Thursday, November 11, 2004

Keeping It In the Family

Why does the law tell us that we trust some people more than others and why are some people prevented from exposing lawbreakers?

Last night on Law and Order, getting the bad guy in jail depended on the testimony of a gay man because the defendant confessed to him. The catch was the two were legally married some time ago after a small town made such marriages legal. The defense pulled the spousal clause, meaning married couples can’t testify against each other even if one wants to.

The logic behind the law is that people tell their spouse things they tell no one else. Thus all such conversations are outside the boundaries of the state. All things equal, that’s right: government should stay out personal lives and people tell their spouses things they tell no one else.

Some people, I should say. This is the first problem with the law—it’s literally deciding for you who you trust more. Some people trust their siblings, parents, peers or even strangers more than their spouse. Your best friend of fifty years can testify against you; your wife who cheated on you and is about to divorce you cannot.

I’m not saying that all conversations should be held in private—quite the opposite. When it comes to crimes, if someone wants to testify against someone else, no one should be barred. The fact that some tell their spouses things they tell no one else is a reason to let them testify, not prevent them.

Yes, it will probably tear apart the marriage (though I think it was the murder that would tear it apart) but it’s not the state’s job to protect marriages. It’s their job to protect us from crimes and punish those that engage in them.


Mike said...

David, let's talk incentives.

The important thing about these groups is not that the state has decided that they are more important, but that socially we have decided they should be protected. The inclusion of legislation that decides these things is based upon long-held, but unlegislated understandings of privilege. We have found, over the course of a very long time, that the protection of these relationships is beneficial to society.

Some of the other privileged relationships are your lawyer, your doctor, and your priest(/spiritual guide). Quite obviously, if either were compelled (or heck, even willingly chose) to testify against you, your trust, and the trust of others for members of those profession would drop dramatically. How effective do you think a lawyer could be if you knew he could betray you? I don't think a market option really helps here--one betrayal is too many.

I think you have a point here, that maybe we should expand the inclusion. It would not be difficult to establish rules that allow for a factual finding of a long history of friendship and a general understanding of privilege.

David said...

Expect that if someone disagrees with the social norm, if someone decides that in this case confidentiality should be broken in pursuit of justice, the law prevents them from that.

The problem with laws established from social norms is that they are not social norms. Customs and practices are organic things: they change over time and acknowledge exceptions and degrees. Laws, for the most part, do not and when they do, their "give" is never good enough.

If these customs are so strong, why do we need to legislate them? We do we prevent them from evolving? These are the questions I ask of libertarians when they claim that society's adversion to gay marriage is grounds for barring it's legalization.

As for the other privileges, we could use contracts with penalities if they are broken. Thus a doctor or priest could testify against a murderer, and the murderer would go to jail; the contract breaker would also get (no doubt less severe) penalities, such as a fine or jail time, depending on the nature of the contract. There's your incentive.