- The Washington Times - Wednesday, April 3, 2019

Maryland’s high court ruled this week that text messages between a married couple can be admitted at trials concerning child abuse, overcoming a long-standing “spousal privilege” that had protected communications between couples.

The court said a law that makes certain people legally obligated to report suspected child abuse trumps the spousal privilege.

The case involved a man, Kevin Sewell, who was convicted of beating and killing his 3-year-old nephew, who he’d been watching. Part of the prosecution’s case involved text messages between him and his wife describing his frustration with his nephew’s behavior and mentioned bruises on the child’s body including bite marks.

The Maryland Court of Appeals, the state’s highest tribunal, upheld the conviction in a 6-1 ruling Tuesday, saying the child abuse reporting law is paramount and Amanda Sewell, the defendant’s wife, had a legal duty to report the abuse or neglect of a child.

“When Kevin discussed matters that he knew (or should have known) Amanda had an affirmative duty to report to a third party, he no longer retained a colorable claim that the communications were ‘reasonably expected’ to remain confidential,” wrote Judge Sally D. Adkins, who recently retired.

Judge Michele Denise Hotten dissented, saying the ruling cut into an important protection for defendants.

“I fear that the majority’s decision will erode the privilege,” she wrote.

Erin Murphy, the attorney representing Sewell, said they plan to appeal to the U.S. Supreme Court.

“The marital privilege is one of the oldest and most important privileges that there are. We aren’t finished fighting,” she said.

Sherry Colb, a professor at Cornell University, was skeptical that would be successful.

“It’s easy to sympathize with the government in this case,” Ms. Colb said.

The marital privilege varies from state to state, but generally, it allows either spouse to bar private communications between them from being introduced in court.

“States commonly have an exception to marital privileges for crimes against the child of either spouse, but that specific exception doesn’t apply to these facts,” said George Fisher, a law professor at Stanford University.

Maryland Attorney General Brian Frosh said the court’s decision was “groundbreaking.”

“It helps protect children from abuse and aids in prosecution of those who hurt the most vulnerable in our society,” he said.

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