Whitey Bulger and Catherine Greig were two lovebirds who went into hiding from 1995-2011. They never married. Had they tied the knot during the period in which they were known as “Charlie” and “Carol,” Catherine Greig might not be facing new charges relating to her refusal to snitch on her husband.
When Greig and her mobster-turned-informant partner were caught in 2011, she was charged with harboring a fugitive. Today, Greig is serving an eight-year sentence for identity fraud and harboring Bulger. Even though a Federal District Court Judge in Boston ordered Greig to provide information on other individuals who helped Bulger avoid the feds, Greig has remained resolute in her refusal to obey. The FBI has characterized her actions as “hinder[ing] the FBI’s efforts to seek justice for the victims of [Bulger’s] crimes.” The criminal justice system aspires to seek justice for victims and communities, and the U.S. Attorneys’ Manual reminds all federal prosecutors of this goal. Why then, would the outrage over obstruction of justice disappear completely if Greig and Bulger had married?
Enter the concept of marital privilege: yet one more of marriage’s fringe benefits that serves to separate folks like me (as of August 27, 2014) from the majority of people living in the United States. Two forms of marital privilege are recognized in American law. First, testimonial privilege, under which one can choose not to testify against their spouse in a criminal case. Second, communications privilege, where spouse A can prevent spouse B from testifying as to private communications between the two while the two were married.
The generally accepted rationale for marital privilege goes like this: the government wants to protect spousal harmony, so it (1) prevents spouse A from being forced to testify against spouse B and (2) shields confidences shared between spouses. Only married couples receive this protection. It doesn’t matter if a couple loved each other, sacrificed together, and cohabitated for sixteen years. The law sees my two-and-a-half year relationship as more worthy of protection simply by virtue of us signing a couple of pieces of paper and paying $60 to the City of New York.
I’m not saying that Greig should or should not cooperate with the authorities. But I can’t help but sense a fundamental unfairness in a system that forces us to acquiesce to a conservative institution as a means of accessing a wide array of often potent rights. Were Greig and Bulger a married couple, would protecting their marriage be worth the cost of justice seeking? Do differing marriage rates among socioeconomic groups, races, or cultures create a group of more prosecutable individuals? The answers to these questions should make us think hard about the balance we want to strike between the harm and the good generated by marital privilege.