While attempts to repeal the crime of adultery in Virginia have repeatedly failed, the Virginia General Assembly did revise Virginia Code Section as follows:
§ 8.01-223.1. Use of constitutional rights.
In any civil action, the exercise by a party of any constitutional protection shall not be used against him, except that in any civil proceeding for spousal support, custody, or visitation under Title 16.1 or any civil action for divorce or separate maintenance under Title 20 filed on or after July 1, 2020, if a party or witness refuses to answer a question about conduct described in subdivision A (1) of § 20-91 or in § 18.2-365 on the ground that the testimony might be self-incriminating, the trier of fact may draw an adverse inference from such refusal.
The enrolled Bill was approved by the Governor on April 10, 2020, and will become effective July 1, 2020. Virginia Code Section 20-91(A)(1) provides for the fault ground of adultery, sodomy and buggery for a divorce. Virginia Code Section 18.2-365 defines adultery and makes it a Class 4 misdemeanor.
Virginia now allows an adverse inference to be drawn from pleading the 5th in a civil proceeding for divorce, separate maintenance, spousal support, child custody, and child visitation. This change in the law brings Virginia closer in line with the majority view of states in the United States, which allow an adverse inference to be drawn from a person’s exercise of his 5th Amendment privilege against self-incrimination in a civil case.