Domestic relations cases; witness refusal to answer question on ground that it may self-incriminate. (HB67)

Introduced By

Del. David Toscano (D-Charlottesville)

Progress

Introduced
Passed Committee
Passed House
Passed Senate
Signed by Governor
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. Read the Bill »

Status

01/22/2010: Merged into HB14

History

DateAction
12/28/2009Committee
12/28/2009Prefiled and ordered printed; offered 01/13/10 10101353D
12/28/2009Referred to Committee for Courts of Justice
01/13/2010Assigned Courts sub: Civil
01/15/2010Assigned Courts sub: Civil
01/18/2010Subcommittee recommends incorporating (HB14-Marshall, R.G.)
01/22/2010Incorporated by Courts of Justice (HB14-Marshall, R.G.)

Duplicate Bills

The following bills are identical to this one: HB14.

Comments

marsha maines writes:

does this bill actually say CONSTITUTIONAL RIGHTS are NOT enforced?

Karen Cole writes:

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.

Lloyd Snook writes:

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.