In a divorce case based on adultery, can husband compel wife’s alleged paramour to provide his cell phone records and to testify about sexual relations with wife?

In a divorce case based on adultery, can husband compel wife’s alleged paramour to provide his cell phone records and to testify about sexual relations with wife?

Yes, within limits, ruled the judge in the case of Susan K. Davis v. Millard M. Davis, Civil Nos.: CLI3-7696 and 13-7696-01 in the Norfolk Circuit Court in Virginia’s Fourth Judicial Circuit (http://valawyersweekly.com/fulltext-opinions/2014/09/15/014-8-081-davis-v-davis/ ).

In Davis, the parties originally entered into a separation agreement.  The husband later moved the court to set aside the separation agreement based on wife’s behavior during settlement negotiations.  The husband first subpoenaed wife’s telephone records and discovered the telephone number of her alleged paramour from her phone records.  The husband then issued a subpoena duces tecum to wife’s alleged paramour for his cell phone records.  The alleged paramour filed a motion to quash the husband’s subpoena on the grounds that the records included private business information pertaining to his self-employment that the husband might misuse.

At the husband’s deposition of wife’s alleged paramour, the paramour pled his 5th Amendment right against self-incrimination with respect to questions about sexual relations with the wife, which comprised most of the questions asked.  The husband filed a motion to compel the alleged paramour to answer his questions.  The alleged paramour argued that the questions asked exposed him to possible prosecution for fornication, prostitution, and/or consensual sodomy which at the time of the ruling, were all statutory crimes in Virginia (the sodomy statue has since been revised).

The Virginia Circuit Court judge granted in part, and denied in part, the alleged paramour’s motion to quash.  The judge noted that the husband might likely misuse the information from the alleged paramour’s cell phone records, given the history of the husband’s conduct in this contested divorce case.  Therefore, the judge ordered the alleged paramour to provided redacted phone records showing only the wife’s telephone calls.  With respect to any other calls shown on the records, the husband would be required to provide prior written justification for the relevancy of his need for those other specific phone numbers requested in order to obtain the records of those calls.

Similarly, the Circuit Court judge granted in part, and denied in part, the husband’s motion to compel.  The judge ruled that the paramour could only raise his 5th Amendment right not to incriminate himself with respect to each particular question, and not as a blanket privilege to a whole line of questioning.  The court recognized that the fornication statute had been held to be unconstitutional with respect to private consensual sexual conduct in Virginia, citing Martin v. Ziheri, 269 Va. 35, 607 S.E.2d 367 (2005) and McDonald v. Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007), and, as a Class 4 misdemeanor, had a one year statute of limitations.  The judge ruled the possibility of a prostitution prosecution was misplaced by the alleged paramour, as gifts given to a lover do not rise to the level of prostitution.  With respect to consensual sodomy, the judge recognized that the Virginia statute had been declared unconstitutional when applied to private sexual behavior between adults by the Fourth Circuit Court of Appeals in the case of Macdonald v. Moose, 710 F.3d 154 (4th Cir., 2013) , while the Supreme Court of Virginia had recognized the statute as constitutional with respect to adult and minor acts in McDonald v. Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007), and with respect to public acts in Singson v. Commonwealth, 46 Va. App. 724, 621 S.E.2d 682 (2005)  .  The court recognized there is no statute of limitations for the prosecution of felonies, like consensual sodomy, in Virginia.

As these sexual crimes might still be prosecuted for acts occurring in public, the court analyzed various cases in Virginia addressing what might constitute a “public” criminal sexual act, recognizing that any potential prosecution would depend upon the particular circumstances in each case, and which could occur where there is no reasonable expectation of privacy, including on private property which might forseeably be open to public view.  Accordingly, the alleged paramour would have to claim his privilege for each particular question.  Finally, the judge ruled that the alleged paramour was required to answer questions about coitus with the wife occurring more than a year before the question asked.

You should discuss with your Virginia divorce attorney or Richmond divorce lawyer James H. Wilson, Jr., how allegations of adultery may affect the outcome of your Virginia divorce case.

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