REVIEW Rights & Responsibilities Within Marriage I.Duty of Financial Support A. Common Law Duty of Support Hist. – From Husband to Wife Mod. – Gender Neutral Limited – Public Policy/Const. Rationale for Nonintervention in Intact Family

B. Doctrine of Necessaries - Gives 3 rd parties C/A agnst spouse for food, clothing, shelter, med.expenses - Not in effect in every state - Prior to 1970’s – obligation ran only to husband for wife’s debts - Beginning in 1970’s – gender- based challenges; states either abolished or made gender-neutral; MD 1981-abolished II.Duty to Refrain from Abuse

FAMILY VIOLENCE: Obligation to Refrain from Abusing (Physical/Sexual/Threats) Members of Family (Spouses, Intimate Partners, and Children)

FREQUENCY: Each year in America, more women abused by husbands than get married 4 million women beaten by intimate partner ~married, dating, cohabitating women, divorcing or separating women Women 6 times more likely to be beaten by husband than by stranger 3 out of 4 women killed in U.S., murdered by current or former husbands or boyfriends

Historically: Right of Privacy and Family Autonomy/ Justified Non- Intervention (“Rule of Thumb”) Change: Beginning in 1960’s, women’s movement in U.S. and internationally increased public and legal awareness

Protections CRIMINAL: State Misdemeanors & Felonies Marital Rape Mandatory Arrest Pro Prosecution Policies Domestic Violence Courts Battered Women Syndrome (Self Defense or Reduction of Charges) Federal Violence Against Women Act (VAWA)

PROTECTIONS – cont’d CIVIL: Civil Protection Orders: Emergency Orders Available in Every State Divorce: Abuse Ground Child Custody/Visitation: Abuse of Mother or Children Factor

MARITAL RAPE Arguments Against Prosecution 1)Doctrine of Implied Consent 2)Preserve Family/Marital Privacy – promote harmony within marriage 3)Difficulty of Proof/Fabricated Complaints

Arguments in Favor of Prosecution 1)Implied consent based on long rejected theories of property and unity of marriage 2)Right of Privacy only protects consensual acts/not applicable where one spouse harmed 3)Difficulty of Proof – same in marital and stranger rapes

Current State of Law 1)24 states have abolished any form of exemption 2)13 states give some exemption 3)Balance - silent

Maryland – until 1976 – complete marital rape exemption unless legal separation 1989: narrower exemption Marital Rape Exemption Unless: 1)Living separate and apart pursuant to a decree of limited divorce, or 2)Live separate and apart pursuant to a separation agreement or for at least six months, or 3)If force is used in commission of offense

Evidentiary Consequences of Marriage Spousal Disqualification/Privilege Rationale? 1)Civil vs. criminal cases 2)Pro-spouse vs. adverse spouse testimony 3)Privilege vested in spouse/defendant vs. spouse witness Federal Rule:  Criminal cases  Witness only  Adverse testimony

Maryland Rule: 1)Broad prohibition on confidential communications 2)Criminal cases: witness has privilege unless a) Child abuse b) Domestic violence and invoked privilege once before

§ Battered Spouse Syndrome (a)Definitions. – (2) “Battered Spouse Syndrome” means the psychological condition of a victim of repeated physical abuse by a spouse, former spouse, cohabitant, or former cohabitant which is also recognized in the medical and scientific community as the “Battered Woman’s Syndrome.” (3) “Defendant” means an individual charged with: (i) First degree murder, second degree murder manslaughter, or attempt to commit any of these crimes; or (ii) Assault in the first degree.

(b) Admissibility of evidence – Notwithstanding evidence that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense, when the defendant raises the issue that the defendant was, at the time of the alleged offense, suffering from the Battered Spouse Syndrome as a result of the past course of conduct of the individual who is the victim of the crime for which the defendant has been charged, the court may admit for the purpose of explaining the defendant’s motive or state of mind, or both, at the time of the commission of the alleged offense: (1) Evidence of repeated physical and psychological abuse of the defendant perpetrated by an individual who is the victim of a crime for which the defendant has been charged; and (2) Expert testimony on the Battered Spouse Syndrome.