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 and protects confidential communications made during the marriage. G.S. 8-57(c). In Godbey, the defendant’s wife was willing to testify – for her husband and against her daughter – so the first privilege was not at issue. The defendant sought to prevent her from testifying about their sexual practices under the second privilege.
Conduct as communication. That brings us to the main subject of this post. The confidential marital communication privilege applies to “any confidential communication made by one [spouse] to the other during their marriage.” Are sexual acts “communication”? The Godbey court said yes, based on Wright v. Wright, 281 N.C. 159 (1972) (ruling, in a divorce case, that a wife could not be required to answer interrogatories regarding sexual contact with her husband because sexual acts between spouses are confidential communications), and Biggs v. Biggs, 253 N.C. 10 (1960) (stating without discussion that “an act of intercourse between husband and wife is a confidential communication”).
The court of appeals can’t be faulted for following the state supreme court, but I was curious enough about the rule announced in Wright and Biggs to follow up. Neither case analyzed the issue in detail. The issue is the subject of a split of authority nationally. On the one hand, the Supreme Court stated in Pereira v. United States, 347 U.S. 1 (1954), that the marital communications privilege, “generally, extends only to utterances, and not to acts.” On the other hand, some acts are communicative in nature, and sexual acts may convey meanings such as affection and desire.
An authority finding that sexual acts are not covered by the privilege is Constancio v. State, 639 P.2d 547 (Nev. 1982) (ruling that the fact that a husband “often had difficulty achieving an erection” during sexual activity with his wife was not a communication protected by the privilege, as there was no intention to “convey meaning”).
Among the authorities ruling or suggesting that sexual acts are privileged communications are United States v. Bahe, 128 F.3d 1440 (10th Cir. 1997) (stating that “the accepted norm in this country is that intimate sex acts between marriage partners are communication and an important expression of love” and that it would be “inherently offensive” to allow a spouse to testify about “every aspect of the marital sexual relationship,” but not formally deciding whether sexual activity falls within the privilege because the court determined that an exception to the privilege applied), and White v. State, 440 S.E.2d 68 (Ga. Ct. App. 1994) (ruling that wife’s testimony that she and defendant-husband “had engaged in consensual anal intercourse together on a regular basis” should have been excluded under the privilege).
Additional sources of some possible interest are Christopher B. Mueller & Laird C. Kirkpatrick, 2 Federal Evidence § 5:40 (4th ed. May 2016 update) (noting the majority view that the privilege “does not apply to acts,” and that “one spouse can usually testify to acts by the other . . . even though these matters would not be visible to the outside world and are made visible to the observing spouse only because of the marriage”); David M. Greenwald et al., 2 Testimonial Privileges § 5:10 (3d ed. updated 2015) (noting that “[j]urisdictions vary on whether nonverbal acts are communications within the scope of the privilege”); and Rubio v. Superior Court, 202 Cal. App. 3d 1343 (Cal. Ct. App. 4th Dist. Div. 3 1988) (stating without lengthy discussion that “the fact that sex acts were performed is probably not a privileged communication” but that “the videotape of those acts, as a writing, is a communication within the meaning of the privilege”).
The issue clearly isn’t settled nationally, and I can imagine a litigant asking our state supreme court to take another look at it in an appropriate case. My sense is that the “right” answer may be more nuanced than some of the existing cases on both sides suggest: some sexual acts likely have substantial communicative content while others may have very little.
The other issues in Godbey. For the sake of completeness, I’ll briefly report how the court of appeals addressed the other issues in Godbey. Having determined that the sexual acts by the defendant with his wife were communicative, the court then ruled that the acts were “evidence regarding the abuse or neglect of a child under the age of 16 years,” and so fell within the exception to the privilege that is defined in G.S. 8-57.1.
The court also determined that the evidence was admissible under Rule 404(b). Although the court ruled in State v. Dunston, 161 N.C. App. 468 (2003), that evidence that the defendant and his wife engaged in consensual anal sex was not admissible in a case where the defendant was charged with having anal sex with an underage victim because the evidence showed mere “propensity to engage in anal sex,” the Godbey court stated that the back-humping was not a “categorically defined sexual act” like anal sex, but rather was a “unique sexual act” indicative of a pattern of behavior. For a discussion of Dunston and how distinctive a sexual practice needs to be before it becomes admissible under Rule 404(b), see this prior blog post.