South Carolina remains among the minority of states to criminalize adultery. S.C. Code Ann. § 16-15-60. Adultery also remains a ground for divorce. S.C. Code Ann. § 20-3-10. As noted in a previous blog, adultery is a major factor in alimony, property division and child custody. Adultery further, with a few exceptions, acts as a bar to an award of alimony. S.C. Code Ann. § 20-3-130. It is unclear whether any of Governor Mark Sanford’s adultery took place in South Carolina–it appears his “love nest” was in Argentina–but, if it did, don’t expect Attorney General Henry McMaster to indict him. In my 16+ years practicing law in South Carolina I cannot recall anyone being charged with violation of the adultery statute.
The intersection of the criminal prohibition on adultery and the importance of adultery to divorce proceedings creates interesting evidentiary issues. In Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526 (Ct.App.1998) the Court of Appeals noted that, because adultery remains a crime in South Carolina, alleged adulterers can invoke their Fifth Amendment privilege against self incrimination and refuse to answer questions about their alleged adultery. However that court also noted that, in the context of a civil action in family court for divorce, it was error for the family court to refuse to consider an adverse inference from the invocation of the Fifth Amendment privilege. It also held that one could not seek the affirmative relief of alimony while invoking the Fifth Amendment privilege when questioned about adultery.
The irony is that South Carolina’s criminal prohibition against adultery actually makes it harder for the cheated-upon spouse to prove the unfaithful spouse’s adultery in family court proceedings. Because South Carolina expresses its moral outrage through an adultery statute that it apparently never employs, alleged adulterers can refuse to answer questions about their adultery.
The entertainment value of our Attorney General indicting our Governor for adultery or our Governor invoking his Fifth Amendment privilege in divorce proceedings–perhaps while pursuing a claim for alimony–cannot be denied. Don’t hold your breath.