UPDATE: Adultery, “Crimes Against Nature,” and the Fifth Amendment in Virginia

Adultery and the Fifth Amendment

I originally wrote my article on adultery in Virginia in 2006 and updated it for publication in Virginia Family Law News in 2009. Since that time many prospective clients (and more than a few fellow attorneys) have contacted me to discuss the rather thorny legal issues that have surrounded the issue of adultery in Virginia. The law has now changed, however, so if you read my original adultery article here you should also read this update.

Adultery and the Fifth Amendment in Virginia

Adultery (which is defined as male/female sexual intercourse only) is still a crime in Virginia for the married participant, although one which is rarely, if ever, prosecuted. This means that under certain circumstances the married participant may “plead the Fifth” and refuse to answer questions regarding adultery. However, the law has changed with respect to section 18.2-361 of the Virginia Code — the so-called “crimes against nature” or “sodomy” statute. As you may have seen in my prior article, this statute used to make it a felony for people to engage in a whole range of sexual contact, including oral sex and same-sex acts. This allowed people to “plead the Fifth” to this conduct as well. This statute, however, was amended in 2014 to remove the prohibition on sexual contact between non-related consenting individuals.

What does this mean? Broadly, it means people can’t refuse to answer questions about same sex conduct in divorce proceedings anymore. If you think this may apply to your situation, you should consult with an experienced Virginia Divorce Attorney who is well-versed on issues of adultery and the Fifth Amendment.


 
About the Author
Mr. Moher has practiced law in the Commonwealth for over 10 years. He receives a preeminent rating (AV) from the Martindale-Hubbell Law Directory and has been listed for multiple years as a “Rising Star” in Virginia’s Super Lawyers magazine. He is also listed in Best Lawyers in America.