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Univ. of South Carolina School of Law

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Saturday, August 20, 2011

Unadulterated?: Court Of Appeals Of Mississippi Case Touches On The Crime Of Adultery & Spousal Privilege

Mississippi Annotated Code Section 97-29-1 (still) provides that

If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.

In other words, adultery is still apparently a crime in Mississippi. So, how did Section 97-29-1 and Mississippi Rule of Evidence 504, Mississippi's husband-wife privilege (kind of) come into play in the recent opinion of the Court of Appeals of Mississippi in McDonald v. McDonald, 2011 WL 3570011 (Miss.App. 2011)?

In McDonald

Edgar L. McDonald Jr. (Ed) unsuccessfully attempted to divorce his wife, Cynthia Jean Guess McDonald (Cindy). Instead, the Clay County Chancery Court granted Cindy's request for separate maintenance. Less than two weeks later, Ed attempted to terminate his separate-maintenance obligation, but the chancery court denied Ed's motion. Ed then attempted to terminate his separate-maintenance obligation again—this time via his motion to alter or amend the order denying his motion to terminate separate maintenance. Cindy responded by requesting that Ed be held in contempt for failing to pay her separate maintenance. The chancellor denied Ed's motion to alter or amend his previous order and granted Cindy's request that Ed be held in contempt. Accordingly, the chancellor awarded Cindy a judgment of $6,000. The chancellor also awarded Cindy $1,000 in attorney's fees.

According to Ed, he sought to terminate his separate-maintenance obligation because he wanted to return to the marital home with the "primary purpose...[of] cohabit[ing] with Cindy as required by law." In denying Ed's motion to terminate his separate-maintenance obligation, the chancellor found that

The question of whether ... Ed's effort was one of good faith and honest is of a factual nature and must be decided by this Court on the basis of the facts as developed in the courtroom. At no time has there been any testimony that in any way could be construed that Cindy would not welcome Ed back or resume the marital relationship and bed. Her only request in the testimony is that Ed make a clean breast of his past relationships, if any. Ed has never denied any relationship under oath, but [he] has asserted his Fifth Amendment right against self-incrimination. Ed did testify that he wanted to move on and did not want to discuss the past. The Court can certainly understand Ed's desire not to address the past for obvious reasons. However, to resume a relationship after thirty (30) plus years of marriage, as this one is, there has to be a foundation of complete trust. A marriage which has never lost the trust factor may be strong because there has never been any reason to doubt. A marriage which has lost the trust factor must be repaired and shored up with an extraordinary amount of reassurance, openness, and certainly frankness.
Ed's reluctance to engage in such discussions cast doubt in the Court's mind as to whether he will ever make the effort necessary to resume a proper marital relationship. As in Day, ... Ed never once expressed regret or repentance, nor were there promises made to be a proper husband if allowed to return. This combined with Ed's reluctance to do what it took to satisfy Cindy leads the Court to the only conclusion possible; that is, Ed's motivation is solely to avoid making the [c]ourt[-]ordered payments and not to truly resume a normal and healthy marital relationship. The Court also would state that the filing of the motion so soon after the entrance of the order of separate maintenance ... and his return to the marital home on the eve of the hearing may have been premature. A few days is hardly enough time to restore a thirty (30) year marriage. The Court only had evidence that Ed dropped off his bags and that was basically it. Without more, the Court cannot grant the motion by law.

Ed appealed this denial to the Court of Appeals of Mississippi, which noted that

According to Ed, he refused to tell Cindy the names of any women with whom he had had affairs because "[t]here is...no requirement that either party waive his or her Fifth Amendment rights in order to restart the relationship." Ed based his refusal to disclose the names of his "alleged paramours" on the concept that "adultery is still a punishable crime in Mississippi." 

The Court of Appeals found that it did not need to resolve these issues to uphold the chancellor's ruling, instead relegating its analysis to the following footnote:

[FN2] We decline to address the question of whether Ed could have successfully been prosecuted for adultery pursuant to Mississippi Annotated Code Section 97-29-1....

Furthermore, we decline to address the question of whether Ed could have privately disclosed any extra-marital affairs to Cindy under the protection of the "Husband–Wife Privilege" set forth in Mississippi Rule of Evidence 504.

Interesting. I wonder how long it has been since Mississippi last prosecuted a person for adultery?Presumably, that would help us to answer the question of whether there was a real and substantial danger that Ed could be prosecuted for adultery, triggering the Fifth Amendment's protections if the court forced him to come clean to his wife. 

And what about Mississippi Rule of Evidence 504? If Ed came clean to his wife and was then charged with adultery, could he prevent his wife from testifying pursuant to the husband-wife privilege? Mississippi Rule of Evidence 504(b) does provide that "[i]n any proceeding, civil or criminal, a person has a privilege to prevent that person's spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse."

That said, Mississippi Rule of Evidence 504(d) provides that

There is no privilege under this rule in civil actions between the spouses or in a proceeding in which one spouse is charged with a crime against (1) the person of any minor child or (2) the person or property of (i) the other spouse, (ii) a person residing in the household of either spouse, or (iii) a third person committed in the course of committing a crime against any of the persons described in (d)(1), or (2) of this rule.

Now, usually, the exception contained in Rule 504(d) applies in cases of spousal or child abuse. But would adultery be considered a crime against the person of the other spouse? Or is it a crime against the state or the institution of marriage? I would guess the former, which would mean that if Ed reasonably feared being prosecuted for adultery, the court could not compel him to disclose his affairs to his wife because the husband-wife privilege would not protect him. Of course, as the Court of Appeals likely correctly held, none of these issues really needed to be resolved to find that the chancellor did not abuse his discretion.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/08/h-w-privilege-mcdonald-v-mcdonald-so3d-2011-wl-3570011missapp2011.html

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