In a college student’s suit alleging she was sexually assaulted in a dorm room by a fellow student after consuming drugged al¬cohol at an on-campus party “sponsored” by a college orientation peer advisor, the Norfolk Circuit Court sanctions the student for her untruthful assertions in an interrogatory answer and during deposition that she was a virgin prior to the alleged assault and seeking damages for her loss of virginity; the court says the jury may hear about her untruthful assertions and she will forfeit 5 percent of any recovery she wins to defense lawyers.
VWC asserts that Doe provided an untruthful interrogatory answer and false deposition testimony in violation of Va. Code § 8.01-271.1 and S.Ct. Rule 4:12. Neither of these addresses sanctions for false deposition testimony and neither applies to untruthful interrogatory answers under the circumstances present here. The court nevertheless has the inherent power to find that a party committed a fraud on the court and to impose appropriate sanctions.
Although the document at issue here – an interrogatory answer – is not a pleading or motion, it arguably falls within the ambit of “other paper.”
More importantly, however, the statute – like Rule 4:1(g) of the Rules of the Supreme Court of Virginia, which contains similar language specifically addressing pretrial discovery – contemplates one of two situations: a case with a “party represented by an attorney” and a case with “a party who is not represented by an attorney.” When a party is represented by an attorney, it is the signature of the attorney that is required and to which the statutory certification – as well as the potential imposition of related sanctions – applies. There is nothing in the language of the statute – or in Rule 4:12 – that equates an attestation of a party represented by an attorney with the required attorney certification; hence, the available sanctions associated with signing in violation of the statute when a party is represented by counsel can be assessed only against the attorney to whom the certification attaches.
Sanctions pursuant to Code § 8.01-271.1 therefore are not available against Doe under the circumstances here.
Nor are sanctions under Rule 4:12 available here. Although an award of reasonable expenses, including attorney’s fees, theoretically could be based on the failure to serve – or answer, under this theory – an interrogatory without issuance of a prior court order, the court is not willing to go so far as to equate a failure to answer an interrogatory with a failure to serve an interrogatory. The court also does not find that a false answer to an interrogatory – such as exists here – constitutes an evasive or incomplete interrogatory answer. Doe’s interrogatory answer is neither evasive nor incomplete; rather it simply is false.
The court has inherent power to address fraud on the court and, if such fraud is present, impose appropriate sanctions. Virginia courts have found that a party’s untruthful answers to interrogatories and false deposition testimony can constitute a fraud on the court. Virginia circuit courts have awarded sanctions based on a party giving false deposition testimony.
It is undisputed that Doe took the position – both in written discovery and during her deposition – that she was a virgin at the time of the Incident and that she initially was claiming damages related to her loss of virginity. It was reasonable for VWC to conduct discovery regarding Doe’s pre-Incident sexual history, as the court ruled in response to a motion to compel. VWC did conduct such discovery, uncovering documents that demonstrated that Doe’s claim of virginity was false.
It is also undisputed that Doe was factually not a virgin at the time of the Incident. She admitted to her medical providers that she had engaged in “sexual intercourse” and “sexual intercourse with penetration” prior to Aug. 24, 2012, and a virgin – by definition – is a person who has not had sexual intercourse. Doe ultimately conceded in a pretrial filing that she was not a virgin at the time of the incident. Doe’s position is that because she had a sincere belief that she was a virgin – based on her flawed interpretation of the term, and because, according to her, “she never had a sexual encounter prior to [the Incident] that could fairly be treated as sexual intercourse” – she did not provide an untruthful interrogatory answer or false deposition testimony by asserting that she was a virgin.
The court finds that Doe’s untruthful answer and false testimony were conscious and intentional. Evidence indicates she admitted to one physician that she had engaged in “sexual intercourse” and to another physician that she had engaged in “sexual intercourse involving penetration” prior to the Incident. The court finds, by clear and convincing evidence, that Doe consciously and intentionally misrepresented in her attested interrogatory answer and sworn deposition testimony that she was a virgin at the time of the Incident.
Although the false loss-of-virginity damages claim has been withdrawn from the case by Doe and will not be presented to the jury, Doe’s credibility – or lack thereof – is central to the case at bar, especially because there are no third-party witnesses to the alleged rape. The court finds the jury is entitled to be informed about Doe’s false claim and concomitant lack of veracity. At trial, absent a stipulation satisfactory to all parties, VWC is permitted to confirm with Doe that she initially claimed loss of virginity at the time of the Incident on Aug. 24, 2012. If Doe responds negatively, i.e., that she was not a virgin at the time, no further questioning on the issue of her pre-Incident sexual history will be allowed. If, on the other hand, Doe responds that she was a virgin at the time, the court will allow VWC to conduct limited cross-examination regarding Doe’s pre-Incident sexual history.
Also, the court finds that VWC is entitled to be compensated by Doe for the attorney’s fees VWC expended during discovery of Doe’s loss of virginity damages claim and she should be otherwise sanctioned for her dishonesty. VWC stated during the hearing that its counsel did not maintain billing records segregated by individual claims such that VWC can identify the exact amount of attorney’s fees – in terms of time spent on research, written discovery, depositions, pleadings and hearing – attributable to the loss-of-virginity issue. Nevertheless, counsel for VWC represented that the attorney’s fee amount certainly is in the tens of thousands of dollars. The court orders that five percent of any judgment awarded to Doe be paid to VWC both to compensate VWC and sanction Doe for her dishonesty.
Doe v. Virginia Wesleyan College (Lannetti) No. CL 14-6942-00, May 13, 2016; Norfolk Cir.Ct.; Jonathan E. Halperin, Stuart L. Plotnick, Mark C. Nanavati, George J. Dancigers for the parties. VLW 016-8-063, 14 pp.