§ 8.01-223.1.Use of constitutional rights.

The general rule in this section protects a party’s exercise of a constitutional protection — commonly the Fifth Amendment privilege against self-incrimination — from having that choice held against them in a civil case. A party who declines to testify or produce evidence on constitutional grounds generally cannot have that silence used as evidence of guilt or liability.

The exception is specific and narrow. In civil proceedings for spousal support, custody, or visitation under Title 16.1, or in divorce or separate-maintenance actions under Title 20, filed on or after July 1, 2020, a different rule applies to a particular category of testimony: if a party or witness refuses to answer a question about conduct described in the adultery-related provision of § 20-91(A)(1) or the criminal statute § 18.2-365, on the ground the answer might incriminate them, the trier of fact may draw an adverse inference from that refusal.

That exception effectively singles out sensitive family-law testimony — questions touching on conduct like adultery — as an area where invoking the constitutional privilege carries an evidentiary cost that the general rule otherwise forecloses.