Why ‘de­crim­i­nal­ize’ adul­tery in Va.

Richmond Times-Dispatch - - OP/ED - BY SCOTT SUROVELL AND CHRIS FREUND Scott Surovell prac­tices fam­ily law and rep­re­sents the 36th District in the Se­nate of Vir­ginia. Con­tact him at scott@ scottsurov­ell.org. Chris Freund is vice pres­i­dent, Govern­ment Re­la­tions and Com­mu­ni­ca­tions, with The F

Nearly every­one knows some­one who has been through a di­vorce. Many of us have fam­ily, friends or ac­quain­tances whose mar­riages have ended due to adul­ter­ous re­la­tion­ships and the ac­com­pa­ny­ing emo­tional trauma. Un­for­tu­nately, many are un­able to get the jus­tice they de­serve in their di­vorce pro­ceed­ings be­cause Vir­ginia law clas­si­fies adul­tery as a crime, which ac­tu­ally causes more prob­lems than it solves.

To­day, adul­tery is clas­si­fied as a crim­i­nal mis­de­meanor pun­ish­able by a max­i­mum penalty of a $250 fine, but it is rarely if ever pros­e­cuted. While it might seem con­fus­ing that “de­crim­i­nal­iz­ing” adul­tery would make it eas­ier to hold peo­ple ac­count­able, the rea­son is pretty sim­ple: the Fifth Amend­ment.

In crim­i­nal cases, a judge or jury is pro­hib­ited from as­sum­ing some­one is guilty if they choose not to tes­tify. But, so long as adul­tery is a mis­de­meanor in Vir­ginia, lit­i­gants can hide be­hind their Fifth Amend­ment priv­i­lege in civil cases with few con­se­quences.

With­out an ad­mis­sion, adul­tery is much harder to prove be­cause (1) Vir­ginia law re­quires a higher stan­dard of proof and cor­rob­o­ra­tion for adul­tery, which is of­ten very dif­fi­cult to meet, and (2) un­like other states, Vir­ginia pro­hibits civil courts from as­sum­ing a lit­i­gant’s an­swers would not be help­ful to their case due to our long tra­di­tion re­spect­ing the ex­er­cise of con­sti­tu­tional rights. Our Vir­ginia Dec­la­ra­tion of Rights is a sa­cred doc­u­ment that led the way for sim­i­lar rights dec­la­ra­tions all around the world, in­clud­ing the United States Bill of Rights, and Vir­ginia law pro­hibits a judge or jury from mak­ing any as­sump­tions what­so­ever if lit­i­gants as­sert their con­sti­tu­tional right to re­main silent, even in civil cases.

So in Vir­ginia, in­stead of sim­ply ask­ing some­one, “Did you have sex with Mrs. Smith?” lit­i­gants are forced to spend thou­sands of dol­lars try­ing to prove cir­cum­stan­tially be­hav­ior that hap­pens be­hind closed doors, hir­ing pri­vate in­ves­ti­ga­tors, sub­poe­naing ho­tels, credit cards and Vi­a­gra pre­scrip­tion records, and un­nec­es­sar­ily in­vest­ing in at­tor­neys in ar­cane le­gal bat­tles about whether a spouse waived their con­sti­tu­tional right by an­swer­ing a ques­tion about a plane ticket. Many peo­ple sim­ply can­not af­ford to go to those lengths.

All of this is un­nec­es­sary and forces di­vorc­ing spouses to spend mil­lions of dol­lars per year on lawyers be­cause Vir­ginia con­tin­ues to keep a statute on the books that is pros­e­cuted less fre­quently than the ci­cada cy­cle.

Chang­ing the penalty for adul­tery from “crim­i­nal” to “civil” — as pro­posed in Se­nate Bill 1124 in this Gen­eral Assem­bly ses­sion — would fix the prob­lem be­cause adul­ter­ous spouses could no longer “take the Fifth”; they would have to an­swer ques­tions and face con­se­quences.

While Vir­ginia adopted no­fault di­vorce in 1975, we re­tained a di­vorce based on fault, in­clud­ing adul­tery. Adul­tery-based di­vorces are still im­por­tant to some Catholics seek­ing church an­nul­ment and some evan­gel­i­cal wor­shipers. In fact, many in the faith com­mu­nity who have se­ri­ous con­cerns over the im­pact of no-fault di­vorce should wel­come chang­ing the penalty for di­vorce from crim­i­nal to civil.

Of­ten, vic­tims are forced into no-fault di­vorces be­cause they can’t prove adul­tery, al­low­ing un­faith­ful spouses to ex­pe­ri­ence rel­a­tively few con­se­quences. For ex­am­ple, Vir­ginia law pro­hibits adul­ter­ous spouses from re­ceiv­ing spousal sup­port un­less it re­sults in a man­i­fest in­jus­tice and also al­lows a court to con­sider adul­tery dur­ing prop­erty divi­sion if the adul­tery had an eco­nomic im­pact, such as the loss of a job or an adul­ter­ous spouse spend­ing mar­i­tal funds on a paramour.

It is also im­por­tant that Vir­ginia re­tain adul­tery on the books as a civil in­frac­tion. Vir­ginia rec­og­nizes ac­tions by em­ploy­ees for wrong­ful ter­mi­na­tion if they are fired for re­fus­ing to break laws. If adul­tery is still on the books as a civil in­frac­tion, then an em­ployee can still sue their em­ployer if they are fired for re­fus­ing to en­gage in an adul­ter­ous af­fair.

While de­crim­i­nal­iz­ing adul­tery in Vir­ginia might re­duce Christ­mas bonuses for a few di­vorce lawyers and pri­vate in­ves­ti­ga­tor firms, it will lower un­nec­es­sary lit­i­ga­tion ex­penses, in­crease ac­count­abil­ity for dis­hon­est be­hav­ior, and still hold em­ploy­ers ac­count­able while pro­tect­ing Vir­ginia’s con­sti­tu­tional tra­di­tions and help­ing in­no­cent di­vorc­ing spouses keep more of their money for more im­por­tant things like pro­vid­ing health care for and ed­u­cat­ing their chil­dren.

We’re not try­ing to mak­ing it eas­ier to cheat on spouses; we’re ac­tu­ally try­ing to make our ex­ist­ing sys­tem work bet­ter. It’s time Vir­ginia’s laws caught up with prac­ti­cal re­al­i­ties for the ben­e­fit of adul­tery’s vic­tims.

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