Judge ALLARD, writing for the Court.
Jennifer Anderson is the wife of Jeremy Anderson, a former high school teacher. Jeremy Anderson currently stands indicted on multiple counts of first- and second-degree sexual abuse of a minor, based on allegations that he had sexual intercourse with one of his students, fifteen-year-old K.H., over the span of four months.
Mrs. Anderson has asserted her spousal immunity privilege not to testify against her husband at his trial.
Mrs. Anderson petitioned this Court to review the superior court's ruling and we accepted the petition as an original application for relief under Alaska Appellate Rule 404. For the reasons explained here, we conclude that the superior court did not err when it rejected Mrs. Anderson's marital privilege claim in this case.
On May 8, 2014, fifteen-year-old K.H. reported to one of her high school teachers that she had been sexually involved with her music teacher, thirty-six-year-old Jeremy Anderson, since February of that year. The troopers were contacted, and an investigation ensued. Based on the results of that investigation, Anderson was indicted on fourteen counts of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor.
At the grand jury hearing, K.H. testified regarding the nature and frequency of her sexual encounters with Anderson. K.H. stated that Anderson had started acting flirtatious towards her in December 2013. Anderson's "flirtation" continued, and the pair had sex for the first time in February 2014. K.H. testified that they had sexual intercourse around twenty to thirty times between February 2014 and early May 2014. The sex occurred on school grounds, generally in the choir room closet or the band room closet.
During the pretrial proceedings in Jeremy Anderson's case, it became clear that the State intended to introduce various statements that Anderson made to his wife during the course of the investigation.
On the same day that school officials contacted the state troopers, the troopers received a call informing them that a man — later determined to be Jeremy Anderson — was trying to kill himself. The troopers began searching for Mr. Anderson, and ultimately arrested him in his truck. Prior to Anderson's arrest, one of the troopers overheard a cell phone conversation between Anderson and his wife Jennifer. The trooper was able to overhear both sides of the conversation.
After arresting Anderson, the troopers discovered a letter addressed to his wife and children in the car. In this letter, Anderson admitted, again in general terms, that he had done wrong, and he apologized to his wife for his actions. Later, a trooper spoke with Jennifer Anderson about this letter. Mrs. Anderson told the trooper that, aside from this letter, her husband admitted to her that he had engaged in an inappropriate relationship with one of his students — a student named "K."
In the pretrial proceedings, the State indicated that it intended to call Mrs. Anderson as a witness to testify to her husband's admissions of wrongdoing. The State also indicated that it intended to introduce Mr. Anderson's suicide letter into evidence.
In response, Mr. Anderson asserted his marital communications privilege under Alaska Evidence Rule 505(b) to exclude evidence of any confidential communications between himself and his wife. In later proceedings before the trial court, Mrs. Anderson also asserted her spousal immunity privilege under Rule 505(a), and she separately asserted her own marital communications privilege under Rule 505(b).
Alaska law recognizes two marital privileges: the spousal immunity privilege codified in Evidence Rule 505(a), and the marital communications privilege codified in Evidence Rule 505(b).
Evidence Rule 505(a) provides that "a husband shall not be examined for or against his wife, without his consent, nor a wife for or against her husband, without her consent." This privilege belongs solely to the witness-spouse, and it can only be invoked during the life of the marriage.
Evidence Rule 505(b) provides that a spouse shall "[not] be examined as to any confidential communications made by one spouse to the other during the marriage, without the consent of the other spouse."
Both the spousal immunity privilege and the marital communications privilege have been criticized by legal commentators, and both privileges are subject to multiple statutory exceptions under Alaska law.
The Alaska legislature has enacted multiple statutory exceptions to Alaska Evidence Rule 505. Many of these exceptions are specific to criminal proceedings. Evidence Rule 505(a)(2)(D) and Evidence Rule 505(b)(2)(A) prohibit application of either privilege in a criminal proceeding in which one spouse is charged with:
These exceptions represent situations in which the legislature has directly determined that society's interest in promoting "family peace and harmony" must give way to society's larger interest in prosecuting certain crimes. Most jurisdictions have codified similar exceptions to their marital privileges.
Some jurisdictions have also expanded this exception to include an "any child" exception — which means that spouses are precluded from asserting their marital privileges in a prosecution involving sexual abuse of any child, regardless of whether the child is related
The superior court made two different rulings on the Andersons' assertions of marital privilege in this case.
First, the superior court ruled that the suicide letter could be introduced because it did not qualify as a "confidential" marital communication. The court noted that the letter included a section addressed to Mrs. Anderson, but it also included sections addressed to "my kids" and "my family." The court also noted that the letter was left in plain view. Based on these circumstances, the court concluded that Mr. Anderson did not have a reasonable expectation that the suicide note would only be read by his wife, and the letter therefore did not qualify as a confidential marital communication.
Second, the superior court ruled that the "domestic violence" exception applied to this criminal prosecution because the sexual abuse qualified as a "crime of domestic violence" as that term is defined in AS 18.66.990. Alaska Statute 18.66.990(3) defines a crime of domestic violence as including any crime against a person under 11.41 (sexual abuse of a minor qualifies as a crime against a person) if the crime is committed by one "household member" against another "household member." Alaska Statute 18.66.990(5) defines "household member" to include "adults or minors who are dating or who have dated," as well as "adults or minors who are engaged in or who have engaged in a sexual relationship."
Based on K.H.'s grand jury testimony, the superior court ruled that Anderson and K.H. qualified as "household members" under AS 18.66.990(5)(C) and (D) because they had been engaged in a "sexual relationship" and had been "dating" for several months. The court therefore concluded that Mr. Anderson's alleged sexual abuse of his teenage student constituted "crimes of domestic violence" for purposes of precluding the use of either marital privilege at Mr. Anderson's criminal trial.
The superior court's rulings ultimately applied to both Mr. and Mrs. Anderson. But the rulings initially applied only to Mr. Anderson, because he was at first the only spouse asserting a marital privilege. After the superior court rejected Mr. Anderson's confidential marital communications claim of privilege, Mr. Anderson filed a petition for review in this Court, seeking pretrial interlocutory review of the superior court's ruling. This Court declined to exercise our power of discretionary review because the case was pending trial and because Mr. Anderson had adequately preserved the issue for any future appeal should this ruling materially affect the resolution of his criminal case. In denying
Following our denial of Mr. Anderson's petition for review, Jennifer Anderson filed her own motion in the superior court, asserting her spousal immunity privilege (i.e., her privilege not to be called as a witness in her husband's case) and her marital communications privilege. The superior court rejected Mrs. Anderson's claims of privilege — again ruling that the domestic violence exception applied.
Mrs. Anderson petitioned this Court to review the superior court's rejection of her spousal immunity privilege. Because we recognized that Mrs. Anderson's rights as a witness-spouse could be adversely affected if we denied interlocutory review of her claim, we granted Mrs. Anderson's petition as an original application for relief under Alaska Appellate Rule 404.
Whether the domestic violence exception applies under the particular facts of this case is a question of law that we review de novo.
The domestic violence exception to the marital privileges was enacted by the Alaska legislature in 1996 as part of a comprehensive revision of Alaska's domestic violence laws.
Under the Model Code, the term "household member" includes:
This definition, with a few minor revisions, is now codified in AS 18.66.990(5).
Alaska's domestic violence exception to the marital privileges is also derived from the Model Code on Domestic and Family Violence.
This exception was therefore intended to apply broadly to crimes outside the traditional intrafamilial domestic violence situation.
The question presented by this case is whether this exception applies to the case at hand, which involves alleged sexual abuse of a minor by a person in a position of authority over the minor. Mrs. Anderson contends that the domestic violence exception should be limited to the "everyday meaning" of domestic violence which she defines as "[f]amily or household members [who] have a connection rooted in blood, marriage, family standing, or a chosen romantic relationship."
As a general matter, we agree with Mrs. Anderson that the hallmark of a crime of domestic violence is that it is a crime that is committed within the context of a pre-existing relationship. As we explained in Bates v. State:
We disagree, however, with Mrs. Anderson's contention that her husband and K.H. were not engaged in such an intimate relationship.
In Bates, we concluded that the term "dating" was properly understood as a requirement that the parties be involved in a "dating relationship" — a term which connotes "an ongoing series of social engagements, usually characterized by the parties' interest, or at least their potential interest, in pursuing a romantic relationship."
Here, we are not dealing with a single prior act of forced sexual contact. Instead, K.H.'s grand jury testimony makes clear that, from K.H.'s perspective at least, she was engaged in a sexual or dating relationship with Anderson — a relationship that spanned many months and involved multiple intimate encounters, not all of which were sexual in nature.
Mrs. Anderson and the dissent both contend that this relationship cannot be acknowledged as a "relationship" for purposes
We disagree, however, with Mrs. Anderson and the dissent that this means K.H. should be denied the legal protections that would otherwise be granted to her in these circumstances.
In the dissent, Chief Judge Mannheimer criticizes the Court for extending legal protections to K.H. under reasoning that would not apply to all minors who have suffered sexual abuse. We agree that this case would be much easier to resolve if Alaska law included an "any child" exception to its marital privileges, as many other jurisdictions have done. But we do not have the authority to create such a broad exception where none currently exists.
We are guided in our analysis, however, by the larger principles of statutory interpretation, which require us to strictly construe the marital privilege at issue here and to interpret the statutory exception in accordance with the underlying legislative intent.
At its heart, the domestic violence exception represents a clear legislative determination
The ruling of the superior court is AFFIRMED.
Judge MANNHEIMER, dissenting.
Judge MANNHEIMER, dissenting.
The petitioner in this case, Jennifer Anderson, is the wife of Jeremy Anderson. Mr. Anderson is a former high school teacher who stands indicted on multiple counts of sexual abuse of a minor. These charges are based on allegations that, over the span of several months, Mr. Anderson repeatedly had sexual intercourse and sexual contact with one of his students, fifteen-year-old K.H.
Under Alaska Evidence Rule 505(a)(1), a married person has a privilege not to be called as a witness when their spouse is charged with a crime. But there are several exceptions to this "spousal immunity" privilege. One of the exceptions is for cases where the spouse is charged with a "crime of domestic violence".
The main question in this appeal is whether the charges against Jeremy Anderson — charges of sexual abuse of a minor — constitute "crimes of domestic violence". For if these charges are "crimes of domestic violence", then Jennifer Anderson cannot validly claim the spousal immunity privilege, and the State can compel her to testify against her husband.
Anderson and K.H. are not related, nor are they members of the same domestic household. Rather, K.H. was Anderson's student.
Under these circumstances, and under the pertinent definitions contained in AS 18.66.990, the question of whether the charges against Jeremy Anderson constitute "crimes of domestic violence" ultimately turns on the answer to yet another question: Were Jeremy Anderson and his teenage student K.H. "engaged in a sexual relationship"?
If Anderson and K.H. were "engaged in a sexual relationship", then (by statute) they are deemed to be "household members", and Anderson's sexual abuse of K.H. would constitute a crime of domestic violence — meaning that Anderson's wife can be compelled to testify against him.
Normally, when an adult sexually abuses a child, it would seem strange (if not somewhat repugnant) to say that the child and their abuser were "engaged in a sexual relationship". Indeed, if K.H. were a significantly younger child, I trust that my colleagues would never uphold a finding that K.H. had a "sexual relationship" with an adult, no matter what K.H. said about her willingness to engage in the sexual activity.
But my colleagues conclude that, as a matter of law, there was a "sexual relationship" between Jeremy Anderson and K.H. in this case. They base their conclusion on K.H.'s grand jury testimony.
At grand jury, K.H. testified that, with one exception, she viewed all of her sexual activities with Anderson as "consensual". Based on K.H.'s testimony that she consented to have sex with Anderson, my colleagues conclude that K.H. and Anderson were "engaged in a sexual relationship". Thus, Anderson's alleged sexual abuse of K.H. constitutes "domestic violence" — and Jennifer Anderson can therefore be forced to testify against her husband.
The first category will be the typical cases where the child victim does not view the sexual abuse as "consensual". In those cases, the sexual abuse will not be a "crime of domestic violence". This means that the defendant's spouse can validly invoke their spousal immunity privilege, and the spouse cannot be compelled to testify.
The second category will be the cases where the child victim declares that they consented to the acts of sexual abuse. In those cases, the sexual abuse will be a "crime of domestic violence". Because of this, the spousal immunity privilege will not apply, and the defendant's spouse can be compelled to testify.
In other words, under the rule adopted by my colleagues, when a defendant is charged with sexually abusing a child who is unrelated to the defendant or their spouse, and who is not otherwise a member of the defendant's domestic unit, the question of whether the defendant's spouse can be compelled to testify hinges on the victim's attitude toward the sexual abuse.
If the victim says that they wanted to participate in the acts of sexual abuse, then the defendant's spouse can be compelled to testify. But if the victim says that they did not want to participate in the acts of sexual abuse, then the defendant's spouse cannot be compelled to testify.
My colleagues justify this strange rule by asserting that they are simply interpreting AS 18.66.990 and Evidence Rule 505 to advance the legislative purpose of making it easier to prosecute cases of sexual abuse. They acknowledge that, under their rule, spouses cannot be compelled to testify in cases where an adult is accused of sexually abusing an unwilling child, or where an adult is accused of abusing a child so young that the child cannot articulate willingness or unwillingness to engage in sexual activity. Nevertheless, my colleagues conclude that it is better to achieve at least a portion of the legislature's goal.
Thus, in the interest of partially achieving this goal, my colleagues are willing to declare that when a child says that they wanted to have sex with an adult (and to have sex with this adult on more than one occasion), the child and the adult have formed a "sexual relationship".
This reasoning is inconsistent with the doctrine that minors cannot meaningfully consent to engage in sexual conduct with adults. It implicitly rests on the notion that some children have the intellectual and emotional maturity to make a meaningful decision about such matters.
Even conceding this notion (which I do not), my colleagues do not remand this case to the superior court so that the trial judge can evaluate K.H.'s intellectual and emotional capacity to meaningfully consent to have sex with her teacher, or so that the judge can investigate whether there might have been coercive aspects to the situation that would raise questions as to whether the child was truly "consenting" to the sexual activity with her teacher. Instead, my colleagues base their decision in this case on an uncritical acceptance of the child's grand jury testimony.
Moreover, the distinction that my colleagues have drawn bears no rational relation to the policies behind the marital privileges, nor to the policies underlying the exceptions to the marital privileges.
I therefore dissent.
What follows is a more detailed examination of the law pertaining to this case, and a fuller explanation of why I believe that my colleagues have reached the wrong decision.
Alaska Evidence Rule 505(a)(1) gives married people the right to refuse to testify against their spouse (or to testify in favor of their spouse, for that matter). And Alaska Evidence Rule 505(b)(1) gives spouses and former spouses the right to block testimony about confidential communications that occurred between the spouses during their marriage. But these evidentiary privileges have many exceptions. One of the exceptions is for cases where a spouse is charged with a
Sexual relations between a teacher and a minor student might not constitute "domestic violence" within the everyday meaning of this phrase. But AS 18.66.990 contains a special, expansive definition of "domestic violence".
Under AS 18.66.990(3), any "crime against the person" — i.e., any crime defined in Title 11, chapter 41 of the Alaska Statutes — qualifies as a crime of "domestic violence" if the crime was committed by one "household member" against another "household member".
Sexual abuse of a minor is one of the "crimes against the person" codified in AS 11.41.
Putting all of these statutory provisions together: Alaska law declares that if two people have "engaged in a sexual relationship", then they are "household members" even if they don't live in the same household. And because they are "household members", if one of them commits a crime against the other, and if this crime is one of the "crimes against the person" defined in AS 11.41, then the crime is a "crime involving domestic violence".
As I have already explained, when a person is charged with a "crime involving domestic violence", the spousal immunity privilege and the marital communications privilege do not apply. Thus, in cases of "domestic violence" — as that term is broadly defined in AS 18.66.990 — the defendant's spouse can be compelled to testify against the defendant.
Jennifer Anderson has asserted her spousal privilege not to testify against her husband, and the State is relying on the "domestic violence" exception to defeat this claim of privilege. But the State's invocation of the "domestic violence" exception is problematic for two reasons.
The first difficulty is that, of the several definitions of "household member" contained in AS 18.66.990(5), none of them seem to apply to Jeremy Anderson's case. Anderson is charged with sexually abusing a child who is not a member of the Anderson household, and who has no familial relationship with either Anderson or his wife. Rather, Anderson and K.H. had the relationship of teacher and student.
To resolve this difficulty, my colleagues rely on the definition of "household member" contained in subsection (D) of the statute. This provision declares that a defendant and a victim are "household members" if have "engaged in a sexual relationship". Based on K.H.'s grand jury testimony that she viewed her sexual activities with Anderson as "consensual", my colleagues conclude that Anderson and K.H. were engaged in a sexual relationship.
But the fact that two people have repeatedly engaged in sexual activity does not necessarily mean that they have shared a "sexual relationship".
Alaska has seen unfortunate instances where a man has held a woman captive and raped her repeatedly over a number of days. See, for instance, Morrell v. State, 575 P.2d 1200 (Alaska 1978). I am confident that, in such cases, my two colleagues would disavow any notion that the defendant and his victim were "engaged in a sexual relationship".
The principle is the same when an adult sexually abuses a child. Alaska's sexual abuse of a minor statutes are premised on the idea that children below a certain age cannot make meaningful decisions about engaging in sexual activity with an adult.
I doubt that my colleagues would be willing to say that, when an adult repeatedly engages in sex with a pre-pubescent child,
But my two colleagues have embraced the notion that when an adult sexually abuses an older child (a child who is below the age of consent, but who is physically mature), and if this older child asserts that they wanted to engage in this sexual activity, then the adult and the abused child have shared a "sexual relationship".
I disagree. K.H. was fifteen years old — below the age of consent — when she allegedly engaged in sex with Anderson. The reason for having an age of consent is that, even though children may be physically mature, and even though they think that they want to have sexual relations with an adult, the legislature has determined that children of that age do not have sufficient intellectual and emotional maturity to meaningfully consent to such sexual activity.
Thus, even though K.H. testified that she willingly engaged in sex with Anderson, they did not share a "sexual relationship" in the eyes of the law. As a legal matter, their sexual activities were no more "consensual" than if K.H. had been a prepubescent child.
There is yet another problem with my colleagues' analysis of this issue. Even if we assume that some children have the intellectual and emotional maturity to make a meaningful decision about engaging in sexual activity with adults, my colleagues make no effort to discover if K.H. is one of those children.
My colleagues do not remand this case to the superior court so that the trial judge can evaluate whether K.H. possesses the intellectual and emotional capacity to meaningfully consent to have sex with her teacher. Nor do my colleagues ask the trial judge to investigate whether there might have been coercive aspects to the situation that would cause someone to question whether K.H. was truly "consenting" to the sexual activity, despite what she told the grand jury. Instead, like the trial judge in this case, my colleagues simply accept the child's grand jury testimony uncritically.
I do not.
There is a separate legal difficulty with my colleagues' conclusion that the "domestic violence" exception applies to Anderson's case: that conclusion is inconsistent with the legislature's reasons for punishing a crime more severely when it is committed in the context of a domestic relationship.
The phrase "crime involving domestic violence" must be interpreted within the context of the social harm that the legislature was trying to address. Crimes of "domestic violence" share a common characteristic: they are offenses committed by one person against another within the context of a pre-existing relationship.
A crime is deemed a "crime involving domestic violence" when it is committed in the context of a pre-existing romantic or familial relationship between the defendant and the victim — a pre-existing relationship that provided the motivation for the crime, or that made the victim more vulnerable (either physically or emotionally), or that otherwise significantly contributed to the commission of the crime.
The charges against Anderson do not fit this mold. The State does not allege that Anderson became sexually involved with K.H. and then committed a crime against her. Instead, the State alleges that Anderson's sexual activity with K.H. was simultaneously the conduct that formed the "relationship" and the conduct that constituted the crime itself.
Although Jeremy Anderson is charged with a serious felony against a minor, his offense does not constitute a "crime involving domestic violence" for purposes of Evidence Rule 505. I therefore conclude that the superior court should have honored Jennifer Anderson's assertion of the spousal immunity privilege. Under Alaska law, Jennifer Anderson has a right to refuse to testify against her husband.
