Spousal immunity is also known as the husband-wife privilege or marital privilege. There are two types of spousal immunity. One protects private spousal communications, and the other protects a spouse from being compelled to testify against their spouse in judicial proceedings.

Georgia recognizes spousal immunity. Generally, a spouse may not be forced to testify against their spouse. However, there are exceptions to spousal immunity.

Exceptions to Spousal Immunity in Georgia

Georgia Code §24-5-503 states that spouses cannot be compelled to testify against each other in criminal proceedings. In addition, section 24-5-501 states that communications between husband and wife are considered privileged. Therefore, parties cannot be compelled to divulge privileged information in court. Furthermore, Section 24-5-505 protects a party or witness from testifying to any matter that could incriminate them or bring public contempt, disgrace, and infamy to themselves or a family member. 

Also, an individual may assert the spousal privilege even though their spouse is not charged with a crime. For example, if testifying in another proceeding could incriminate their spouse, an individual may assert spousal privilege. Spousal privilege can apply even when a person marries another person for the sole reason of asserting spousal privilege. 

However, Section 24-5-503 clearly defines exceptions to spousal privilege. Therefore, spousal privilege does not apply in the following situations:

  • When a spouse is charged with a crime against a minor, the other spouse can be compelled to testify about the specific act their spouse is accused of committing.
  • A spouse is charged with a crime against the other spouse.
  • The spouse is charged with causing physical damage to the other spouse’s property or separate property.
  • The alleged crime occurred before the lawful marriage between the spouses. 

If one of these exceptions applies, there may be no privilege for communications between spouses that occur through emails, text messages, videos, letters, and other out-of-court communications. 

Furthermore, only the spouse testifying against the other spouse can assert spousal privilege. If a spouse wishes to waive spousal privilege and testify against their spouse, the accused spouse cannot stop them from doing so.

Spousal privilege ends when a spouse dies or the parties divorce

Potential Criminal Offenses Where Spousal Privilege Might Apply

There are some situations in which criminal offenses could apply in family court matters. For example, O.C.G.A. §16-6-19 states that a person commits the offense of adultery by having sexual intercourse with someone other than their spouse. Therefore, the spouses of the “cheating” spouses may choose to invoke or waive spousal privilege.

Other examples of offenses in Georgia where spousal privilege could apply include:

  • Sodomy under O.C.G.A. §16-6-2
  • Simple battery under O.C.G.A. §16-5-23(a)
  • Fornication under O.C.G.A. §16-6-18
  • Stalking under O.C.G.A. §16-5-90(a)(1)
  • Simple assault under O.C.G.A. §6-5-20(a)

There are many situations where spousal privilege could apply. Spouses may choose to invoke spousal privilege in civil and criminal cases where the privilege is not prohibited by law.

How Do You Assert Spousal Privilege in Georgia?

If you are called to testify against your spouse, it is always wise to speak with a lawyer before appearing in court. An attorney explains the law to you regarding spousal privilege and how it applies under the specific circumstances of the case. A lawyer also explains your rights and options and the potential consequences for you if you assert spousal privilege.

If you choose to assert spousal privilege, an attorney advises you on how to do so. Generally, when you are called to testify in court, you may respond to the first question by the attorney by stating, under advice from your lawyer, that you are asserting your right to refuse to answer the question according to spousal privilege.

Depending on the situation, an attorney may advise you to also claim your Fifth Amendment rights under the United States Constitution. The Fifth Amendment protects your right not to be a witness against yourself. In other words, you cannot be forced to testify when the testimony incriminates you in a criminal offense.

An attorney is essential to advise you about spousal privilege and your Constitutional rights. You do not want to incriminate yourself, but you also want to weigh your options for waiving privilege. If you are also facing criminal charges, you should have a separate attorney from your spouse.

Having separate lawyers allows you to do what is in your best interest. For example, while you might want to protect your spouse, you could be in a situation where you might face jail time. In a civil case, you could share liability for financial damages if a jury finds you liable for negligence or other wrongdoing. 

Contact the Family Law Lawyers at Crystal Wright Law To Get Legal Assistance Today

To learn more and get the help you deserve, call our divorce & family law firm at (404) 594-2143 or reach out to Crystal Wright Law online by visiting our contact us page.
You can also visit our law firm at 440 S. Perry Street Suite 105, Lawrenceville, GA 30046.