Ship of Fools: Dumping Spousal Privilege

Thread: Dumping Spousal Privilege Board: Oblivion / Ship of Fools.

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Posted by Anglican_Brat (# 12349) on :

Our Conservative Government here in Canada is proposing to do away with spousal privilege, allowing prosecutors to subpoena people to testify against their spouses.

http://www.ctvnews.ca/politics/spouses-could-be-compelled-to-testify-under-new-victims-rights-bill-1.1759172

I'm unfamiliar with the history of spousal privilege. Is this change historically settled in common law?

Critics say that this change will force domestic abuse victims to publicly testify against their accused spouses, and thus open themselves up for retaliation if they are acquitted.

Posted by Caissa (# 16710) on :

As always, the Cons exploit the vsiceral need for vengeance with another so-called victims' rights bill. 2015 can't come soon enough!

Posted by Enoch (# 14322) on :

This sets out the current position in England and Wales. 'Competent' means you can give evidence voluntarily. 'Compellable' means that even if you want to refuse, you can be made to give evidence whether you like it or not.

Posted by Lord Jestocost (# 12909) on :

Spousal privilege is what drives the whole plot of "Brighton Rock". Seems a strange law to keep on the books, especially given (as noted) the vindictive thirst for vengeance of successive Home Secretaries, left or right wing. Maybe no one in positions of power can actually believe it happens.

Posted by marsupial. (# 12458) on :

It's a common law privilege that's been around for a long time. That said, (a) it's been interpreted narrowly (e.g. not to include common law spouses) and (b) it's been significantly eroded by statute. So spouses can already be compelled to testify e.g. in cases involving sexual assault or crimes against children.

There is an additional privilege that relates to spousal communications i.e. a spouse cannot be compelled to testify about what his or her spouse told them. This doesn't seem to be about to change with the new legislation.

I don't really know what the practical effect of the new law would be. The practical issue for the prosecution is often not so much whether a spouse (or girlfriend, or whatever) can be called as a witness but whether the witness will be co-operative -- i.e., whether will witness will testify consistently with their initial statement, or whether the witness is going to recant. If it's clear that the witness is not going to testify in accordance with their initial statement often there will be no point in calling that witness.

Posted by Gee D (# 13815) on :

The privilege against compel compellability in criminal proceedings was substantially modified in the uniform (i.e., applies in all States) Evidence Act 1995, which continues what and been the law in some States. A spouse may claim the privilege and there is a régime whereby the judge considers the claim against a range of tests. It cannot be claimed where the charge is one of a range of offences against children.

The sky has not fallen in.

[ 05. April 2014, 21:51: Message edited by: Gee D ]

Posted by Soror Magna (# 9881) on :

The Harper Reform / Alliance / not really Tories any more government is doing plenty of worse things. This is peanuts, and as others have said, not unprecedented in other places.

Monkeying around with who is allowed to vote is far more dangerous. The Social Credit / don't call them Liberals government in BC specifically set the fixed election date in May to make it more challenging for many post-secondary students to vote. The repeated mantra that it is a "no-brainer" to require ID to vote is exactly that: a LITERAL, not rhetorical, no brainer. If voting is a right, then election laws and processes must allow everyone to vote, one way or another. None of our other rights depend on having a particular piece of paper or plastic on our person.

Posted by Enoch (# 14322) on :

Isn't requiring people to produce ID to vote supposed to be a way of making impersonation more difficult, rather than some nefarious plot to discourage some people from voting at all?

You don't have to produce ID here. From time to time there is debate about it. You are required to confirm that you're the person you say you are. If you are caught, you get prosecuted. However, hardly any prosecutions take place. Nobody knows how much impersonation there is, whether it is a widespread abuse or a minimal one.

Posted by Net Spinster (# 16058) on :

In the states at least requiring voter id has usually been a method of limiting access. Who pays for the id in the first place and is everyone eligible automatically, easily, and quickly issued it? What happens if the id is lost or destroyed? What happens if someone's name is slightly different on the list of registered voters and on the id (e.g., middle name is full instead of an initial or someone made a typo when entering so 'Wedgwood' becomes 'Wedgewood')? If you marry and change your name just before election day (but after registration deadline) do you lose the right to vote since your registered name and new name are significantly different.

Most vote fraud seems to be by other means (e.g., stuffing the ballot box by officials with access to the ballot box or the equivalent). BTW a source is Broken Ballots (2012) by Jones and Simons (disclaimer: I do have a connection to the publisher).

Posted by Anglican't (# 15292) on :

I worry that this an intrusion of the state into family life.

Posted by Soror Magna (# 9881) on :

quote:
Originally posted by Enoch:
Isn't requiring people to produce ID to vote supposed to be a way of making impersonation more difficult, rather than some nefarious plot to discourage some people from voting at all? ...

Cases of voter impersonation in Canada and the USA can literally be counted on the fingers of one hand. These laws potentially disenfranchise thousands of citizens. The proposed remedy is completely out of proportion to the non-existent problem.

The overwhelming majority of election fraud is committed by political parties, not individual voters. In the last Canadian federal election, the Conservatives robocalled voters in multiple ridings and told them their polling location had been changed. In the last US federal election, the a company hired to run registration drives in multiple states was caught destroying registration forms that chose the opposing party.

The fundamental principle being applied here is if voters do not choose the party, the party needs to choose the voters.

Posted by Moo (# 107) on :

quote:
Originally posted by Soror Magna:
The overwhelming majority of election fraud is committed by political parties, not individual voters.

There is some individual election fraud. It is appropriate to address all aspects of election fraud.

Moo

[ 06. April 2014, 17:32: Message edited by: Moo ]

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by Moo:

quote:
Originally posted by Soror Magna:
The overwhelming majority of election fraud is committed by political parties, not individual voters.
There is some individual election fraud. It is appropriate to address all aspects of election fraud.

Moo

People die from being struck by lightning. Should we then consider is during individual lightning rods with the same intensity we do preventing impaired driving?
It remains that voter ID measures target voters the measure supporters don't wish to have voting.

Regarding your link, I think this statement one of the most important.

quote:
Others urged caution until more information about the numbers comes to light.

[ 06. April 2014, 17:42: Message edited by: lilBuddha ]

Posted by Soror Magna (# 9881) on :

The Interstate Voter Registration Crosscheck Program is operated by the Kansas Secretary of State. It is a partisan program, supported by an increasing number of Republican governors. This is a short backgrounder which explains how they come up with their amazing figures of alleged voter fraud in the hundreds of thousands. Their actual accomplishments, cited in their presentation materials available online:

In 2008, three states participated in the program, and there were no double votes found. In 2010, 6 states participated and there were a total of 7 cases referred to prosecution.

In 2012, they reviewed 45,247,823 voting records from 15 states. The table on page 11 shows the number of POTENTIAL duplicate voters found e.g. 24,864 potential duplicates between Arizona and Colorado. This group of potential duplicates resulted in six referrals to the FBI. There is no mention of any prosecutions in other participating states that year.

http://www.empowerthevotetx.org/uploads/KANSAS.pdf

Fox News is, understandably very, very excited, about the potential number of duplicates found by this program. They are, however, conspicuously not reporting the actual number of duplicates found by the same program in previous election years.

Caution until more information about the numbers comes to light is a nice way of saying these guys are almost certainly crying wolf yet again.

http://www.empowerthevotetx.org/uploads/KANSAS.pdf

Posted by Lamb Chopped (# 5528) on :

quote:
Originally posted by marsupial.:
I don't really know what the practical effect of the new law would be. The practical issue for the prosecution is often not so much whether a spouse (or girlfriend, or whatever) can be called as a witness but whether the witness will be co-operative -- i.e., whether will witness will testify consistently with their initial statement, or whether the witness is going to recant. If it's clear that the witness is not going to testify in accordance with their initial statement often there will be no point in calling that witness.

That's true--but there are witnesses who are conscience-bound and would not dream of lying under oath, or slanting their testimony. Those folks would conceivably have some trouble if forced to testify against a spouse, particularly since no witness gets to control the direction of questioning, or the overall impression produced by truthful but possibly incomplete answers elicited by biased questioning. I'd really prefer to hang on to spousal privilege, except in cases of family abuse.

Posted by Moo (# 107) on :

quote:
Originally posted by Soror Magna
Cases of voter impersonation in Canada and the USA can literally be counted on the fingers of one hand.

Do you really believe that in all the fifty-one states fewer than six ballots were cast in the names of dead people? This kind of fraud has been going on for many years. There's even a joke about it.

quote:
Two men go to a cemetery to copy names from tombstones to register them to vote. One man comes to a tombstone where the name is difficult to read. He starts to go on to another one, explaining that this one is too hard to read. The other man says, "This guy has the same right to vote as every other dead guy."

The fact that the Kansas program appears to be incompetent does not prove that voter fraud does not exist.

I don't think it will ever be wiped out completely, but I think we should work to reduce it.

Moo

Posted by Gee D (# 13815) on :

The saying here: Vote early, vote often and vote for the dead.

Posted by orfeo (# 13878) on :

quote:
Originally posted by Anglican't:
I worry that this an intrusion of the state into family life.

Depends what you mean by that. What it is is the removal of a rule that created a barrier beyond which the law just wouldn't go no matter what. And it's worth asking just what benefits we thought that barrier brought with it.

It's not creating a special rule for intruding into families, it's the removal of a special rule that treated families differently.

Gee D has mentioned the modified form of the privilege as it now exists in Australia. I personally rather like the situation in Australia now, because it recognises the basic principle that family relationships are important and risk being disrupted by giving evidence in court (and recognises there are some other relationships that are similarly important), but also requires looking at the individual case and asking, "what would be the effect on THIS relationship" and "is the evidence worth the effect".

To me that's rather better than a hard and fast rule that might cause serious injustice in particular cases where it's whipped out as a technicality.

Posted by Soror Magna (# 9881) on :

quote:
Originally posted by Moo:
Do you really believe that in all the fifty-one states fewer than six ballots were cast in the names of dead people? This kind of fraud has been going on for many years. There's even a joke about it. ... The fact that the Kansas program appears to be incompetent does not prove that voter fraud does not exist.

I don't think it will ever be wiped out completely, but I think we should work to reduce it.

Moo

Well, that's an impressive argument: incredulity and comedy. Maybe it takes two hands to count actual cases of voter impersonation. Making it harder for the average citizen to vote will not eliminate fraud. The bottom line is that voter impersonation does not change the outcome of elections. Voter suppression does.

Posted by Moo (# 107) on :

quote:
Originally posted by Soror Magna:
The bottom line is that voter impersonation does not change the outcome of elections. Voter suppression does.

How do you know?

Moo

Posted by Lamb Chopped (# 5528) on :

Logically both would affect the outcome of elections.

Posted by Gildas (# 525) on :

The only way you can game an election with an electorate in the hundreds, let alone more than, is to bribe the officals concerned to rig it or to have some other means to persuade them to favour your desired outcome. In the UK, you turn up at the poll, tell them your name and they put a tick by it on the electoral register. That's it. If the government want you to bring your passport or your driving licence to the poll, then it's a plan to disenfranchise someone. Basically, free and fair elections depend on competent and decent people running the election. Sort that and all else will follow.

Posted by Enoch (# 14322) on :

As a matter of curiosity, what has voter impersonation got to do with whether spouses can be required to give evidence against each other?

Posted by orfeo (# 13878) on :

quote:
Originally posted by Enoch:
As a matter of curiosity, what has voter impersonation got to do with whether spouses can be required to give evidence against each other?

You should know, you were the first one to respond to Soror Magna's complete and utter tangent.

Posted by Leaf (# 14169) on :

quote:
Originally posted by orfeo:

quote:
Originally posted by Enoch:
As a matter of curiosity, what has voter impersonation got to do with whether spouses can be required to give evidence against each other?
You should know, you were the first one to respond to Soror Magna's complete and utter tangent.

This thread unfortunately conflates two recent, and separate, pieces of proposed legislation: Bill C-23 (with the Orwellian name of The Fair Elections Act) and Bill C-32, dealing with proposed amendments to the Criminal Code including the spousal evidence thing.

The Voter Suppression... oops, I mean the Fair Elections Act... was always slimy and is growing slimier by the day, due to the appalling tactics of the minister on this file.

Posted by JonahMan (# 12126) on :

quote:
Originally posted by Moo:
This kind of fraud has been going on for many years. There's even a joke about it.
quote:
Two men go to a cemetery to copy names from tombstones to register them to vote. One man comes to a tombstone where the name is difficult to read. He starts to go on to another one, explaining that this one is too hard to read. The other man says, "This guy has the same right to vote as every other dead guy."
The fact that the Kansas program appears to be incompetent does not prove that voter fraud does not exist.

Moo

There are jokes involving talking horses, but that isn't compelling evidence that talking horses exist.

Posted by Moo (# 107) on :

quote:
Originally posted by JonahMan:
There are jokes involving talking horses, but that isn't compelling evidence that talking horses exist.

In this post I gave a link to a report examining possible election fraud in North Carolina. Here is a quote from that link.

quote:
Strach also told lawmakers that a recent “10-year death audit” identified more than 13,400 dead people on voter rolls in October – they have since been removed – and that in about 50 instances, votes were attributed to dead people. The board is investigating to determine whether those cases were precinct mistakes or people fraudulently voting under the names of dead people, she said. Strach stressed that those cases could stem from errors made by precincts, caused by deceased former voters remaining on voter rolls.

It is possible that this is just sloppy record-keeping, but sloppy record-keeping makes it easy to commit fraud.

I am in favor of requiring photo-ID for people at the polls, and I am also in favor of doing everything possible to provide everyone with a photo-ID. Many jurisdictions have undertaken such programs.

AFAIK in every state people can get a photo-ID if they can get to the place where they are issued. Many jurisdictions offer free transportation to those who need it.

Moo

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