The short answer is no. In Oregon, spousal privilege covers only "confidential communications" that took place during a marriage, not before.

"In any civil or criminal action, a spouse has a privilege to refuse to disclose and to prevent the other spouse from disclosing any confidential communication made by one spouse to the other during the marriage," ORS 40.255 reads. "The privilege created by this subsection may be claimed by either spouse."

But Kitzhaber and Hayes have been in a committed relationship for a long time—since 2003. Could that count as marriage?

Again, the answer is no. Oregon does not recognize common-law marriage—the idea that two people can be "married" in the eyes of the state even if they haven't formally tied the knot.

"If they get married now, everything from here on out would be covered," says Tung Yin, a criminal law professor at Lewis & Clark Law School. "It probably wouldn't protect anything of value in this situation."

If Hayes and Kitzhaber want to protect each other, they have another avenue: Each has the right to avoid self-incrimination under the Fifth Amendment. Since the allegations against them are so intertwined, pleading the Fifth could help them as individuals and as a couple. 


Also in this week's paper: