Court Upholds Privilege Against Self-Incrimination for Man Investigated for Sex Crime

Dunlap v. Phillips (2016)

by David S. Marshall

A Delaware Superior Court has dismissed the personal injury case brought against local politician Vance Phillips. The suit alleged he had sexually harassed and engaged in non-consensual sex acts with a former campaign worker.

This victory was preceded by another important win in the case earlier this summer, when the court denied the campaign worker’s Motion for Summary Judgment as to Liability. The woman argued she was entitled to judgment without trial because Phillips had asserted his Fifth Amendment privilege to refuse to answer questions that might incriminate him. Phillips had refused to answer questions about alleged sexual acts with the woman.

The court held that because Phillips was not asserting the Fifth Amendment right in response to all questions, he had properly asserted the right under Delaware law.

Phillips had worked alongside the plaintiff, a young woman recently graduated from high school, during his 2010 Congressional campaign. The young woman alleged that later he had forced her to meet him in secret to engage in violent sexual encounters. She also claimed he said he would end her budding political career if she told anyone about the incidents. The Justice Department investigated the allegations, but no criminal charges were filed.

In the civil case, Phillips asserted his privilege against self-incrimination in responding to discovery requests about these alleged sexual encounters. Delaware Rule of Evidence 512(a) instructs that the “claim of a privilege [including the right against self-incrimination] . . . is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.

The court found that the young woman was not entitled to summary judgment because Phillips’s assertion of his Fifth Amendment right was not equivalent to failing to deny or dispute her claim of sexual violence. Under Delaware law, Fifth Amendment rights may properly be asserted under oath in a civil matter when the answer to the question being asked will force the defendant to volunteer incriminating information.

The court reasoned that because Phillips did not assert the right in response to every allegation in the plaintiff’s complaint or every deposition question, he had not attempted to evade answering all questions. Therefore he had asserted his Fifth Amendment right in a proper manner.

The court also found that summary judgment was improper because the young woman’s statements were inconsistent regarding whether she had consented to the alleged sexual acts. While she claims in her complaint that Phillips raped her, she said in a police interview that the acts were consensual. Summary judgment, which decides a case without a trial, is only appropriate where the material facts are undisputed.

The U.S. Constitution prohibits drawing an adverse inference in a criminal trial from a person’s refusing to answer questions that could incriminate him or her. Thus in Washington State, where I do most of my work, as in every state, a criminal prosecutor may not present evidence to a jury that the defendant refused to answer such questions.

But the constitution does not prohibit drawing an adverse inference in a civil case. While Delaware law does prohibit that, as this case illustrates, Washington law does not.

Persons facing simultaneous civil and criminal cases in Washington based on the same facts can sometimes, though, get relief. The accused can ask that the civil case be stayed—put on hold, essentially—until the criminal case concludes. A Washington court has discretion to grant that request in the interest of justice. (King v. Olympic Pipeline Co. 2000).