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2005 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 8.01-398 and 19.2-271.2 of the Code of Virginia are amended and reenacted as follows:
§ 8.01-398. Privileged marital communications.
A. Husband and wife shall be competent witnesses to
testify for or against each other in all civil actions; provided that
neither husband nor wife shall, without the consent of the other, be examined
in any action as to any communication privately made by one to the other while
married, nor shall either be permitted, without such consent, to reveal in
testimony after the marriage relation ceases any such communication made while
the marriage subsisted.
B. The proviso in subsection A of this section shall not
apply in those instances where the law of this Commonwealth confers upon a
spouse a right of action against the other spouse. In any civil
proceeding, a person has a privilege to refuse to disclose, and to prevent
anyone else from disclosing, any confidential communication between his spouse
and him during their marriage, regardless of whether he is married to that
spouse at the time he objects to disclosure. This privilege may not be asserted
in any proceeding in which the spouses are adverse parties, or in which either
spouse is charged with a crime or tort against the person or property of the
other or against the minor child of either spouse. For the purposes of this
section, "confidential communication" means a communication made
privately by a person to his spouse that is not intended for disclosure to any
other person.
§ 19.2-271.2. Testimony of husband and wife in criminal cases.
In criminal cases husband and wife shall be allowed, and,
subject to the rules of evidence governing other witnesses and subject to
the exception stated in § 8.01-398, may be compelled to testify in behalf
of each other, but neither shall be compelled to be called as a witness against
the other, except (i) in the case of a prosecution for an offense committed by
one against the other or , against a minor child of either, or
against the property of either,; (ii) in any case where
either is charged with forgery of the name of the other or uttering or
attempting to utter a writing bearing the allegedly forged signature of the
other; or (iii) in any proceeding relating to a violation of the laws
pertaining to criminal sexual assault (§§ 18.2-61 through 18.2-67.10), crimes
against nature (§ 18.2-361) involving a minor as a victim and provided the
defendant and the victim are not married to each other, incest (§ 18.2-366), or
abuse of children (§§ 18.2-370 through 18.2-371). The failure of either husband
or wife to testify, however, shall create no presumption against the accused,
nor be the subject of any comment before the court or jury by any attorney.
Except in the prosecution for a criminal offense as set
forth in (i), (ii) or (iii) above, each shall be a competent witness except
as to privileged communications in any criminal proceeding, a person has
a privilege to refuse to disclose, and to prevent anyone else from disclosing,
any confidential communication between his spouse and him during their
marriage, regardless of whether he is married to that spouse at the time he
objects to disclosure. For the purposes of this section, "confidential communication"
means a communication made privately by a person to his spouse that is not
intended for disclosure to any other person.