BRENDA VILLALTA & another [Note 1] vs. COMMONWEALTH.

WILKINS, C.J. At the heart of this appeal is the question whether Brenda Villalta (wife) may be compelled to testify against her husband, Jose M. Villalta-Duarte (defendant), at the trial of criminal charges pending against him. The defendant is charged with rape of a child under sixteen years of age, assault with intent to rape such a child, indecent assault and battery on such a child, and assault and battery on such a child. There is

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no statement of agreed facts, but the relevant facts are not in dispute. The alleged victim was a two year old girl, unrelated to the wife or the husband, who periodically received day-care services from the wife in the Villaltas' home.

Relying on G. L. c. 233, s. 20, cl. Second, the wife moved before trial for a ruling that she could invoke a privilege not to testify against the defendant. The second clause of s. 20, which section is set forth in the margin, [Note 2] provides in relevant part that "except in any proceeding relating to child abuse, including incest, neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against the other." The wife argued successfully to a Superior Court judge that the exception denying the spousal

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privilege in a proceeding relating to child abuse does not apply when the alleged child victim is not a child of either of them and does not live with them.

The Commonwealth commenced this action in the single justice session of this court seeking to overturn the Superior Court judge's order. Treating the petition as one seeking relief pursuant to the general superintendence authority of this court (G. L. c. 211, s. 3), a single justice ruled that the wife was not entitled to assert a spousal privilege and could be compelled to testify in the criminal proceeding against the defendant. Both the wife and the defendant appealed. [Note 3]

1. We consider first whether the single justice erred in deciding to rule on the Commonwealth's substantive challenge to the motion judge's evidentiary ruling. The defendant, but not his wife, argues that supervisory powers pursuant to G. L. c. 211, s. 3, should not be exercised in this case. The point is not jurisdictional. The husband does not contend explicitly that the single justice erred in exercising his discretion to grant relief under G. L. c. 211, s. 3. He argues generally that the substantive issue in this case is not one that warrants the exercise of our G. L. c. 211, s. 3, powers. We disagree. The exercise of general superintendency powers under G. L. c. 211, s. 3, although it may not in any sense be required, is appropriate in this case. The issue we deal with is substantially different from the issue that arises when a plaintiff seeks G. L. c. 211, s. 3, relief as a matter of right. See McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995).

Appellate consideration before trial of an interlocutory ruling can be had, in a criminal proceeding, if the judge reports the propriety of the ruling to the Appeals Court or if the conditions described in Mass. R. Crim. P. 15 (a), as appearing in 422 Mass. 1501 (1996), allowing interlocutory review, exist. [Note 4] If neither of these methods is available, the Commonwealth may

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obtain review of an adverse interlocutory ruling in a criminal case only through G. L. c. 211, s. 3. If the defendant is convicted, the alleged error is not prejudicial to the Commonwealth. If the defendant is acquitted, the Commonwealth may not appeal. It is this circumstance that led to the granting of certain interlocutory appellate rights to the Commonwealth in Mass. R. Crim. P. 15 and G. L. c. 278, s. 28E.

In some circumstances, of which the single justice thought the case before him was one, the full court or a single justice has permitted the Commonwealth to use G. L. c. 211, s. 3, to obtain review of a trial judge's interlocutory ruling in a criminal case. See Commonwealth v. Cowan, 422 Mass. 546, 547 (1996) (relief granted to Commonwealth on its challenge under G. L. c. 211, s. 3, to trial judge's revision of defendant's sentence); Matter of a John Doe Grand Jury Investigation, 410 Mass. 596, 599 (1991) ("The order allowing the motions [to quash grand jury subpoenas] was a final order not reviewable by any established procedure, and the Commonwealth, therefore, appropriately challenged the order" by seeking relief under G. L. c. 211, s. 3); Commonwealth v. Gordon, 410 Mass. 498, 499 (1991) (reserved and reported by a single justice) ("Because there was no appellate remedy to determine the correctness of the judge's actions [in accepting a plea to murder in the second degree from a defendant indicted for murder in the first degree], the district attorney properly sought relief pursuant to G. L. c. 211, s. 3"); Commonwealth v. Babb, 389 Mass. 275, 282-283 (1983) (single justice granted G. L. c. 211, s. 3, relief) (relief under G. L. c. 211, s. 3, was appropriate when Commonwealth had no other practical remedy to review trial judge's order, issue was of general significance, and, if order was erroneous,

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under G. L. c. 211, s. 3, relief was warranted); Blaisdell V. Commonwealth, 372 Mass. 753, 755 (1977) (questions reserved and reported by the single justice in a G. L. c. 211, s. 3, action [concerning pretrial order that defendant submit to a psychiatric examination] were difficult, involved matters of great import, and warranted exercise of court's powers under G. L. c. 211, s. 3). Cf. Commonwealth v. Vao Sok, 425 Mass. 787, 788 (1997) (single justice reserved and reported case) (petition of Commonwealth under G. L. c. 211, s. 3, to challenge pretrial evidentiary ruling on admissibility of evidence considered without objection by defendant); Commonwealth v. Perry P, a juvenile, 418 Mass. 808, 810 (1994) (single justice reserved and reported case) (exercise of jurisdiction not challenged on Commonwealth's G. L. c. 211, s. 3, petition seeking relief from motion judge's ruling that had some similarity to allowance of motion to dismiss); Commonwealth v. Lanigan, 413 Mass. 154, 155 (1992) (no challenge to single justice's order, acting on Commonwealth's G. L. c. 211, s. 3, petition, allowing appeal of trial judge's order that was equivalent to allowance of motion to suppress). [Note 5]

Any doubt arising from the reservation in Commonwealth v. Yelle, 390 Mass. 678, 686 (1984), of the question of the Commonwealth's right to seek to use G. L. c. 211, s. 3, to challenge pretrial rulings in a criminal case has been dispelled by our more recent decisions. Although the Commonwealth has the right to seek a discretionary G. L. c. 211, s. 3, ruling in its favor, we leave open the question whether the Commonwealth ever is entitled as a matter of right to G. L. c. 211, s. 3, relief. Id.

The single justice properly exercised his discretion under G. L. c. 211, s. 3, to consider the substantive issue that the Commonwealth raised. He did so because the order in the trial court "allowing the wife to invoke the spousal privilege is premised on a generally applicable interpretation of an important statutory provision." He added that the "[i]mpossibility of cor-

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recting this error in the ordinary course of decisions therefore may be detrimental to administration of justice."

2. We agree with the single justice that the criminal proceeding against the defendant is a "proceeding relating to child abuse" within the meaning of those words in G. L. c. 233, s. 20, cl. Second. There is no instructive legislative history to aid us in determining what was intended by the words "proceeding relating to child abuse," language that the Legislature inserted by St. 1983, c. 145, and has since remained unaltered. Nor would it be appropriate to look to subsequent amendments of other portions of s. 20 in an attempt to learn what the Legislature intended in 1983. [Note 6]

The wife and the defendant argue that the words "including incest" in clause Second demonstrate that "child abuse" means only abuse of one's own child or of a child with whom one could commit incest. See G. L. c. 272, s. 17, defining incest, and G. L. c. 207, s. 1-2, listing persons in degrees of consanguinity within which sexual intercourse is prohibited (such as nieces, nephews, and grandchildren). To include incest within child abuse provides no obvious restriction on the general words "child abuse."

We see no logical reason for the Legislature to deny the spousal privilege when a young victim of abuse is a child of one or both spouses (or other child closely related by consanguinity) but to perpetuate the privilege when the young victim is related to neither spouse. The abuse is the same. Society's interest in convicting and punishing one who commits child abuse is the same. The threat to the preservation of the family unit arising from one spouse being compelled to testify against the other seems substantially identical in all instances. Indeed, if the defendant's alleged child abuse was not incestuous, the spouse's compelled testimony might be less threatening to the marriage than if she were compelled to testify, as the wife and defendant agree she must, concerning incestuous child abuse, which involves an even greater stigma than child abuse alone.

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The criminal conduct asserted in this case, abuse of the victim in the defendant's home, shows that the need for the testimony of a defendant's spouse may be as great as it would be if the alleged victim were their own child. We choose to apply the literal meaning of the words "child abuse" to s. 20, cl. Second. Child abuse in common usage is not limited to the abuse of one's own child but means the abuse of any child.

3. We affirm the judgment granting the Commonwealth's petition, which sought a judgment that (1) vacated the order that the wife could assert a spousal privilege in proceedings against her husband and (2) ordered that the wife's motion that she is entitled to assert that privilege be denied.

So ordered.