Concurring:
Although I concur with the result reached by the majority, I differ somewhat in how that result is reached.
While I disagree with some of the majority’s analysis of the early English history of the competency and privilege issues, I shall not take the time to take issue with their treatment of that historical perspective.
*213Section 9-101 of the Courts & Judicial Proceedings Article states that “[ujnless otherwise provided in this subtitle ... [ljitigants and their spouses are competent and compellable to give evidence.” Section 9-105 provides, however, that “[o]ne spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage.” And section 9-106, in relevant part, provides that “[t]he spouse of a person on trial for a crime may not be compelled to testify as an adverse witness----” 1 In seeking reversal of the Court of Special Appeals’ opinion, petitioner proffers two arguments, which I rephrase and simplify: (1) section 9-105 is an unwaivable “competency” statute, not a waivable “privilege”; and (2) if section 9-105 does establish a privilege, then petitioner has not waived the privilege in this case. I am convinced that section 9-105 deals with privilege by virtue of the treatment of the issue by the General Assembly over the last hundred years or so.
Central to the arguments presented is the nature of section 9-105. Section 9-105, as I view it, cannot, in light of the history of testimonial limitations on spouses in Maryland and elsewhere, be resolved in a vacuum. The “competency” portion of Title 9, subtitle 1, entitled “Competency, Compellability, and Privilege,” I believe, require, at a minimum, a balancing of those provisions relating to the competence of spousal witnesses to testify at all against the other spouse in a criminal proceeding and the privileges of spouses, generally, to decline to testify as to privileged communications or to prohibit the other spouse from testifying as to such confidential marital communications. This Court and the Court of Special Appeals have heretofore, for the most part, almost always addressed the issues of spouses testifying in cases involving the other spouse using the language of “privilege.” In the cases, however, the parties generally have presented the disputes as matters of privilege and we have assumed, for the purposes of the cases, that the issues related to privilege only, *214although in at least one case we have, in dicta, recognized the difference between competency and privilege in the context of spousal witnesses.
I note initially that the matter is treated in many different ways by other jurisdictions. Some conclude that both concepts are a matter of privilege either under the statutes of the jurisdictions or under the jurisdiction’s common law. Some continue to recognized a distinction, but generally find in the individual cases that “privilege” is involved rather than competency. Some jurisdictions have interpreted their state’s statutes and common law as relating exclusively to the matter of competency. I would start by defining the difference in the concepts.
“Spousal incompetency,” sometimes referred to as “spousal disqualification,” “spousal immunity,” or the “prohibition against adverse spousal testimony,” and sometimes even referred to as “spousal privilege,” see, e.g., People v. Fisher, 442 Mich. 560, 566, 503 N.W.2d 50, 53 (1993), as relevant to the issues presented, is, generally, a rule of testimonial incompetency. The rule governs whether a spouse may testify at all in a judicial proceeding, i.e., appear as a witness against the other spouse (or for the spouse, according to some authorities) in a case in which the other spouse is a party. In most jurisdictions the issue is qualified by the right of either the testifying spouse, the other spouse, or both, to consent to such testimony. In a pure sense, however, and at least one jurisdiction has so held,2 the prohibition against “spousal testimony” is absolute. In that jurisdiction, a spouse, during the marriage, could not testify at all, as to any issue, in a case in which the other spouse was a party. “Spousal incompetency,” if applicable, only exists during the marriage. After the termination of the marriage, “spousal incompetency” is no longer at issue and the ex-spouse may testify, and be required to testify.
“Spousal privilege,” also referred to as the “communications privilege,” as relevant to the issues before the Court, is a *215prohibition against a spouse, or former spouse, being required, or permitted, to testify in a court proceeding, as to a confidential marital communication occurring during the marriage, over her or his objection or over the objection of the other spouse or former spouse. “Spousal privilege” survives the termination of the marriage.
As I commence an examination of the Maryland statute, I note initially the constraints of statutory construction. “The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995), quoted in Board of License Comm’rs v. Toye, 354 Md. 116, 122, 729 A.2d 407, 410 (1999). “As we often have said, the starting point for determining legislative intent is the language of the statute itself. Where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent.” Degren v. State, 352 Md. 400, 417, 722 A.2d 887, 895 (1999) (citations omitted). In Tracey v. Tracey, 328 Md. 380, 387, 614 A.2d 590, 594 (1992), however, this Court opined that “the plain meaning rule of construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body. The Court will look at the larger context, including the legislative purpose, within which statutory language appears.” (Citations omitted.) Thus, this Court is not constrained by the literal or usual meaning of the terms at issue. Edgewater Liquors, Inc. v. Liston, 349 Md. 803, 808, 709 A.2d 1301, 1303 (1998). Rather, we must “interpret the meaning and effect of the language in light of the objectives and purposes of the provision enacted.” Lewis v. State, 348 Md. 648, 654, 705 A.2d 1128, 1131 (1998) (citing Gargliano v. State, 334 Md. 428, 435, 639 A.2d 675, 678 (1994)).
In determining legislative intent, the Court may resort to the history behind the legislative enactment, Welsh v. Kuntz, 196 Md. 86, 93, 75 A.2d 343, 345 (1950); Barnes v. State, 186 Md. 287, 291, 47 A.2d 50, 52, cert. denied, 329 U.S. 754, 67 S.Ct. 95, 91 L.Ed. 650 (1946), as well as the development of *216the enactment through the years. See, e.g., C.S. v. Prince George’s County Dep’t of Soc. Servs., 343 Md. 14, 24, 680 A.2d 470, 475 (1996) (noting that “[i]t is often necessary to look at the development of a statute to discern legislative intent that may not be as clear upon initial examination of the current language of the statute.” (quoting Condon v. State, 332 Md. 481, 492, 632 A.2d 753, 758 (1993) (alteration in original))). In reviewing the history of a statute, we must bear in mind that the Legislature is presumed to be aware of the common law as it stands at the time of the enactment and that the law is not intended to change the common law absent an express, specific declaration to do so. See Hardy v. State, 301 Md. 124, 131, 482 A.2d 474, 478 (1984) (“Maryland courts adhere to the policy that statutes are not to be construed to alter the common-law by implication.” (citing Bradshaw v. Prince George’s County, 284 Md. 294, 302, 396 A.2d 255, 260 (1979); Lutz v. State, 167 Md. 12, 15, 172 A. 354, 355-56 (1934))).
Most jurisdictions have interpreted the common law as recognizing the separate, though related, common law origins of the concepts of “spousal competency” and “spousal privilege.” Some have adopted the position urged on us that such statutes are virtually always competency statutes.3
Maryland attempted, at one point, to abolish the concept of absolute incompetency, but in the process of enactments and re-enactments has used competency language to limit the effect of the abolition of the old common-law concept of “spousal incompetency” or “spousal disqualification.” 1864 Maryland Laws, Chapter 109, section 1, provided, as relevant to the present issue:
Sec. 3 .... nor, in any criminal proceeding, shall any husband be competent or compellable to give evidence for or against his wife, [and vice-versa], except as now allowed by law, nor in any case, civil or criminal, shall any husband be competent or compellable to disclose any communication *217made to him by his wife during the marriage, [and vice-versa].
In my view, this statute codified both concepts. It was repealed by 1876 Maryland Laws, Chapter 357, section 1, which purported to repeal and re-enact section 3. The reenacted statute was couched in general terms “the person so charged shall, at his own request but not otherwise, be deemed a competent witness.... ” As re-enacted, there were no specific provisions relating to husbands, wives, or spouses in general. 1888 Maryland Laws, Chapter 515, was, in part, “AN ACT to repeal and re-enact with amendments section three, of article thirty-seven----” The reievant portions of the re-enactment read: “In all criminal proceedings the husband or wife of the accused party shall be competent to testify; but in no case, civil or criminal, shall any husband or wife be competent to disclose any confidential communication made by the one to the other during the marriage.... ” Id. § 1. This statute declared spouses to be competent and reserved to spouses only the right to prohibit the disclosure of confidential marital communications. It, as I see it, abolished “spousal incompetency.” Accordingly, at that time the Maryland statute was limited to the protection of confidential marital communications. This last language remained in the statutes through the 1951 codification. See Md.Code (1951), Art. 35, § 4. Through 1964 there was no “spousal incompetency” rule in Maryland. Spouses were completely compella-ble, i.e., competent, although they could not testify, over the objection of either, as to confidential communications.
The statutory history, as I interpret it, relating to this issue indicates the early existence of a “spousal incompetency” (or disqualification or immunity) rule, separate and distinct from the provisions forbidding the involuntary disclosure of confidential marital communications. Then, in 1888, the “spousal incompetency” rule was repealed from the statute. Up until 1965, the confidential marital communication provision remained in the statute and had been, for over seventy-five years, the only provision in respect to spousal testimony. Then, in 1965, the Legislature again repealed and re-enacted *218the relevant statute,' as I see it, for the sole purpose of reestablishing a modified “spousal incompetency” provision, which provided that a witness-spouse could not be compelled against his or her wishes to testify against the other spouse in a criminal case. In 1965, Maryland Laws, Chapter 835, provided:
AN ACT to repeal and re-enact, with amendments, Section 4 of Article 35 of the Annotated Code of Maryland (1957 Edition), title “Evidence,” subtitle “Competency of Witness,” to provide that a husband or wife is not compelled to testify as an adverse party or witness in a criminal action involving his or her spouse but may testify at his or her election only.
In the body of the statute only the following was added: “nor shall the husband or wife be compelled to testify as an adverse party or witness in any criminal proceeding involving his or her spouse.” Id. § 1. By the time of the transfer of some of Article 35’s “witness” provisions into the Courts & Judicial Proceedings Article during recodification in 1973 (see 1973 Sp. Sess., Md. Laws, Chap. 2, § 1), there was a “spousal incompetency” provision, carried forward apparently from 1965 Maryland Laws, Chapter 835.4 None of the modifications to the subtitle since the 1973 recodification have changed any of the provisions relevant to the issues before us in the case at bar. As combined, the relevant statutory provisions in respect to spouses now state: “Unless otherwise provided ... [Litigants and their spouses are competent and compellable to give evidence,” section 9-101, “[o]ne spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage,” section 9-105, and “[t]he *219spouse of a person on trial for a crime may not be compelled to testify as an adverse witness ....”§ 9-106.
One of the issues to be resolved is just what, given the historical antecedents of the current statute, has been created by the Legislature? Is it “spousal incompetency” or “spousal privilege,” or both, depending upon the context of the testimonial activity of the spouses? We have never, heretofore, directly addressed the issue. The positions of the other jurisdictions are mixed (sometimes within the same jurisdiction). I mention first those jurisdictions that have held either that the entire range of spousal testimony is a competency issue or that there is a general “spousal incompetency” issue (whether waivable or non-waivable) and, as to confidential marital communications, a “spousal privilege” issue.
The Supreme Judicial Court of Massachusetts in Gallagher v. Goldstein, 402 Mass. 457, 524 N.E.2d 53 (1988), was addressing a medical malpractice issue in which the patient allegedly had been rendered mentally incompetent as a result of the negligent actions of the defendants. The plaintiffs attorney sought to present testimony from the patient’s husband as to conversations with the patient prior to her mental deterioration. The Massachusetts statute, in relevant part, then provided that a person of “sufficient understanding” could testify in court proceedings, except that “neither husband nor wife shall testify as to private conversations with the other.” Id. at 459, 524 N.E.2d at 54. This language is similar to Maryland’s section 9-105. This normally is considered to be the “communications privilege.” The Massachusetts court held otherwise:
The rule established by the statute is one of disqualification rather than privilege.... Testimony as to the contents of a private conversation is inadmissible even if both spouses desire the evidence to be admitted.
It seems imprudent to prohibit testimony as to a marital conversation when both parties to the conversation want disclosure.... However, the Legislature has enacted a *220statute stating a clear and unambiguous preference for the marital disqualification. We have consistently ruled that the statute renders spouses incompetent to testify as to the contents of their private conversations with their marital partners.... While we agree with the plaintiff that many of the stated policy reasons for this statute are anachronistic and that those that are not outmoded, such as the preservation of marital confidentiality and harmony, are not furthered by the inadmissibility of this testimony, we must construe the statute as it is written. Were this strictly a common law rule, we would not hesitate to transform it from a rule of disqualification to one of privilege. However, given the existence of the statute, that decision is for the Legislature.
Id. at 459-61, 524 N.E.2d at 54-55 (citations omitted) (footnotes omitted). But see Commonwealth v. Maillet, 400 Mass. 572, 575-78, 511 N.E.2d 529, 531-33 (1987) (referring, a year earlier, to the incompetency provisions as a “privilege,” although the nature of the testimonial rule was not at issue).
The Supreme Court of Ohio in State v. Adamson, 72 Ohio St.3d 431, 650 N.E.2d 875 (1995), construed a provision similar to Maryland’s section 9-106. Ohio Rule of Evidence 601(B), in relevant part, stated:
“Every person is competent to be a witness; except:
“(B) A spouse testifying against the other spouse charged with a crime except when ...:
“(2) The testifying spouse elects to testify.”
Id. at 433, 650 N.E.2d at 877. The court compared the spousal “competency” rule with the statute concerning the marital communications privilege:
The focus of Evid. R. 601(B) is the competency of the testifying spouse; in contrast, R.C. 2945.42 focuses on the privileged nature of spousal communications[.]
*221Spousal privilege and spousal competency are distinct legal concepts which interrelate and provide two different levels of protection for communications between spouses. Under R.C. 2945.42, an accused may prevent a spouse from testifying about private acts or communications. However, even when the privilege does not apply because another person witnessed the acts or communications, a spouse still is not competent to testify about those acts or communications unless she specifically elects to testify. While the presence of a witness strips away the protection of the privilege, the protection provided pursuant to Evid. R. 601 remains.
... While Evid. R. 601 was amended in 1991 to allow the spouse the decision as to whether to testify against the accused spouse (the decision formerly lay with the accused), the rule still contains important protections for the accused, since it deals with the competency of persons testifying against him.
The rule requires that the testifying spouse elect to testify against her spouse.... Thus, under Evid. R. 601(B), a spouse remains incompetent to testify until she makes a deliberate choice to testify, with knowledge of her right to refuse.
Id. at 433-34, 650 N.E.2d at 877. State v. Savage, 30 Ohio St.3d 1, 506 N.E.2d 196 (1987), applied a prior version of the Ohio competency rule in which the decision of whether a spouse could testify rested with the accused. The Court distinguished the rule from a rule of privilege:
[S]pousal incompetency received different treatment, not based upon privilege, but upon a rule.of absolute incompetency which could not be waived by failure of the defendant-spouse to object. Only when the defendant called his spouse to the stand ... was the testifying spouse’s incompetency waived, and cross-examination allowed.
... Furthermore, there are significant differences between a rule granting a particular privilege and one which defines a class of witnesses as incompetent.... [A] rule of *222incompetency defines which witness may not offer testimony and then sets forth limited exceptions for when witnesses may be heard. [Citations omitted.]
Id. at 4, 506 N.E.2d at 198. See also State v. Phelps, 100 Ohio App.3d 187, 192, 652 N.E.2d 1032, 1035 (1995) (“Having demonstrated the uniqueness of the two rules, it becomes apparent that spousal incompetency is not subsumed within spousal privilege.” (quotation omitted)).
It appears that at least the intermediate appellate court in Minnesota is in agreement with the holdings of the Ohio courts. In State v. Thompson, 413 N.W.2d 889 (Minn.Ct.App. 1987), the state took an appeal from an order suppressing a statement made to the police by the defendant’s wife in respect to a communication between she and her husband. At the time of the communication of the statement, the parties had not been married, but were married at the time of trial. The defendant asserted that “the marital privilege would prevent it from being admitted in his trial.” Id. at 890.
The Minnesota statute provided that “[a] husband cannot be examined for or against his wife without her consent, [or vice-versa], ... nor can either, during the marriage or afterwards, ... be examined as to any communication made by one to the other during the marriage.” Id. at 890-91 (quoting Minn.Stat. § 595.02, subd. 1(a), (1986)). The appellate court opined, in part: “The marital privilege statute is twofold, providing for both the incompetency of the spouse and the privilege for marital communications.” Id. at 891. Because the parties were not married at the time of the communication at issue, the court held that the “privilege” for marital communications was not involved, and affirmed the lower court’s finding.
The South Dakota Supreme Court in Jaques, 256 N.W.2d at 560, was concerned with “whether or not a defendant in a criminal prosecution ... can effectively silence the state’s star witness ... by marrying her before trial.... ” The court held:
*223The state concedes that she cannot be called as a witness without her husband’s consent. We hold that her previous testimony is likewise inadmissable, and reverse.
.. . There can be no question but what the testimony of the witness being the spouse of the defendant [by the time of trial] was not competent unless he waived his privilege against her testifying.
Id. at 560, 563.
In Burlington Northern Railroad v. Hood, 802 P.2d 458, 465 (Colo.1990), the statute stated “[a] husband shall not be examined for or against his wife without her consent, [and vice-versa], and that ‘during the marriage or afterward’ neither spouse shall ‘be examined without the consent of the other as to any communications made by one to the other during the marriage.’ ” (quoting Colo.Rev.Stat. 13-99-107(l)(a)(I), 6A (1990) (first alteration in original)). The Colorado Supreme Court held:
This statute creates two distinct privileges with respect to spousal testimony. The first privilege is sometimes referred to as the rule of spousal disqualification and prohibits one spouse from testifying against the other without the other’s consent. The second privilege prohibits the disclosure of a spousal communication made by one spouse to the other during the marriage.
Id. at 465 (citations omitted). See also Fisher v. State, 690 So.2d 268, 272 (Miss.1996), (“We ... note the difference between the marital privilege and spousal incompetency. Rule 601(a)(2) abolishes spousal incompetence to testify.... The non-offender spouse may be called to testify, but the other spouse may still invoke the privilege regarding confidential communications.... ”).
The existing Pennsylvania statute, like Maryland’s section 9-105, uses the term “competent” in its treatment of the confidential marital communications privilege: “in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by *224one to the other, unless this privilege is waived upon the trial.” 42 Pa. Cons.Stat. Ann. § 5914 (West 1982) (emphasis added).
Pennsylvania also has a statute relating to a spouse’s testimony while married to a criminal defendant that was once a rule of incompetency. The terminology used was changed to a “privilege” by an Act of 1989. See Commonwealth v. Savage, 695 A.2d 820, 823 (Pa.Super.1997) ( “The statutory provision dealing with spouses as witnesses against each other ... was rewritten by Act 16 of 1989. When that section was rewritten, it was changed ‘from a rule rendering one spouse incompetent to testify against the other to a rule recognizing a privilege not to testify against one’s spouse.’ ” (quoting Commonwealth v. Newman, 534 Pa. 424, 427, 633 A.2d 1069, 1070 (1993))). No such change in Maryland Code, section 9-106 of the Courts & Judicial Proceedings Article has occurred.
The new Pennsylvania testimonial statute was at issue in Newman, 534 Pa. 424, 633 A.2d 1069, a contempt case. The question presented there was whether the statute, effective after the date of the testifying spouse’s acquisition of knowledge about the crime but before the defendant’s trial, was applicable to compel her testimony against her husband. The court opined:
It has always been permissible for the Commonwealth to use information obtained from one spouse to build a case against the other spouse. The competency rule, now privilege, is a testimonial one....
To paraphrase the rules with regard to spousal testimony, a husband or wife is now deemed competent to testify against his or her spouse, but has a privilege to refuse to give adverse testimony, which he or she may waive.... Even if a husband or wife may be called to give testimony adverse to his or her spouse, however, he or she is not competent to testify to confidential communications.
Id. at 429, 431-32, 633 A.2d at 1071,1072.
Early in the evolution of the competency/privilege statute in Pennsylvania, prior to the Act of 1989, there were Pennsylva*225nia cases holding that it was a strict “spousal incompetency” rule, where the issue of competency could not be waived. In Commonwealth v. Moore, 453 Pa. 302, 305 n. 4, 309 A.2d 569, 570 n. 4 (1973), the statute then in effect provided that “[n]or shall husband and wife be competent or permitted to testify against each other.... ” In Moore, the court, commenting in a footnote, stated: “This is a competency statute to be distinguished in purpose and effect from the rules governing privileges or confidential communications.” Id. at 306 n. 4, 309 A.2d at 570 n. 4. The Supreme Court of Pennsylvania held, in ruling that the prosecution should not have been permitted to comment to the jury on the defendant’s failure to call his wife to testify in his defense, that:
It is clear the purpose of the statute is to bar, either husband or wife, from testifying against the other, and this is a rule which is not waivable by the parties.... The statute by its very terms stops either spouse from adversely affecting a criminal case against the other; although it does allow a spouse to testify on behalf of the other....
Id. at 307, 309 A.2d at 571. It appears that the Pennsylvania courts have interpreted the 1989 change in their statute as modifying the rule of “spousal incompetency” into a rule of “spousal privilege” separate from the confidential marital communications provision, which expresses a “privilege” that can be “waived.”
In State v. Hurley, 876 S.W.2d 57 (Tenn.1993), cert. denied, 513 U.S. 933, 115 S.Ct. 328, 130 L.Ed.2d 287 (1994), the Supreme Court of Tennessee described a spouse’s right to refuse to testify as “a privilege.” The Tennessee Legislature apparently had abolished the statutory right of a spouse not to testify, but intended to retain the judicially created common-law “spousal incompetency” rule leaving the latter issue to the courts that had created it. The court said:
[Tenn. R. Evid. 501] sets out that except as otherwise provided by constitution, statute, common law, ... no person has a privilege to:
(1) Refuse to be a witness;
*226(2) Refuse to disclose any matter;
... In pertinent part, the statute provides that a husband and wife shall be competent witnesses ... though neither husband nor wife shall testify as to any matter that occurred between them by virtue of or in consequence of the marital relation.
Id. at 61.
The court noted that even prior to the change in the statutes, the Tennessee Rules of Evidence provided that witness-spouses could be compelled to testify against defendant-spouses in criminal cases.
Prior to the adoption of the Rules of Evidence, T.C.A. § 40-17-104 provided that in all criminal cases, the husband or the wife were competent witnesses to testify for or against each other____ Over the years ... the cases have held that the statute did not abrogate the rule as to privileged, or confidential communications between husband and wife. Generally they have held that neither husband nor wife are permitted, over objection, to testify, in criminal cases, as to any matter occurring between them by virtue or in consequence of the marital relation, nor as to any confidential communications between them.... In view of this it becomes apparent that, at the time of the defendant’s trial, there was not any constitutional or statutory provision in reference to spousal testimony in criminal cases, leaving us to look to the common law of this State for guidance. A study of the early decisions leaves no other conclusion than that, in company with many of our sister states, Tennessee courts adopted, in criminal cases, a hybrid combination of the ancient common law rule barring interspousal testimony on one hand, and the marital privilege in civil cases, established by statute, on the other.
Id. at 61-62.
After a discussion of Tennessee’s statutory history in respect to a spouse’s competency to testify and in respect to *227confidential marital communications between spouses, the court concluded:
After the enactment of the foregoing legislation, not withstanding that there was neither a statutory nor common law precedent for such decisions, the cases involving criminal proceedings in this State consistently have referred to the rule found in Goodwin v. Nicklin and wife, 53 Tenn. 256, 6 Heiskell (1871), a civil case in which the Court said: “The common law places the rejection of such evidence upon the high grounds of public policy, and because greater mischief and inconvenience would result from the reception than the exclusion of such evidence. On this account it is a general rule that the husband and wife cannot give evidence to affect each other either civilly or criminally; for to admit such evidence would occasion domestic dissensions and discord.... ”
Id. at 62.
The Tennessee court then discussed subsequent cases in which the testimonial issue was couched in terms of competency. It then noted that the common law rule as to spousal testimony had been created by the courts, and that, given that the new statute was made subject to the common law, the courts could still change the common law.
The present rule is an anachronism, perhaps suitable for the times in which it was created, but no longer a viable guideline for the conduct of criminal proceedings in a world which has experienced so much change. We consider it timely to establish a policy which is better adapted to the circumstances marked by today’s standards.
Id. at 63. The court then modified the common law to provide that the testifying spouse alone had a privilege not to testify and that a willing spouse could testify. Id. at 64; accord State v. Bragan, 920 S.W.2d 227, 240-41 (Tenn.Crim.App.1995).
In State v. Holmes, 330 N.C. 826, 829, 412 S.E.2d 660, 661 (1992), the Supreme Court of North Carolina noted: “At common law, the general rule regarding spousal testimony was that neither spouse could testify for or against the other *228in either a civil or criminal proceeding. The spousal incompetency rule was later relaxed to provide that a spouse was competent to testify in favor of the other spouse and be subject to cross-examination. This modification ... gave rise to a rule against adverse spousal testimony.” (Citations omitted). The North Carolina Supreme Court had abrogated the common law rule of spousal incompetency and the North Carolina Legislature had- enacted a law, much more extensive than Maryland’s, that retained the competency-compellability language, but referred to the lack of compellability as a “privilege.” The North Carolina Supreme Court has since referred to spousal incompetency in terms of “privilege,” although acknowledging: “While our cases and statutes have not been models of clarity, collectively they stand for the proposition that a confidential communication between husband and wife is privileged and that this privilege, even in criminal cases, survives both the North Carolina Rules of Evidence and the amendments to [the relevant statute].” Id. at 833, 412 S.E.2d at 664.
Wyoming has also mixed the two concepts by referring to both as privileges, although, in a case involving the interpretation of the Wyoming statute, the Wyoming Supreme Court clearly distinguished them:
Clarity and consistency demand that we distinguish between the confidential marital communication privilege and the privilege of spousal immunity. The privilege of spousal immunity may be invoked by the spouse who does not wish to be the instrumentality of condemnation directed at his or her partner. The confidential marital communication privilege is the privilege that ensures that private marital communications will remain private.
The confidential marital communication privilege initially belongs to the spouse who communicates the confidential information. The spouse against whom the testimony is offered has the right to invoke the confidential marital communication privilege.
*229If the party spouse refuses to waive the confidential marital communication privilege, the witness spouse cannot testify [as to the confidential communication] even if he or she waives the spousal immunity privilege....
... We also hold that once the party spouse has waived the confidential marital communication privilege, the non-party spouse may then elect to invoke or waive the privilege of spousal immunity.
Curran v. Pasek, 886 P.2d 272, 275, 277 (Wyo.1994) (citations omitted). It is clear that in Wyoming, even though the Court refers to both concepts as “privileges,” the concepts nonetheless retain their separate identities as a “spousal immunity,” i.e., incompetency, provision and a “communications privilege.”
The West Virginia Supreme Court of Appeals similarly refers to both concepts as privileges, while maintaining the distinction. In State v. Bradshaw, 193 W.Va. 519, 537-38, 457 S.E.2d 456, 474-75, cert. denied, 516 U.S. 872, 116 S.Ct. 196, 133 L.Ed.2d 131 (1995), the Court noted: “There can be no question that W. Va.Code, 57-3-3, absolutely prohibits the spouse of a defendant from testifying against the defendant .... Where properly invoked, this statute precludes all adverse testimony by a spouse, not merely disclosure of confidential communications.” (Footnote omitted.)
An argument can be sustained that in some jurisdictions both concepts are true “privilege concepts,” although even in some of those jurisdictions a distinction is made between the concepts in spite of general descriptions referring to both as “privileges.” In the federal courts, the seminal case is Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), in which a wife chose to testify against her husband under a grant of immunity. Certiorari was granted by the United States Supreme Court “to consider whether an accused may invoke the privilege against adverse spousal testimony so as to exclude the voluntary testimony of his wife.” Id. at 41-42, 100 S.Ct. at 908. At trial she was not permitted to testify as to confidential marital communications, but she was permit*230ted to testify generally against her spouse, over his objection. Thus, the concept involved was clearly what is most often termed, generally, as a “spousal incompetency” issue. After discussing the “ancient rule” relating to the incompetency of a wife to testify against her husband because they were, in the eyes of the law, a single person, the Court noted that the “rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century.” Id. at 44, 100 S.Ct. at 909. The Supreme Court then stated:
Indeed, it was not until 1983, in Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 [ (1933) ], that this Court abolished the testimonial disqualification in the federal courts, so as to permit the spouse of a defendant to testify in the defendant’s behalf. Funk, however, left undisturbed the rule that either spouse could prevent the other from giving adverse testimony. The rule thus evolved into one of privilege rather than one of absolute disqualification. [Emphasis added].
The Court later commented:
It is essential to remember that the Hawkins[5] privilege is not needed to protect information privately disclosed between husband and wife in the confidence of the marital relationship.... Those confidences are privileged under the independent rule protecting confidential marital communication.
Id. at 50-51, 100 S.Ct. at 912-13 (citations omitted). Trammel, although speaking of the abolishment of the “spousal disqualification,” and defining it as a “privilege,” really, in the end only modified, which spouse had the power to waive it. See id. at 53,100 S.Ct. at 914.
Trammel led the way for some of the federal circuits to define “spousal incompetency” issues as “privileges.” In a case involving allegations of drug smuggling, the United States Court of Appeals for the Fifth Circuit noted in United *231States v. Ramirez, 145 F.3d 345, 355 (5th Cir.), cert. denied, 525 U.S. 1046, 119 S.Ct. 602, 142 L.Ed.2d 543 (1998), that: “The marital privilege is divided into two distinct privileges by the federal courts. The first privilege bars a spouse from testifying adversely to the other. The second privilege bars a spouse from testifying as to the confidential marital communications of the other.” See also United States v. Rakes, 136 F.3d 1, 3 n. 2 (1st Cir.1998); United States v. Bahe, 128 F.3d 1440, 1441-42 (10th Cir.1997), cert. denied, 523 U.S. 1033, 118 S.Ct. 1327, 140 L.Ed.2d 489 (1998).
Several state jurisdictions appear to utilize the same reasoning, terminology and definitions used in Trammel. See Holyfield v. State, 365 So.2d 108, 110 (Ala.Crim.App.1978) ( “At common law the spouse of a party ... was incompetent to testify for or against his or her mate. The majority of jurisdictions ... however, have altered this rule and have made a spouse a competent witness.... Nonetheless, he or she still has the privilege not to testify if he or she so elects.”); State v. Peters, 213 Ga.App. 352, 354-55, 444 S.E.2d 609, 611 (1994) (“Under Acts 1866, ... which essentially incorporated the common-law rule, spouses were neither competent nor compellable to testify.... Finally subsection (b) was added in 1987, providing that the privilege shall not apply where the husband or wife is charged with a crime against ... a minor child.” (emphasis added)); see also Pirkle v. State, 234 Ga. App. 23, 23-24, 506 S.E.2d 186, 187-88 (1998). Although Texas considers both “spousal incompetency” and confidential marital communications to be questions of privilege, it still maintains the distinction between the two. Cf. Poole v. State, 910 S.W.2d 93, 95 n. 6 (Tex.App.1995) (“TEX. K. CRIM. EVID. 504(2) merely protects an accused’s spouse from being called as a witness for the State.”); Tejeda v. State, 905 S.W.2d 313, 316 (Tex.App.1995, pet.refd) (“The spouse of an accused has a privilege not to be called as a witness for the State.... ”).
Although clearly speaking of what under the common law was referred to as “spousal incompetency,” Arizona has expressly termed it by statute to be a privilege, titling it as the *232“Anti-Marital Fact Privilege.” See State ex rel. Woods v. Cohen, 173 Ariz. 497, 501-02, 844 P.2d 1147, 1151-52 (Ariz. 1992) (“A person shall not be examined as a witness in the following cases: 1. A husband for or against his wife without her consent, [and vice-versa], as to events occurring during the marriage.” (quoting Ariz.Rev.Stat. § 13-4062(1))); see also 8 Wigmore, supra, § 2335, at 546. Arizona, like Maryland, codifies its marital communications protection in a separate statute. The Arizona statute expressly titles that protection as “Husband and wife; privileged communications.” Ariz. Rev.Stat. Ann. § 12-2232 (West 1994).
The Court of Appeals of Washington, while referring to it as a “marital privilege,” nonetheless maintained the distinction between the two concepts in State v. Modest, 88 Wash.App. 239, 246-47, 944 P.2d 417, 421 (1997), rev. denied, 134 Wash.2d 1017, 958 P.2d 317 (1998):
The marital privilege is contained in RCW 5.60.060(1), which provides that neither a husband nor a wife can testify for or against the other spouse without the spouse’s consent. Because Ms. Modest was not married to Mr. Modest at the time of trial, this provision does not preclude her testimony. Even a former spouse, however, cannot be examined regarding any confidential communication made by one to the other during the marriage. [Citation omitted.] [Footnote omitted.]
That court also said in State v. Denison, 78 Wash.App. 566, 574, 897 P.2d 437, 441, rev. denied, 128 Wash.2d 1006, 907 P.2d 297 (1995):
The privilege ... consists of two parts. The first applies to an existing marriage; it prevents testimony by a spouse, without the consent of the nontestifying spouse, as to events before or during marriage. The second applies either during or after a marriage; a spouse, without the consent of the other, cannot be examined as to confidential communications made during the marriage.
See also Shepherd v. State, 257 Ind. 229, 231, 277 N.E.2d 165, 166 (1971) (“Although the statute refers to husbands and wives *233as being incompetent witnesses, as to communications made to each other, the matter is actually one of privileged communication.” (citation omitted)); State v. Benner, 284 A.2d 91, 107 (Me.1971) (“[Ejven though the 1969 exception for ‘marital communications’ was created in the context of witness competency, the Legislature was intending to specify a privilege ....”).
Section 9-106 codifies the common law concept of “spousal incompetency.”
Petitioner argues that section 9-106 is not a competency section. Instead, he argues, section 9-106 is a “compellability section.”6 He states: “Beginning with section 9-106, subtitle 1[ ] addresses compellability and privilege.” I believe that is incorrect. Section 9-106, by its use of the word “Same—” in its title, relates to the spousal testimony provisions of the previous section, 9-105. As these statutes have been codified in the subtitle, the word “privilege” is first mentioned in section 9-107 (“Defendant in a criminal trial.”).
The juxtaposition of sections 9-105 and 9-106 reinforces my belief that they are intended and designed for a different purpose than that suggested by petitioner. Section 9-106 governs whether a spouse, against that spouse’s wishes, may be compelled to testify at all during the marriage. It is a classic “spousal incompetency” issue. At the time this provision was added to the Maryland statutes by 1965 Maryland Laws, Chapter 835, there had been no statutory “spousal incompetency” rule in Maryland for over seventy-five years. During that entire period, there had been in existence only statutory protection for confidential marital communications. At the time, therefore, that the “spousal incompetency” rule was last made a part of statutory spousal testimonial protections in Maryland, it was totally unrelated to any need to protect confidential marital communications. That already *234existed. In all probability, although we cannot be sure because of the non-existence of bill files, the location of this latter testimonial protection in section 9-106 is due to the fact that it was added to the previous protection against compelled disclosure of confidential marital communications provision. 1964 Maryland Laws, Chapter 835 inserted the “spousal incompetency” provision immediately after the already extant confidential marital communications provision, and it read, “nor shall the husband or wife be compelled to testify as an adverse party or witness in any criminal proceeding involving his or her spouse.” In other words, in the re-codifications of the statute, the provisions contained in section 9-106, in all likelihood, follow the provisions contained in section 9-105 because that is the sequence in which they were last enacted and the sequence in which they were found in Maryland Code (1957), Article 35, section 4, prior to the recodification of these provisions in the Courts & Judicial Proceedings Article.
Considering the legislative history, the common law antecedents we have discussed, and the cases of this and other jurisdictions we have reviewed, I would hold that Section 9-106 of the Courts & Judicial Proceedings Article is a “spousal incompetency,” “spousal disqualification” or “spousal immunity” rule. In other words, during the marriage itself, a spouse, with certain exceptions found in section 9-106, may not be forced to testify in a criminal case where the other spouse is a defendant. Given the language of the Maryland statute, a spouse who elects to testify may do so; however, even then, he or she may not, without the consent of the other, testify as to confidential marital communications.
Section 9-105 establishes a privilege
As petitioner- emphasizes to this Court, section 9-105 states that one spouse “is not competent” to testify regarding any marital communications. But for the continuing viability of the “spousal incompetency” concept by statute, the plain language of this statute might infer that section 9-105 is a statute based on competency. The history of the statutes, however, as I have indicated, is otherwise. The existence of section 9-*235106 as a modified “spousal incompetency” provision reinforces, by contrast, my belief that section 9-105 relates to privilege.
The “competent” language has been in the legislative enactment of the marital communications privilege since its inception. See 1864 Md. Laws, Chap. 109, § 1 (“[N]or in any case ... shall any husband be competent or compellable to disclose any communication made to him by his wife during the marriage, nor shall any wife be compellable to disclose any communication made to her by her husband during the marriage.”). A number of sources indicate that the marital communications privilege was never intended to be a matter of competency. By the passage of 1888 Maryland Laws, Chapter 515, the Legislature declared spouses to be competent, but created an exception for confidential communications. It used the words “in no case ... shall any husband or wife be competent to disclose any confidential communication made ... during the marriage.” In essence, as I now perceive it, the Legislature at that point established competency that was limited by a privilege in spite of the use of the inaccurate term “competent.” Next, it is important to again note the distinction between the marital communications privilege and the related spousal testimony disqualification, which is often mislabeled as a “marital privilege,” but functions, I think, basically as a rule of competency. The disqualification, which, in Maryland, is, I believe, codified in section 9-106, generally prohibits a witness-spouse from being compelled to testify against his or her spouse about anything. In modern statutes, the disqualification may apply only in criminal matters and often contains exceptions for when the witness-spouse or a related child is the victim of the defendant-spouse’s crime.
At common law, the disqualification was much broader. At first it was absolute and there were no exceptions; then later the defendant-spouse could invoke it. It was also a disqualification for a spouse who wished to testify favorably for his or her spouse. As Parliament and the legislatures of the various American states began to repeal or limit the effect of spousal disqualification statutes, many saw a continuing need to pro*236tect marital communications meant to be held in confidence. That is what I perceive the Legislature has done in this State.
Section 9-105, establishing the communications privilege is set apart from the spousal incompetency provisions found in section 9-106. Although the legislative history available to us, as I have said, is not complete, i.e., legislative history files prior to 1975 have not been maintained, the Legislature is presumed to be aware of the holdings of this Court, including Coleman, and of the common law in general. It is fair to assume, given the sequence of statutory enactments, that the General Assembly had always viewed the evidentiary protection of marital communications as a privilege. The word “competent,” used in section 9-105, appears to be a throwback to the original statute, which combined the communications privilege and the spousal incompetency rule in one paragraph.
This interpretation of section 9-105 as establishing a privilege is further bolstered by this type of legislative treatment of the confidential marital communication provisions in other jurisdictions. Many of these foreign states label the protection of marital communications as a “privilege” in their statutes relating to court procedure.7 Other jurisdictions grant a marital communications “privilege” in their rules of evidence.8 *237The federal courts also recognize a common-law marital communications privilege. See Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934); see also State v. Littlejohn, 199 Conn. 631, 649-50, 508 A.2d 1376, 1385-86 (1986) (recognizing a common-law marital communications privilege in Connecticut).
Having concluded that section 9-105 establishes a privilege, albeit for somewhat different reasons, I further agree, for the reasons stated in the majority opinion, that petitioner did not waive his privilege in the case sub judice.
. The exceptions to section 9-106 are not relevant in the case sub judice.
. See Gallagher v. Goldstein, 402 Mass. 457, 524 N.E.2d 53 (1988).
. I have found no statutes in the other jurisdictions identical to the three sections of the Maryland subtitle described earlier, supra. The language-of the Maryland statutes may be unique.
. Interestingly, when the 1973 Act incorporated the privilege against the forced disclosure of confidential marital communications, it titled that section "9-105 Spouse-CiviZ Proceedings.” (Emphasis added.) The codifiers, however, apparently modified the title to read "9-105. Testimony by spouses—Confidential communications occurring during marriage.” Neither party in the case sub judice argues that the provision limiting the disclosure applies only in civil cases.
5. Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958).
. In the context of the issue presented only competent witnesses are "compellable.” It may well be that compellability is an indication of competence, at least in a general sense. The two terms appear throughout the cases to be used in almost identical ways.
. See Ariz.Rev.Stat. Ann. §§ 12-2232, 13-4062 (West 1999); Cal. Evid. Code § 980 (West 1995); Fla. Stat. Ann. § 90.504 (West 1999); Kan. Stat. Ann. § 60-428(a) (1995); La.Code Evid. Ann. art. 504(b) (1995); Neb.Rev.Stat. § 27-505 (1995); Nev.Rev.Stat. Ann. § 49.295 (Michie 1996); N.J. Stat. Ann. § 2A:84A-22 (West 1994); N.M. Stat. Ann. § 38-6-6 (Michie 1999); N.Y. C.P.L.R. Law § 4502(b) (Consol. 1978); Ohio Rev.Code Ann. § 2317.02(D) (Anderson 1998); Okla. Stat. Ann. tit. 12, § 2504(B) (1993); Or.Rev.Stat. § 40.255(2) (1997); S.D. Codified Laws § 19-13-13 (Michie 1995); Tenn.Code Ann. § 24-1-201(b) (1999); Utah Code Ann. § 78-24-8 (1996); Wash. Rev.Code § 5.60.060 (1998); Wis. Stat. Ann. § 905.05(1) (West 1993); Wyo. Stat. Ann. § 1-12-101(a)(iii) (Michie 1999). The Virginia Code provides that spouses are competent to testify for or against one another in civil cases, but excepts privileged communications. Va.Code Ann. § 8.01-398 (Michie 1992). The criminal statute provides that in certain cases a spouse is competent to testify "except as to privileged communications.” Id. § 19.2-271.2 (1999).
. See Ala. R. Evid. 504(b); Alaska R. Evid. 505(b); Ark. R. Evid. 504(b); Del. Unif. R. Evid. 504(b); Haw. R. Evid. 505(b)(2); Ky. R. Evid. *237504(b); Me. R. Evid. 504(b); Miss. R. Evid. 504(b); N.H. R. Evid. 504; N.D. R. Evid. 504(b); Tex.R. Evid. 504(a)(2); Vt. R. Evid. 504(b). Uniform Rule of Evidence 504(a) also states that "[a]n individual has a privilege to refuse to testify or to prevent his or her spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage.’'