Monday, January 16, 2017

A Chance to Change Virginia Law on Adultery

As always, before reading this post, please review my disclaimer by clicking on the link above or clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.  Please also be aware that any opinions expressed in this blog post are solely that of the author.

Introduction

Since announcing in October that my regular blog posts would be coming to an end, I've occasionally been inspired to write posts, but just haven't gotten myself together enough to actually do one.  Today, however, I was hit by inspiration to write on a topic of sufficient importance in family law that I actually have forced myself to sit down and post.

Adultery is a touchy subject in family law, but it is routinely present.  In my own experience, it's responsible, in part or in whole, for probably about a third of divorces.  Its impact on a divorce case is also substantial.  An adulterer generally cannot receive spousal support, can get hit in the equitable distribution of property, and a divorce can be granted on adultery grounds right away instead of having to wait for a year of separation.  However, adultery is very hard to prove in Virginia because a) the burden of proof is "clear and convincing evidence" (instead of just "more likely than not"), and b) the adulterer can plead the Fifth Amendment to refuse to answer questions about it.  We have a chance right now, however, to make it easier to prove by taking away the Fifth Amendment as an adultery defense, and that is a topic I wanted to write about today.

How the Fifth Works for Adultery

The Fifth Amendment's famous protection against self-incrimination is one of the most powerful tools the Bill of Rights gives us against government.  It plays a key role in preventing coercion, torture, and other means by which the state used to force confessions out of people.  The way it works in a civil context is that in any civil case (such as divorce), if answering a question could result in you incriminating yourself, you simply refuse to answer on the grounds of the Fifth Amendment.

In Virginia, for adultery, this is crucial for two reasons.  First, adultery is actually illegal in Virginia.  Virginia Code Section 18.2-365 makes adultery a Class 4 misdemeanor.  For reference, a class 4 misdemeanor means that the maximum punishment for conviction is a fine of up to $250.  While it has been eight years since Virginia's last prosecution for adultery, and there have only been three prosecutions in the entire 21st century to date, this crime remains on the books, and as a result the Fifth Amendment is available as an option for those accused of adultery.

Now, in most states, this actually wouldn't be a huge problem.  This is because unlike in criminal cases, in civil cases, while you still cannot be prosecuted for pleading the Fifth, the fact that you pled the Fifth can be used as an implied confessions and subsequently be used against you within the civil case itself.  Virginia, however, prides itself (I think rightfully so) on the degree to which it supports constitutional governance.  As a result, Code Section 8.01-223.1 forbids Virginia trial courts from using a person's invocation of a constitutional right (including the Fifth Amendment) against them even in a civil case.

What this means in a family law context is that adultery, while the lowest level of misdemeanor we have, and while rarely enforced, is still technically a crime, and subsequently the Fifth Amendment can be used as a shield and a sword by an adulterer in a divorce case to get that person rights and protections he or she should not have.

The Proposal to Change This

Now, looking at all of this, I would hope you agree that we should not weaken the impact of the Fifth Amendment in Virginia.  So, while it's fairly unique amongst the states, I fully support keeping Code Section 8.01-223.1 in place.  The obvious "solution," then, would seem to be, at least in this day and age, taking the crime of adultery off the books.  This solution isn't as simple as it seems, though.

Take, for example, employment law.  Virginia is an "at will" employment state - meaning that unless you have a contract specifically stating otherwise, you can be fired at any time for any reason (you can also quit at any time for any reason).  As a result, it is very hard to sue for wrongful termination in Virginia.  However, there are exceptions - and one of the biggest exceptions is that your termination "violated public policy."  In general, however, to violate public policy, the termination has to involve a violation or potential violation of the laws of the Commonwealth.

The adultery statute, then, has been one of the strongest swords in bringing wrongful termination suits by employees fired after refusing sexual advances from a superior.  If either the employee or the superior was married, then any sexual relationship would have been adultery, and subsequently the public policy exception is triggered.  There's been extensive argument that removing adultery from the books would make these cases harder.  Similarly, in some sexual assault cases, the availability of an adultery charge has helped ensure a case is not prematurely dismissed while additional evidence is collected.  In short, taking adultery off the books would have some potentially damaging unforeseen consequences.

Instead, State Senator Scott Surovell has proposed SB 1124, which would change adultery from a criminal to a civil offense, with the maximum penalty being $250 which would be paid to the state literary fund.

A civil offense, unlike a criminal offense, does not go on your criminal record, does not have to be proven beyond a reasonable doubt, can be subject to bankruptcy proceedings, and failing to pay often is not contempt of court (unlike criminal fines).  Of relevance to us, however, is that civil offenses are not afforded the protection of the Fifth Amendment.

Potential Impact of Change

The potential impact of SB 1124, then, is huge.  While still protecting employees and preventing the other "bad effects" of taking adultery off the books completely, changing it to a civil offense would mean that adulterers in a family law case would have to choose between confessing and committing perjury (a felony).  This will also make it easier to potentially question the paramours of an adulterous spouse.  As a result, SB 1124 would, in my opinion, keep all the benefits of having adultery on the book as a crime, while getting rid of the drawbacks.

How You Can Help

So, this might seem like a no-brainer.  But, unfortunately, it isn't.  This is not the first time Senator Surovell has proposed this bill.  Last year, our socially conservative General Assembly refused to pass the bill even out of committee because they feared the message it would send by saying we don't take adultery seriously in Virginia.  As ridiculous as this may seem, the fact is most members of the General Assembly are not lawyers, and have no idea how badly the current law actually hurts the victims of adultery.

That's where you come in.  Please consider contacting your State Senator and Delegate (especially if they are a Republican, but even if they aren't) and talk to them about this bill.  Tell them how important it is to you to see the adultery loophole closed so that victims of adultery can get the justice that the law entitles them to.

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