In the early morning hours of October 10th, police responded to a Natick home for a reported assault. According to an article in the MetroWest Daily News, a woman called 911 in “hysteric[s].” The police arrived at the home shortly thereafter and spoke with her. She claimed that she and her husband had been having a verbal argument that had begun earlier that night and that her husband had blocked the door to their apartment, refusing to let her leave. There are no allegations that the husband physically harmed or threatened his wife, however, police arrested him on domestic violence charges, specifically charging him with kidnapping. At the husband’s subsequent arraignment in Framingham District Court, his defense attorney argued that the charge was excessive given the allegations in the case. She further argued that the wife had left the apartment twice during the course of the argument and then returned, contradicting the wife’s claims that the husband had prevented her from leaving.
To prove that the husband kidnapped his wife under the statute (G. L. c. 265, § 26) the Commonwealth would have to prove that he (1) acted without lawful authority; (2) forcibly or secretly confined or imprisoned his wife within the state of Massachusetts; and (3) committed these acts against his wife’s will.
The husband’s defense attorney has a number of arguments at her disposal. First of all – there appears to be a serious question as to whether he actually “confined” his wife. Given the fact that all homes are required to have two means of egress in the event of a fire, there was likely a back door that the wife could have left through had she actually wanted to get out of the apartment. Second, if the wife did in fact leave the home multiple times during the course of the argument, any claim that she was truly “confined” for the purposes of the statute is severely weakened.
The husband’s third defense is that his wife may decide that she does not want to testify against him. In most situations, once a person has called the police to the scene and the police have made arrests, the district attorney’s office makes the decisions about how to proceed with the case. Even if a witness decides that he or she does not want to testify, the Commonwealth has the ability to subpoena the witness and force him or her to do so (although the Commonwealth does not always choose to exercise this option). The Commonwealth’s ability to compel testimony does not, however, hold true in all situations. In particular, a person cannot be compelled to testify against his or her spouse. This law is called “spousal privilege” and is laid out in G. L. c. 233, § 20. The law specifically provides for an exception to the Commonwealth’s ability to compel testimony where the witness is married to the party he or she would have to testify against. The decision to exercise the privilege is made by the witness, not the defendant. Therefore, in this case, the wife would have to choose not to testify, the husband could not choose for her.
While some might wonder why the wife would bother to call the police in the first place if she ultimately did not want to proceed with the criminal case, there are a multitude of reasons why she might ultimately prefer to avoid testifying. Many people who call 911 do so because they are angry or scared in the moment. When cooler heads prevail later, some may regret making the call and, given the opportunity and ability, would opt out of testifying or pursuing a case. While it is unclear whether this will happen for the husband, his defense attorney would certainly be wise to speak with the wife and see if she is in fact interested in pressing charges. If it turns out that the wife would prefer to work through things privately rather than in a public courtroom, the husband’s attorney can alert the court to the wife’s wish to exercise her spousal privilege. Without her, the Commonwealth will have a difficult time proving its case.
Cases like this one are complicated – they involve a lot of emotion on both sides and require sensitivity to the wide spectrum of issues that arise when spouses are on opposite sides of a criminal matter. Daniel Cappetta is an attorney who is cognizant of the various concerns that both sides may have during the course of this type of case. If you or a loved one is in a similar situation, call attorney Cappetta today for a free consultation.