Adultery and the Fifth Amendment in Virginia

Adultery and the Fifth Amendment in Virginia

(as of Sept. 30, 2010)

A professional colleague of mine named Grant Moher recently spent a considerable amount of time examining the interplay between the prohibition of adultery in the Commonwealth of Virginia and the Fifth Amendment of the U.S. Constitution.  He has graciously allowed me to post the results of his examination in an outline form that I believe is equally useful to attorneys as it is to individuals simply wondering about adultery.  If you have additional adultery-related questions, feel free to send Grant an email at gmoher@curranmoher.com  He is an excellent resource on the subject.

As long as marriage has existed, so too has adultery. So too, have the acts known as “crimes against nature;” still generally referred to by the archaic terms “sodomy and buggery.” All are currently illegal in Virginia, pursuant to §§18.2-365 and 18.2-361 of the Virginia Code. Although enforcement has been virtually non-existent during the recent past, it has not disappeared entirely.

The practical effect of adultery, sodomy, and buggery, being illegal has been to allow the accused to assert his or her right under the 5th Amendment of the United States Constitution, and refuse to answer any questions regarding the alleged acts. Most commonly this comes up in a divorce action. The 5th can be invoked by the offending party and/or his or her alleged paramour, depending on the circumstances.

The current state of the law regarding the relationship of the 5th Amendment to adultery, sodomy and buggery, in a divorce action is deceptively complex. This is especially the case in light of the U.S. Supreme Court’s decision in Lawrence v. Texas, and subsequent Virginia decisions interpreting its effect.

I. Adultery.

A. What it is: Only male/female sexual intercourse when at least one of the parties is married to someone else. Only a married party can commit adultery. Pursuant to §18.2-365, adultery is a class 4 misdemeanor, meaning the maximum penalty is a $250 fine. It has a one year statute of limitations.

B. What it can do:

1. Can be used as a fault ground to obtain a divorce (§20-91);

2. Can cut off spousal support to an offending party (§20-107.1B) unless doing so would constitute manifest injustice;

3. Can be considered in child custody (See Brown v. Brown, 218 Va. 196 (1977));

4. Can be considered in determination of equitable distribution of property (§20-107.3).

C. What it cannot do:

1. Cannot be considered in determining the amount or duration of a spousal support award (generally §20-107.1) See Nass v. Nass, 2001 Va. App. LEXIS 187;

2. Cannot be used as a fault ground for divorce if the act happened more than five years before institution of the suit (§20-94);

3. Cannot be used as a fault ground for divorce if one voluntarily cohabits with the adulterous spouse after having knowledge of the adultery (§20-94);

4. Cannot be used as a fault ground for divorce if the adultery was committed by the alleging party’s “procurement or connivance.” (§20-94).

II. Sodomy or Buggery.

A. What it is: Sodomy and buggery are the archaic terms for the several forms of sexual contact outlawed by §18.2-361. Specifically, “[i]f any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge.” (§18.2-361). Simply put, this encompasses virtually all forms of heterosexual and homosexual sexual contact that is not intercourse. It applies to both married and unmarried individuals. It is a Class 6 felony, and has no statute of limitations.

B. What it can do: Pretty much the same as what adultery can do.

C. What it can’t do: Pretty much the same as what adultery can’t do, plus: May not permit the offending party to plead the Fifth Amendment (as discussed below in the Constitutional section).

III. The Fifth Amendment: Generally.

A. What it is: The Fifth Amendment to the United States Constitution, and Article 1, section 8 of the Virginia Consititution. Both the Federal and Virginia privilege are construed identically. Taylor v. Commonwealth, 26 Va. App. 485 (1998).

B. What it does: Provides that that no one can be compelled to give evidence against him or herself in a criminal prosecution. This privilege applies to both criminal and civil proceedings. See Husske v. Commonwealth, 282 Va. 203 (1996).

C. How it should be claimed: The proper method for invoking the privilege is to state that the accused “refuses to answer the question and asserts his/her privilege pursuant to the Fifth Amendment of the U.S. Constitution,” or something similar. An attorney can make this claim on behalf of his or her client.

D. When it should be claimed: One may not make a blanket claim of the Fifth Amendment privilege. It must be made question by question. See Domestici v. Domestici, 62 Va. Cir. 13 (2003). However, the Fifth Amendment privilege is not limited to the direct question of whether or not a party engaged in particular behavior. It extends to any question which may furnish a “link in the chain of evidence” which could lead to prosecution. See Edgar v. Edgar, 44 Va. Cir. 191 (1997) (holding that adulterous activity that occurred more than one year ago may be used as evidence of adultery occurring within the one-year limitations period, therefore Fifth Amendment extended to acts taking place over a year prior).

IV. The Fifth Amendment: Defenses.

Outside of constitutional challenges to adultery and sodomy laws themselves (discussed herein shortly), the following are the main defenses used to prevent a party or witness from invoking his or her Fifth Amendment rights regarding adultery or sodomy.

A. Waiver: Waiver of one’s Fifth Amendment privilege is often misunderstood. It is not easy to waive one’s right to plead the 5th Amendment. Courts are to “indulge every reasonable presumption against a waiver of fundamental constitutional rights.” Church v. Commonwealth, 230 Va. 208 (1985).

1. Definition: Waiver is the “intentional relinquishment or abandonment of a known right or privilege.” Megel v. Commonwealth, 31 Va. App. 414 (2000);

2. Elements: Essential elements of the waiver are knowledge of the facts basic to the exercise of the right and intent to relinquish that right. Weidman v. Babcock, 241 Va. 40 (1991);

3. Level of Proof: “Waiver of a legal right will be implied only upon clear and unmistakable proof of the intention to waive such right for the essence of waiver is voluntary choice.” Weidman, 241 Va. at 45;

4. Must be personal: Constitutional rights may only be waived by a person, not his or her attorney. A letter from mother’s counsel indicated discovery answers would be forthcoming is not a waiver of mother’s privilege against self-incrimination. Travis v. Finley, 36 Va. App. 189 (2001);

5. Objection to relevance is not Waiver: An objection to the relevance of something is not a waiver of one’s right to later assert a Fifth Amendment privilege. Travis, 36 Va. App. at 200-201;

6. Denial in pleadings is not necessarily a waiver: An initial denial of allegations regarding adultery is likely not a waiver. This precise issue has never been decided by a Virginia appellate level court, but several circuit decisions have addressed the issue. For example, in Helmes v. Helmes, 41 Va. Cir. 277 (1997), Wife accused Husband in a Complaint for Divorce of sexually abusing their daughter. Husband denied the abuse in his Answer. At his deposition, he sought to invoke the Fifth Amendment when questioned about the alleged abuse. The trial court held that his Fifth Amendment exercise was proper. The trial court found that although there was no Virginia appellate case law on the subject, several other states have held in a similar manner in reported decisions. See also Goodrich v. Goodrich, 1994 WL 1031011 (Va. Cir. 1994).

Similarly, in Pelliccia v. McKeithen, 59 Va. Cir. 483 (2002), a partition case, a trial court held that a denial of criminal activity in an Answer did not waive one’s right to assert the Fifth Amendment for the same activity in later discovery.

On the other side of this argument is Leitner v. Leitner, 11 Va. Cir. 281 (1988). In Leitner, Wife filed for divorce, alleging adultery. Husband denied the allegations, and affirmatively alleged that he had been a “faithful and dutiful” husband. The trial court held that husband had waived his 5th Amendment right — and in fact that he had waived it twice — once for alleging faithfulness (which “opened the door” to questions regarding adultery), and a second time by denying the adultery in his initial pleadings.

Although the more prudent course of action is to assert one’s Fifth Amendment privilege in the initial pleading, in the event one fails to, or inherits a case from someone who failed to, the decisions in Helmes and Pelliccia suggest that all should not be lost.

B. Sword and Shield: As discussed below, sword and shield should not be available as a defense anymore in light of section 8.01-223.1 of the Virginia Code, as interpreted in Travis v. Finley, 36 Va. App. 189 (2001).

1. Common law: At common law, if one asserted his or her privilege against self-incrimination (i.e. using it as a “shield”), one could not also use their claim as a “sword” to obtain information relevant to the claim. The underlying rationale for this was that it would be unjust to permit parties to use the court to seek affirmative relief while at the same time deflecting relevant questions which may constitute defenses to those claims for relief.

2. §8.01-223.1: This Code section provides that “in any civil action the exercise by a party of any constitutional protection shall not be used against him.” The Court of Appeals in Travis v. Finley held that this statute trumped the common law sword and shield doctrine.

3. Travis v. Finley: Mother was awarded custody of the parties’ children and stated an intention to relocate. The trial court enjoined her from doing so pending appeal, but she moved anyway. The trial court changed custody of the children and placed them with father. Mother then moved to modify this Order. Father issued interrogatories to Mother, to which she asserted a Fifth Amendment privilege and refused to answer. The trial court dismissed her Motion to Modify, presumably based on the sword and shield doctrine. The Court of Appeals reversed, stating that the trial court could not take adverse action against mother for her assertion of her Fifth Amendment right.

4. Pelliccia v. McKeithen, 59 Va. Cir. (2002): Complainant filed for partition of jointly-held real property. Defendant filed an Answer and Cross-bill alleging Complainant forged a signature on a real estate document. In her Answer, Defendant denied the forgery and refused to answer questions related to the matter. During her deposition, when asked about the forgery, Defendant invoked her Fifth Amendment privilege not to respond. Plaintiff’s lawyer sought dismissal of her partition suit on the basis of sword and shield. The trial court denied the request, because per §8.01-223.1, the sword and shield doctrine could not be invoked.

B. Statute of Limitations: Adultery has a one year statute of limitations, so can one plead the Fifth with respect to encounters that happened over a year ago? There is no appellate case law on this subject, and circuit opinions are split. Note: this defense does not work with sodomy/buggery, which has no statute of limitations.

The rationale for allowing one to plead the Fifth, even for conduct which can’t be prosecuted because the limitations period has expired is as follows: if you require one to testify about adultery that happened outside the limitation period, that person’s testimony may be used as a “link in the chain of evidence” to convict him of adultery that took place within the limitation period. This rationale is more fully expressed in criminal opinions, however it was noted in the Edgar and Domestici decisions, cited below.

1. Cases upholding invocation of Fifth Amendment for adultery occurring over a year prior: Domestici v. Domestici, 62 Va. Cir. 13 (Fairfax County, MacKay, J., 2003); Edgar v. Edgar, 44 Va. Cir. 191 (Fairfax County, Smith, J., 1997);

2. Cases denying invocation of Fifth Amendment for adultery occurring over a year prior: Pierce v. Pierce, 25 Va. Cir. 348 (Fairfax County, Annunziatta, J., 1991); Messiah v. Messiah, 17 Va. Cir. 365 (Fairfax County, McWeeney, J., 1989);
3. Real world practice: Facts can drive the argument regarding testimony outside of the limitations period. For example, if the paramour died, relocated, or otherwise had no contact with the adulterous spouse subsequent to the adultery, one may be able to convince the trier of fact that adultery inside the limitations period could not have occurred;

4. Different Jurisdictions: If the adultery or sodomy/buggery happened in a jurisdiction where such conduct is not illegal, in theory one would not be able to plead the Fifth regarding it;

5. How to find various state laws: For sodomy, www.sodomylaws.org. The only corresponding site found for adultery laws was christianparty.net/adulterylaws.htm. However, your author does not put much stock in this site, given that a large additional section of it is devoted to holocaust denial;

6. Defenses: The main, and probably only, defense is the same as for statute of limitations, namely, that by admitting to the conduct in a foreign jurisdiction, one could provide a “link in the chain of evidence” to tie it to a criminal act that took place in Virginia. See Helmes v. Helmes, 41 Va. Cir. 277 (Fairfax County, Alden, J., 1997);

7. Real world practice: The arguments regarding different jurisdictions are largely fact-driven. For example, a Virginia resident carrying on an illicit affair with a Maryland resident, or two Virginia residents engaging in activity that took place on an out-of-state vacation, would likely have a pretty compelling “link in the chain” argument as they likely engaged in illicit activity in Virginia as well. A Virginia resident having a vacation fling with someone in a non-neighboring state would likely have a much tougher time making this argument.

C. Immunity: If one is immune from prosecution, the privilege against self incrimination is unnecessary and may not be invoked. Immunity is extremely difficult to get, however. Immunity must be “complete” and there can be “no possibility of prosecution.” (§18.2-361). A full discussion of immunity is beyond the scope of this outline, but if you think it may apply to your situation, please see Edward Barnes’s article regarding the Fifth Amendment in the Virginia Lawyer magazine, located online at http://www.vsb.org/site/publications/valawyer/virginia-lawyer-magazine-february-2002/

D. Possibility of prosecution is remote or speculative: This defense can be effective, depending on the facts, jurisdiction, judge, phase of the moon, etc.

1. Method: Arguing that the threat of prosecution of adultery is only remote or speculative. At least one circuit court opinion has used this as a rationale for compelling testimony over a Fifth Amendment objection. See Cornelison v. Cornelison, Chancery no. 92718, Fairfax County, letter opinion by Annunziata, J., of November 27, 1990 (commenting that prosecution of adultery between private, consenting adults is, at best, “a matter of historical curiosity”). However, this case predates poor Mr. Bushey’s situation, explained below;

2. Contrary position: Courts are not in a position to speculate as to whether someone will be prosecuted. “[I]f incriminating potential is found to exist, courts should not engage in raw speculation as to whether the government will actually prosecute.” U.S. v. Sharp, 920 F.2d 1167 (4th Cir. 1990). Also, John Bushey, an attorney in Luray County, was actually prosecuted for adultery in 2003. If sodomy or buggery is alleged, and it’s done in a public place, people are also still routinely being prosecuted. See Singson v. Commonwealth, 46 Va. App. 724 (2005).

V. Fifth Amendment: Can One Draw a Negative Inference from its Invocation?

Typically, one cannot draw a negative inference from a party’s invocation of the Fifth Amendment. See Romero v. Colbow, 27 Va. App. 88 at 93 (1998). However, the case of Watts v. Watts, 40 Va. App. 685 (2003), makes this seemingly sacrosanct principle seem substantially less so.

In Watts, wife alleged husband committed adultery. In support of her allegation, she had both private investigator testimony regarding husband’s meetings with his alleged paramour late at night, and her own testimony regarding husband’s behavior at home. He began coming home from work late and being secretive. She also overheard him profess his love to a third party via telephone. When deposed, husband invoked the Fifth Amendment and refused to answer any questions about his relationship with the alleged paramour.

Addressing this issue, the Court of Appeals held that “[a]lthough husband invoked the Fifth Amendment when asked during deposition testimony whether he and [paramour] engaged in intercourse, we make no negative inference based on his exercise of the privilege…In doing so, however, husband failed to provide a reasonable explanation for his conduct, a matter about which we do take cognizance.” Id. at 696-697.

This holding would seem very problematic for the spouse asserting the privilege who can been seen exhibiting “questionable” behavior. Isn’t “taking cognizance” of husband’s failure to explain himself (he obviously can’t explain himself after pleading the Fifth) in practice the same in practice as making a “negative inference?”

VI. Effect of Constitutional Challenges to Adultery/Sodomy laws.

Recent constitutional decisions from the U.S. Supreme Court and Virginia Supreme Court have had a significant impact on adultery and sodomy laws.

A. Lawrence v. Texas – In the landmark case of Lawrence v. Texas, 539 U.S. 558 (2003), the United States Supreme Court held a Texas statute criminalizing sexual contact between members of the same sex to be unconstitutional. In so doing, the court reversed its holding in the earlier case of Bowers v. Hardwick, 478 U.S. 186 (1986). It is important to note that the Court in Lawrence only held a law criminalizing private sexual conduct between unmarried consenting adults unconstitutional. Its ruling did not extend beyond this specific fact scenario, either in dicta or otherwise.

B. Effect on adultery statute: The main effect Lawrence has had thus far is that its holding was extended in the Virginia case of Martin v. Ziherl, 269 Va. 35 (2005), to hold Virginia’s statute prohibiting fornication (sexual intercourse committed by an unmarried person) unconstitutional. This means an unmarried third party accused of having an adulterous relationship with a married person should not be permitted to plead a 5th Amendment defense, because adultery does not apply to an unmarried party and fornication is no longer a prosecutable offense.

The effect of Lawrence on Virginia’s adultery statute has not yet been tested. This means that for now, adultery is still a prosecutable offense in the Commonwealth, and a constitutional claim to defeat one’s pleading the 5th Amendment should not succeed. It should take an appellate level decision to extend the Lawrence decision to cover adultery for the following reasons:

1. Adultery harms the institution of marriage, a legitimate state interest, whereas consensual sex between unmarried adults does not. In dicta, the Lawrence court seemed to suggest this, by stating “[the court’s holding], as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” Lawrence at 567;

2. Consensual sodomy is victimless, but adultery is not. Lawrence involved two unmarried adults. Adultery involves at least one, and often two, married people. Victims can include children and extended families;

3. The state limits other aspects of marriage. State laws criminalizing married people are nothing new. Virginia law prohibits bigamy, same sex marriages, and marriage between relatives, to name some examples;

4. Sandra Day O’Connor’s concurring opinion in Lawrence specifically mentioned marriage as something deserving protection. See Lawrence at 585;

5. Several post-Lawrence cases from other districts have held that Lawrence does not protect one’s right to engage in adultery. See Beecham v. Henderson County, 422 F.3d 372 (6th Cir. 2005).

C. Effect on sodomy statute: Lawrence’s effect on Virginia’s sodomy statute (18.2-361) should be the same as its effect on Texas’s sodomy statute – namely, that it should be held unconstitutional. The exception to this rule is for sodomy that occurs in public, which is still being prosecuted, and has been held to survive the Lawrence decision. See Singson v. Commonwealth, 46 Va. App. 724 (2005).

The public vs. private aspect of sodomy laws brings up a whole host of interesting issues. For example, if a party has engaged in an affair outside marriage, yet inside his or her gender, he or she should not be able to invoke the 5th Amendment to refuse to answer questions regarding the affair so long as the conduct alleged occurred in private. If a party has engaged in oral or anal sex – but not intercourse – with an opposite sex partner, they should likewise not be permitted to invoke the 5th Amendment.

VII. Practice Pointers.

A. Applies only to married individuals – maybe. Fornication is no longer prosecutable as a crime in Virginia, so an unmarried party who “assisted” a married party in the commission of adultery has not committed a crime. However, the statute regarding sodomy and buggery applies to all, married and unmarried alike. Would evidence of a paramour’s adultery tend to furnish a link in the chain of evidence to prosecute the paramour under the crimes against nature statute for other forms of sexual contact with the same individual?

B. Plead with care: “Crimes against nature” that take place in public are still being prosecuted. Per 18.2-361, the gender of the participants does not matter (although it appears the only folks ever actually prosecuted under this statute for public crimes against nature are homosexual). Often, private investigators and other witnesses see public displays of affection that stretch into the realm of a crime against nature. Pleading must be done carefully. If, for example, one is presented with five instances of sexual contact between individuals with two of those instances occurring in a public place (i.e. in a parked car, on the beach), one may only want to plead the three that took place in private. If one pleads all five, the other side may be able to plead the Fifth to everything, because evidence of the private acts may provide the dreaded “link in the chain of evidence” to prove the public ones.

C. Watch the waiver: Even though a denial probably should not act as a waiver, there is a split of opinion on the subject, as discussed earlier. No Virginia reported decision (or unreported appellate-level decision) has addressed this issue. The best course of action is to plead the Fifth from the start, and never, ever, include allegations of being a “good and faithful spouse.”

D. Is Adultery relevant if not pled?: A common tactic by domestic relations practitioners in cases they suspect involve adultery, but cannot allege same in a manner sufficient to survive demurrer, is to file based on some other ground, then include questions about adultery in discovery. Is this objectionable? One is only permitted discovery of relevant things in a divorce proceeding. SCR 4:1(b)(5). Is information about adultery relevant (and therefore discoverable), in a case in which it has not yet been pled? The Answer has never been specifically addressed in a reported Virginia case, although an unreported decision of Hall v. Hall, 2005 Va. App. LEXIS 401 (2005), addresses a similar question.

E. Taking “cognizance of” failure to explain one’s suspicious conduct. As set forth in section V above, the Court can’t make a negative inference based on a party’s invocation of their Fifth Amendment right. But according to the Watts case, the Court can “take cognizance” of a party’s failure to explain their actions, even if the failure to explain is a necessary outgrowth of their pleading the Fifth.

F. What to object to?: One of the trickiest questions regarding adultery is what specific questions, most often those asked in a deposition, to object to. The conventional wisdom seems to be that if you’re the “third party” and you’re obviously being deposed only for information regarding your relationship with another party, one gives one’s name and not much else. If you’re a party, one generally invokes the 5th Amendment as to whether you’ve even heard of the paramour. Often the concern is that practitioners want to be overly cautious and not inadvertently waive one’s 5th Amendment privilege. However, such a broad approach is perhaps not necessary or advisable.

There is no blanket right to invoke the 5th Amendment. See, e.g., Goldmann v. Goldmann, 2002 Va. App. LEXIS 772 (2002). As set forth herein, waiver is pretty difficult to do. Questions admitting knowing the paramour, having lunch with them, etc., are likely proper and should be answered. Questions regarding spending the night, etc., should probably not. See Domestici v. Domestici, 62 Va. Cir. 13 (MacKay, J. 2003).

G. Tread lightly in the initial consultation: When a client affirmatively states that he or she has engaged in adultery, sodomy, buggery, etc., one’s ability to advance the opposite position to the Court is severely hampered. The rules of professional ethics prevent us from suborning perjury. Questions in the initial consultation must be framed carefully so as to preserve the client’s full range of options.

Unless and until the laws prohibiting adultery and “crimes against nature” are repealed, they will continue to present thorny legal (as well as emotional issues) for practitioners to deal with. There is no stock “adultery” case, or way of dealing with “adultery” cases. Each situation can pose different challenges and opportunities for both accuser and accused. Each situation is different, and should be dealt with as such.