Recent I took the deposition of an alleged paramour in a divorce case I am handling. The deponent, when asked about his adultery with my client’s wife, and upon his attorney’s advice, invoked his 5th Amendment right against self-incrimination.
Appellate decisions regarding what constitutes adultery as a basis for divorce (and the adultery bar to alimony) have a broader definition of adultery than South Carolina’s criminal statute on adultery. S.C. Code § 16-15-70 (the criminal code) reads, “’Adultery’ is the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman when either is lawfully married to some other person.”
Our appellate courts have been deliberately cagy on what constitutes adultery as a basis for divorce. Nemeth v. Nemeth, 325 S.C. 480, 486, 481 S.E.2d 181, 184 (Ct.App.1997) merely requires evidence of parties being “sexually intimate.” There are a number of ways to be sexually intimate that do not involve “carnal intercourse.” This paramour could not refuse to answer my questions about sexual intimacies if those intimacies were not criminal under South Carolina.
Thus began a lengthy, largely off-the-record, conversation about which sexual intimacies are a crime in South Carolina. One upshot: no variation of consensual lesbian sex violates South Carolina criminal law. As my (female) opposing counsel noted, “the lesbians get all the breaks.” (She also demanded credit for this blog title).
There are only three criminal statutes in South Carolina that address consensual sexual conduct (the law holding that children under a certain age are incapable of consent). The aforementioned adultery statute specifically requires “a man and woman.” Lesbian sex can’t violate that statute. There’s a fornication statute, § 16-15-80. That code section reads, “’Fornication’ is the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman, both being unmarried.” Again, a man and woman is required to commit this crime.
Finally, § 16-15-120 makes buggery a crime, reading, “Whoever shall commit the abominable crime of buggery, whether with mankind or with beast, shall, on conviction, be guilty of felony and shall be imprisoned in the Penitentiary for five years or shall pay a fine of not less than five hundred dollars, or both, at the discretion of the court.” § 16-15-120 is not a sodomy statute. Sodomy that isn’t buggery is not a crime in South Carolina. Lesbians cannot commit buggery.
Our conclusion was that I could ask this paramour questions about mutual masturbation and oral sex and he could not refuse to answer but he could involve his right against self-incrimination on penis-in-vagina sex and anal sex. But questioning an adulterous lesbian on any of her sexual activity would be fair game.
So, in South Carolina, lesbians don’t catch breaks on self-incrimination in adulterous relationships but they do catch breaks on consensual sexual activity.
