A former spouse in a Georgia live-in-lover case can refuse to answer whether the relationship is sexual, but the judge or jury may hold the refusal against her.
The Privilege
OCGA 24-5-505(a) provides that “No party or witness shall be required to testify as to any matter which may incriminate or tend to incriminate such party or witness or which shall tend to bring infamy, disgrace, or public contempt upon such party or witness.”
How It Played Out
In Hathcock v. Hathcock, 249 Ga. 74 (1982), a former husband petitioned under the live-in-lover law and asked his former wife on cross-examination whether the relationship was sexual. She objected under the predecessor of today’s statute, and the Georgia Supreme Court upheld the objection. Its reasons: in civil cases about sexual relationships, “an inference against the witness’s interest properly may be drawn by the factfinder from the witness’s invocation of the privilege”; “sexual misconduct may be proven in such civil actions by circumstantial evidence”; and, at the time, sex between unmarried people was a crime in Georgia. That last reason has changed. In In re J.M., 276 Ga. 88 (2003), the Supreme Court held that the Georgia Constitution protects from criminal sanction “private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent,” and no Georgia court has yet ruled on whether that changes the result.
The Jury Must Be Told What the Refusal Means
The refusal is not free. Hathcock reversed the judgment for the former wife because the trial court, having told the jury it could draw an inference from her refusal, left out what the inference is: “an implied admission that a truthful answer would tend to prove that the witness had committed that act.” Since “proof of sexual intercourse was the linchpin” of the husband’s claim, the omission was not harmless. The same rule applies to adultery in a divorce, as our post on taking the Fifth on adultery explains.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!