For example, the spouse being accused of adultery can invoke the 5th Amendment during trial testimony. Therefore, in a divorce case in which adultery has been alleged to have occurred during the marriage, the person accused of adultery might assert the 5th amendment in discovery responses, in court testimony, or a deposition. The 5th Amendment is applicable in a civil case because the spouse could potentially be incriminating themselves even if the likelihood of that type of charge being prosecuted is minimal. Virginia Code §18.2-365 states as follows: “Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.” A Class 4 misdemeanor does not carry any jail time, but the punishment is a fine of up to $250.
The 5th Amendment applies to the states, specifically Virginia, through the Due Process Clause of the 14th Amendment.įor example, in Virginia, adultery is a criminal offense. These proceedings can be criminal or civil in nature and formal or informal. This not only applies to providing testimony in Court but also applies to answering questions in other proceedings where a person might incriminate themself in a future criminal proceeding. The 5th Amendment of the United States Constitution says that no person shall be compelled in any criminal case to be a witness against themself. How the 5th Amendment is Important in Divorce Cases
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