Cosby case shows limits of testifying against spouse

Camille Cosby is likely facing the worst week of her life — again.

After testifying under oath in February in a defamation suit against her husband, entertainer Bill Cosby, she's reluctantly back for more questioning this week at an undisclosed location in Boston.

Bill, her husband of 52 years, was sued by seven women after they went public with claims that he "drugged and/or sexually assaulted" each of them. The plaintiffs are among approximately 50 women who claim that he forced them into unwanted sex acts.

He has denied the allegations and countersued.

Camille Cosby's earlier deposition, according to reports, was conducted under tight security, "with black curtains cordoning off the wing" of a Massachusetts hotel, and security posted at all entrances. The plaintiffs' attorney, with seemingly no irony, commented about Camille that "I get the sense she didn't want to be there."

As someone who knows a bit about marriage, but nothing about what the legal system demands of us when our spouse is accused of committing a crime, I can't help wondering: Is this weird? How often are spouses required to testify against each other? Can they refuse?

I turned to two legal scholars to sort through it for me.

"It is a fascinating problem that raises all kinds of questions," Clary said. "What's the point of marriage? What are we interested in protecting? What are the needs of the justice system? There are a lot of tough balances there."

England noted that while marriage has its privileges, those privileges are not absolute.

Q: So, what is spousal privilege?

A: While statutes differ from state to state, the attorneys said that, generally, no one can refuse to give testimony in a legal case. This rule is necessary to ensure that justice is served. On the other hand, the courts understand the unique sanctity of the marriage bond. So a husband or wife might be required to testify about something such as what he or she observed in relation to the other, but will not have to share private conversations.

England gives this hypothetical example: "If one of the plaintiffs accused Cosby of drugging her in the couple's home, her lawyer has the right to ask Camille about what she may have observed in the home and Camille may be compelled to answer.

However, if Camille and Bill had a private conversation about their home or work life, she would not be compelled to talk about that.

Clary agreed. "In the real world, it does get messy," he said. "But the theory is that the inner workings of the marriage, in terms of spouses being supportive of each other, hinges on the confidential nature of a communication during pillow talk. What people are out and about observing is much less sensitive. The needs of the court system outweigh that kind of protection," he said.

Q: Can't they get what they need without Camille?

A: England thinks not. "Completely hypothetically, if the questions are about the presence of one of these women in the home, or about her business dealings, that may be information that only Camille knows."

Q: Can't she just take the Fifth?

Q: How does Minnesota deal with spousal privilege?

A: "My impression in the abstract is that if they lived in Minnesota, the other side could not compel Camille to testify against Bill if she didn't want to," Clary said. "In theory, she could say, 'I'm just not going to testify against my spouse regarding anything.'

"Reading between the lines, it sounds as if in Massachusetts, Bill and Camille cannot stop the other side from getting testimony from her. The question is, how much does she have to reveal? I've got to wonder about whether [Bill and Camille] had that conversation in advance of the lawsuit."

People facing this challenge, famous or not, he said, "will probably need a lot of couples therapy."