Though most states today have declassified adultery as a crime, adultery continues to be a criminally punishable offense (class 4 misdemeanor) in Virginia. Because adultery is still a crime in Virginia, a spouse accused of adultery in a Virginia divorce case may invoke his or her Fifth Amendment privilege against self-incrimination. Which means that the opposing party’s divorce lawyer may not simply call the accused spouse to the witness stand and force them to answer questions pertaining to the alleged adultery.
However, there is a one-year statute of limitations on the crime of adultery in Virginia, which means that a person can no longer be punished for committing adultery one year after the last adulterous act. This means that, back to our divorce case, the opposing divorce lawyer can ask questions related to affairs where the last adulterous acts occurred more than one before the date of the testimony of the accused spouse. The Fifth Amendment privilege would not protect the accused spouse from answering those questions—since he or she could no longer be criminally prosecuted for those adulterous acts.
But, what about situations where an affair began more than a year ago, but then continued into the one-year period immediately before the testimony of the accused spouse? This situation raises a very interesting legal question: is each individual act of adultery considered to be a separate punishable offense, or rather if adultery is committed with the same person numerous times, is the act of adultery considered to be continuous? May the accused spouse invoke their Fifth Amendment privilege against only the adulterous acts that have occurred within the one-year statute of limitations, or may they invoke the privilege as to all acts of adultery with that individual as a whole? As is often the case in the law, the answer to this question is not clear-cut.
In Pierce v. Pierce, a husband and his girlfriend were ordered to answer questions about adultery that they committed in Virginia because the one-year statute of limitations had elapsed, and thus they were no longer subject to prosecution for adultery in Virginia. However, both the husband and his girlfriend were permitted to invoke their Fifth Amendment privilege as to adulterous acts they had committed in South Carolina together. This was because South Carolina has no statute of limitations for adultery, meaning that they could still be prosecuted for adultery in that state many years after the crime was committed. Though this case is a bit complicated because the husband and his girlfriend committed adultery in two different states, the court in Pierce did seem to view each act of adultery as its own unique individual act. The husband and his girlfriend were ordered to testify about one of the acts of adultery they committed (in Virginia), but not the other (in South Carolina).
In Messiah v. Messiah, there were again allegations that a husband had committed adultery. During a deposition, the wife’s attorney asked the husband about two specific alleged events of adultery: one incident that occurred more than one year prior to the deposition, and one that occurred less than one year before the deposition. The husband invoked his Fifth Amendment privilege and refused to answer questions regarding either incident of adultery.
Regarding the more recent adultery, the wife’s attorney asked the husband questions regarding a credit card statement linked to an alleged incident that occurred within the one year statute of limitations period. While acknowledging the accuracy of certain information in the credit card statement, the husband invoked his Fifth Amendment privilege as to any information not stated in the document.
The court in Messiah held that the husband did, of course, have to answer the questions regarding the adultery committed over one year ago. However, regarding the credit card statement, the court ruled that the husband did not have to answer questions “beyond the scope of the credit card statement” itself, because answers to those questions might incriminate him as to an adulterous act for which he might still be criminally prosecuted.
Messiah v. Messiah, like Pierce v. Pierce, does not directly answer the question whether adultery is considered to be a continuous act or rather several individual acts. However, the court in Messiah does say that the Fifth Amendment privilege will be “sustained where it is evident from the implications of the question, in the setting in which it is asked, that a response or an explanation why it cannot be answered may result in an injurious disclosure.” This seems to indicate that there is room for argument that adultery is a continuous act.
Under the “continuous act” argument, admitting and fully answering questions regarding adulterous acts committed outside the statute of limitations with a certain person, might be seen as evidence that other adulterous acts with the same person also occurred within the statute of limitations. Being forced to answer those questions might be, in the words of the Messiah court, an “injurious disclosure” which might be used to prove adultery for which the alleged adulterer is still subject to criminal prosecution. If that is the case—if adultery is a continuous act—then perhaps the Fifth Amendment privilege can be used to protect the accused spouse from answering questions related to acts even before the one year statute of limitations period.
The attorneys at Livesay & Myers, P.C. have years of experience with divorce cases involving allegations of adultery. If you are facing a divorce in Northern Virginia, contact us to schedule a consultation today.
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