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Response to adultery inquiries required.

Byline: Virginia Lawyers Weekly

The plaintiff in this divorce case must respond to an interrogatory and a request for admission concerning misdemeanor acts of adultery despite invoking his right against self-incrimination.


The parties were married in 1996. Plaintiff sued for divorce in January 2018. The complaint alleged "constructive desertion and multiple acts of adultery by the Defendant." The complaint also alleged that plaintiff "conducted himself as a dutiful husband." Plaintiff's then-counsel signed the complaint. Plaintiff did not.

Defendant filed a counterclaim, alleging cruelty and desertion. There were no adultery allegations. At a hearing to sequester the file, plaintiff testified the complaint contained statements that he was a "dutiful husband" and that he "had done nothing to justify [defendant's] conduct during the marriage." Several months later, defense counsel propounded an interrogatory asking plaintiff for detailed disclosures concerning any acts of adultery occurring during the parties' marriage.

Plaintiff objected and asserted his right against self-incrimination. Defendant also asked plaintiff, through a request for admission, to admit "that during your marriage, you have had sexual intercourse with a person other than Defendant." Plaintiff objected, noting the marriage lasted 22 years and the request was not limited to the five-year time frame in Code 20-94.

Defendant filed a motion to compel. She argues that plaintiff cannot claim the privilege because it was unlikely that he would be criminally prosecuted for adultery. Defendant also asserts that plaintiff waived the privilege "by making the statements in Paragraph 14 of the complaint, and by his testimony at the hearing on his Motion to Sequester the File."


Adultery in Virginia can be either a misdemeanor or a felony, depending on the relationships between, and the ages of, the parties. Misdemeanor adultery offenses have a one-year statute of limitations. There is no statute of limitations for felony adultery offenses.

Both the United States and Virginia Constitutions guarantee the right against self-incrimination. However, "[i]t is well-settled that 'if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness, the rule [protecting the witness from compelled self-incrimination] ceases to apply. [I]f a prosecution for a crime, concerning which the witness is interrogated, is barred by the statute of limitations, he is compellable to answer.'"

As a result, any response by plaintiff that discloses misdemeanor acts of adultery occurring more than one year before the date he responds "could not be used as a basis for a criminal prosecution under Virginia law. Therefore, the Court holds that [plaintiff] cannot claim a privilege against self-incrimination with respect to any acts of adultery that occurred in Virginia more than one year prior to the date of his response."

Defendant claims that plaintiff waived the privilege based on allegations in his complaint and his testimony at a hearing. "The classic description of an effective waiver of a constitutional right is the intentional relinquishment or abandonment of a known right or privilege."

The statements in the complaint, which was not signed by plaintiff, did not waive the privilege because plaintiff did not make them. At the hearing, although plaintiff admitted the statements existed in the complaint, this did not "rise to the level of an intentional relinquishment or abandonment of his privilege against self-incrimination."

The motion to compel is granted in part. Plaintiff "shall answer Interrogatory 8 and the RFA, but only with respect to any misdemeanor acts of adultery that occurred in Virginia more than one year before the date of his responses. The motion is otherwise denied."

B.B. v. T.B. Case No. CL-2018-0744, Feb. 12, 2019; Fairfax Cir. Ct. (Devine). Gerald R. Curran for Plaintiff, David R. Clarke for Defendant. VLW 019-8-017, 5 pp.

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Title Annotation:B.B. v. T.B., Fairfax Circuit Court, Virginia
Publication:Virginia Lawyers Weekly
Date:Mar 8, 2019
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