Spousal privilege option can be complicated, legal experts say

An assault and battery charge against longtime Southcoast Health President Keith A. Hovan was dismissed this week in court after his wife chose not to testify and invoked spousal privilege. Attorneys and legal experts at advocacy organizations say this occurs with some frequency, and that sometimes prosecutors will proceed without the witness or victim’s testimony. 

Whether that is the best course of action, however, is up for debate. Some courts, organizations and victims of domestic violence prefer legal action to proceed when possible without the testimony, experts say; others believe it can disrespect the victim’s wishes with possible negative consequences to follow. 

After Hovan’s charge was dismissed, Beth Stone, a spokesperson for Plymouth County District Attorney Timothy Cruz’s Office, said by email: “The victim in this case invoked their marital privilege and without their testimony our office was unable to proceed forward.”

The Light asked the district attorney’s office for an explanation of its reasoning and why it did not proceed with material from police officers’ reports and observations at the scene, as well as the 911 call audio. Stone said the office would not comment beyond its initial statement. 

Depending on the case, it can be more difficult to prove the alleged crime occurred beyond a reasonable doubt without the victim’s testimony, as they may be the only witness of the crime, experts say.

“Typically, in any kind of prosecution, witnesses of course are of most importance to be able to prove the elements necessary to establish credibility, to establish that whatever is being charged did in fact happen or did not happen,” said Hema Sarang-Sieminski, an attorney and policy director at Jane Doe Inc.

Some jurisdictions will prosecute even if they think they don’t have enough evidence, believing there is value in letting abusive people know they will be prosecuted for their actions.

“In cases involving sexual assault or domestic violence, because they so often happen between two indviduals with very few witnesses, that certainly makes prosecution without the testimony of a survivor very, very difficult,” Sarang-Sieminski said. 

Margaret Drew, a civil-side attorney and associate professor at UMass School of Law, said a district attorney’s office may have other options if there are other witnesses willing to testify and police testimony, or if the defendant acknowledges some of the abuse.

Some courts will do that; others will not, said Drew, who has represented victims of domestic violence since the 1980s. She noted it can depend on whether the prosecution feels there is sufficient evidence to proceed, or whether a jurisdiction is trying to respect the victim’s choice to not proceed. 

Some jurisdictions will prosecute even if they think they don’t have enough evidence, believing there is value in letting abusive people know they will be prosecuted for their actions, Drew said. 

Katherine Schulte, a managing attorney at Casa Myrna, called this a “no drop” policy that some district attorney’s offices will adopt. They will consider it their responsibility to prosecute with other evidence and not put the burden on the victim to make or break the case, she said. 

Schulte noted there are pros and cons to the approach. A benefit is that it takes the burden off the victim to prosecute the abusive person. A drawback, however, is that it can disrespect the victim’s wishes and lead to negative consequences for them. 

In her work with victims, she said she has heard both sides of the argument for whether the criminal-legal system is effective in holding the abuser accountable and deterring future abuse. Some victims just want the abuse to stop without the extent of criminal consequences, she said. 

Sarang-Sieminski said that over the years, there have been mixed perspectives on whether or not the prosecution should proceed anyway. 

Jane Doe Inc. as an advocacy organization is more “survivor-centered,” she said. The organization wants to see accountability for those who cause harm, but also wants to lead with the needs and desires of victims. 

Why victims of domestic violence do not testify

“From the public’s perception, there could be this sense of surprise or questioning of what happened. Why did this happen this way? Why didn’t the prosecution go forward anyway?” Sarang-Sieminski said. “As advocates for survivors… that decision as to whether or not to testify comes with many, many very complicated safety considerations, considerations of what is best for the survivor, for their children, for their whole family. They are not easy decisions by any means.”

Drew said choosing to not testify is not unusual in these types of cases. Margo Lindauer, the director of Northeastern University’s Domestic Violence Institute, said it can be “very common.”

Spousal privilege, which was invoked in Hovan’s case, means a spouse cannot be forced to testify in the trial of an indictment, complaint, or other criminal proceeding brought against their spouse, per Massachusetts law. Lindauer said spousal privilege is a choice.

Only the witness-spouse may claim the privilege, and it does not apply in civil proceedings, or in any prosecution for nonsupport, desertion, neglect of parental duty, or child abuse.

The legal experts and advocates said there are a litany of reasons why a victim chooses to not testify, instead claiming spousal privilege. This includes fear of retaliation, safety concerns, dependency (possibly financial) on the abuser, threats, a desire to reconcile, distrust with the court system, concerns over immigration status, a genuine hope that things will change, and a preference that the matter be resolved outside the criminal system. 

“If we create a culture that is responsive to and really supports survivors when they speak out, we create safer communities where survivors can get the range of help they need.”

Hema Sarang-Sieminski, attorney and policy director at Jane Doe Inc.

Some people feel harmed by the court process, while others find validation and support, Sarang-Sieminski said. She and Lindauer also noted the court process, which can be lengthy, can retraumatize the victim. 

“There are many reasons why a victim cannot testify or says they choose not to,” Lindauer said. “And I would pause before jumping to quick judgments about that person or their motivation.”

Schulte said it’s important for people to respect the decision of the victim for safety and other reasons, and that their decision may be the best for them at that time. 

Sarang-Sieminski said people should look at domestic violence with intersectionality in mind. In other words, race, class, and one’s position in the community are all factors that play into the complex decisions victims make and their determination of what is safe for them.

She also emphasized that community support can often shape a victim’s choices. 

“If we create a culture that is responsive to and really supports survivors when they speak out, we create safer communities where survivors can get the range of help they need,” she said.

Email Anastasia Lennon at alennon@newbedfordlight.org.

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