The United States Court of Appeals for the Armed Forces (C.A.A.F.), the highest military court in the United States’ military justice system, recently ruled on a privileges issue that has widespread implications for military appellants. In United States v. Taylor, No. 06-0319 (C.A.A.F., 5 April 2007), the Court ruled that during a criminal prosecution for adultery, an criminal accused may not prevent his spouse from voluntarily testifying to admission she made to her. The opinions were notably drafted by the two newest members of the court. Judge Scott W. Stucky delivered the opinion of the court and Judge Margaret A. Ryan delivered a lone dissenting opinion. Both judges were appointed on 20 December 2006.
The facts of the case are unfortunate but not uncommon. A young couple married. The Marine stayed in North Carolina and his wife returned to Idaho to complete her high-school education. The husbands wandering eye then turned to a fifteen-year-old girl living in the same trailer park. He later admitted to his wife that he had engaged in intercourse with the underaged girl. During his prosecution the wife was called to the witness stand to testify about this conversation.
The C.A.A.F. held that adultery is “a crime against the person or property of the other spouse” for the purpose of the marital privilege, Military Rule of Evidence 504(c)(2)(A). The majority tracked the evolution of the U.C.M.J. and the Military Rules of Evidence and concluded that the President never removed the adultery exception from the spousal communication exception.
Judge Ryan in her dissent maintained that adultery is not a “crime against the person or property of the other spouse.” She maintained that a crime against the person should be limited to violent crimes; not every act that “might emotionally harm, offend, or betray.” Thus, under Judge Ryan’s view, a spouse would only be allowed to testify against another spouse if she was the victim of violence. Adultery, Judge Ryan argued, citing longstanding case law in support of her position, historically was not treated byt he courts as a crime of violence meriting an exception to the spousal privilege.
Judge Stucky’s (self-written) career before joining the C.A.A.F.:
I have more than 25 years of experience with military law; indeed, if the term is broadly defined, my entire career, other than my time in private practice from 1978 to 1982, has been engaged in military law. With respect to the appellate review of courts-martial, I served for four years (1987-1991) as a Reserve appellate government counsel in the Air Force, writing more than 100 briefs for the government in appeals before the Air Force Court of Military Review and the U.S. Court of Military Appeals. I then served for seven years (1991-1995, 1997-1998, 2001-2003) as a Reserve appellate military judge on the Air Force Court of Military Review (later the Air Force Court of Criminal Appeals), one of the service courts directly below USCAAF in the military justice system. During this time, I wrote approximately 75 judicial opinions on a wide variety of issues.
Judge Ryan’s career before joining the C.A.A.F.:
She served in the U.S. Marine Corps as a communications officer, a company and platoon commander, a judge advocate, and the Aide de Camp to the 31st Commandant of the Marine Corps (General Charles G. Krulack); service as a law clerk to two federal appellate judges (the Honorable Clarence Thomas, Associate Justice of the Supreme Court of the United States, and the Honorable J. Michael Luttig, Circuit Judge of the U.S. Court of Appeals for the Fourth Circuit); and representation of private sector clients in a variety of litigation forums throughout the United States, as a partner in the litigation and appellate practices at the law firm of Wiley Rein & Fielding LLP.