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The Problem
SOURCES OF SPOUSAL PRIVILEGE
The state founders included the spousal privilege in the Utah Constitution when Utah obtained statehood. Over time, as Utah's legal system matured, the legislature eventually codified the privilege under various statutes (most notably Utah Code § 78-24-8, now modernized as § 78B-1-137). Then, in 1983, the Utah Supreme Court added the spousal privilege to the Utah Rules of Evidence as Rule 502, which attempted to streamline the overlapping constitutional text and statutory laws. As a result, the spousal privilege now comes from three different sources in the law:
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Article I, Section 12 of the Utah Constitution
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Section 78B-1-137 of the Utah Code
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Rule 502 of the Utah Rules of Evidence
THREE CONFLICTING SOURCES
The three sources of spousal privilege comport in some ways and conflict in others. Ultimately, the Utah Constitution trumps the other two sources. It is like a steel cable in a three-way tug-of-war.
UTAH RULES OF EVIDENCE
Rule 502(b) – Testimonial
Rule 502(c) – Confidential Comm.
Notable Exception:
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In a proceeding in which one spouse is charged with a crime or a tort against the person or property of...the other spouse...[or] the child of either spouse.
UTAH JUDICIAL CODE
§ 78B-1-137 – Testimonial
Notable Exceptions:
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A criminal action or proceeding for a crime committed by one spouse against the other
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Any civil or criminal proceeding for abuse or neglect committed against the child of either spouse
UTAH CONSTITUTION
Article I, § 12– Testimonial
Notable Exceptions:
NONE
AN ABSOLUTE PRIVILEGE
The Utah Constitution trumps the Utah Code and the Rules of Evidence. Accordingly, it does not matter that the Code and the Rules contain exceptions because the Utah Constitution grants an absolute spousal privilege that does not allow any exceptions.
COMPARISONS TO OTHER STATES
Utah is the ONLY STATE in the country that elevates the spousal testimonial privilege to a constitutional right. No federal constitutional right exists either. Every single state legislature and the federal government have recognized that protecting a marriage cannot come at the expense of protecting vulnerable victims within that marriage.
PREVALENCE
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Approximately 1 in 3 Utah women (33.6%) will experience intimate partner physical violence, sexual violence, or stalking in their lifetime. Source
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In 2023, law enforcement reported 13,846 domestic violence incidents in Utah, which is a 3% increase from the previous year. Source
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Domestic violence is the leading cause of homicide in Utah. Source
LEAVING A PERPETRATOR
On average, a DV survivor attempts to leave an abusive relationship seven times. Source
Fear of escalated violence, financial dependence, emotional manipulation, and lack of support. Source
The period immediately following a victim's departure is often the most dangerous, as abusers may escalate violence to regain control. Source
