As I have discussed before in previous blogs, adultery is one of the fault-based grounds for divorce in Virginia. So, the question then becomes whether your paramour or mistress can be forced to testify about your sexual relationship in your divorce trial? The answer is yes and no, depending on the circumstances of your case, and the recent case of Davis v. Davis helps to illustrate how this works.
In the Davis case, the husband had his attorney depose the wife’s paramour with whom the wife had been cheating during the marriage. During the deposition, the paramour refused to answer any of the attorney’s questions that related to his relationship with the wife. In doing so, the paramour claimed his fifth amendment privilege against incriminating himself. Because the fifth amendment right only applies to fear of criminal charges, the paramour claimed he could be prosecuted for “fornication, prostitution or consensual sodomy.” The husband’s attorney moved the court to compel the paramour to testify on grounds that there was no legitimate fear of criminal charges.
In deciding whether to compel the paramour’s testimony, the trial court stated that the paramour—to invoke the fifth amendment privilege—must show how a prosecutor could build on a seemingly harmless answer and proceed to link the paramour to a certain crime. The court went on to note that the paramour’s linkage could not seem incredible or too attenuated under the specific circumstances, especially because the fifth amendment privilege does not protect against “remote and speculative possibilities.”
Right away, the court found that there was no chance the paramour’s testimony could lead to a charge for prostitution. The court rejected the paramour’s claim that the few gifts the wife gave the paramour could constitute sexual intercourse for hire.
The court then considered the paramour’s claims that he could be charged with fornication and/or sodomy under Sections 18.2-344 and 18.2-361 of the Virginia Code, respectively. The discussion hinged on the current legal state of these two (2) statutes. The court explained that numerous appellate courts have found these statutes unconstitutional due to their infringement on individuals’ right to privacy, except as they apply to sexual acts committed in public (which may actually apply to this case) or between an adult and child (which did not apply here).
The court went on to note that while fornication constitutes a misdemeanor under Virginia law and comes with a one (1) year statute of limitations (meaning the paramour could not be prosecuted for any alleged acts of fornication that occurred over a year ago); sodomy is a felony and has no statute of limitations (meaning the paramour could be charged for sodomy at any time).
With these considerations in mind, the court ordered the paramour to answer questions about fornication with the wife that occurred more than a year prior to the date of the deposition, because the statute of limitations would prevent any prosecution for fornication. With regard to any fornication that occurred within a year prior to the deposition, and acts of sodomy at any time, the court held that it needed more information to determine whether the acts occurred in a public place, and therefore, could come with criminal charges.
As you can see, proving adultery may not be as simple as you think. While you or your spouse’s mistress/paramour can be forced to testify about you or your spouse’s sexual relationship with them, this may not be the case if these facts could conceivably lead to a criminal conviction.
If you are going through a divorce, especially if you are claiming certain fault-based grounds in your petition, you need the help of a qualified family law attorney who knows the law and can obtain the evidence you need to prove your case. The family lawyers of the DiPietro Family Law Group have decades of experience with all family law issues in jurisdictions across Northern Virginia and Washington, DC. Contact us today for a consultation at (888) 530-4374.