Adultery and asserting the fifth

Posted by: english7

Adultery and asserting the fifth - 12/21/09 09:46 PM

Has anyone heard of how this turns out? This is what my husband answered on the cross-complaint.
Posted by: pokey

Re: Adultery and asserting the fifth - 12/21/09 10:37 PM

guilt as far as I'm concerned
Posted by: english7

Re: Adultery and asserting the fifth - 12/22/09 09:12 PM

4. Must the proceeding be criminal? Or, may it be a civil matter?
The Fifth Amendment may be asserted in a civil proceeding. But, it may be asserted only
in instances in which the answer might tend to subject the person to criminal responsibility.

13. Suppose what your client fears is not prosecution of a crime, but instead
embarrassment and humiliation? What if he simply dreads scorn of his community?
The Fifth Amendment is not available to help a client avoid embarrassment.

15. What if the only possible liability is civil liability?
The Fifth Amendment is not available for concerns relating merely to civil liability.
In Cantwell v. Cantwell, the Court of Appeals affirmed the dismissal of a wife's alimony
claim after she pled the Fifth in response to questions about her own adulterous activities. 109
N.C.App. 395 (1993). The wife had based her claim for alimony, in part, on the premise that she
was a dutiful and faithful wife. Id. The husband responded with the affirmative defense of the
wife's adultery. The Cantwell court concluded that the wife could not remain silent and maintain
her alimony action.
[censored]://[censored].tharringtonsmith.com/files/media/media-speech/5thAmendmentSpeech.PDF

I'm wondering how his military career might be affected with this claim of the 5th. I can't understand why else he would use this privilege. Any ideas?
Posted by: english7

Re: Adultery and asserting the fifth - 12/22/09 09:36 PM

From Virginia Lawyer magazine, Dec. 2009, Vol. 58. Again, it refers to resulting CRIMINAL prosecution, which I don't think comes into play here:

"The privilege applies
to testimony that may create a reasonable apprehension
of prosecution by the witness. But the
Fifth Amendment “does not provide a blanket
right to refuse to answer questions.”6 It is up to
the judge to determine whether the privilege is
properly invoked, and that means that “some
investigative questioning must be allowed.”7

A witness need not give testimony that could
lead to criminal prosecution. In other words,
there must be some identifiable criminal charge
to which the questionable testimony would support
or provide a link to evidence to support the
charge.8 To sustain the privilege, “it need only be
evident from the implication of the question, in
the setting in which it is asked, the responsive
answer to the question or an explanation of why
it cannot be answered might be dangerous. …”9"
Posted by: Atlas

Re: Adultery and asserting the fifth - 12/22/09 09:51 PM

I think you need to provide a bit more information here. Why is the accusation of adultery relevant here? Is there a pre-nuptual issue? Is he seeking alimony based on claims of fidelity?

If it's simply an embarrassment issue, it should be entirely irrelevant to splitting assets or determining custody.
Posted by: english7

Re: Adultery and asserting the fifth - 12/22/09 10:20 PM

Grounds for divorce. He filed for no-fault, I countered with adultery and cruelty. I'm just wondering why on earth the fifth ammendment would be of any help to him if he is hoping for a no-fault. We haven't gotten to the assets or support issues yet. My understanding is that he is planning to deny me all requests for relief.
Posted by: Redlegg

Re: Adultery and asserting the fifth - 12/22/09 10:43 PM

UCMJ
Posted by: english7

Re: Adultery and asserting the fifth - 12/22/09 10:43 PM

From VAFamilylaw.com:

"Is the 5th Amendment going to shield me from admitting to an affair (adultery)?
Maybe. The 5th Amendment privilege can be used when there is a risk of criminal prosecution. In Virginia, the statute of limitations for prosecution of adultery is one year. This is a tricky privilege, because it can be waived if not careful about asserting the privilege throughout the line of questioning about adultery."

So, he can assert this privilege unless the act happened less than one year ago....?
Posted by: Redlegg

Re: Adultery and asserting the fifth - 12/22/09 10:49 PM

UCMJ.
Posted by: english7

Re: Adultery and asserting the fifth - 12/23/09 12:09 AM

Yes, Red, I read it over before, especially the parts regarding domestic abuse and family support, but it seems highly unlikely a commissioned officer would be punished.

My experience has been what is stated as unjust in the UCMJ is not punished. "An act in violation of a local civil law or of a foreign law may be punished if it CONSTITUTES A DISORDER OR NEGLECT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES. How can adultery cause a disruption of order and discipline of a unit? Two members, maybe. Fratnernization, yes. But a wife's damage, not even remotely. I guess that's why I think the military court should not be involved in member-spouse adultery. It just does not affect the military, with the exception of hours taken to investigate.

I read Article 133 & 134, par. 59c and KNOW he has not behaved as a gentleman in so many ways (that they know about). Makes me want to gag.

They already investigated him on the adultery. His paramour and others testified. As far as I can see, nothing resulted from it; however, they do not share that with spouses. Once they got the info they wanted from us, they were silent and he deployed.

How can he claim that his admission of adultery in divorce court could cause his career to be damaged? It has not been hurt so far, and I know they investigated thoroughly.
Posted by: Redlegg

Re: Adultery and asserting the fifth - 12/23/09 01:34 AM

It is not a question of probability. You asked abotu the 5th, and it came out about the possibility of criminal prosecution. He is subject to prosecution under the UCMJ. Civilians are not. His use of the 5th protects him from prosecution under the UCMJ. There is no time limit on that.

The probability of prosecution exists regardless of rank. Contrary to what you believe, the possibility may actually be greater for a commissioned officer. There is a level of responsibility, that goes with a position. The higher the level of responsibility, the more serious a breach of ethics may be considered.

Look at the cases of MG Hale, and Gen Byrnes.

Fraternization creates the appearance of favortism, Adultery does affect the military. As a leader, you cannot expect the people you lead to follow the orders you give, if you are not willing to follow the laws as well. Adultery has nothing to do with justice for a spouse, or whether it is two members or not.

I have not, and will not speak to your specific case, I have no idea what happened. I do know adultery is almost impossible to prove. There are rules of evidence in the UCMJ, and just because something exists, does not mean it can be used. I have sat on more than a few courts martial and it is not as easy as people think, it is extremely fair. Generally Commanders do not make the call whether to prosecute on the non judicial level. They refer it to JAG, and JAG makes the call if should proceed or not. It is not a willy nilly, he did it, let's get it over with. Again, that is not to say whether your situation was fair or not. only how the system is supposed to work.

As to him using the 5th, his use of it prevents him from being prosecuted under the UCMJ, an admission in a different proceeding would be considered in a proceeding under the UCMJ. if he were to admit it under oath, it would be a slam dunk in a non judicial proceeding or a court martial. You are not allowed to consider the fairness or accuracy of a civilian proceeding, only the result of it.
Posted by: english7

Re: Adultery and asserting the fifth - 12/23/09 02:19 AM

"You asked abotu the 5th, and it came out about the possibility of criminal prosecution. He is subject to prosecution under the UCMJ."

Okay, I know this. He was investigated--and lower-ranking members were foaming at the mouth to nail him it seemed to me--and as far as I can tell, there was no punishemnt. He did not lose his gold leaf. Maybe he had to pay a fine, don't know. But whatever, they decided, he still has his career. Okay with me. I know what it is like to lose that, and it's really horrible. But, and maybe I'm not explaining myself well here, if the UCMJ did not punish him (or maybe minimally) how could admission of adultery in a civil court make any difference now? Do you see what I mean?

"The higher the level of responsibility, the more serious a breach of ethics may be considered." That's what I always believed, but I have not seen evidence of that.

"Adultery does affect the military. As a leader, you cannot expect the people you lead to follow the orders you give, if you are not willing to follow the laws as well. " This would only affect a leader's ability to lead IF it appeared that the member had committed an act that went unpunished. They very effectively buried the case of DV. Servemembers who helped me get away later turned against me.

"I do know adultery is almost impossible to prove. There are rules of evidence in the UCMJ, and just because something exists, does not mean it can be used." I know the three rules needed. His case meets rules one and two. Rule three negates the first two.

"I have sat on more than a few courts martial and it is not as easy as people think, it is extremely fair." Sounds just like what his Col told me. But I KNOW, KNOW, KNOW that what was presented in my absence (DV, here) was what the FA wanted to present, not the entire truth!!!!!!!!!!!!!!!! She did not want to find him guilty of anything. That was crystal clear from our conversations. She left out sexual abuse and his history of violence and probably other things. I know she did b/c she told me on the phone that she would not report those things. I had no say in it. I was in NY and could not afford to go to VA to speak on my behalf.

"It is not a willy nilly, he did it, let's get it over with." I know this. It is carefully considered.

Okay enough of my feelings of injustice. My reason for posting was to ask about his use of the 5th. "an admission in a different proceeding would be considered in a proceeding under the UCMJ." I guess this is what I'm trying to figure out. How will a civil proceeding affect a military proceeding, if the military proceeding already occurred and had a positive outcome for him. Would a second proceeding make any difference?????

I am not trying to nail him for adultery. In VA it is considered a crime but the fine is only a max. of $250 and is almost unheard of. I am not taking him to court for adultery. I am trying to obtain a divorce with grounds.

I have to say that if he were civilian, we would not have to be dealing with these factors which seem to insulate him at every turn. I feel like I'm being forced to go along with a no-fault when there is so much fault. It's not right, Red.
Posted by: Redlegg

Re: Adultery and asserting the fifth - 12/23/09 02:34 AM

You are trying to obtain a divorce on grounds in VA. You are using adultery as a part of it. In the other thread you said you had no idea what happened. Was he charged, was he exonerated? if you do not know what happened, then assume nothing happened. if he were to admit adultery in a civilian proceeding, that would be considered an admission in a military proceeding. He would not be able to claim he was wrong in the civilian proceeding. If he is not prosecuted in VA for adultery, he can be in the military, based on his admission in VA, or civilian court. So even though he is in the VA court system for divorce, an admission of adultery could be used against him in a military proceeding. So if you know that he was charged and found innocent, that is one thing. But not knowing is another issue. This is not speaking to the fairness of either, only as to how they can be linked.
Posted by: english7

Re: Adultery and asserting the fifth - 12/23/09 02:48 AM

I don't know how it all ended. I was told not to call the officer to inquire (unless I had additional info), so I didn't. It all went silent after they talked to me. Then he deployed to Iraq. Then to S. Korea.

I have no idea how things turned out for him. Should I call the guys who I spoke to? Should I email them? Will this even matter at all?

I feel like I'm stuck with not being able to pursue adultery as a ground. If I do, he will maybe lose his career.

This does not happen in civilian life. That's why I think it is so wrong to have military courts judge these things. But again, they claimed to have investigated him so well already, and nothing serious came of it. If that is really so, I can't see how the issue of adultery in civilian court will hurt anything.

Here's maybe the thing. Did he lie about adultery to the military (I've been told he did)--but for some reason thinks he can't lie in civil court?? Please consider this, Red. Something stinks here.
Posted by: BeachBabeRN

Re: Adultery and asserting the fifth - 12/23/09 02:53 AM

It is also very rare for someone, ANYONE to be prosecuted for adultery in a court. I've worked with a lot of CA's in my lifetime and I don't think I've ever heard of someone being criminally prosecuted for adultery.

Although adultery is grounds for divorce in Virginia, it is rarely taken into account for support, child support or any type of rehabilitative maintenance.

I do understand how you feel, that he's essentially getting away scot free with something both in the military and in the civilian world but thinking that the adultery will have any bearing on the financial outcome is shortsighted, IMHO.

I know you don't want to hear anything from me, but if you honestly believe that adultery will get you something more, then go for it. I just don't think it will, especially based on the length of your marriage.
Posted by: BeachBabeRN

Re: Adultery and asserting the fifth - 12/23/09 02:55 AM

You've said before that you have the evidence to prove his adultery.

File on the grounds of adultery, it'll probably go to trial but understand that it will cost a fair bit of money to obtain your divorce and without a criminal verdict, this can't be opened again by the military. Even a divorce decree that demonstrates adultery as the grounds for divorce may not get that reopened again.
Posted by: Redlegg

Re: Adultery and asserting the fifth - 12/23/09 02:56 AM

If he lied to the military, then it makes sense that he would take the 5th. That much is pretty clear.

You are right, it does stink. How can he tell the truth about the adultery in VA, and ruin his career in the military. if he were to ruin it, he did it all by himself, that is not something you did.
Posted by: Sherron

Re: Adultery and asserting the fifth - 12/23/09 03:00 AM

"I feel like I'm stuck with not being able to pursue adultery as a ground. "
I'm not sure I understand... why is it so important to you to have adultery, or anything, as grounds for divorce?
Posted by: Redlegg

Re: Adultery and asserting the fifth - 12/23/09 04:35 AM

File on the grounds of adultery, it'll probably go to trial but understand that it will cost a fair bit of money to obtain your divorce and without a criminal verdict, this can't be opened again by the military. Even a divorce decree that demonstrates adultery as the grounds for divorce may not get that reopened again

It would not be reopened by the military. The military does not deal with divorce. It would be used as evidence of adultery by the military. double jeopardy does apply, but since he is taking the 5th, who knows what the military has done.
Posted by: english7

Re: Adultery and asserting the fifth - 12/23/09 04:44 PM

"double jeopardy does apply, but since he is taking the 5th, who knows what the military has done."

Must be they let it go or else he lied and they swallowed it. He might not get away with that in a civil court. I can't come up with any better understanding of this.

Thanks everyone for your thoughts on this.
Posted by: Redlegg

Re: Adultery and asserting the fifth - 12/23/09 04:52 PM

Which is what I said from the beginning. If he were to admit in a civilian legal proceeding, it could be used against him in a military proceeding. it makes perfect sense, from his standpoint, to use the 5th. it protects him from the UCMJ, and possibly anything in the VA court. If he did lie, then you also have the issue of a false statement, perjury, which would be a totally different offense, and he could be prosecuted for that. They may actually have done nothing about the adultery in the AF, but if they have a statement from him, and he nows says something different in VA. new charges are possible.

Not saying it is right, or fair, but it is understandable, as to why he would do that.
Posted by: english7

Re: Adultery and asserting the fifth - 12/23/09 05:18 PM

"then you also have the issue of a false statement, perjury, which would be a totally different offense, and he could be prosecuted for that."

He has made so many false statements! He thinks he's such a skilled liar. Maybe all this will teach him not to lie so much, but I doubt it. His cross-complaint is peppered with false statements. I halfway feel sorry for him.
Posted by: Redlegg

Re: Adultery and asserting the fifth - 12/23/09 05:41 PM

feel no pity, he is doing this to himself. he will reap what he sows. You can understand what he is doing, and why he is doing it. it does not lessen the feeling of injustice, and lack of fairness, but you are starting to see that it is not something you have control over. That may help you start to focus on the things yuo can control.
Posted by: Miranda

Re: Adultery and asserting the fifth - 12/23/09 05:55 PM

Just get divorced already...
Posted by: english7

Re: Adultery and asserting the fifth - 12/23/09 09:41 PM

Are you getting impatient with me? :-)
Posted by: Miranda

Re: Adultery and asserting the fifth - 12/23/09 10:23 PM

Quote:
Are you getting impatient with me? :-)


Kind of ;p
Posted by: english7

Re: Adultery and asserting the fifth - 12/23/09 10:41 PM

I certainly understand your impatience. Multiply your impatience by, oh, a GAZILLION, and that's what I've been dealing with.

Judge says we can set a hearing after Dec. 30. Hope it works this time.

Meanwhile, I'll try not to post so much.
Posted by: Miranda

Re: Adultery and asserting the fifth - 12/24/09 02:53 AM

Post as much as you want, just don't let this consume you. I have been in your shoes, but add a child to the mix. I did not sleep, my anxiety was thru the roof, I did not eat for days, I cared about things that matter little in court. When you get to court you will realize that all of these things you worry about mean NOTHING to the judge, and he/she may not even hear you or your concerns. It is just not worth it...at all.

So now I say with much sincerity..."rid yourself of this loser!"
Posted by: english7

Re: Adultery and asserting the fifth - 12/28/09 03:56 AM

"but you are starting to see that it is not something you have control over. That may help you start to focus on the things yuo can control."

BITE ME, RED.