A Legal Affair: The Problems of Proving Extramarital Sex in Virginia

Introduction

            Imagine you have learned that your spouse had an affair with a paramour.    You did not witness it but your spouse confessed it to a friend.  Other friends told you that your spouse was seen leaving a member of the opposite sex’s house late at night on multiple occasions.  You confront your spouse and he/she admits that he/she had an affair.  You become upset.  You desire a divorce.  On the basis of numerous films and television programs you have seen, you believe that you can use this affair to your advantage in a subsequent divorce. 

            You then learn the law in Virginia.  You learn that if you want to pursue a no-fault divorce, you must separate for either six or twelve months from your spouse before filing, depending on whether you have children and an executed agreement resolving all remaining marital issues (i.e., support and distribution of marital assets).  You become somewhat disheartened until you learn the following: extramarital sex is a ground for filing immediately for a divorce, a bar to spousal support unless it would be a manifest injustice, and a crime.  Va. Code Ann. §§ 20-91(1), 20-107.1(B) and 18.2-365.  You become elated!  You don’t have to wait to file!  You won’t owe that cheating [expletive deleted] spousal support!  Virginia hates adulterers!  And you have a confession!  This will be a cinch!  

            You then obtain legal counsel.  Counsel tells you that it would be in your financial interest to separate from your spouse and seek a no-fault divorce six or twelve months later.  Counsel tells you that proving extramarital sex is too difficult.  There is just too much risk involved.  But what about his confession!  What about the friend!  Your spouse confessed to him too!  What about him leaving that person’s house late at night! 

            Counsel sits you down, notices the crest-fallen look on your face, and begins this woeful tale of Virginia’s dreadful law on proving extramarital sex.    

Privileged Persons

            You are first informed that it is the law of Virginia that a spouse in a divorce case has the privilege of not discussing matters relating to extramarital sex and the judge cannot infer bad behavior if the spouse chooses to exercise this privilege.  As this is so counter to your expectation, you demand an explanation.

            The 5^th Amendment of the U.S. Constitution states: “[no person] shall be compelled in any criminal case to be a witness against himself.”  Through a bit of legal magic, witnesses in both criminal and civil proceedings can exercise this privilege and therefore avoid discussing incriminating matters.  Lefkowitz v. Cunningham, 431 U.S. 810 (1977).  Thus, a spouse in a civil divorce case can exercise this privilege to avoid discussing incriminating extramarital dalliances.  Nevertheless, in most states the invocation of this privilege will allow the judge to make a negative inference against the witness in a civil case, including divorces.  That is, the judge can infer that the witness is hiding something.  Hence, invoking the privilege in a divorce matter could act as evidence in support of a finding of extramarital sex.  This, however, is not the law in Virginia.     

            Under Virginia Code Ann. § 8.01-223.1, one’s use of a constitutional privilege cannot be used against him.  Thus, when the privilege against self-incrimination is invoked in a divorce case in Virginia, the judge is forbidden from inferring that the spouse is hiding something.  Hence, most parties in divorce cases in Virginia are well advised to invoke this privilege.[1] 

            Unless your spouse chooses to own up to his/her affair, he/she will invoke the privilege.  Your spouse’s confession appears worthless. 

Corroborating Confessions

            You then ask: What about the confession to his friend?  Is this not enough?  Counsel answers: No.  Not even close.

            Virginia Code Ann. § 20-99 requires corroboration of the grounds for divorce.  When there is no evidence of collusion, corroboration need only be slight.  Collier v. Collier, 341 S.E.2d 827 (1986).  Nevertheless, corroboration cannot stand on the admissions of the parties alone, whether contained in the pleadings or otherwise. Va. Code Ann. § 20-99(2) (emphasis added).  This rule holds even if a third person testifies that the spouse admitted a ground of divorce to him or her.  That is, corroboration of an admission to a third person is per se insufficient to corroborate the grounds for divorce.  Va. Code Ann. § 20-99(2); Johnson v. Johnson, 213 Va. 204 (1973); McIlwain v. McIlwain, 215 Va. 633, 636, 212 S.E.2d 284, 286 (1975); Venable v. Venable, 2 Va. App. 178, 342 S.E.2d 646 (1986). 

            This straightforward reading of Virginia Code § 20-99 finds support in Johnson v. Johnson.  In that case, the Plaintiff filed a Bill of Complaint seeking a divorce on the ground of cruelty.  The Plaintiff alleged that her husband punched her in the face while intoxicated.  Id. at 206.  At the Commissioner’s Hearing, the Plaintiff sought to corroborate her version of the event through the testimony of a friend and a treating-physician.  Id. at 208.  Each witness testified that while the Plaintiff had a visibly bruised face the next morning, neither witness knew anything about the alleged assault except for the Plaintiff’s account of the occurrence.  Id.  The Commissioner in Chancery held that such evidence provided sufficient corroboration for a finding of cruelty.  Id. at 205.  The Supreme Court of Virginia, however, disagreed on appeal and reversed on the grounds that the Plaintiff had failed to corroborate her account of the alleged assault because the witness’s knowledge of the event stemmed from the Plaintiff’s own admissions.  Id. at 210; See also McIlwain v. McIlwain, 215 Va. 633, 636, 212 S.E.2d 284, 286 (1975) (following the holding in Johnson in dicta); Venable v. Venable, 2 Va. App. 178, 184, 342 S.E.2d 646, 650 (1986) (following the rationale in Johnson in dicta).  Hence, there was no independent corroboration as required under Va. Code Ann. § 20-99(2).

            Thus, your spouse’s confession is more worthless than you thought. 

Confusing Caselaw

            Exasperated, you rise and bellow out: Well how the hell can I prove that the [expletive deleted] cheated on me?  Counsel sits you back down.  Counsel informs you that circumstantial evidence can be used to prove extramarital sex.  But you need a lot of it. 

            Because of its delicate nature, extramarital sex can be proven through circumstantial evidence.  Bowen v. Pernell, 190 Va. 389, 393, 57 S.E.2d 36, 38 (1950).  Nevertheless, such evidence must be clear and convincing.  Haskins v. Haskins, 188 Va. 525, 530-531, 50 S.E.2d 437, 439 (1948); Coe v. Coe, 225 Va. 616, 622, 303 S.E.2d 923, 927 (1983).  Raising a “considerable or even strong suspicion of guilt is not enough.”  Haskins v. Haskins, 188 Va. 525, 530-531, 50 S.E.2d 437, 439 (1948). 

            Virginia’s caselaw on extramarital sex does not lend itself to a hard and fast rule of law.  Indeed, for a while, it seemed almost impossible to prove extramarital sex.  See, e.g., Painter v. Painter, 215 Va. 418, 211 S.E.2d 37 (1975) (holding that adultery had not been proven despite evidence of: white stains on the husband’s pants and underwear; lipstick on his shirts; a discovered love letter; public kissing and embraces between the husband and his paramour; and the husband’s departure from the paramour’s darkened house at 1:45 a.m.); Dooley v. Dooley, 225 Va. 240, 278 S.E.2d 865 (1981) (discussed below).  Nevertheless, the Supreme Court of Virginia adopted a more common sense approach to the subject in the mid 1980s.  This change in law is best highlighted through comparing the case of Dooley v. Dooley and Coe v. Coe, 225 Va. 616, 303 S.E.2d 923 (1983).     

            In Dooley v. Dooley, the husband filed a Cross-bill for Divorce on the grounds of adultery.  Dooley, 222 Va. at 242, 278 S.E.2d at 866.  A private investigator testified on the husband’s behalf that two men, on several separate occasions, left the wife’s darkened apartment after midnight. Dooley, 222 Va. at 243-244, 278 S.E.2d at 867.  He further testified that she, on at least one occasion, embraced and kissed one of the departing visitors.  Dooley, 222 Va. at 244, 278 S.E.2d at 867.  Moreover, the husband offered evidence that the wife had begun to date the husband’s former attorney in the matter and had spent the night with him on at least four occasions, two of which occurred in a hotel room in Myrtle Beach, South Carolina while on vacation.  Dooley, 222 Va. at 245, 278 S.E.2d at 868. The wife testified in response that she had been separated from her husband for almost a year and was thus free to date.  She denied ever having sex with another man during her marriage and claimed that she had maintained separate hotel rooms from the attorney-boyfriend while on vacation.  Id.  The attorney and one of her earlier visitors, likewise, never admitted having sex with the wife.  Id.  Rather, the attorney claimed to have fallen asleep on her couch “on occasion or two,” and the prior visitor, her neighbor, claimed to be just a friend.  Id.  The Supreme Court of Virginia held that such circumstantial evidence was insufficient to prove that the wife had extramarital sex and thus reversed the trial court’s finding.  Dooley, 222 Va. at 246, 278 S.E.2d at 869.  The Court, in an opinion devoid of legal analysis, based its decision on no more than a string of citations holding that adulterous behavior must be proven through clear and convincing evidence.  Dooley, 222 Va. at 245-246, 278 S.E.2d at 869.  Justice Poff submitted a spirited dissent.  Dooley, 222 Va. at 247, 278 S.E.2d at 869. 

            The Supreme Court of Virginia clarified the scope of Dooley two years later in Coe v. Coe.  In that case, the husband filed an Amended Bill of Complaint for Divorce on the ground of extramarital sex.  Coe, 225 Va. 616, 618, 303 S.E.2d 923, 924.  A private investigator testified on the husband’s behalf that, on at least two occasions, the wife had spent the night at her alleged paramour’s darkened apartment.  Coe, 225 Va. 616, 621-622, 303 S.E.2d 923, 926.  Neither the wife, nor a witness on her behalf, testified in explanation of her activities with the alleged paramour.  Coe, 225 Va. 616, 622, 303 S.E.2d 923, 927.  The Supreme Court of Virginia held that such circumstantial evidence was sufficient to prove the ground of extramarital sex and thus affirmed the trial court’s decision.  Id.  The Court reasoned that Dooley v. Dooley was distinguishable on the following grounds: (1) Dooley involved meetings at the wife’s home, while Coe involved meetings at the alleged paramour’s apartment, (2) the wife in Dooley never spent the night with her alleged paramours, while the wife in Coe did spend the night with her alleged paramour, and (3) the wife in Dooley had a credible response to her activities with the paramour, while the wife in Coe offered no explanation of her activities.  Id.  Again, as in Dooley, the Court failed to address why these distinctions are important.  Nevertheless, it is quite obvious that a greater inference of adulterous behavior can be made when one fails to explain the reasons one has spent the night with an alleged paramour.^[2] 

            Since Coe, the presence or absence of an explanation for a late-night rendezvous has become an important factor.  For example, in Watts v. Watts, 40 Va. App. 685 (2003), the husband and his paramour had no explanation for a private investigator’s testimony that she had spent the night in his darkened home on two occasions, once until 4:20 a.m. and the other until 4:30 a.m.  Id. at 692-693.  Indeed, the husband invoked the privilege against self-incrimination.  Thus, the Virginia Court of Appeals found the case indistinguishable from Coe, where no explanation was offered, and held that the husband’s extramarital sex had been proven by clear and convincing evidence.[3]  In Hughes v. Hughes, 33 Va. App. 141 (2000), the wife and her paramour lived together and were open about their mutual love and sexual attraction.  Id. at 145.  Nevertheless, each denied having sex with each other.  Id. at 145.  Rather, the wife explained that their living arrangement was predicated on her economic difficulties.  Id. at 146-147.  Thus, with a reasonable explanation in tow, the Court of Appeals found the case indistinguishable from Dooley and held that extramarital sex had not been proven by clear and convincing evidence.  Id. at 148. 

            In sum, the modern focus after Coe is on two paramount factors: (1) whether the spouse has spent the night, in secret, with his or her alleged paramour, and (2) whether the spouse has a credible explanation for his or her secret meetings with the alleged paramour. 

            If your spouse does not exercise the privilege against self-incrimination and does provide a credible explanation for his/her late night dalliances, we cannot prove extramarital sex.  If he/she does not exercise the privilege against self-incrimination and does not provide a credible explanation for his/her late night dalliances, we can prove extramarital sex.  If he/she exercises the privilege against self-incrimination, then we can still prove extramarital sex.  Evidence of his/her late night escapades might be enough.  And his/her failure to explain what happened might influence the judge’s decision, even despite the law’s mandate that it not.  

Conclusion

            Virginia’s law on extramarital sex appears bipolar.  At its most abstract, Virginia condemns an act (i.e., extramarital sex) and then removes the first and second most efficient means of proving it (i.e., a confession and another’s testimony regarding the confession).  Worse, its cases on the subject are inconsistent and, at times, do not follow common sense.  This drives up the costs of proving extramarital sex and prevents some clients from even pursuing a divorce on such grounds because the costs of litigation exceed the benefit of owing no spousal support. 

            In sum, proving extramarital sex is a crapshoot.  Unless you might owe expensive long-term spousal support, seeking a divorce on that ground might not be worth the risk and the expense. 

Prologue

            In an amazing twist of fate, on January 10, 2007, Virginia House Delegate for the 13^th District, Robert G. Mitchell, introduced a bill that would amend § 8.01-223.1.  The reenacted code would read:

            In any civil action, except actions brought under Title 20, the exercise by a party    of any constitutional protection shall not be used against him.

With this revised section in place, a spouse invoking the privilege against self-incrimination would also face the specter of a judge inferring that he or she has something to hide.  Thus, extramarital sex will be far easier to prove, litigation costs will be lowered, and more parties will be able to avoid spousal support.  If Virginia does in fact want to punish adulterers in divorce cases, it should enact this law.  Whether punishment makes sense, however, is an issue for a later article.