Virginia Divorces: Proving Adultery Through the Paramour

Can your paramour be made to testify about your sexual relationship at your divorce trial?

In Davis v. Davis (Case No. CL13-7696) (Norfolk), the wife’s paramour was deposed by husband’s counsel.  The paramour refused to answer questions related to his relationship with the wife.  The paramour justified his refusal by invoking his privilege against self-incrimination.  In particular, he claimed he could be prosecuted for “fornication, prostitution, or consensual sodomy.”  The husband’s counsel moved to compel the paramour’s testimony on the ground that there was no legitimate chance of incrimination.

The trial court held that to sustain the privilege it must be shown “how conceivably a prosecutor, building on a seemingly harmless answer, might proceed step by step to link the witness to some crime.”  The court added that this “suggested course and scheme of linkage must not seem incredible in the circumstances of the particular case,” and that the privilege does not protect against “remote and speculative possibilities.”[1]

The trial court swiftly held that there was no chance that the paramour would incriminate himself for prostitution under Va. Code § 18.2-346 because nothing suggested that he and the wife had engaged in “common, indiscriminate, illicit intercourse for hire.”  The court did not buy the paramour’s clever/stupid argument that the wife’s bestowal of gifts to her paramour could be construed as a financial exchange for sex.

The trial court then addressed the current state of affairs as to the fornication and sodomy statutes (Va. Code §§ 18.2-344 and 18.2-361, respectfully).  It held that various appellate courts have found these statutes to be unconstitutional save for their application to sexual acts in public (which could conceivably apply in this case) or sexual acts between an adult and child (which obviously does not apply to the wife and her paramour).  It further noted that while fornication is a misdemeanor subject to a one year statute of limitations on prosecutions (i.e., you can’t be prosecuted for acts of fornication from over one year ago), sodomy is a felony not subject to any statute of limitations (i.e., you could conceivably be punished for acts of sodomy from at any point in your life).

The trial court then held that the paramour must answer questions about fornication with the wife occurring more than one year before the date of his deposition because no prosecution could stem from his answers due to the aforementioned statute of limitations.  As for acts of fornication within the year, or acts of sodomy occurring at any time, the trial court then held it needed more information to determine whether any such acts occurred in a public space:

“If Mr. C and the wife engaged in coitus or consensual sodomy, criminal liability could depend, among other factors, upon the nature of the place where the act occurred, and, if in a building, the location of windows, the presence of drawn or open curtains, lighting, the proximity to a public street or sidewalk, and the time of day. As a witness may not claim a blanket right to refuse to answer questions in a civil proceeding, but, rather, must claim the privilege with respect to a particular question, I should not decree a blanket denial of the privilege when exposure to prosecution may depend upon so many unknown circumstances. Although prosecutions for fornication and consensual sodomy are now uncommon, the discretion of an unknown assistant Commonwealth’s attorney is a poor guarantee of the liberty of the citizen, and, given the husband’s conduct to-date, it is quite possible he would attempt to secure a warrant from a magistrate based upon deposition testimony.”

[1] The court helpfully cites to a bunch of cases in support of this proposition, with the core case being North American Mortgage Investors v. Pomponio, 219 Va. 914, 918-19, 252 S.E.2d 345, 348-49 (1979).