You have probably kept up with the current news that the IRS Commissioner has invoked her rights under the Fifth Amendment in declining to testify before Congress (see full story here). What does the Fifth Amendment mean for you in your custody case, your alimony case, or your division of property case, in the Family Court? Are you allowed to refuse to answer questions by invoking your Fifth Amendment rights against compulsory self-incrimination in the Family Court?
The short answer is YES. The long answer is that you should carefully consider the ammunition you may be providing to the other side, before doing so. A Charleston divorce attorney may instruct a client to invoke the Fifth Amendment to avoid answering questions about adultery matters, although there are certainly other things that they might want to avoid. In adultery matters, invoking the Fifth Amendment privilege is technically permissible because South Carolina has a statute on the books which makes adultery a crime. See S.C. Code Sec. 16-15-60. However, South Carolina’s solicitors have a large case load, and they are not routinely in the business of prosecuting adulterers. Certainly, they are not seeking these cases out. The solicitor for your particular county may also provide you with a statement of immunity, specifying that his or her office will not prosecute a named individual in a particular case for the crime of adultery. Obtaining such a statement erases the possibility of criminal prosecution for adultery, and thus takes away the ability to make use of the Fifth Amendment privilege.
More importantly, perhaps, if one claims the Fifth Amendment privilege, judges have the right to draw an “adverse inference” against that person. So, essentially, the judge has the right to believe that witness did whatever he or she is declining to testify about. If you want the judge to act without the benefit of knowing your side of the story, asserting your Fifth Amendment privilege is one way of ensuring that this will happen. In the overall picture, however, and especially if the protection sought is for details of adultery, candor with the court is perhaps a better, more complete, and well-rounded solution. When faced with questions in a Family Court case that may incriminate you in some fashion, whether it be related to adultery, drug and alcohol abuse, or other alleged crime, it would always be best to consult with a Charleston divorce attorney before making the decision to invoke your Fifth Amendment rights alone.