Adultery and the Fifth Amendment

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Unlike in other states, in Virginia adultery is not only a "ground" for divorce, it is also a crime. It is no longer prosecuted, nor has it been for more than a century, but the fact that it still exists "on the books" means certain constitutional rights––specifically the fifth amendment––arise when adultery is alleged in divorce cases. Until the General Assembly repeals that law, judges will uphold the right to refuse to answer questions about it.

Suppose, for example, Husband has an affair and Wife learns of it. She files for divorce on the ground of adultery, and alleges it specifically in her divorce complaint. The law calls on Husband to file an "Answer" to her complaint, admitting or denying the allegations in it. I and every Virginia attorney I know would advise Husband to invoke his fifth amendment right to not answer.

The same right applies if Husband is asked about the adultery at deposition, in written interrogatories, or on the stand at trial. Any question that could conceivably––no matter how remotely––be used as evidence to prove the crime of adultery can be refused. It doesn't matter if the likelihood of Husband's actual criminal prosecution is zero; what does matter is in theory he could go to jail for it.

It can get complicated. Adultery is having sexual relations with anyone other than one's spouse. If Husband's girlfriend is not married, she has committed no crime. That means she can be summoned by Wife to testify. However, if she, too, is married, she has the same fifth amendment right against self-incrimination; she can refuse to testify.

Remember also that adultery is a crime only in Virginia. If Husband's paramour lives in Maryland and if he is asked if he had sex with her there, he has no constitutional right to remain silent, for he cannot be criminally liable under those facts. But if he committed adultery in Virginia with the Maryland mistress, he can refuse questions about the affair in Maryland. Why? Because––again, in theory––a prosecutor could use the information of the relationship in Maryland to bolster a criminal case in Virginia. In other words, if the information sought by a question could be used, however improbably, to develop a criminal case for adultery, the question can be refused.

Then there is this wrinkle: The crime of adultery has a one-year statute of limitations. If the adulterous conduct occurred more than a year ago, it cannot be prosecuted. Thus, Husband would not be constitutionally protected from questions about that conduct. However (and in the law, there is always a "however" somewhere), if the adulterous relationship continued up to, say, six months ago, he can decline to answer, and a judge will most likely uphold his refusal. Why? Because, as we just saw, if the information elicited regarding behavior beyond the statute of limitations can be used to imply it continues into the time frame within the statute of limitations, then criminal liability potentially arises.

The same result would stem from this scenario: Wife has affair with co-worker, then breaks it off.  Husband finds out, but the parties reconcile. A year later Wife and Husband separate for other reasons, and Wife, having had nothing to do with her ex-paramour in the interim, revives the relationship. Husband sues for divorce based on the renewed adultery. Wife invokes her fifth amendment right to not answer questions about it.  Husband persists and asks Wife at deposition about the first relationship, call it Part A. Wife refuses, because it could be used as evidence to prosecute her for adultery under Part B of the relationship. Even with the interlude between Parts A and B of her relationship with her co-worker, odds are good a judge will still uphold her fifth amendment right to remain silent. The otherwise unprotected Part A adultery becomes protected because of the criminal exposure of adultery in Part B.

The consequences of adultery on the outcome of a divorce can be substantial. It is almost always best (legally) to refuse to talk about it. See my earlier blog, "The Role of 'Fault' in Divorce."


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Christian Curtis, LLC Alexandria VA
Christian Curtis, LLC Alexandria VA