Domestic relations cases; witness refusal to answer question on ground that it may self-incriminate. (HB67)
Introduced By
Del. David Toscano (D-Charlottesville)
Progress
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Introduced |
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Passed Committee |
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Passed House |
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Passed Senate |
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Signed by Governor |
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Became Law |
Description
Domestic relations; self-incrimination; adverse inference. Provides that in actions filed on or after July 1, 2010, for spousal support, custody, or visitation under Title 16.1 or for divorce or separate maintenance filed under Title 20, the court may draw an adverse inference against any party or witness who refuses to answer a question regarding conduct constituting adultery, sodomy, or buggery outside of marriage, or fornication on the ground that the testimony might be self-incriminating. View Full Text »
Status
01/22/2010: Merged into HB14
View Bill's History
Comments
does this bill actually say CONSTITUTIONAL RIGHTS are NOT enforced?
This bill is concerning to say the least. It has been recognized for a long time that a victim’s refusal to speak may be rooted in fear of reprisal by the offender. There really aren't a whole lot of options, but to cite that the testimony might be self-incriminating.
Marsha -- no. The Constitution prohibits a criminal court from using a refusal to answer as proof of guilt. This bill would not tamper with that rule.
Here's the situation that it is supposed to fix. Husband has been cheating on Wife. Wife can prove that Husband spent the night in the bedroom of Girlfriend, because she has had a private investigator following him, but Wife can't prove what happened in the bedroom (i.e. can't prove that there was intercourse) to be able to get a fault-based divorce. If you call Husband to the witness stand, he can take the Fifth Amendment, as can Girlfriend. That leaves you with no proof of adultery.
To Karen: I have a hard time seeing how this would lead to an incorrect inference being used against someone who is physically afraid of telling the truth. First, almost by definition, this statute would have bearing only when the parties are no longer living together. Second, assume that Husband is afraid of telling the truth because Wife has threatened to do a Lorena Bobbitt on him if he cheats on her. Assume that he refuses to answer, allowing the court to conclude that he WAS having sex. It seems to me that the only thing that we would care about is if that conclusion was going to turn out to be incorrect. And I can't see how the conclusion in such a case would be incorrect.