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By Melanie Friend. For more than 4, year, laws have prescribed harsh punishments for those who commit adultery. If she remained still and unharmed, then she was certainly innocent. To divorcing parties, however, the procedural rule controlling litigation of an adultery claim can seem no more logical or equitable than trusting the whims of the river, particularly with regard to the interplay of the criminal adultery statue with divorce laws. Virginia family law practitioners regularly face clients who, convinced their spouses have sexual relationships outside the marriage, cannot comprehend why the law would allow an adulterer to refuse to answer questions pertaining to an alleged affair.
Texas, U. Criminal statutes in the states that sill prohibit adultery vary widely. In contrast, several other states categorize the crime as a felony. For example, the applicable Oklahoma statute provides a maximum five-year jail sentence. In Minnesota, adultery is only a crime for a married woman or for a man who has sex with a married woman.
It is not a crime for a married man to have extramarital sex. Code Ann. Though the Virginia Supreme Court has not ruled directly on the constitutionality of Va. Ziherl , Va. The Virginia Supreme Court specifically noted that their holding in Martin did not address conduct involving minors, non-consenting adults, prostitution, or public sexual activity. The opinion was silent on the issue of adultery, but the District Court for the District of Columbia, analyzing a sexual harassment claim in Martin in Thong v. Andre Chekry Salon , F. While it could not be said that the opinion strikes down the adultery statues per se, it makes clear that it considers statutes criminalizing private, consensual, sexual intercourse irrelevant for the purpose of civil litigation.
Whether Virginia appellate courts would concur with the analysis in Thong remains to be seen. Because our appellate courts have not addressed the issue directly, the criminal adultery statute, whether regularly prosecuted, has an undeniable impact on the practice of family law. Defendants in divorce cases based on an adultery claim regularly assert their Fifth Amendment privilege against self-incrimination. See Goldman v. Goldman , No. Given the clear and convincing standard by which a party must prove adultery, the Fifth Amendment creates a solid blockade to the use of adultery as a factor in support or as a negative non-monetary contribution to the marriage in equitable distribution.
Strongly suspicious circumstances are insufficient. Colbow , S. Painter , S. Helbert , No. Seeman , S. Watts , S. App at quoting Hughes , S. In that respect, difficulty arises for the attorney of the plaintiff when the accused arises for the attorney of the plaintiff when the accused spouse invokes the Fifth Amendment: Clearly, no credible explanation can be offered if the accused spouse provides no response to the relevant questions, and the refusal to answer cannot be used to create a negative inference.
Without the ability to require a spouse to admit or deny, under oath, an allegation of adultery, litigation necessarily becomes more expensive, involving the use of private investigators and compilation of as much circumstantial evidence as possible. Granted, repeal of the adultery statute and the consequent unavailability of the Fifth Amendment protection assumes that a guilty spouse would give truthful testimony, but at least timely requests for admission could illuminate whether or not the issue would require extensive discovery and depositions to prepare for trial. Absent the Fifth Amendment protection, perhaps an adulterous spouse would be wise to simply stipulate to the adultery, remove proof of the transgression from the disputed issues, and avoid hours of detailed testimony about his or her transgressions.
Family law practitioners can attest that the offense is fairly widespread but very rarely prosecuted. Sponsoring a bill for repeal of the criminal adultery statute may not be an issue legislators want to rush to address for fear of alienating voters, but this is arcane and rarely prosecuted misdemeanor offense serves, in reality, not as a deterrent to the behavior it seeks to penalize but rather as a obstacle to fair and efficient resolution of family law matters.
Instead of attaching the label of crime and a minor fine to the offense, the law would better serve the people of Virginia by allowing adultery to be addressed as a matter of family law. By Melanie Friend For more than 4, year, laws have prescribed harsh punishments for those who commit adultery. Endnotes Ala. Laws Ann. Related Posts. Benefits of the Collaborative Divorce Process. Sole Custody of Children. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.
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