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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JENNIFER ANDERSON,
Court of Appeals No. A-12600
Petitioner, Trial Court No. 3KN-14-665 CR
v.
O P I N I O N
STATE OF ALASKA,
Respondent. No. 2629 - December 14, 2018
Original Application
from the Superior Court, Third Judicial
District, Kenai, Carl Bauman, Judge.
Appearances: AndyL. Pevehouse, Gilman & Pevehouse, Kenai,
for the Petitioner. Diane 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. *
Judge ALLARD, writing for the Court.
Judge MANNHEIMER, dissenting.
Jennifer Anderson is the wife of Jeremy Anderson, a former high school
teacher. Jeremy Anderson currently stands indicted on multiple counts of first- and
* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
----------------------- Page 2-----------------------
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.
Mrs. Anderson has asserted her spousal immunity privilege not to testify
against her husband at his trial. 1 In the proceedings below, the superior court rejected
Mrs. Anderson's claimof privilege, concluding that thesexual abuse prosecution against
Mr. Anderson fell within one of the codified exceptions to the marital privileges -
specifically, the exception codified in Alaska Evidence Rule 505(a)(2)(D)(v) for cases
in which one of the spouses is charged with "a crime involving domestic violence as
2
defined in AS 18.66.990."
Mrs. 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.
Background facts
On May 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-
3
degree sexual abuse of a minor.
1 See Alaska Evid. R. 505(a).
2 See also Alaska Evid. R. 505(b)(2)(A) (applying this same exception to an assertion
of the confidential marital communications privilege under Evidence Rule 505(b)).
3 See AS 11.41.434(a)(3)(B); AS 11.41.436(a)(5)(B).
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----------------------- Page 3-----------------------
At the grand jury hearing, K.H. testified regarding thenatureand 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
4
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 himdespite her initial unwillingness.
During 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.
On the 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
5
trooper was able to overhear both sides of the conversation. During that conversation,
Anderson made general admissions of wrongdoing.
After 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,
4 K.H. also testified that Anderson drove her to a church youth group one time and they
kissed in the car, but no direct sexual activity occurred.
5 It is unclear from the current record whether this was done with Mrs. Anderson's
knowledge and permission.
- 3 - 2629
----------------------- Page 4-----------------------
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."
In the 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.
In 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).
The two forms of marital privilege recognized under Alaska law
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).
Evidence 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.6
Although originally premised on an outmoded
jurisprudential theory that a wife has no legal existence separate from her husband, the
6 See Arredondo v. State, 411 P.3d 640, 644 (Alaska App. 2018); Alaska Evid. R.
505(a)(1) cmt. ("If the marriage is a sham or has been terminated by divorce, annulment, or
death, there is no privilege.").
- 4 - 2629
----------------------- Page 5-----------------------
more modern understanding of the privilege is that it exists to "promote family peace and
harmony" that would otherwise be destroyed by adverse spousal testimony. 7
Evidence 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
8
This privilege may be claimed by
marriage, without the consent of the other spouse."
either spouse, and it continues to apply even after the marriage has ended (provided that
9
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
10
a court of law."
7 See Daniels v. State , 681 P.2d 341, 345 (Alaska App. 1984); see also Trammel v.
United States, 445 U.S. 40, 44 (1980) (noting that the testimonial privilege derives from two
(now outmoded) jurisprudential theses: (1) "the rule that an accused was not permitted to
testify in his own behalf because of his interest in the proceeding," and (2) "the concept that
husband and wife were one, and that since the woman had no recognized separate legal
existence, the husband was that one").
8 Alaska Evid. R. 505(b)(1); see also Salazar v. State, 559 P.2d 66, 78 (Alaska 1976)
(noting that the confidential marital communications privilege "is meant to protect those
communications arising between the partners of a marital relationship that are confidential
and not as a privilege for all communications").
9 Alaska Evid. R. 505(b)(1) ("Neither during the marriage nor afterwards shall either
spouse be examined as to any confidential communications made by one spouse to the other
during the marriage, without the consent of the other spouse."); Alaska Evid. R. 505(b)(1)
cmt. ("both spouses are the holders of the privilege and either spouse may claim it").
10 United States v. Byrd, 750 F.2d 585, 590 (7th Cir. 1984).
- 5 - 2629
----------------------- Page 6-----------------------
Both the spousal immunity privilege and the marital communications
privilege have been criticized by legal commentators, and both privileges are subject to
11
multiple statutory exceptions under Alaska law.
The privileges are purely statutory in
12
Moreover, because both marital privileges
nature and neither privilege is absolute.
operate to impede the normal truth-seeking function of court proceedings, they must be
only to the very limited extent that
"strictly construed" by the courts and accepted "
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 truth."13
The statutory exceptions to the marital privileges in criminal cases
The Alaska legislature has enacted multiple statutory exceptions to Alaska
Evidence Rule 505. Many of these exceptions are specific to criminal proceedings.
11 See, e.g., Alaska Evid. R. 505(a)(2) & (b)(2); AS 47.17.060 (declaring marital
privileges inapplicable in all child in need of aid proceedings); see also Kenneth S. Broun
et al., McCormick on Evidence § 86, at 383 (6th ed. 2006) (criticizing the probable benefits
of the marital communications privilege in actually encouraging marital confidences and
wedded harmony as marginal); 8 John Henry Wigmore, Evidence in Trials at Common Law,
§ 2228, at 221 (McNaughton rev. 1961) (criticizing the spousal immunity privilege as "the
merest anachronism in legal theory and an indefensible obstruction to truth in practice").
12
See Osborne v. State, 623 P.2d 784, 787 (Alaska 1981) (approving relaxation of
former spousal immunity privilege in the interests of justice under Criminal Rule 53);
Loesche v. State , 620 P.2d 646, 649 (Alaska 1980); see also Daniels, 681 P.2d at 345 (noting
that courts have expressed a "general policy to construe the marital privilege narrowly,
particularly in cases involving child abuse").
13
Daniels, 681 P.2d at 344 (quoting Trammel, 445 U.S. at 50); see also Osborne, 623
P.2d at 787 ("Compulsory testimony is the basic norm of our legal system. Correspondingly,
testimonial privileges, other than those resting upon a constitutional basis, should be given
a fairly narrow scope.").
- 6 - 2629
----------------------- Page 7-----------------------
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 charged with:
(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 18.66.990.
These 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
14
similar exceptions to their marital privileges.
Indeed, virtually every jurisdiction
recognizes an exception for crimes committed against a spouse or against the children
15
of either spouse.
Some 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
14 See, e.g., Ariz. Rev. Stat. Ann. § 13-4062; Cal. Evid. Code §§ 972, 980; D.C. Code
§§ 14-306, 22-3024; Fla. Stat. § 90.504; Idaho Code Ann. § 9-203(1); Mass. Gen. Laws ch.
233, § 20; Mich. Comp. Laws § 600.2162(3); Nev. Rev. Stat. § 49.295.
15 See Pamela A. Haun, The Marital Privilege in the Twenty-First Century, 32 U. Mem.
L. Rev. 137, 163-64, 173 (2001) (noting that "[e]ssentially every state has adopted an
exception to the marital privilege in cases where the spouse has committed a crime against
the other spouse" and "[n]early every state has similarly adopted an exception in cases where
the spouse has committed a crime against a child of either spouse, though some states limit
this exception to minor children"); see also Me. R. Evid. 504(d)(1)(C) (expanding exception
to include "any person residing in either spouse's household").
- 7 - 2629
----------------------- Page 8-----------------------
16
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. 17 Alaska does
not have an "any child" exception to its marital privileges.
The superior court's rulings regarding the marital privileges in this case
The superior court made two different rulings on the Andersons' assertions
of marital privilege in this case.
First, 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,
18
and the letter therefore did not qualify as a confidential marital communication.
16 See, e.g., D.C. Code § 22-3024; Mass. Gen. Laws ch. 233, § 20; Mich. Comp. Laws
§ 600.2162(3); Miss. R. Evid. 504(d)(2)(A); see also Naomi Harlin Goodno, Protecting "Any
Child": The Use of the Confidential-Marital-Communications Privilege in Child-Molestation
Cases, 59 U. Kan. L. Rev. 1, 28, 37, n. 110 (2010) (listing states with "any child" exception
and noting that some states distinguish child sexual abuse cases from other child abuse cases,
while others apply the any child exception to all abuse cases).
17 Villalta v. Com., 702 N.E.2d 1148, 1152 (Mass. 1998); see also United States v.
Martinez , 44 F. Supp.2d 835, 837 (W.D. Tex. 1999) ("[I]n a case where one spouse is
accused of abusing minor children, society's interest in the administration of justice far
outweighs its interest in protecting whatever harmony or trust may at that point still remain
in the marital relationship.").
18 Cf. United States v. Strobehn, 421 F.3d 1017, 1021 (9th Cir. 2005) (holding that a
(continued...)
- 8 - 2629
----------------------- Page 9-----------------------
Second, 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." 19
Based on K.H.'s grand jury testimony, the superior court ruled that
Anderson and K.H. qualified as "household members" under AS 18.66.990(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 trial.
Mrs. Anderson's petition for review to this Court
The 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.
18 (...continued)
defendant's letter that expressly addressed third parties in addition to his wife was not a
privileged marital communication); Ellis v. State, 570 So.2d 744 (Ala. App. 1990) (holding
that a suicide note to a husband discovered by the police who responded to a wife's 911
emergency call did not qualify as a confidential marital communication).
19 See AS 18.66.990(5)(C), (D).
- 9 - 2629
----------------------- Page 10-----------------------
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 court's ruling.
Following 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.
Mrs. Anderson petitionedthis Court toreviewthesuperior court'srejection
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. 20
Why we affirm the superior court's ruling that the spousal immunity
privilege does not apply to this criminal prosecution
Whether the domestic violence exception applies under the particular facts
21
of this case is a question of law that we review de novo.
20 See Dep't of Pub. Safety v. Superior Court , 411 P.3d 648, 649 (Alaska App. 2018).
21
See State v. Ketchikan Gateway Borough, 366 P.3d 86, 90 (Alaska 2016) (internal
citations omitted).
- 10 - 2629
----------------------- Page 11-----------------------
The 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
22
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
23
To this end, the legislation broadened the definition of
domestic violence prevention.
"domestic violence" and expanded the categories of persons who would qualify for
24
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
25
"household member."
Under the Model Code, the term "household member" includes:
(a) Adults or minors who are current or former spouses;
(b) Adults or minors who live together or who have lived
together;
(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
marriage;
22 See SLA 1996, ch. 64 §§ 33, 70; see also Governor's Transmittal Letter for House Bill
314, 1996 House Journal 2546-47 (Jan. 26, 1996) (introduced as House Bill 454).
23
See Sponsor Statement of Rep. Sean Parnell for H.B. 314, 19th Legis. (February 12,
1996).
24 SLA 1996, ch. 64 § 33.
25
See Model Code on Domestic and Family Violence § 215 (Nat'l Council of Juvenile
and Family Court Judges 1994), available at http://www.ncjfcj.org/resource-library/
publications/model-code-domestic-and-family-violence.
- 11 - 2629
----------------------- Page 12-----------------------
(g) Persons who have a child in common; and
(h) Minor children of a person in a relationship that is
described in paragraphs (a) through (g). 26
This definition, with a few minor revisions, is now codified in AS 18.66.990(5).
Alaska's domestic violence exception to the marital privileges is also
27
derived from the Model Code on Domestic and Family Violence. Section 215 of the
Model Code provides, in pertinent part:
Sec. 215. Spousal privileges inapplicable in criminal
proceedings involving domestic or family violence.
The following evidentiary privileges do not apply in any
criminal proceeding in which a spouse or other family or
household member is the victimofan alleged crime involving
domestic or family violence perpetrated by the other spouse:
1. The privilege of confidential communication
between spouses.
28
2. The testimonial privilege of spouses.
This exception was therefore intended to apply broadly to crimes outside the traditional
29
intrafamilial domestic violence situation.
The question presented by this case is whether this exception applies to the
case at hand, which involves alleged sexual abuse of a minor by a person in a position
of authority over the minor. Mrs. Anderson contends that the domestic violence
exception should be limited to the "everyday meaning" of domestic violence which she
26 Id. § 102.
27 Id. § 215.
28 Id. § 215. (Emphasis added.) We note that this provision was misquoted in the
appellate briefing before this Court.
29
See id. § 102 cmt. (acknowledging that "[t]he definition of family or household
member is broad. Cohabitation is not a prerequisite for eligibility; and the relationship
between the victim and the perpetrator need not be current.").
- 12 - 2629
----------------------- Page 13-----------------------
defines as "[f]amily or household members [who] have a connection rooted in blood,
marriage, family standing, or a chosen romantic relationship." 30
As a general matter, we agree with Mrs. Anderson that the hallmark of a
crime of domestic violence is that it is a crime that is committed within the context of a
pre-existing relationship. As we explained in Bates v. State :
the purpose of domestic violence legislation is to protect
victims from harm caused by ... persons whose intimate ...
relationship to the victim increases the danger of harm, either
because the parties live in physical proximity or because the
relationship is one whose intimacy may disable the victim
31
from seeking protection.
We disagree, however, with Mrs. Anderson's contention that her husband and K.H.
were not engaged in such an intimate relationship.
In Bates, we concluded that the term "dating" was properly understood as
a requirement that the parties be involved in a "dating relationship" - a term which
connotes "an ongoing series of social engagements, usually characterized by the parties'
32
interest, or at least their potential interest, in pursuing a romantic relationship." We
applied a similar durational requirement to the term "sexual relationship." In Leu v.
State, for example, we held that the defendant's ongoing friendship with another man
that included occasional sexual intimacy qualified as a "sexual relationship" under
AS 18.66.990 because "[t]his is not the type of non-consensual or short-lived sexual
involvement that falls outside the ordinary person's understanding of a 'sexual
30 This definition is taken from an out-of-state case with different statutory definitions.
See Scott v. Shay, 928 A.2d 312, 314-16 (Penn. Super. Ct. 2007).
31 Bates v. State, 258 P.3d 851, 862 (Alaska App. 2011) (citations omitted).
32
Id. at 861; see also Cal. Fam. Code § 6210 and Cal. Penal Code § 243(f)(10) (defining
"dating relationships" broadly as "frequent, intimate associations primarily characterized by
the expectation of affection or sexual involvement independent of financial considerations").
- 13 - 2629
----------------------- Page 14-----------------------
33
relationship.'" Likewise, in Richart v. State , we expressed significant doubt that a
"single prior act of forced sexual contact" could qualify as a "sexual relationship" for
purposes of AS 18.66.990. 34
Here, we are not dealing with a single prior act of forced sexual contact.
Instead, K.H.'s grand jury testimony makes clear that, from K.H.'s perspective at least,
she was engaged in a sexual or dating relationship with Anderson - a relationship that
spanned many months and involved multiple intimate encounters, not all of which were
sexual in nature.
Mrs. Anderson and the dissent both contend that this relationship cannot
be acknowledged as a "relationship" for purposes of AS 18.66.990(5)(C)-(D) because
K.H. could not lawfully be in a sexual relationship with Anderson given their respective
35
ages. We agree with Mrs. Anderson and the dissent that K.H.'s purported "consent"
to the sexual acts does not alter the criminal nature of Mr. Anderson's conduct. Sexual
activity between an adult and a person under the legal age of consent is a crime,
regardless of whether the minor victim subjectively perceives him or herself to be a
36
"consenting" partner to the sexual abuse.
As we previously explained in State v.
Jackson, "[i]t is precisely because the law deems children to be incapable of rendering
33 Leu v. State , 251 P.3d 363, 369 (Alaska App. 2011).
34 Richart v. State, 2001 WL 1299120, at *3 (Alaska App. Oct. 24, 2001) (unpublished);
see also Miller v. State, 312 P.3d 1112, 1116 (Alaska App. 2013) (noting that a single
consensual sexual encounter does not amount to a "sexual relationship" under AS 18.66.-
990(5)).
35
See AS 11.41.434(a)(3)(B); AS 11.41.436(a)(5)(B). As a general matter, the age of
consent in Alaska is 16 years old.
36 State v. Jackson, 776 P.2d 320, 328 (Alaska App. 1989).
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----------------------- Page 15-----------------------
meaningful consent in such situations that [statutory rape] has been defined to make
consent irrelevant." 37
We disagree, however, with Mrs. Anderson and the dissent that this means
K.H. should be denied the legal protections that would otherwise be granted to her in
38
these circumstances. The underlying legislative intent of the 1996 legislation was to
broaden the definition of domestic violence so as to ensure legal protections to all
persons whowererenderedparticularlyvulnerableby virtueoftheir intimaterelationship
with their abuser. In keeping with this intent, the legislature defined "household
member" to include adults and minors "who are engaged in or who have engaged in a
sexual relationship" -thereby recognizing that such a relationship between an adult and
39
a minor can exist for purposes of extending legal protections to those minors.
In the dissent, Chief Judge Mannheimer criticizes the Court for extending
legal protections to K.H. under reasoning that would not apply to all minors who have
37 Id.
38 We note that those protections would include being able to apply for a domestic
violence protective order should the relationship turn violent. See AS 18.66.100(a) ("A
person who is or has been a victim of a crime involving domestic violence may file a petition
in the district or superior court for a protective order against a household member.").
39 AS 18.66.990(5)(D). We note that Mrs. Anderson argues that the "or" in this statutory
subsection should be interpreted to mean that only adults in sexual relationships with other
adults qualify as household members and only minors in sexual relationships with other
minors qualify as household members. But such a reading would be contrary to the meaning
of the other subsections, which are structured similarly and clearly intend "adults or minors"
to also include adults and minors. See, e.g., AS 18.66.990(5)(B) ("household member"
includes "adults or minors who live together or have lived together"); AS 18.66.990(5)(E)
("household member" includes "adults or minors who are related to each other up to the
fourth degree of consanguinity, whether of the whole or half blood or by adoption"); AS
18.66.990(5)(F) ("household member" includes "adults or minors who are related or formerly
related by marriage").
- 15 - 2629
----------------------- Page 16-----------------------
suffered sexual abuse. We agree that this case would be much easier to resolve if Alaska
law included an "any child" exception to its marital privileges, as many other
jurisdictions have done. But we do not have the authority to create such a broad
40 41
exception where none currently exists. That is for the legislature to decide.
Weareguided inour analysis, however, by thelarger principles ofstatutory
interpretation, which require us to strictly construe the marital privilege at issue here and
to interpret the statutory exception in accordance with the underlying legislative intent.42
At its heart, the domestic violence exception represents a clear legislative
determination that society's interest in preserving family peace and harmony must give
way to the broader societal interest in protecting victims who are made particularly
vulnerable by virtue of their familial, domestic, or intimate relationships with their
offenders. Because K.H.'s grand jury testimony provides a factual basis for finding such
an intimate relationship here, and because society's interest in preserving the peace and
harmony of a marriage in which an adulterous affair with an underage student has
occurred is commensurately that much weaker, we conclude that the superior court did
not err when it rejected Mrs. Anderson's spousal immunity claim in this case.
40 Griswold v. City of Homer, 925 P.2d 1015, 1019 (Alaska 1996); Concerned Citizens
of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974).
41 Cf. Goodno, supra note 16, at 22-23 (discussing the public policy reasons for adopting
an "any child" exception to marital privileges and noting the particular need for such an
exception in sexual abuse cases involving young children where the victims will often be
developmentally unable to act as witnesses in court and the need for relevant testimony from
a reluctant spouse may be that much greater).
42 See Y.J. v. State, 130 P.3d 954, 959 (Alaska App. 2006); Daniels v. State, 681 P.2d
341, 344, 345 (Alaska App. 1984); see also Osborne v. State, 623 P.2d 784, 787 (Alaska
1981); Loesche v. State , 620 P.2d 646, 649 (Alaska 1980).
- 16 - 2629
----------------------- Page 17-----------------------
Conclusion
The ruling of the superior court is AFFIRMED.
- 17 - 2629
----------------------- Page 18-----------------------
Judge MANNHEIMER, dissenting.
The petitioner in this case, Jennifer Anderson, is the wife of Jeremy
Anderson. Mr. Anderson is a former high school teacher who stands indicted on
multiple counts of sexual abuse of a minor. These charges are based on allegations that,
over the span of several months, Mr. Anderson repeatedly had sexual intercourse and
sexual contact with one of his students, fifteen-year-old K.H.
Under Alaska Evidence Rule 505(a)(1), a married person has a privilege
not to be called as a witness when their spouse is charged with a crime. But there are
several exceptions to this "spousal immunity" privilege. One of the exceptions is for
cases where the spouse is charged with a "crime of domestic violence". 1
The main question in this appeal is whether the charges against Jeremy
Anderson - charges of sexual abuse of a minor - constitute "crimes of domestic
violence". For if these charges are "crimes of domestic violence", then Jennifer
Anderson cannot validly claim the spousal immunity privilege, and the State can compel
her to testify against her husband.
Anderson and K.H. are not related, nor are they members of the same
domestic household. Rather, K.H. was Anderson's student.
Under these circumstances, and under the pertinent definitions contained
in AS18.66.990, thequestion ofwhether thecharges against JeremyAnderson constitute
"crimes of domestic violence" ultimately turns on the answer to yet another question:
Were Jeremy Anderson and his teenage student K.H. "engaged in a sexual relationship"?
If Anderson and K.H. were "engaged in a sexual relationship", then
(by statute) they are deemed to be "household members", and Anderson's sexual abuse
1 See Alaska Evidence Rules 505(a)(2)(D)(v) and 505(b)(2)(A).
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of K.H. would constitute a crime of domestic violence - meaning that Anderson's wife
can be compelled to testify against him. 2
Normally, when an adult sexually abuses a child, it would seem strange
(if not somewhat repugnant) to say that the child and their abuser were "engaged in a
sexual relationship". Indeed, if K.H. were a significantly younger child, I trust that my
colleagues would never uphold a finding that K.H. had a "sexual relationship" with an
adult, no matter what K.H. said about her willingness to engage in the sexual activity.
But my colleagues conclude that, as a matter of law, there was a "sexual
relationship" between Jeremy Anderson and K.H. in this case. They base their
conclusion on K.H.'s grand jury testimony.
At grand jury, K.H. testified that, with one exception, she viewed all of her
sexual activities with Anderson as "consensual". Based on K.H.'s testimony that she
consented to have sex with Anderson, my colleagues conclude that K.H. and Anderson
were "engaged in a sexual relationship". Thus, Anderson's alleged sexual abuse of K.H.
constitutes "domestic violence" - and Jennifer Anderson can therefore be forced to
testify against her husband.
But my colleagues also concede that, as a practical matter, their ruling
means that sexual abuse cases will henceforth be divided into two categories.
The first category will be the typical cases where the child victim does not
view the sexual abuse as "consensual". In those cases, the sexual abuse will not be a
"crime of domestic violence". This means that the defendant's spouse can validly invoke
their spousal immunity privilege, and the spouse cannot be compelled to testify.
The second category will be the cases where the child victim declares that
they consented to the acts of sexual abuse. In those cases, the sexual abuse will be a
2 See AS 18.66.990(3) and AS 18.66.990(5)(D).
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"crime of domestic violence". Because of this, the spousal immunity privilege will not
apply, and the defendant's spouse can be compelled to testify.
In other words, under the rule adopted by my colleagues, when a defendant
is charged with sexually abusing a child who is unrelated to the defendant or their
spouse, and who is not otherwise a member of the defendant's domestic unit, the
question of whether the defendant's spouse can be compelled to testify hinges on the
victim's attitude toward the sexual abuse.
If the victim says that they wanted to participate in the acts of sexual abuse,
then the defendant's spouse can be compelled to testify. But if the victim says that they
did not want to participate in the acts of sexual abuse, then the defendant's spouse cannot
be compelled to testify.
My colleagues justify this strange rule by asserting that they are simply
interpreting AS 18.66.990 and Evidence Rule 505 to advance the legislative purpose of
making it easier to prosecute cases of sexual abuse. They acknowledge that, under their
rule, spouses cannot be compelled to testify in cases where an adult is accused of
sexually abusing an unwilling child, or where an adult is accused of abusing a child so
young that the child cannot articulate willingness or unwillingness to engage in sexual
activity. Nevertheless, my colleagues conclude that it is better to achieve at least a
portion of the legislature's goal.
Thus, in the interest of partially achieving this goal, my colleagues are
willing to declare that when a child says that they wanted to have sex with an adult (and
to have sex with this adult on more than one occasion), the child and the adult have
formed a "sexual relationship".
This reasoning is inconsistent with the doctrine that minors cannot
meaningfully consent to engage in sexual conduct with adults. It implicitly rests on the
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notion that some children have the intellectual and emotional maturity to make a
meaningful decision about such matters.
Even conceding this notion (which I do not), my colleagues do not remand
this case to the superior court so that the trial judge can evaluate K.H.'s intellectual and
emotional capacity to meaningfully consent to have sex with her teacher, or so that the
judge can investigate whether there might have been coercive aspects to the situation that
would raise questions as to whether the child was truly "consenting" to the sexual
activity with her teacher. Instead, my colleagues base their decision in this case on an
uncritical acceptance of the child's grand jury testimony.
Moreover, the distinction that my colleagues have drawn bears no rational
relation to the policies behind the marital privileges, nor to the policies underlying the
exceptions to the marital privileges.
I therefore dissent.
What follows is a more detailed examination of the law pertaining to this
case, and a fuller explanation of why I believe that my colleagues have reached the
wrong decision.
The pertinent statutes and rules
Alaska Evidence Rule 505(a)(1) gives married people the right to refuse to
testify against their spouse (or to testify in favor of their spouse, for that matter). And
Alaska Evidence Rule 505(b)(1) gives spouses and former spouses the right to block
testimony about confidential communications that occurred between the spouses during
their marriage. But these evidentiary privileges have many exceptions. One of the
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exceptions is for cases where a spouse is charged with a "crime involving domestic
violence" as defined in AS 18.66.990. 3
Sexual relations between a teacher and a minor student might not constitute
"domestic violence" within the everyday meaning of this phrase. But AS 18.66.990
contains a special, expansive definition of "domestic violence".
Under AS 18.66.990(3), any "crime against the person" - i.e., any crime
defined in Title 11, chapter 41 of the Alaska Statutes - qualifies as a crime of "domestic
violence" if the crime was committed by one "household member" against another
"household member".
Sexual abuse of a minor is one of the "crimes against the person" codified
4
in AS 11.41. And AS 18.66.990(5) defines "household member" in a special,
expansive way. Under subsection (D) of this statute, the term "household member" not
only includes people who share the same household, but also "adults or minors who ...
have engaged in a sexual relationship".
Putting all of these statutory provisions together: Alaska law declares that
if two people have "engaged in a sexual relationship", then they are "household
members" even if they don't live in the same household. And because they are
"household members", if one of them commits a crime against the other, and if this crime
is one of the "crimes against the person" defined in AS 11.41, then the crime is a "crime
involving domestic violence".
As I have already explained, when a person is charged with a "crime
involving domestic violence", the spousal immunity privilege and the marital
communications privilege do not apply. Thus, in cases of "domestic violence" - as that
3 See Evidence Rule 505(a)(2)(D)(v) and Evidence Rule 505(b)(2)(A).
4 See AS 11.41.434 through AS 11.41.440.
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term is broadly defined in AS 18.66.990 - the defendant's spouse can be compelled to
testify against the defendant.
Why I conclude that Jeremy Anderson and K.H. did not share a "sexual
relationship"
Jennifer Anderson has asserted her spousal privilege not to testify against
her husband, and the State is relying on the "domestic violence" exception to defeat this
claim of privilege. But the State's invocation of the "domestic violence" exception is
problematic for two reasons.
The first difficulty is that, of the several definitions of"household member"
contained in AS 18.66.990(5), none of them seem to apply to Jeremy Anderson's case.
Anderson is charged with sexually abusing a child who is not a member of the Anderson
household, and who has no familial relationship with either Anderson or his wife.
Rather, Anderson and K.H. had the relationship of teacher and student.
To resolve this difficulty, my colleagues rely on the definition of
"household member" contained in subsection (D) of the statute. This provision declares
that a defendant and a victim are "household members" if have "engaged in a sexual
relationship". Based on K.H.'s grand jury testimony that she viewed her sexual activities
with Anderson as "consensual", my colleagues conclude that Anderson and K.H. were
engaged in a sexual relationship.
But the fact that two people have repeatedly engaged in sexual activity does
not necessarily mean that they have shared a "sexual relationship".
Alaska has seen unfortunate instances where a man has held a woman
captive and raped her repeatedly over a number of days. See, for instance, Morrell v.
State, 575 P.2d 1200 (Alaska 1978). I am confident that, in such cases, my two
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colleagues would disavow any notion that the defendant and his victim were "engaged
in a sexual relationship".
The principle is the same when an adult sexually abuses a child. Alaska's
sexual abuse of a minor statutes are premised on the idea that children below a certain
age cannot make meaningful decisions about engaging in sexual activity with an adult.
I doubt that my colleagues would be willing to say that, when an adult
repeatedly engages in sex with a pre-pubescent child, the adult and the child are sharing
a "sexual relationship" - even in cases where the child says that they were willing to
engage in the sexual activity to please the adult.
But my two colleagues have embraced the notion that when an adult
sexually abuses an older child (a child who is below the age of consent, but who is
physically mature), and if this older child asserts that they wanted to engage in this
sexual activity, then the adult and the abused child have shared a "sexual relationship".
I disagree. K.H. was fifteen years old - below the age of consent - when
she allegedly engaged in sex with Anderson. The reason for having an age of consent
is that, even though children may be physically mature, and even though they think that
they want to have sexual relations with an adult, the legislature has determined that
children of that age do not have sufficient intellectual and emotional maturity to
meaningfully consent to such sexual activity.
Thus, even though K.H. testified that she willingly engaged in sex with
Anderson, they did not share a "sexual relationship" in the eyes of the law. As a legal
matter, their sexual activities were no more "consensual" than if K.H. had been a pre-
pubescent child.
There is yet another problem with my colleagues' analysis of this issue.
Even if we assume that some children have the intellectual and emotional maturity to
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----------------------- Page 25-----------------------
make a meaningful decision about engaging in sexual activity with adults, my colleagues
make no effort to discover if K.H. is one of those children.
My colleagues do not remand this case to the superior court so that the trial
judge can evaluate whether K.H. possesses the intellectual and emotional capacity to
meaningfully consent to have sex with her teacher. Nor do my colleagues ask the trial
judge to investigate whether there might have been coercive aspects to the situation that
would cause someone to question whether K.H. was truly "consenting" to the sexual
activity, despite what she told the grand jury. Instead, like the trial judge in this case, my
colleagues simply accept the child's grand jury testimony uncritically.
I do not.
Why I conclude that Jeremy Anderson's alleged sexual abuse of K.H. does
not constitute a "crime of domestic violence"
There is a separate legal difficulty with my colleagues' conclusion that the
"domestic violence" exception applies to Anderson's case: that conclusion is
inconsistent with the legislature's reasons for punishing a crime more severely when it
is committed in the context of a domestic relationship.
Thephrase"crimeinvolvingdomesticviolence"must beinterpreted within
the context of the social harm that the legislature was trying to address. Crimes of
"domestic violence" share a common characteristic: they are offenses committed by one
person against another within the context of a pre-existing relationship . 5
A crime is deemed a "crime involving domestic violence" when it is
committed in the context of a pre-existing romantic or familial relationship between the
defendant and the victim - a pre-existing relationship that provided the motivation for
5 See AS 18.66.990(5).
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the crime, or that made the victim more vulnerable (either physically or emotionally), or
6
that otherwise significantly contributed to the commission of the crime.
As this Court
noted in Bates v. State, the "hallmark" of domestic violence is criminal conduct whose
purpose is to "coerce, control, punish, intimidate, or exact vengeance within the context
7
of an intimate relationship."
The charges against Anderson do not fit this mold. The State does not
allege that Anderson became sexually involved with K.H. and then committed a crime
against her. Instead, the State alleges that Anderson's sexual activity with K.H. was
simultaneously the conduct that formed the "relationship" and the conduct that
constituted the crime itself.
As the parties to this case acknowledge, there is little legislative history
explaining the purpose of the "domestic violence" exception to the marital privileges.
But there is no indication that the legislature intended the "domestic violence" exception
to be interpreted in this circular manner.
Conclusion
Although Jeremy Anderson is charged with a serious felony against a
minor, his offense does not constitute a "crime involving domestic violence" for
purposes of Evidence Rule 505. I therefore conclude that the superior court should have
honored Jennifer Anderson's assertion of the spousal immunity privilege. Under Alaska
law, Jennifer Anderson has a right to refuse to testify against her husband.
6 Tofelogo v. State, 408 P.3d 1215, 1219-1220 (Alaska App. 2017).
7 Bates v. State, 258 P.3d 851, 862 (Alaska App. 2011).
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