(a) In civil and criminal proceedings, a spouse or domestic partner is competent but not compellable to testify for or against their spouse or domestic partner.

(b) In civil and criminal proceedings, a spouse or domestic partner is not competent to testify as to any confidential communications made by one to the other during the marriage or the domestic partnership.

(b-1) Notwithstanding subsections (a) and (b) of this section, a spouse or domestic partner is both competent and compellable to testify against his or her spouse or domestic partner as to both confidential communications made by one to the other during the marriage or domestic partnership and any other matter in:

(1) A criminal or delinquency proceeding where one spouse or domestic partner is charged with committing:

(A) Intimate partner violence as defined in § 16-1001(7) if the spouse or domestic partner has previously refused to testify in a criminal or delinquency proceeding against the same spouse or domestic partner for an offense against him or her; or

(B) An offense against a child, minor, or vulnerable adult who is:

(i) In the custody of or resides temporarily or permanently in the household of one of the spouses or domestic partners; or

(ii) Related by blood, marriage, domestic partnership, or adoption to one of the spouses or domestic partners;

(2) A civil proceeding involving the abuse, neglect, abandonment, custody, or dependency of a child, minor, or vulnerable adult who is:

(A) In the custody of or resides temporarily or permanently in the household of one of the spouses or domestic partners; or

(B) Related by blood, marriage, domestic partnership, or adoption to one of the spouses or domestic partners; or

(3) A criminal or delinquency proceeding where one spouse or domestic partner is charged with committing a crime jointly with the other spouse or domestic partner.

(b-2) Notwithstanding subsections (a) and (b) of this section, when one spouse or domestic partner is charged with committing a crime that occurred prior to the marriage of the spouses or prior to the filing of a domestic partnership agreement, the other spouse or domestic partner is both competent and compellable to testify against his or her spouse or domestic partner as to the crime, communications made by one to the other, and any other matter that occurred prior to the marriage of the spouses, or prior to the filing of the domestic partnership agreement.

(b-3) The burden is upon the person asserting a privilege under this section to establish that it exists.

(c) For the purposes of this section, the term:

(1) “Domestic partner” shall have the same meaning as provided in § 32-701(3).

(2) “Domestic partnership” shall have the same meaning as provided in § 32-701(4).

(3) “Refused to testify” means that the witness spouse or domestic partner has:

(A) Submitted an affidavit or other writing stating that she or he will not testify before a grand jury or in court;

(B) Taken the stand in the grand jury or in any court proceeding and asserted his or her privilege under this section not to testify; or

(C) Intentionally failed to appear in response to a subpoena.

(Dec. 23, 1963, 77 Stat. 519, Pub. L. 88-241, § 1; Apr. 4, 2006, D.C. Law 16-79, § 2(b), 53 DCR 1035; Dec. 10, 2009, D.C. Law 18-88, § 206, 56 DCR 7413.)

1981 Ed., § 14-306.

1973 Ed., § 14-306.

This section is referenced in § 4-1321.05, § 16-1005, § 16-2359, and § 16-2388.

D.C. Law 16-79 rewrote the section.

D.C. Law 18-88 added subsecs. (b-1), (b-2), (b-3), and (c)(3).

Family division proceedings, privilege under this section, see § 16-2359.

Neglected children proceedings, waiver of privilege, see § 4-1321.05.

For temporary (90 day) amendment of section, see § 206 of Omnibus Public Safety and Justice Emergency Amendment Act of 2009 (D.C. Act 18-181, August 6, 2009, 56 DCR 6903).

For temporary (90 day) amendment of section, see § 206 of Omnibus Public Safety and Justice Congressional Review Emergency Amendment Act of 2009 (D.C. Act 18-227, October 21, 2009, 56 DCR 8668).