Could a spouse accused of adultery in a Virginia divorce case be at a disadvantage by invoking his or her Fifth Amendment right?
The right to claim a 5th Amendment privilege against self-incrimination in adultery cases has been severely limited with the recognition of a constitutional right, under the due process clause of the 14th Amendment, to privacy protecting consensual sexual behavior between adults in private. Lawrence v. Texas, 539 U.S. 558 (2003); Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005). Nevertheless, there are instances in which an accused spouse may wish to invoke his or her right under the 5th Amendment. In Virginia, the consequences of proving adultery are quite serious and may result in a spouse being denied spousal support. Where a spouse’s conduct is suspicious, courts will look to see if an explanation has been provided for the conduct. If no reason has been provided, courts will usually draw a negative inference. Black’s Law Dictionary (8th ed.) defines “negative inference” as: “a detrimental conclusion drawn by the fact-finder from a party’s failure to produce evidence that is within the party’s control.” To prevent a negative inference from being drawn should a spouse accused of adultery exercise his or her Fifth Amendment right?
Typically, a court cannot draw a negative inference from a spouse’s invocation of the Fifth Amendment. See Romero v. Colbow 27 Va. App. 88 at 93, 497 S.E. 2d 516 (1988). However, it appears that despite the protection afforded by § 8.01-223.1, it is possible that a negative inference from exercising the Fifth Amendment can be drawn. In Watts v. Watts 40 Va. App. 865, 581 S.E. 2d 224 (2003) this may be what the Court of Appeals did. In Watts, wife accused her husband of adultery. When deposed, husband invoked his Fifth Amendment right and refused to answer any questions about his new paramour. In a footnote, the court stated that they were “mak[ing] no negative inference” on his exercise of his Fifth Amendment right. However, having found substantial evidence of adultery, the court of Appeals made the following statement: “in doing so [invoking the privilege], husband failed to provide a reasonable explanation for his conduct, a matter about which we do take cognizance.”
Likewise, in Sparks vs. Sparks 768 S.W.2d 563 (1989), the Eastern District of the Missouri Court of Appeals held that a wife who invoked her Fifth Amendment privilege was not entitled to the affirmative relief of temporary maintenance and attorney’s fees in her divorce action. Another case that echoed this ruling is Robinson vs. Robinson 615 A.2d 1190 (1992), the Court of Appeals of Maryland held that the court is entitled to draw a negative inference against the spouse who refuses to testify. In Robinson, the wife invoked her privilege and refused to answer a question regarding adultery which led the court to infer that she had indeed committed adultery.
A contrary result was reached in Romero v. Colbow 27 Va. 88, 497 S.E.2d 516 (1998), a divorce case where the wife invoked her privilege in connection with questions about adultery. The Court of Appeals upheld the commissioner in chancery’s finding that evidence was not “clear and convincing” to prove the wife had committed adultery, despite evidence of the contrary. The commissioner, relying on Virginia Code§ 8.01-223.1, had said that the wife’s invocation of the Fifth Amendment cannot be used against her.