enacting H.B. 210) (codified at Md. Code Ann., Cts. & Jud. Proc. § 9-106(a)(2) (2022)) [hereinafter “Act of May 29, 2022”].

[14] Act of May 29, 2022.

[15] Act of May 29, 2022.

[16] Hearings, supra note 10 (testimony of the Md. Network Against Domestic Violence).

[17] See Md. Fisc. Note, 2022 Sess. H.B. 210, https://mgaleg.maryland.gov/2022RS/fnotes/bil_0000/hb0210.pdf; Hearings, supra note 10 (testimony of the Md. Network Against Domestic Violence) (“Allowing for the invocation of the spousal immunity after a crime but prior to the trial could perpetuate the abusive coercion and control.”).