Why ‘decriminalize’ adultery in Va.
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.