Spousal Privilege

Nkechi Bright Ewere
Every compellable witness is a competent witness but not all competent witnesses are compellable. Section 175 of the Evidence Act 2011, provides that all persons shall be competent to testify, unless the court considers that, they are prevented from understanding the questions put to them, or they are also prevented from giving rational answers to these questions by reason of tender age, extreme old age, disease, whether of body or mind or any other cause of the same kind. Also a person of unsound mind is not incompetent to testify unless he is prevented by his mental infirmity from understanding the questions put to him and giving rational answers to them.
Section 179 of the Evidence Act provides that in criminal cases the defendant, his wife or her husband, as the case maybe is competent to testify. It is worthy to note that, the spouse of a defendant is not a competent and compellable witness for the prosecution or defence unless the defendant applies that the spouse be allowed to testify. So also a spouse cannot be compelled to disclose any communication made to him or her by the other during their marriage.
Notice must be taken that there are certain circumstances which make a spouse a competent and compellable witness for the prosecution or defence without the consent of the defendant. There circumstances are; 1. Where the defendant /male is charged with indecent practice with another male.
2. sexual assault, defilement and similar reprehensible acts see 161 (1) (a) (b) (c) of the Evidence Act 2011.
3. Offences relating to the property of the same spouse who the prosecution has called to give evidence.
4. Inflicting violence on the other spouse.
Also what may consider as mortal rape does not have any provision in our criminal code. The justification for this, rest on the belief that when a woman enters into a marriage contract she hereby gives her consent to all future acts of intercourse which she cannot subsequently revoke, likewise the man. That is why the Bible in 1 Corin. 7:3-4 urges couple to render due benevolence to each other. Also on the Common Law, a woman including her sexuality was considered the property of her husband and the law did not recognize any crime in a husband violating the woman who legally belonged to him. However if a husband uses force or violence to exercise his marital rights, he may however be guilty of assault or inflicting injury, see R V. Miller (1954)2 QB 282.