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Child Abuse and Spousal Privilege

by Jennifer Crissman, Woodruff Family Law Group

As a parent, it is a nightmare even to imagine your child being harmed. But for some families in the Piedmont, this is a grim reality. The scenario turns even darker when there are allegations that your spouse harmed the child. This places the parent in a terrible position: trying to protect your child from harm, and to reconcile how your spouse could be responsible for the alleged conduct. The parent may not have been aware the abuse was occurring, but may still be called to testify about the facts and circumstances of the alleged abuse either in a juvenile proceeding, a custody trial or criminal proceedings. What is the innocent parent to do? The natural inclination may be to stand mute to try to hold the family together. However, this is not an option.

Those who have watched television courtroom dramas are at least somewhat familiar with the concept of spousal privilege. The general idea is that one spouse cannot be compelled to testify against the other spouse, that private communications made during the marriage are confidential. However, there are nuances to the privilege and how it is applied, especially as it relates to the abuse of a child. Due to the case of State v. Godbey, it now appears that the spousal privilege is not applicable in any North Carolina court where there are allegations of child abuse. State v. Godbey, No. COA15-877 (N.C. App. 2016). Spousal privilege is not permitted in juvenile, civil and criminal courts where there are allegations of child abuse.

Typically juvenile cases begin when a report of suspected abuse or neglect is made to the Department of Health and Human Services. This report triggers an investigation into the allegations. After an initial investigation, the allegations will either be substantiated or unsubstantiated. If the claims are baseless, then the case is closed out with no court action. If the allegations are substantiated there could be a hearing in Juvenile Court to determine whether the juvenile is abused, neglected and dependent, or even criminal charges filed. This, in turn, can affect civil custody cases involving the child and the parents.

In juvenile cases, there has long been a statute which prohibits spousal privilege from being asserted. The statute reads “No privilege, except the attorney-client privilege, shall be grounds for excluding evidence of abuse, neglect, or dependency in any judicial proceeding (civil, criminal or juvenile) in which a juvenile’s abuse, neglect or dependency is in issue nor in any judicial proceeding resulting from a report submitted under this Article…” N.C.G.S. § 7B-310.

In a civil setting, the statute governing spousal privilege reads “…No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage.” N.C.G.S. § 8-56. Despite this seemingly clear-cut provision, the following section states that this privilege is waived in child abuse. Where there are allegations of abuse, neglect, illness or injuries the privilege will not be available to exclude evidence “in any judicial proceeding related to a report pursuant to the Child Abuse Reporting Law, Article 3 of Chapter 7B of the General Statutes of North Carolina.”  N.C.G.S. § 8-57.1.

The case of State v. Godbey addresses whether the child abuse reporting statute above prohibits the spousal privilege where the defendant is facing criminal prosecution for child abuse. The Court ultimately held that even though the North Carolina statutes may not be crystal clear, the policy in North Carolina is that “the marital privilege is subordinate or inferior to the right of a child to be free from … abuses”. No. COA15-877, page 19. The court went on to clarify that even though the criminal charges may not be “resulting from” a child abuse report, as long as they are “related to” a child abuse report this is sufficient for the court to abrogate the spousal privilege.

What this means for innocent parents is that if faced with this nightmare scenario, it is essential to find an experienced attorney who can guide you through what to expect in either juvenile, civil or criminal court. There is essentially no spousal privilege where the rights of the child are concerned.