Are intimate sexual acts between marital partners "confidential marital communications"?

United States v. Udeozor, 515 F.3d 260, 267-268 (4th Cir. 2008) (upholding trial court's admission of two police recorded telephone conversations [between the victim and defendant's husband] as statements against penal....Federal Rule of Evidence of Evidence 804(b)(3) or a comparable State rule creates a hearsay exception for a statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Fed. R. Evid. 807(A) (statement admissible under Rule 807 only if "the statement is offered as evidence of a material fact").The hearsay exception created by Federal Rule of Evidence 807 or a comparable State rule applies only if the the affected statement is evidence of a material fact.

Germano v. International Profit Association, Inc., 544 F.3d 798, 801-805 (7th Cir. 2008) (holding, in plaintiff's civil action against defendant company for violation of the Americans with Disabilities Act, that the trial court erred in ruling that....A statement of an employee or agent is treated as an employer's or principal's statement and, if offered against the employer or principal, it is an admission that is exempt from the hearsay rule if the employer or principal authorized its employee or agent to speak about the matter that the employee or agent spoke about and if the statement was made during the employment or agency relationship.