Original Application from the Superior Court, Third Judicial
District, Kenai, Carl Bauman, Judge.Trial Court No.
L. Pevehouse, Gilman & Pevehouse, Kenai, for the
L. Wendlandt, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Respondent.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
Anderson is the wife of Jeremy Anderson, a former high school
teacher. Jeremy Anderson currently stands indicted on
multiple counts of first- and second-degree sexual abuse of a
minor, based on allegations that he had sexual intercourse
with one of his students, fifteen-year-old K.H., over the
span of four months.
Anderson has asserted her spousal immunity privilege not to
testify against her husband at his trial. In the
proceedings below, the superior court rejected Mrs.
Anderson's claim of privilege, concluding that the sexual
abuse prosecution against Mr. Anderson fell within one of the
codified exceptions to the marital privileges - specifically,
the exception codified in Alaska Evidence Rule
5O5(a)(2)(D)(v) for cases in which one of the spouses is
charged with "a crime involving domestic violence as
defined in AS 18.66.990."
Anderson petitioned this Court to review the superior
court's ruling and we accepted the petition as an
original application for relief under Alaska Appellate Rule
404. For the reasons explained here, we conclude that the
superior court did not err when it rejected Mrs.
Anderson's marital privilege claim in this case.
8, 2014, fifteen-year-old K.H. reported to one of her high
school teachers that she had been sexually involved with her
music teacher, thirty-six-year-old Jeremy Anderson, since
February of that year. The troopers were contacted, and an
investigation ensued. Based on the results of that
investigation, Anderson was indicted on fourteen counts of
first-degree sexual abuse of a minor and two counts of
second-degree sexual abuse of a minor.
grand jury hearing, K.H. testified regarding the nature and
frequency of her sexual encounters with Anderson. K.H. stated
that Anderson had started acting flirtatious towards her in
December 2013. Anderson's "flirtation"
continued, and the pair had sex for the first time in
February 2014. K.H. testified that they had sexual
intercourse around twenty to thirty times between February
2014 and early May 2014. The sex occurred on school grounds,
generally in the choir room closet or the band room
closet. Even though K.H. was below the age of
sexual consent under Alaska law, she testified that she
personally viewed the sex acts as "consensual." She
testified that the last time she and Anderson had sex, she
told him she did not want to because she felt guilty, but
Anderson pressured her to have sex with him despite her
the pretrial proceedings in Jeremy Anderson's case, it
became clear that the State intended to introduce various
statements that Anderson made to his wife during the course
of the investigation.
same day that school officials contacted the state troopers,
the troopers received a call informing them that a man -
later determined to be Jeremy Anderson-was trying to kill
himself. The troopers began searching for Mr. Anderson, and
ultimately arrested him in his truck. Prior to Anderson's
arrest, one of the troopers overheard a cell phone
conversation between Anderson and his wife Jennifer. The
trooper was able to overhear both sides of the
conversation. During that conversation, Anderson made
general admissions of wrongdoing.
arresting Anderson, the troopers discovered a letter
addressed to his wife and children in the car. In this
letter, Anderson admitted, again in general terms, that he
had done wrong, and he apologized to his wife for his
actions. Later, a trooper spoke with Jennifer Anderson about
this letter. Mrs. Anderson told the trooper that, aside from
this letter, her husband admitted to her that he had engaged
in an inappropriate relationship with one of his students - a
student named "K."
pretrial proceedings, the State indicated that it intended to
call Mrs. Anderson as a witness to testify to her
husband's admissions of wrongdoing. The State also
indicated that it intended to introduce Mr. Anderson's
suicide letter into evidence.
response, Mr. Anderson asserted his marital communications
privilege under Alaska Evidence Rule 505(b) to exclude
evidence of any confidential communications between himself
and his wife. In later proceedings before the trial court,
Mrs. Anderson also asserted her spousal immunity privilege
under Rule 505(a), and she separately asserted her own
marital communications privilege under Rule 505(b).
two forms of marital privilege recognized under Alaska
law recognizes two marital privileges: the spousal immunity
privilege codified in Evidence Rule 505(a), and the marital
communications privilege codified in Evidence Rule 505(b).
Rule 505(a) provides that "a husband shall not be
examined for or against his wife, without his consent, nor a
wife for or against her husband, without her consent."
This privilege belongs solely to the witness-spouse, and it
can only be invoked during the life of the
marriage. Although originally premised on an
outmoded jurisprudential theory that a wife has no legal
existence separate from her husband, the more modern
understanding of the privilege is that it exists to
"promote family peace and harmony" that would
otherwise be destroyed by adverse spousal
Rule 505(b) provides that a spouse shall "[not] be
examined as to any confidential communications made by one
spouse to the other during the marriage, without the consent
of the other spouse." This privilege may be claimed by either
spouse, and it continues to apply even after the marriage has
ended (provided that the confidential communications occurred
during the marriage). Unlike the spousal immunity privilege,
which is concerned with protecting the peace and harmony of a
particular marriage, the confidential marital communications
privilege is concerned with protecting the sanctity of
marriage in general by safeguarding the freedom of spouses to
"communicate their deepest feelings to each other
without fear of eventual exposure in a court of
the spousal immunity privilege and the marital communications
privilege have been criticized by legal commentators, and
both privileges are subject to multiple statutory exceptions
under Alaska law. The privileges are purely statutory in
nature and neither privilege is absolute. Moreover,
because both marital privileges operate to impede the normal
truth-seeking function of court proceedings, they must be
"strictly construed" by the courts and accepted
"only to the very limited extent that permitting a
refusal to testify or excluding relevant evidence has a
public good transcending the normally predominant principle
of utilizing all rational means for ascertaining
statutory exceptions to the marital privileges in criminal
Alaska legislature has enacted multiple statutory exceptions
to Alaska Evidence Rule 505. Many of these exceptions are
specific to criminal proceedings. Evidence Rule 505(a)(2)(D)
and Evidence Rule 505(b)(2)(A) prohibit application of either
privilege in a criminal proceeding in which one spouse is
(i) A crime against the person or the property of the other
spouse or of a child of either ...
(ii) Bigamy, incest, adultery, pimping, or prostitution;
(iii) A crime related to abandonment of a child or nonsupport
of a spouse or child;
(iv) A crime prior to the marriage; [or]
(v) A crime involving domestic violence as defined in AS
exceptions represent situations in which the legislature has
directly determined that society's interest in promoting
"family peace and harmony" must give way to
society's larger interest in prosecuting certain crimes.
Most jurisdictions have codified similar exceptions to their
marital privileges. Indeed, virtually every jurisdiction
recognizes an exception for crimes committed against a spouse
or against the children of either spouse.
jurisdictions have also expanded this exception to include an
"any child" exception-which means that spouses are
precluded from asserting their marital privileges in a
prosecution involving sexual abuse of any child, regardless
of whether the child is related to either
spouse. These jurisdictions have expressly
decided that "[s]ociety's interest in convicting and
punishing one who commits child abuse is the same"
regardless of whether there is a familial relationship to the
child. Alaska does not have an "any
child" exception to its marital privileges.
superior court's rulings regarding the marital privileges
in this case
superior court made two different rulings on the
Andersons' assertions of marital privilege in this case.
the superior court ruled that the suicide letter could be
introduced because it did not qualify as a
"confidential" marital communication. The court
noted that the letter included a section addressed to Mrs.
Anderson, but it also included sections addressed to "my
kids" and "my family." The court also noted
that the letter was left in plain view. Based on these
circumstances, the court concluded that Mr. Anderson did not
have a reasonable expectation that the suicide note would
only be read by his wife, and the letter therefore did not
qualify as a confidential marital
the superior court ruled that the "domestic
violence" exception applied to this criminal prosecution
because the sexual abuse qualified as a "crime of
domestic violence" as that term is defined in AS
18.66.990. Alaska Statute 18.66.990(3) defines a crime of
domestic violence as including any crime against a person
under 11.41 (sexual abuse of a minor qualifies as a crime
against a person) if the crime is committed by one
"household member" against another "household
member." Alaska Statute 18.66.990(5) defines
"household member" to include "adults or
minors who are dating or who have dated," as well as
"adults or minors who are engaged in or who have engaged
in a sexual relationship."
on K, H.'s grand jury testimony, the superior court ruled
that Anderson and K.H. qualified as "household
members" under AS l8.66.99O(5)(C) and (D) because they
had been engaged in a "sexual relationship" and had
been "dating" for several months. The court
therefore concluded that Mr. Anderson's alleged sexual
abuse of his teenage student constituted "crimes of
domestic violence" for purposes of precluding the use of
either marital privilege at Mr. Anderson's criminal
Anderson's petition for review to this Court
superior court's rulings ultimately applied to both Mr.
and Mrs. Anderson. But the rulings initially applied only to
Mr. Anderson, because he was at first the only spouse
asserting a marital privilege. After the superior court
rejected Mr. Anderson's confidential marital
communications claim of privilege, Mr. Anderson filed a
petition for review in this Court, seeking pretrial
interlocutory review of the superior court's ruling. This
Court declined to exercise our power of discretionary review
because the case was pending trial and because Mr. Anderson
had adequately preserved the issue for any future appeal
should this ruling materially affect the resolution of his
criminal case. In denying Mr. Anderson's petition, we
expressed no opinion on the merits of the superior
our denial of Mr. Anderson's petition for review,
Jennifer Anderson filed her own motion in the superior court,
asserting her spousal immunity privilege (i.e., her
privilege not to be called as a witness in her husband's
case) and her marital communications privilege. The superior
court rejected Mrs. Anderson's claims of privilege -
again ruling that the domestic violence exception applied.
Anderson petitioned this Court to review the superior
court's rejection of her spousal immunity privilege.
Because we recognized that Mrs. Anderson's rights as a
witness-spouse could be adversely affected if we denied
interlocutory review of her claim, we granted Mrs.
Anderson's petition as an original application for relief
under Alaska Appellate Rule 404.
we affirm the superior court's ruling that the spousal
immunity privilege does not apply to this criminal
the domestic violence exception applies under the particular
facts of this case is a question of law that we review de
domestic violence exception to the marital privileges was
enacted by the Alaska legislature in 1996 as part of a
comprehensive revision of Alaska's domestic violence
laws. The intended purpose of this 1996
legislation was to provide greater protections to victims of
domestic violence and to focus more state resources on
domestic violence prevention. To this end, the legislation
broadened the definition of "domestic violence" and
expanded the categories of persons who would qualify for
protection as a victim of domestic violence. Included in
these legislative changes was the adoption of the Model Code
on Domestic and Family Violence's definition of
the Model Code, the term "household member"
(a) Adults or minors who are current or former spouses;
(b) Adults or minors who live together or who have lived
(c) Adults or minors who are dating or who have dated;
(d) Adults or minors who are engaged in or who have engaged
in a sexual relationship;
(e) Adults or minors who are related by blood or adoption;
(f) Adults or minors who are related or formerly related by
(g) Persons who have a child in common; and
(h) Minor children of a person in a relationship that is
described in paragraphs ...