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Review: Responsibilities Within Marriage - Support of Spouses - Two Options

This review explores the common law duty of support in marriage and the modern doctrine of necessaries, as well as the issue of family violence and the legal protections available. It also discusses the controversial topic of marital rape and the arguments for and against its prosecution.

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Review: Responsibilities Within Marriage - Support of Spouses - Two Options

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  1. Review: Responsibilities Within Marriage I. Support of Spouses – Two Options A) Common Law Duty of Support: Obligation historically running from husband to wife/ Modern: gender neutral

  2. Doctrine of Necessaries - Gives 3rd parties cause of action against spouse for food, clothing, shelter and medical expenses - Not in effect in every state - Prior to 1970s – obligation ran only to husband for wife’s debts - Beginning in 1970s – many gender-based challenges; states either abolished or made gender-neutral; MD 1981-abolished

  3. General Rule Against Interfering With Financial Arrangements of Parties in Intact Marriage • Constitutional: Privacy/Family Autonomy No State Interference Unless Harm • Public Policy: Non Interference a) Families Flourish When Left Alone b) Traditional Values – Husband’s authority c) Practical Concern: Unlimited caseload Enforcement challenge

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

  5. FREQUENCY: Each year in America, more women abused by husbands than get married • 2-4 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

  6. 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

  7. 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 I & II)

  8. 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

  9. MARITAL RAPE Maryland – until 1976 – marital rape was not a crime 1976 – Only exception is where couple is legally separated pursuant to limited divorce 1989: current law enacted – with broader exceptions Marital Rape is a crime if: • Living separate and apart pursuant to a decree of limited divorce, or • Live separate and apart pursuant to a separation agreement or for at least six months, or • If force is used in commission of offense

  10. 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

  11. Arguments in Favor of Prosecution 1) Implied consent based on long rejected theories of women’s loss of legal status within 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

  12. Current State of Law • 24 states have abolished any form of exemption • 13 states give some exemption • Balance - silent

  13. Evidentiary Consequences of Marriage Maryland Rule: 1) Broad prohibition on confidential communications 2) Criminal cases: witness/spouse has privilege unless a) Child abuse b) Domestic violence and invoked privilege once before Spousal Disqualification/Privilege Rationale?

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