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Anderson v. State (12/14/2018) ap-2629

Anderson v. State (12/14/2018) ap-2629

                                                                        NOTICE
  

               The text of this opinion can be corrected before the opinion is published in the   

               Pacific  Reporter.    Readers  are  encouraged  to  bring  typographical  or  other  

               formal errors to the attention of the Clerk of the Appellate Courts:  



                                               303 K Street, Anchorage, Alaska  99501
  

                                                              Fax:  (907) 264-0878
  

                                                   E-mail:  corrections @ akcourts.us
  



                      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).  



                                                                   - 2 -                                                             2629
  


----------------------- 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).  



                                                                          -  14 -                                                                    2629
  


----------------------- 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).  



                                                                                                      -  18 -                                                                                                2629
  


----------------------- Page 19-----------------------

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).  



                                                                         -  19 -                                                                    2629
  


----------------------- Page 20-----------------------

"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  

                                                                                                                                 



                                                              - 20 -                                                         2629
  


----------------------- Page 21-----------------------

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  

                                                                                                                                 



                                                              - 21 -                                                         2629
  


----------------------- Page 22-----------------------

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. 
 



                                                                   - 22 -                                                              2629
  


----------------------- Page 23-----------------------

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  

                                                                                                                             



                                                             - 23 -                                                         2629
  


----------------------- Page 24-----------------------

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  

                                                                                                                                   



                                                              - 24 -                                                         2629
  


----------------------- 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).  



                                                                                                                                                                                                                         - 25 -                                                                                                                                                                                                                     2629
  


----------------------- Page 26-----------------------

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).  



                                                                             - 26 -                                                                        2629  

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