It has been widely reported that one of Bernie Fine’s accuser’s recorded Mr. Fine’s wife purportedly acknowledging the sexual abuse the accuser endured. Although Mrs. Fine did not provide details or even affirm that she witnessed any of the alleged acts, she clearly insinuated that she had knowledge that Mr. Fine had inappropriate relationships with minors. Her knowledge could potentially have criminal and civil implications for failing to stop the alleged acts. This issue raises a textbook question of whether a spouse can be called to testify against the other spouse in criminal or civil proceedings.
In New York, as in most states, the martial or spousal privilege is recognized as a means to protect the harmony of legal marital unions and, therefore, one spouse cannot testify against the other during a trial or hearing. These privileges are construed to protect the sanctity of marriage, but have a large number of exceptions that would require a spouse to testify against the accused spouse, if called to do so. The statements made must be “confidential” and induced by the marital relationships relating to the affection, confidence, and loyalty engendered by such relationship. Daily and ordinary exchanges between spouses are not protected because the privilege encompasses only communications which would not have been made but for the absolute confidence in, and induced by, the marital relationship. Communications such as threats made during the course of physical abuse are not protected under the privilege.
In this case, Mr. Fine would have to have confided in his wife that such acts occurred and his comments were made in confidence. If Mrs. Fine observed an act or was told about an act by another source, the privilege would likely not apply. Similarly, in many states including Texas, the marital or spousal privilege does not apply to matters relating to the abuse of minors.