Pleading The Fifth About Adultery in a Virginia Divorce

No one wants to be interrogated about adultery. Even someone who has never done anything adulterous will find the questioning offensive. It is quite common for people to invoke their 5th amendment right to “remain silent” when being asked such questions. The Former Speaker of the House, Newt Gingrich, invoked the 5th amendment in his divorce.  Had Former President Bill Clinton would probably not have been impeached and lost his Arkansas law license.

Virginia Code Section 18.2-365 makes adultery a misdemeanor in Virginia. It says:  “Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.”

Is it Constitutional?

There is considerable doubt whether this law is constitutional.  The U.S. Supreme Court in the case of Lawrence v. Texas held that sodomy laws are unconstitutional.  The Virginia Supreme Court in Martin v. Ziherl held that Virginia’s law criminalizing fornication was unconstitutional.  It is easy to see adultery laws being the next to be held unconstitutional.

Learn More About Adultery in a Virginia Divorce

The law is still on the books and prosecution for violating it, however unlikely, is possible.  If you are married, you cannot be compelled to answer questions about sexual activity with people other than your spouse.

However, since July 1, 2020, the judge may draw an adverse inference from use of the right to plead the 5th.  Virginia Code Section 8.01-223.1 used to say that no adverse inference could be drawn.  The 2020 amendment added an exception for divorce cases.

Then the issue becomes whether you can be asked about non-sexual activity with the suspected paramour.

For example, a question about whether you entered a hotel with the paramour does not ask about sexual activity directly.

Nonetheless, if it comes close enough, you should be able to decline to answer it. In contrast, a question about whether you knew the person or had lunch with them would be more likely to be permissible.  The argument is that such questions provide “links in a chain of evidence” that could support the inference that adultery occurred. The more solid the link, the more likely it is you will not have to answer the question.

I like to subpoena the paramour and ask about it. In one case, the paramour was unmarried. You will notice that the law refers to a person who, “being married” has sexual intercourse. My position was saying because they were not married, they could never commit adultery. Therefore there was no fear of prosecution. The commissioner in chancery hearing the case agreed and required the paramour to testify to adultery.

In another case with a similar scenario, the paramour invoked the 5th amendment during their deposition claiming they might be prosecuted for “conspiracy to commit adultery.” The case settled and we never got a ruling on whether that objection was valid.

The takeaway is that you can avoid the indignity of questions about sexual misconduct by invoking your 5th amendment rights. The party seeking to prove adultery will have to find another way to prove it.