Child Abuse - Virginia Department of Criminal Justice Services
Child Abuse - Virginia Department of Criminal Justice Services
Child Abuse - Virginia Department of Criminal Justice Services
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This document may be used as a supplement to the publication “Investigation and Prosecution <strong>of</strong><br />
<strong>Child</strong> <strong>Abuse</strong>: Third Edition”published by American Prosecutors Research Institute’s National Center<br />
for the Prosecution <strong>of</strong> <strong>Child</strong> <strong>Abuse</strong><br />
Inquiries should be directed to:<br />
<strong>Child</strong>ren’s <strong>Justice</strong> Act Program<br />
Juvenile <strong>Services</strong> Section<br />
<strong>Virginia</strong> <strong>Department</strong> <strong>of</strong> <strong>Criminal</strong> <strong>Justice</strong> <strong>Services</strong><br />
805 East Broad Street<br />
Richmond, VA 23219<br />
(804) 371-0534<br />
www.dcjs.org/juvenile/cja<br />
December 2003<br />
1
ACKNOWLEDGMENTS<br />
The <strong>Department</strong> <strong>of</strong> <strong>Criminal</strong> <strong>Justice</strong> <strong>Services</strong> (DCJS) would like to express appreciation to the following<br />
individual for his work on the 2003 edition <strong>of</strong> this document:<br />
Robert E. Shepherd, Jr.<br />
Emeritus Pr<strong>of</strong>essor, T.C. Williams School <strong>of</strong> Law<br />
University <strong>of</strong> Richmond<br />
DCJS also recognizes the following individuals 1 for their contributions to the development <strong>of</strong> previous<br />
versions <strong>of</strong> this document:<br />
• National Center for the Prosecution <strong>of</strong> <strong>Child</strong> <strong>Abuse</strong><br />
American Prosecutors Research Institute<br />
• Mark Ells, Senior Attorney<br />
• Ryan Rainey, Senior Attorney<br />
• Sue Perlis Marx, Senior Attorney<br />
• Charles Phipps, Staff Attorney<br />
• Frank Gallo<br />
Commonwealth’s Attorney, Fluvana County<br />
• William E. Jarvis<br />
Assistant Commonwealth’s Attorney, Pittsylvania County<br />
• Cathy E. Krinick<br />
Deputy Commonwealth’s Attorney, City <strong>of</strong> Hampton<br />
• Richard Moore<br />
Assistant Commonwealth’s Attorney, City <strong>of</strong> Staunton<br />
• Sally Steel<br />
Assistant Commonwealth’s Attorney, City <strong>of</strong> Lynchburg<br />
• Sandra Sylvester<br />
Assistant Commonwealth’s Attorney, Prince William County<br />
This document is supported by <strong>Child</strong>ren’s <strong>Justice</strong> Act Grant No. G-0101VACJA1, awarded by the U.S. <strong>Department</strong> <strong>of</strong> Health<br />
and Human <strong>Services</strong>, Administration for <strong>Child</strong>ren, Youth and Families. Points <strong>of</strong> view or opinions expressed do not necessarily<br />
represent the <strong>of</strong>ficial position <strong>of</strong> the <strong>Department</strong> <strong>of</strong> Health and Human <strong>Services</strong>.<br />
1<br />
These individuals are listed according to their pr<strong>of</strong>essional position at the time <strong>of</strong> their contribution to the document in 1994.<br />
3
TABLE OF CONTENTS<br />
Preface ................................................................................................................ 9<br />
Introduction ....................................................................................................... 11<br />
CHAPTER ONE: Investigation<br />
I. The Role <strong>of</strong> Law Enforcement .............................................................................................. 13<br />
A. Search Warrants ........................................................................................................... 13<br />
B. Pretext Conversation Recordings and Electronic Surveillance ....................................... 14<br />
C. Social Worker Involvement in Interrogation ................................................................. 14<br />
D. Medical Examinations and Forensic Photographs .......................................................... 14<br />
1. Physical or Sexual <strong>Abuse</strong> or Neglect ........................................................................ 14<br />
2. Death <strong>of</strong> a <strong>Child</strong> ..................................................................................................... 15<br />
E. Forensic Analysis .......................................................................................................... 15<br />
F. Polygraph Tests ............................................................................................................ 15<br />
G. Hypnosis ......................................................................................................................16<br />
H. Arrest ........................................................................................................................... 16<br />
II. The Role <strong>of</strong> <strong>Child</strong> Protective <strong>Services</strong>................................................................................... 16<br />
III. The Roles <strong>of</strong> Other Agencies ................................................................................................ 17<br />
A. Action By Physician, Protective <strong>Services</strong> Worker or Law Enforcement Official .............. 18<br />
B. Civil <strong>Child</strong> Protection Proceedings ................................................................................ 18<br />
C. Multi-disciplinary Coordination ................................................................................... 19<br />
IV. Grand Juries .................................................................................................................20<br />
CHAPTER TWO: Charging Considerations<br />
I. Offenses ............................................................................................................................. 21<br />
A. Sexual Offenses ............................................................................................................ 21<br />
1. Generally ............................................................................................................... 21<br />
2. Mental State ........................................................................................................... 21<br />
3. Conduct ................................................................................................................. 22<br />
a. Force ................................................................................................................ 22<br />
b. Penetration ...................................................................................................... 23<br />
c. Abduction........................................................................................................ 24<br />
d. Carnal Knowledge ............................................................................................ 24<br />
e. Custody or Supervision <strong>of</strong> <strong>Child</strong> ....................................................................... 24
B. Physical <strong>Abuse</strong>: Cruelty to <strong>Child</strong>ren .............................................................................. 25<br />
C. Pornography Offenses .................................................................................................. 26<br />
1. Constitutionality .................................................................................................. 26<br />
2. Elements ............................................................................................................... 26<br />
D. Attempts ......................................................................................................................27<br />
1. Specific Intent ........................................................................................................ 27<br />
2. Overt Action .......................................................................................................... 28<br />
E. Principals and Accessories ............................................................................................ 28<br />
II. The Charging Documents .................................................................................................... 29<br />
A. Specificity .................................................................................................................... 29<br />
B. Number <strong>of</strong> Counts ........................................................................................................ 29<br />
III. Time Considerations ........................................................................................................... 29<br />
A. Statutes <strong>of</strong> Limitation ................................................................................................... 29<br />
B. Speedy Trial and Due Process ........................................................................................ 30<br />
IV. Lesser Included Offenses .....................................................................................................30<br />
V. Use <strong>of</strong> Circumstantial Evidence in <strong>Child</strong> Physical <strong>Abuse</strong> and Homicide Cases ..................... 31<br />
A. Generally ...................................................................................................................... 31<br />
B. Corpus Delicti .............................................................................................................. 34<br />
CHAPTER THREE: Pre-trial Motions<br />
I. Defense Motions ................................................................................................................. 35<br />
A. Discovery .....................................................................................................................35<br />
1. Psychological/Psychiatric Records .......................................................................... 35<br />
2. Physical Examination ............................................................................................ 35<br />
3. Juvenile Records ..................................................................................................... 35<br />
4. Discovery <strong>of</strong> Other Documents ............................................................................... 36<br />
5. Exculpatory Evidence ............................................................................................. 37<br />
B. Other Defense Motions ................................................................................................. 37<br />
1. Request for a Bill <strong>of</strong> Particulars .............................................................................. 37<br />
2. Motion for Continuance ......................................................................................... 37<br />
3. Severance Motions ................................................................................................. 38<br />
4. Motion to Admit Evidence <strong>of</strong> Victim’s Prior Sexual Conduct ................................... 38<br />
5. Marital Privilege1 .................................................................................................. 39<br />
6. Venue ..................................................................................................................... 40<br />
II. Prosecution Motions ........................................................................................................... 40<br />
A. Discovery .....................................................................................................................40<br />
B. Prosecution Motions Concerning Prior Acts <strong>of</strong> the Defendant ....................................... 40<br />
1. Prior Acts Involving the Same Victim ..................................................................... 40<br />
a. Sexual <strong>Abuse</strong> ................................................................................................... 41<br />
b. Physical <strong>Abuse</strong> ................................................................................................. 42
2. Prior Acts Involving Different Victims .................................................................... 42<br />
a. Sexual <strong>Abuse</strong> ................................................................................................... 42<br />
b. Physical <strong>Abuse</strong> ................................................................................................. 43<br />
3. Computer Pornography .......................................................................................... 43<br />
C. Other Prosecution Motions ........................................................................................... 43<br />
CHAPTER FOUR: Trial<br />
I. Commonwealth’s Case ........................................................................................................ 45<br />
A. Voir Dire ....................................................................................................................... 45<br />
B. Opening Statement ....................................................................................................... 45<br />
C. Testimony <strong>of</strong> the Victim ............................................................................................... 45<br />
1. Competency <strong>of</strong> <strong>Child</strong>ren ......................................................................................... 45<br />
2. Uncorroborated Testimony <strong>of</strong> Victim ...................................................................... 47<br />
D. Hearsay ........................................................................................................................ 47<br />
1. Non-hearsay ........................................................................................................... 47<br />
a. Prompt Complaint ........................................................................................... 48<br />
b. Prior Consistent Statements ............................................................................. 49<br />
2. Exceptions to the Hearsay Rule .............................................................................. 50<br />
a. Excited Utterance ............................................................................................. 50<br />
b. Statements Made for Purposes <strong>of</strong> Medical Diagnosis or Treatment .................... 51<br />
3. Pro<strong>of</strong> <strong>of</strong> Age ........................................................................................................... 52<br />
4. Prosecution Recess to Consult with Victim ............................................................. 52<br />
E. Expert Testimony ......................................................................................................... 52<br />
1. Province <strong>of</strong> the Jury ................................................................................................ 53<br />
2. Types <strong>of</strong> Testimony ................................................................................................ 53<br />
3. Behavioral Evidence ............................................................................................... 53<br />
F. Admissibility <strong>of</strong> Photographs ....................................................................................... 53<br />
II. The Defense Case ................................................................................................................ 54<br />
A. Character and Credibility <strong>of</strong> the Defendant ................................................................... 54<br />
1. Character ............................................................................................................... 54<br />
2. Impeachment ......................................................................................................... 54<br />
B. Admissibility <strong>of</strong> Defense Expert Testimony .................................................................. 55<br />
1. Hypnosis <strong>of</strong> the Defendant ..................................................................................... 55<br />
2. Defendant Pr<strong>of</strong>ile Evidence .................................................................................... 55<br />
3. Victim Pr<strong>of</strong>ile Evidence .......................................................................................... 56<br />
III. Common Defenses .............................................................................................................. 56<br />
IV. Rebuttal Evidence ............................................................................................................... 58<br />
V. Closing Arguments .............................................................................................................58<br />
VI. Sentencing .......................................................................................................................... 59<br />
A. Generally ...................................................................................................................... 59
B. Sex Offender Registration ............................................................................................. 60<br />
VII.Post-conviction Issues ......................................................................................................... 60<br />
A. New Trial Based on Recantation .................................................................................... 60<br />
B. Bond Pending Appeal .................................................................................................... 60<br />
CHAPTER FIVE: Special Courtroom Procedures<br />
I. Use <strong>of</strong> Electronic Equipment ............................................................................................... 61<br />
A. Videotaped Testimony .................................................................................................. 61<br />
B. Closed Trial ................................................................................................................. 61<br />
C. Closed Circuit Television Testimony ............................................................................ 61<br />
II. Other Special Procedures .................................................................................................... 62<br />
Appendix A: <strong>Child</strong> <strong>Abuse</strong> Charging Statutes ............................................................................ 65<br />
Murder ....................................................................................... VA Code §18.2-32<br />
Murder <strong>of</strong> a pregnant woman .................................................. VA Code §18.2-32.1<br />
Felony murder............................................................................ VA Code §18.2-33<br />
Abduction with intent to defile .................................................. VA Code §18.2-48<br />
Rape........................................................................................... VA Code §18.2-61<br />
Carnal knowledge if a child between 13 and 15.......................... VA Code §18.2-63<br />
Carnal knowledge <strong>of</strong> certain minors ........................................ VA Code §18.2-64.1<br />
Forcible sodomy ...................................................................... VA Code §18.2-67.1<br />
Object sexual penetration ........................................................ VA Code §18.2-67.2<br />
Aggravated sexual battery ....................................................... VA Code §18.2-67.3<br />
Sexual battery ......................................................................... VA Code §18.2-67.4<br />
Attempts ................................................................................. VA Code §18.2-67.5<br />
Definitions ........................................................................... VA Code §18.2-67.10<br />
Pandering ................................................................................ VA Code §18.2-355<br />
Crimes against nature .............................................................. VA Code §18.2-361<br />
Incest ....................................................................................... VA Code §18.2-366<br />
Taking indecent liberties with children .................................... VA Code §18.2-370<br />
Indecent liberties by children; penalty ................................ VA Code §18.2-370.01<br />
Taking indecent liberties with child by person<br />
in custodial or supervisory relationship .............................. VA Code §18.2-370.1<br />
Sex <strong>of</strong>fenses prohibiting proximity to children ...................... VA Code §18.2-370.2<br />
Causing or encouraging acts rendering children<br />
delinquent, abused, etc.; penalty ............................................ VA Code §18.2-371<br />
<strong>Abuse</strong> and neglect <strong>of</strong> children; penalty .................................. VA Code §18.2-371.1<br />
Production, publication, sale, possession with intent to<br />
distribute financing, etc., <strong>of</strong> sexually explicit items involving<br />
children; presumption as to age; severability ....................... VA Code §18.2-374.1
Possession <strong>of</strong> child pornography........................................ VA Code §18.2-374.1:1<br />
Seizure and forfeiture <strong>of</strong> property used in<br />
connection with production <strong>of</strong> sexually explicit<br />
items involving children ..................................................... VA Code §18.2-374.2<br />
Use <strong>of</strong> communications systems to facilitate certain<br />
<strong>of</strong>fenses involving children ................................................. VA Code §18.2-374.3<br />
Indecent exposure .................................................................... VA Code §18.2-387<br />
Definitions .............................................................................. VA Code §18.2-390<br />
<strong>Child</strong> Pornography Images Registry; maintenance; access ................. VA Code §18.2-390.3<br />
Desertion and nonsupport ..............................................................VA Code §20-61<br />
Cruelty and injuries to children; penalty .................................. VA Code §40.1-103<br />
Appendix B: <strong>Child</strong> <strong>Abuse</strong> Procedural and Evidentiary Statutes ............................................. 79<br />
Immunity <strong>of</strong> hospital or rescue squad personnel<br />
for the acceptance <strong>of</strong> certain infants ................................ VA Code §8.01-226.5:2<br />
Competency <strong>of</strong> witness ......................................................... VA Code §8.01-396.1<br />
Purpose <strong>of</strong> the Sex Offender and Crimes Against Minors Registry .......... VA Code §9.1-900<br />
Persons for whom registration required ...................................... VA Code §9.1-901<br />
Offenses requiring registration .................................................. VA Code §9.1-902<br />
Registration procedures.............................................................. VA Code §9.1-903<br />
Reregistration ............................................................................ VA Code §9.1-904<br />
New residents and nonresident <strong>of</strong>fenders; registration required ........ VA Code §9.1-905<br />
Enrollment or employment at institution <strong>of</strong><br />
higher learning; information required ...................................... VA Code §9.1-906<br />
Procedures upon a failure to register or reregister ....................... VA Code §9.1-907<br />
Duration <strong>of</strong> registration requirement ......................................... VA Code §9.1-908<br />
Relief from registration or reregistration .................................... VA Code §9.1-909<br />
Removal <strong>of</strong> name and information from Registry ....................... VA Code §9.1-910<br />
Registry maintenance ................................................................. VA Code §9.1-911<br />
Registry access and dissemination; fees ...................................... VA Code §9.1-912<br />
Public dissemination by means <strong>of</strong> the Internet ........................... VA Code §9.1-913<br />
Automatic notification <strong>of</strong> registration to certain entities ....................... VA Code §9.1-914<br />
Regulations ................................................................................ VA Code §9.1-915<br />
Limitation on liability ............................................................... VA Code §9.1-916<br />
Misuse <strong>of</strong> Registry information; penalty ..................................... VA Code §9.1-917<br />
Severability; liberal construction ............................................... VA Code §9.1-918<br />
Power <strong>of</strong> circuit court over juvenile <strong>of</strong>fender ............................. VA Code §16.1-272<br />
Mandatory HIV testing ................................................................ VA Code §18.2-62<br />
Use <strong>of</strong> videotaped testimony ....................................................... VA Code §18.2-67
Admission <strong>of</strong> evidence (rape shield) .......................................... VA Code §18.2-67.7<br />
Closed preliminary hearings .................................................... VA Code §18.2-67.8<br />
Use <strong>of</strong> closed-circuit television testimony ................................. VA Code §18.2-67.9<br />
Venue where any person transported for criminal sexual assault,attempted<br />
criminal sexual assault, or purposes <strong>of</strong> unlawful sexual intercourse, crimes<br />
against nature, indecent liberties with children ...................... VA Code §18.2-359<br />
Providing false information or failing to provide registration information; penalty;<br />
prima facie evidence ............................................................VA Code §18.2-472.1<br />
Crime victim and witness rights ............................................ VA Code §19.2-11.01<br />
Victim-witness assistance programs ......................................... VA Code §19.2-11.1<br />
Crime victim’s right to nondisclosure <strong>of</strong> certain information;exceptions;<br />
testimonial privilege .............................................................. VA Code §19.2-11.2<br />
Establishment <strong>of</strong> victim-<strong>of</strong>fender reconciliation program ................... VA Code §19.2-11.4<br />
Arrest without a warrant in cases <strong>of</strong> assault and battery against<br />
a household member .............................................................. VA Code §19.2-81.3<br />
Speedy trial ............................................................................... VA Code §19.2-243<br />
Joinder <strong>of</strong> defendants ............................................................ VA Code §19.2-262.1<br />
Excluding witnesses ............................................................ VA Code §19.2-265.01<br />
Provisions applicable to witnesses in criminal as well as<br />
civil cases; obligation to attend; summons .............................. VA Code §19.2-267<br />
Prompt complaint ................................................................. VA Code §19.2-268.2<br />
Protecting the identity <strong>of</strong> witnesses ........................................VA Code §19.2-269.2<br />
Admissibility <strong>of</strong> DNA evidence ...............................................VA Code §19.2-270.5<br />
Evidence <strong>of</strong> abuse ...................................................................VA Code §19.2-270.6<br />
Marital privilege ................................................................... VA Code §19.2-271.2<br />
Victim Impact Statement ........................................................... VA Code §19.2-299<br />
Victim Impact Statement ....................................................... VA Code §19.2-299.1<br />
Mental evaluation <strong>of</strong> defendant ................................................. VA Code §19.2-300<br />
Sex Offender and Crimes Against Minors Registry;<br />
maintenance; access ............................................................ VA Code §19.2-390.1<br />
Application for driver’s license; pro<strong>of</strong> <strong>of</strong> completion <strong>of</strong> driver<br />
education program; penalty .................................................... VA Code §46.2-323<br />
Jailer to give notice <strong>of</strong> release to certain prisoners .................. VA Code §53.1-116.1<br />
<strong>Department</strong> to give notice <strong>of</strong> release <strong>of</strong> certain prisoners .................. VA Code §53.1-160.1<br />
Appendix C: Civil <strong>Child</strong> <strong>Abuse</strong> Statutes ................................................................................. 107<br />
Autopsies .................................................................................. VA Code §32.1-285
Deaths <strong>of</strong> infants under 18 months <strong>of</strong> age ............................. VA Code §32.1-285.1<br />
Definitions ............................................................................... VA Code §63.2-100<br />
Acceptance <strong>of</strong> children by local department <strong>of</strong> social services .............. VA Code §63.2-910.1<br />
Definitions ............................................................................ VA Code §63.2-1501<br />
Establishment <strong>of</strong> <strong>Child</strong>-Protective <strong>Services</strong> Unit; duties .......... VA Code §63.2-1502<br />
Duties <strong>of</strong> child protective services .......................................... VA Code §63.2-1503<br />
<strong>Child</strong>-protective services differential response system .............. VA Code §63.2-1504<br />
Investigations by local departments ....................................... VA Code §63.2-1505<br />
Family assessments by local departments ............................... VA Code §63.2-1506<br />
Muti-disciplinary cooperation ................................................ VA Code §63.2-1507<br />
Physicians, nurses, teachers, etc., to report certain injuries to children; penalty<br />
for failure to report .............................................................. VA Code §63.2-1509<br />
Complaints by others <strong>of</strong> certain injuries to children ............... VA Code §63.2-1510<br />
Complaints <strong>of</strong> abuse and neglect against school personnel ................. VA Code §63.2-1511<br />
Immunity <strong>of</strong> person making report, etc., from liability ...................... VA Code §63.2-1512<br />
Knowingly making false reports; penalties ............................. VA Code §63.2-1513<br />
Retention <strong>of</strong> records in all reports; procedures regarding unfounded reports alleged<br />
to be made in bad faith or with malicious intent .................. VA Code §63.2-1514<br />
Central registry; disclosure <strong>of</strong> information ............................. VA Code §63.2-1515<br />
Tape recording child abuse investigations ............................... VA Code §63.2-1516<br />
Investigation procedures when school employee is subject <strong>of</strong> the complaint or report;<br />
release <strong>of</strong> information in joint investigations .................... VA Code §63.2-1516.1<br />
Authority to take child into custody ....................................... VA Code §63.2-1517<br />
Authority to talk to child or sibling ........................................ VA Code §63.2-1518<br />
Physician-patient and husband-wife privileges inapplicable ................. VA Code §63.2-1519<br />
Photographs and X-rays <strong>of</strong> child; use as evidence .................... VA Code §63.2-1520<br />
Testimony by child using two way closed-circuit television .... VA Code §63.2-1521<br />
Admission <strong>of</strong> evidence <strong>of</strong> sexual acts with children ................ VA Code §63.2-1522<br />
Use <strong>of</strong> videotaped statements <strong>of</strong> complaining witnesses as evidence .... VA Code §63.2-1523<br />
Court may order certain examinations ................................... VA Code §63.2-1524<br />
Prima facie evidence for removal <strong>of</strong> child custody ................... VA Code §63.2-1525<br />
Appeals <strong>of</strong> certain actions <strong>of</strong> local departments ...................... VA Code §63.2-1526<br />
Appendix D: <strong>Virginia</strong> Supreme Court Rules ........................................................................... 131<br />
Joining <strong>of</strong>fenses .......................................................................... Sup. Ct. R. 3A:6(b)<br />
Trial together <strong>of</strong> more than one <strong>of</strong>fense ..................................... Sup. Ct. R. 3A:10(c)<br />
Discovery and Inspection ............................................................. Sup. Ct. R. 3A:11<br />
Discovery ....................................................................................... Sup. Ct. R. 7C: 5<br />
Discovery ........................................................................................ Sup. Ct. R. 8:15
PREFACE<br />
The <strong>Department</strong> <strong>of</strong> <strong>Criminal</strong> <strong>Justice</strong> <strong>Services</strong> has been designated by the Governor to administer federal<br />
funds granted to <strong>Virginia</strong> through the <strong>Child</strong>ren’s <strong>Justice</strong> Act. This federal funding has been specifically<br />
earmarked for the improvement <strong>of</strong> legal and administrative proceedings regarding the investigation and<br />
prosecution <strong>of</strong> child abuse, child sexual abuse and child maltreatment fatalities. Emphasis has been placed<br />
on interdisciplinary activities that reduce or limit trauma to child victims.<br />
For a number <strong>of</strong> years the <strong>Department</strong> <strong>of</strong> <strong>Criminal</strong> <strong>Justice</strong> <strong>Services</strong> has provided multidisciplinary training<br />
and technical assistance for law enforcement and child protective service pr<strong>of</strong>essionals, Commonwealth’s<br />
Attorneys and medical and mental health pr<strong>of</strong>essionals. In addition, pr<strong>of</strong>ession-specific conferences and<br />
technical assistance have been developed and <strong>of</strong>fered to these targeted groups. This document was originally<br />
developed in response to requests by local prosecutors for an easy reference on child abuse statutes and<br />
<strong>Virginia</strong> case law relevant to the prosecution <strong>of</strong> child abuse cases.<br />
At that time, the <strong>Department</strong> <strong>of</strong> <strong>Criminal</strong> <strong>Justice</strong> <strong>Services</strong> contracted with the American Prosecutors<br />
Research Institute’s National Center for the Prosecution <strong>of</strong> <strong>Child</strong> <strong>Abuse</strong> to provide training and technical<br />
assistance in <strong>Virginia</strong>. This document was initially developed by <strong>Virginia</strong> prosecutors and attorneys from<br />
the National Center for the Prosecution <strong>of</strong> <strong>Child</strong> <strong>Abuse</strong>, and it was later reviewed and edited by experienced<br />
child abuse prosecutors in <strong>Virginia</strong>. The 2003 revision was done by Emeritus Pr<strong>of</strong>essor Robert E. Shepherd,<br />
Jr., <strong>of</strong> the T.C. Williams School <strong>of</strong> Law <strong>of</strong> the University <strong>of</strong> Richmond.<br />
This document was originally designed as a supplement for a publication <strong>of</strong> the National Center entitled<br />
INVESTIGATION AND PROSECUTION OF CHILD ABUSE (hereinafter MANUAL), first published in 1987<br />
and revised in 1994 and 2003. This MANUAL provides general strategy and step-by-step guidance in<br />
evaluating, investigating, charging and trying child abuse cases. Although the current edition <strong>of</strong> CHILD<br />
ABUSE: VIRGINIA STATUTES AND CASE LAW (hereinafter VIRGINIA STATUTES) cross-references the<br />
2003 National Center’s MANUAL, VIRGINIA STATUTES can be used independently. While the National<br />
Center’s publication is a useful tool for prosecutors, VIRGINIA STATUTES provides a practical resource<br />
for <strong>Virginia</strong> prosecutors as they handle these cases.<br />
9
INTRODUCTION AND RESOURCES CITED<br />
The purpose <strong>of</strong> this publication is to provide <strong>Virginia</strong> prosecutors with a reference to <strong>Virginia</strong> statutory<br />
and case law authority on issues arising frequently in the prosecution <strong>of</strong> child abuse. This publication<br />
was initially designed as a supplement to THE INVESTIGATION AND PROSECUTION OF CHILD ABUSE<br />
(hereinafter MANUAL) published by the American Prosecutors Research Institute (APRI). This MANUAL<br />
provides general strategy advice on the prosecution <strong>of</strong> child abuse cases and such a discussion here would<br />
be redundant. This publication references the third edition <strong>of</strong> the MANUAL for the reader’s convenience,<br />
however it is not necessary to use this document. <strong>Virginia</strong> law and practice unique to child abuse<br />
prosecution is the main focus <strong>of</strong> this publication and by maintaining a narrow focus, the authors and<br />
editors intend to provide a practical resource for <strong>Virginia</strong> prosecutors. <strong>Virginia</strong> statutes, Rules and case<br />
law are current as <strong>of</strong> July 1, 2003.<br />
VIRGINIA STATUTES should not be read as advocating a single “correct” approach to the investigation<br />
and prosecution <strong>of</strong> child abuse. The information provided in VIRGINIA STATUTES should be evaluated in<br />
the context <strong>of</strong> the reader’s community, the facts <strong>of</strong> individual cases, evolving case law, departmental policy,<br />
and the interests <strong>of</strong> justice. The authors, editors and revisor recognize that because the circumstances <strong>of</strong><br />
each case differ, a prosecutor’s judgment in a given case may differ from recommendations provided by<br />
this document.<br />
There are a number <strong>of</strong> additional resources that will be helpful to prosecutors handling these cases, and<br />
references will be made to a number <strong>of</strong> them in this publication. The APRI is a principal resource itself<br />
through its National Center for the Prosecution <strong>of</strong> <strong>Child</strong> <strong>Abuse</strong> located at 99 Canal Center Plaza, Suite<br />
510, Alexandria, <strong>Virginia</strong> 22314, its training programs, its publications such as the MANUAL, which is<br />
revised periodically, and Update and Update Express, which may be subscribed to at no charge or accessed<br />
through the Internet on line at www.ndaa-apri.org/publications/newsletters/update_index.html or<br />
www.ndaa-apri.org/apri/programs/ncpca/update_express_index.html, and through technical assistance.<br />
The <strong>Virginia</strong> CLE publication, JUVENILE LAW AND PRACTICE IN VIRGINIA (Second Edition 2002)<br />
(hereinafter JUVENILE LAW HANDBOOK), edited by Pr<strong>of</strong>essor Shepherd, is an indispensable resource for<br />
handling these cases in the juvenile and domestic relations district court, and the chapters on “<strong>Child</strong><br />
Psychology and Development” and “Physical and Medical Aspects <strong>of</strong> <strong>Child</strong> <strong>Abuse</strong> and Neglect” are especially<br />
useful for background information in this area. In addition, the chapters on “<strong>Abuse</strong> and Neglect<br />
Proceedings” and “Foster Care and Termination <strong>of</strong> Parental Rights” provide helpful material on the civil<br />
side <strong>of</strong> these cases.<br />
Other valuable resources are Roger D. Groot, CRIMINAL OFFENSES AND DEFENSES IN VIRGINIA (Fourth<br />
Edition 1998 (Supplemented annually)) (hereinafter GROOT), the recognized authority on substantive<br />
criminal law in the state; Ronald J. Bacigal, VIRGINIA CRIMINAL PROCEDURE (Fourth Edition 1999<br />
(Supplemented annually)) (hereinafter BACIGAL), likewise the acknowledged authority on <strong>Virginia</strong> criminal<br />
procedure; Ronald J. Bacigal, Joseph S. Tate and Thomas F. Guernsey, ADMISSIBILITY OF EVIDENCE IN<br />
VIRGINIA: A MANUAL FOR TRIAL LAWYERS (Second Edition 1998 (Supplemented in 2002)) (hereinafter<br />
BACIGAL, TATE & GUERNSEY), Charles E. Friend, THE LAW OF EVIDENCE IN VIRGINIA (Fifth Edition<br />
11
1999 (Supplemented in 2002)) (hereinafter FRIEND), the longtime authority in <strong>Virginia</strong> courts; Kent<br />
Sinclair, Joseph C. Kearfott, Paul F. Sheridan and Edward J. Imwinkelried, VIRGINIA EVIDENTIARY<br />
FOUNDATIONS (1998 (Supplemented in 2002-2003)) (hereinafter SINCLAIR ET AL); and Boyd-Graves<br />
Conference <strong>of</strong> the <strong>Virginia</strong> Bar Association, A GUIDE TO EVIDENCE IN VIRGINIA (2003 Edition)<br />
(hereinafter GUIDE). These resources will be cited throughout this publication for a fuller exposition <strong>of</strong><br />
the principle or rule stated in the text.<br />
Two national publications by Pr<strong>of</strong>essor John E. B. Myers are especially useful in handling these cases—<br />
John E. B. Myers, LEGAL ISSUES IN CHILD ABUSE AND NEGLECT PRACTICE (Second edition1998), and<br />
John E. B. Myers, EVIDENCE IN CHILD ABUSE AND NEGLECT CASES (Third edition 1997) (hereinafter<br />
MYERS). The second publication, in two volumes, is an extremely helpful resource in trying these cases<br />
and it gives useful practice tips and excerpts from transcripts that are useful in trying cases with difficult<br />
and unusual evidentiary problems.<br />
12
CHAPTER ONE<br />
Investigation<br />
I. The Role <strong>of</strong> Law Enforcement<br />
Law enforcement agencies have powers <strong>of</strong> investigation unavailable to any other agency. This authority<br />
must be used appropriately in order to obtain evidence that will be admissible in a criminal case.<br />
The following discussion provides <strong>Virginia</strong> law on the most commonly used investigative tools for<br />
law enforcement.<br />
A. Search Warrants (BACIGAL at §§ 4–4 through 4–16):<br />
<strong>Child</strong> abuse investigators frequently use two types <strong>of</strong> warrants in their investigations. One type<br />
<strong>of</strong> warrant is the expertise warrant, in which probable cause to search a person’s residence is based<br />
on the pr<strong>of</strong>essional opinion <strong>of</strong> an expert who indicates why certain items will be at the person’s<br />
residence. For example, an expert in the field <strong>of</strong> child molestation may testify that a pedophile is<br />
highly unlikely to throw away child pornography, and therefore that child pornography delivered<br />
to an individual in the past is probably still in that person’s possession. <strong>Virginia</strong> courts have not<br />
addressed the validity <strong>of</strong> expertise warrants per se, but the <strong>Virginia</strong> Supreme Court has upheld an<br />
affidavit that took into account past sexual deviation by the defendant. Drumheller v.<br />
Commonwealth, 223 Va. 695, 292 S.E.2d 602 (1982), cert. den., 459 U.S. 913 (1982).<br />
The second type <strong>of</strong> warrant, the anticipatory warrant, is “a warrant based upon an affidavit showing<br />
probable cause that at some future time (but not presently) certain evidence <strong>of</strong> crime will be located<br />
at a specified place.” 2 Wayne R. LaFave, SEARCH AND SEIZURE §3.7(c) (Third edition 1996).<br />
Such warrants are particularly appropriate for use in child pornography investigations when<br />
investigators know child pornography will be delivered to a particular location at a particular<br />
time, and are valid in <strong>Virginia</strong> so long as there is probable cause to believe that the contraband<br />
will be on the premises at the time the warrant is executed. McNeill v. Commonwealth, 10 Va. App.<br />
674, 677, 395 S.E.2d 460, 463 (1990) (anticipatory warrant based on tip from out–<strong>of</strong>–state<br />
authorities about delivery <strong>of</strong> cocaine to defendant’s home). It is sufficient for purposes <strong>of</strong><br />
establishing probable cause to show that the contraband is on a “sure course” to the premises at<br />
the time the warrant is requested. Id. at 677, 395 S.E.2d at 463. Pro<strong>of</strong> that the contraband is in<br />
the mail and will be delivered to suspect’s residence is sufficient pro<strong>of</strong> <strong>of</strong> the “sure course” element.<br />
Id. at 678, 395 S.E.2d at 463. However, where the information provided for the affidavit to<br />
support an anticipatory search warrant was not sufficiently precise to identify when the contraband<br />
to be seized would be at the site described in the search warrant or how the affiant knew <strong>of</strong> the<br />
date, the warrant is invalid. Colaw v. Commonwealth, 32 Va. App. 806, 812, 531 S.E.2d 31 (2000).<br />
Even though the warrant authorizing the search <strong>of</strong> defendant Moyer’s apartment at a military academy<br />
where he taught might have been deficient, the seizure <strong>of</strong> his diaries containing photographs mentioned<br />
in the diaries, which journals described inappropriate activities involving juvenile students was legal<br />
and the motion to suppress was properly denied. Moyer v. Commonwealth,33 Va. App. 8, 531 S.E.2d 580<br />
(2000) (rehearing en banc), reversing 30 Va. App. 744, 520 S.E.2d 371 (1999).<br />
13
B. Pretext Conversation Recordings and Electronic Surveillance (BACIGAL at §§5-1 through 5-6;<br />
FRIEND AT §14-10).<br />
One effective investigative technique is to request the victim to call the perpetrator on the telephone<br />
and record the conversation. See MANUAL, Chapter Two, part V.D. Although the issue <strong>of</strong> such oneparty<br />
consent recordings <strong>of</strong> telephone conversations between a victim and accused has not been<br />
specifically addressed in child sexual abuse cases, the practice was held constitutional in Cogdill<br />
v. Commonwealth, 219 Va. 272, 247 S.E.2d 392 (1978) (telephone call in which defendant <strong>of</strong>fered<br />
female adult caller money for sex). See also Va. Code Ann. §19.2-66 (authorizing the Attorney<br />
General to seek a court order to intercept communications while investigating the felonies <strong>of</strong><br />
extortion, bribery, kidnapping, murder, any felony violation <strong>of</strong> §§18.2-248 or -248.1, any felony<br />
violation <strong>of</strong> Chapter 29 <strong>of</strong> Title 59.1, any felony violation <strong>of</strong> Article 2.2 <strong>of</strong> Chapter 4 <strong>of</strong> Title<br />
18.2, or any conspiracy to commit any <strong>of</strong> the specified <strong>of</strong>fenses).<br />
For a discussion <strong>of</strong> the use <strong>of</strong> electronic surveillance to investigate child abuse, see MANUAL,<br />
Chapter Two, part VI.D. For a discussion <strong>of</strong> the use <strong>of</strong> electronic or Internet surveillance in <strong>Virginia</strong>,<br />
see BACIGAL at §5-1. In Bloom v. Commonwealth, 262 Va. 814, 554 S.E.2d 84 (2001), the<br />
Supreme Court <strong>of</strong> <strong>Virginia</strong> upheld the conviction <strong>of</strong> a man for attempting to take indecent liberties<br />
with a child and solicitation to commit sodomy where the police monitored the man’s Internet<br />
communications with a 13-year-old girl and set up a meeting where he was arrested (affirming<br />
the decision <strong>of</strong> the Court <strong>of</strong> Appeals found at 34 Va. App. 364, 542 S.E.2d 18 (2001)). The evidence<br />
established the identity <strong>of</strong> the defendant as sender through his “screen name,” personal details<br />
communicated in the messages, and other facts that matched the defendant. In United States v.<br />
Jarrett, 229 F.Supp.2d 503 (E.D.Va. 2002), the United States District Judge denied a motion to<br />
suppress Internet pornography evidence obtained by a foreign Internet user who had gained<br />
unauthorized access to defendant’s computer.<br />
C. Social Worker Involvement in Interrogation.<br />
Section 63.2-1503.M. <strong>of</strong> the Code provides that no statement made by a person after his or her<br />
arrest to a child protective services worker regarding the abuse or neglect <strong>of</strong> a child shall be<br />
admissible unless the person is first advised <strong>of</strong> his or her Miranda rights. In Terry v. Commonwealth,<br />
30 Va. App. 192, 516 S.E. 2d 233 (1999) (rehearing en banc), the Court <strong>of</strong> Appeals, sitting en<br />
banc, ruled that a defendant had waived his right to challenge the admissibility <strong>of</strong> a confession by<br />
pleading guilty, but a three-judge panel had previously reversed the conviction because a confession<br />
was obtained by a protective services worker accompanied by a police <strong>of</strong>ficer after counsel had<br />
been appointed for the accused (See 27 Va. App. 664, 500 S.E.2d 843 (1998)).<br />
D. Medical Examinations and Forensic Photographs.<br />
1. Physical or Sexual <strong>Abuse</strong> or Neglect (Va. Code Ann. §§63.2-1517 -1520).<br />
14<br />
When a child is examined in response to an allegation <strong>of</strong> abuse, especially in the hospital or<br />
emergency room, investigators need to obtain appropriate consent before the exam, treatment<br />
and evidence collection. Hospitals generally have consent forms developed specifically for<br />
this purpose and the staff can inform the child’s caretaker (or child if he or she is old enough)
about the procedures to be carried out. Under certain conditions — one <strong>of</strong> which is that a<br />
child is in imminent danger — a child may be taken into protective custody by a local physician,<br />
law enforcement <strong>of</strong>ficer or child protective services worker. Va. Code Ann. §63.2–1517. A<br />
representative <strong>of</strong> the child protective services agency may then sign an appropriate consent<br />
form as the temporary guardian <strong>of</strong> the child to authorize the procedures.<br />
Investigators also should seek permission for any photographs taken during the medical exam<br />
with the understanding they may be used as evidence. Photographs may be taken <strong>of</strong> known or<br />
suspected child abuse victims without parental consent and may be introduced in any<br />
“subsequent proceeding,” but may not be used in lieu <strong>of</strong> a medical evaluation. Va. Code Ann.<br />
§63.2–1520. Restrictions regarding the use <strong>of</strong> photographs may be imposed by the court.<br />
Investigators need to be sensitive to the child’s possible embarrassment about such<br />
photographs and make sure they are the least intrusive necessary to document the necessary<br />
findings.<br />
2. Death <strong>of</strong> a <strong>Child</strong> (Va. Code Ann. §32.1–285.1).<br />
The Code <strong>of</strong> <strong>Virginia</strong> requires an autopsy be performed on any infant whose death is suspected<br />
as being attributable to Sudden Infant Death Syndrome (SIDS). Va. Code Ann. §§32.1–285–<br />
285.1. The Board <strong>of</strong> Health has promulgated regulations providing exceptions to this<br />
requirement for objections based on bona fide religious beliefs.<br />
E. Forensic Analysis:<br />
The following tests used by investigators have been held admissible in criminal proceedings:<br />
• DNA pr<strong>of</strong>ile evidence is admissible in any criminal proceeding. Va. Code Ann. §19.2–270.5.<br />
See Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609 (1990) (finding DNA print<br />
identification test scientifically reliable).<br />
• Electrophoretic tests are sufficiently reliable to be admissible. See O’Dell v. Commonwealth,<br />
234 Va. 672, 364 S.E.2d 491 (1988) (declining to adopt the test <strong>of</strong> Frye v. United States,<br />
293 F. 1013 (D.C. Cir. 1923), but nonetheless finding electrophoretic tests generally accepted<br />
by the scientific community).<br />
• Human Leucocyte Antigen (HLA) blood tests are admissible. See Bridgeman v. Commonwealth,<br />
3 Va. App. 523, 351 S.E.2d 598 (1986) (HLA blood tests admissible but insufficient to support<br />
an incest conviction when defendant and victim both denied sexual contact).<br />
F. Polygraph Tests (BACIGAL at §17–24; FRIEND at §14–7; BACIGAL, TATE & GUERNSEY at 252–253).<br />
Results <strong>of</strong> polygraph tests are not admissible for the purposes <strong>of</strong> proving either guilt or innocence.<br />
Odum v. Commonwealth, 225 Va. 123, 301 S.E.2d 145 (1983) (polygraph tests found unreliable<br />
and inadmissible even though Commonwealth’s Attorney and defendant agreed to use the results<br />
<strong>of</strong> a test favorable to defendant). See also Robinson v. Commonwealth, 231 Va. 142, 341 S.E.2d<br />
159 (1986) (defendant may not impeach a Commonwealth witness with polygraph evidence);<br />
15
Crumpton v. Commonwealth, 9 Va. App. 131, 384 S.E.2d 339 (1989) (defendant must have an<br />
opportunity to explain prior inconsistent statements when he had altered his statements at the<br />
end <strong>of</strong> a polygraph examination because the defendant’s credibility was critical to the ultimate<br />
issue that must be determined by the jury).<br />
G. Hypnosis (FRIEND at §14-8; BACIGAL, TATE & GUERNSEY at 102-103).<br />
Witnesses are not allowed to testify regarding facts recalled during or as the result <strong>of</strong> pre-trial<br />
hypnosis. Witnesses, however, may testify to facts recalled prior to hypnotic sessions, but the<br />
party <strong>of</strong>fering the facts remembered prior to hypnosis has the burden <strong>of</strong> proving that the facts<br />
were actually recalled before the witness submitted to hypnosis. Hall v. Commonwealth, 12 Va.<br />
App. 198, 403 S.E.2d 362 (1991). See also Hopkins v. Commonwealth, 230 Va. 280, 337 S.E.2d<br />
264 (1985) (trial court has discretion to determine whether hypnosis made witness incompetent<br />
to testify). In Hall the Court recommended that any hypnosis session follow the established<br />
guidelines set forth in State v. Hurd, 432 A.2d 86 (N.J. 1981). These guidelines state: i) the hypnosis<br />
must be conducted by a psychiatrist or psychologist trained in hypnosis; ii) the conductor should<br />
be independent <strong>of</strong> either the prosecution or the defense; iii) information given to the conductor<br />
by the prosecution or defense prior to the session should be recorded in writing or other “suitable<br />
form;” iv) the conductor should obtain a detailed record <strong>of</strong> the facts from the subject as he or she<br />
remembers them prior to the session; v) all contacts between the conductor and the subject must<br />
be recorded; and vi) only the conductor and the subject should be present during the session. Hall,<br />
supra,.12 Va. App. at 212, n.4, 403 S.E.2d at 371, n.4. See also discussion, infra, Chapter Four,<br />
part II.B.1., concerning the use <strong>of</strong> hypnosis on a defendant.<br />
H. Arrest (Va. Code Ann. §19.2-81.3) (BACIGAL at §§2-1 through 2-6).<br />
A law enforcement <strong>of</strong>ficer may arrest a person without a warrant who commits a crime in the<br />
<strong>of</strong>ficer’s presence or a person whom the <strong>of</strong>ficer has probable cause or reasonable grounds to believe<br />
committed a felony not in the <strong>of</strong>ficer’s presence. Va. Code Ann. §19.2-81. Additionally, an <strong>of</strong>ficer<br />
may arrest without a warrant a person who commits misdemeanor assault and battery not in the<br />
<strong>of</strong>ficer’s presence, or for assault and battery against a family or household member and stalking<br />
in violation <strong>of</strong> a protective order. Id.; Va. Code Ann. §19.2-81.3. If a law enforcement <strong>of</strong>ficer has<br />
reasonable grounds to believe that a person has committed an assault and battery against, or has<br />
stalked a household member, the <strong>of</strong>ficer shall: i) upon request, transport or arrange to transport<br />
the victim to a hospital, safe shelter, or magistrate and ii) petition for an emergency protective<br />
order in every case in which the <strong>of</strong>ficer makes an arrest or has probable cause to believe a danger<br />
<strong>of</strong> family abuse exists. Va. Code Ann. §19.2-81.3.<br />
Caveat: Prosecutors need to be aware that if they act as police investigators, they open themselves up to<br />
civil liability. See Pachaly v. City <strong>of</strong> Lynchburg, 897 F.2d 723 (4th Cir. 1990).<br />
II. The Role <strong>of</strong> <strong>Child</strong> Protective <strong>Services</strong> (JUVENILE LAW HANDBOOK 12.2)<br />
<strong>Child</strong> Protective <strong>Services</strong> (CPS) workers are employees <strong>of</strong> a local <strong>Department</strong> <strong>of</strong> Social <strong>Services</strong> charged<br />
with investigation <strong>of</strong> child abuse or neglect committed in their locality. Va. Code Ann. §63.2-1503.<br />
16
The governing statutes allow investigation by CPS only if the parent, guardian, or other person<br />
responsible for the child’s care is the <strong>of</strong>fender. Id. Once the department receives a complaint, CPS<br />
workers must either conduct a family assessment pursuant to the differential response system or<br />
investigate the complaint and determine within 45 days if the report is “founded” or “unfounded”<br />
and transmit a report to such effect to the central registry and to the person who is the subject <strong>of</strong> the<br />
investigation. However, upon written justification by the local department, the investigation may be<br />
extended, not to exceed a total <strong>of</strong> sixty days. Va. Code Ann. §63.2–1505. The findings pursuant to an<br />
investigation are defined as follows: “founded” means there is a preponderance <strong>of</strong> the evidence to<br />
establish that abuse or neglect occurred, and “unfounded” means there is insufficient evidence that<br />
abuse or neglect occurred. <strong>Virginia</strong> <strong>Department</strong> <strong>of</strong> Social <strong>Services</strong>, <strong>Child</strong> Protective <strong>Services</strong>, Vol. VII,<br />
Sec. III, Ch. A (October, 2002).<br />
If CPS investigates and finds the complaint to be substantiated, it must <strong>of</strong>fer services to the victim,<br />
the perpetrator, and other family members as appropriate.<br />
CPS workers must report to the Commonwealth’s Attorney, and the local law enforcement agency<br />
in the jurisdiction in which the alleged abuse is believed to have occurred, all cases involving: i) the<br />
death <strong>of</strong> a child; ii) any injury or threatened injury to a child in which a felony or Class 1<br />
misdemeanor is suspected; iii) any sexual abuse, suspected sexual abuse or other sexual <strong>of</strong>fenses<br />
involving a child; iv) any abduction <strong>of</strong> a child; v) any felony or Class 1 misdemeanor drug <strong>of</strong>fense<br />
involving a child; or vi) contributing to the delinquency <strong>of</strong> a minor. Va. Code Ann. §63.2–1503.<br />
The department must then make available to the Commonwealth’s Attorney and local law<br />
enforcement all <strong>of</strong> its records that relate to any complaints <strong>of</strong> abuse or neglect involving the victim<br />
or alleged perpetrator. Id. Similarly, law enforcement and other agencies are mandated to cooperate<br />
with the <strong>Child</strong> Protective <strong>Services</strong> Coordinator <strong>of</strong> the local <strong>Department</strong> <strong>of</strong> Social <strong>Services</strong> in “the<br />
detection and prevention <strong>of</strong> child abuse.” Va. Code Ann. §63.2–1507.<br />
As noted above, any statements made by a suspect to a CPS worker during an investigation after the<br />
suspect has been arrested are inadmissible in any criminal proceeding unless the worker has advised<br />
the accused <strong>of</strong> his or her Miranda rights. Va. Code Ann. §63.2–1503.M. During an investigation, any<br />
person who is mandated by statute to report or investigate suspected abuse may speak with the alleged<br />
child victim or his or her siblings without the permission <strong>of</strong>, and outside the presence <strong>of</strong> the<br />
child’s parents or legal guardians. Va. Code Ann. §63.2–1518.<br />
Interviewing techniques <strong>of</strong> social workers and police investigators have come under increasing scrutiny<br />
in recent years. Consequently, social workers and investigators must be aware <strong>of</strong> attacks that may<br />
likely be made at trial concerning leading questions, anatomical dolls, and videotaped interviews. For<br />
a thorough discussion <strong>of</strong> these issues, see MANUAL Chapter Two, part I, and MYERS at Volume 1,<br />
Chapter 1; Victor I. Vieth, “Defending the Investigative Interview,” 12 Update, No. 2 (1999).<br />
III. The Roles <strong>of</strong> Other Agencies (JUVENILE LAW HANDBOOK 12.2).<br />
To many prosecutors, the civil child protection system is foreign territory since city, county, or private<br />
attorneys pursue civil actions in juvenile and domestic relations district courts. However, prosecutors<br />
17
need to understand generally how civil child protection laws work and what they can do to protect<br />
children.<br />
A. Action By Physician, Protective <strong>Services</strong> Worker or Law Enforcement Official (Va. Code Ann.<br />
§63.2-1517).<br />
A child may be taken into custody without a court order under certain circumstances. Under §63.2-<br />
1517 <strong>of</strong> the Code a physician, protective service worker, or law enforcement <strong>of</strong>ficial investigating<br />
a report <strong>of</strong> child abuse and neglect may take a child into custody for up to 72 hours without prior<br />
approval <strong>of</strong> parent or guardians, provided: i) remaining in the present circumstances presents an<br />
imminent danger to the child’s life or health to the extent that severe or irremediable injury would<br />
be likely to result; ii) a court order is not immediately obtainable; iii) the court has set up procedures<br />
for placing such children; iv) the parents are notified as soon as practicable after the child is taken<br />
into custody; v) a report is made to the local department; and vi) the court is notified and the<br />
person or agency taking custody obtains an emergency removal order as soon as possible, but no<br />
later than 72 hours after the removal. If a preliminary removal order is issued within 72 hours,<br />
an emergency removal order is not necessary.<br />
B. Civil <strong>Child</strong> Protection Proceedings (JUVENILE LAW HANDBOOK 12.3).<br />
As defined by Va. Code Ann. §63.2-1505, civil child protection actions typically are initiated by<br />
the local department <strong>of</strong> social services filing a petition; however, individuals such as police <strong>of</strong>ficers,<br />
probation <strong>of</strong>ficers, or guardians ad litem also may initiate such proceedings. In all civil child<br />
protection actions, the court is required to appoint a qualified attorney to act as the child’s guardian<br />
ad litem while the action is pending. The court has the power to provide the following types <strong>of</strong><br />
protection for the child.<br />
An emergency removal order (ERO) may be secured on an ex parte basis that removes a child from<br />
the custody <strong>of</strong> the parent or custodian to prevent a child being subjected to circumstances where<br />
injury or death might occur if he or she were left with the parent or custodian before a court<br />
hearing can be held. At the time an emergency removal order is requested, a petition alleging that<br />
the child is abused or neglected must be filed with the court, supported by an affidavit or sworn<br />
testimony in person before the judge or intake <strong>of</strong>ficer within 72 hours <strong>of</strong> the removal <strong>of</strong> the child<br />
or otherwise in accordance with §63.2-1517 <strong>of</strong> the Code. Va. Code Ann. §16.1-251. The petition<br />
must establish that i) the child would be subjected to an imminent threat to life or health, to the<br />
extent that severe or irremediable injury would be likely to result if the child were left in the<br />
custody <strong>of</strong>, or returned to, the parent or custodian pending a final hearing on the petition; ii)<br />
reasonable efforts have been made to prevent the removal <strong>of</strong> the child. If there is no reasonable<br />
opportunity to provide preventive services, reasonable efforts are deemed to have been made; and<br />
iii) there are no less drastic alternatives which could reasonably protect the child’s life or health<br />
pending a final hearing on the petition. Id.<br />
Once an ERO is entered, a preliminary removal order (PRO) hearing will be scheduled as soon as<br />
practicable, but no later than five business days. Va. Code Ann. §16.1-252. The scheduling<br />
18
equirement has caused this hearing to be referred to frequently as the “five-day hearing.” Notice<br />
<strong>of</strong> the hearing, as well as a copy <strong>of</strong> the petition, must be given at least 24 hours in advance to the<br />
child’s parents or custodian, the guardian ad litem, and to the child if the child is 12 years <strong>of</strong> age<br />
or older. Id. If notice cannot be given despite reasonable efforts to do so, the hearing will still be<br />
held, and the parent(s) or custodian will then be provided a later hearing regarding the removal <strong>of</strong><br />
the child if they make a motion for such hearing. For the court to maintain the child’s removal<br />
from the home, the department must prove, by a preponderance <strong>of</strong> the evidence, the same elements<br />
required to obtain an emergency removal. At the preliminary removal hearing, the court “shall<br />
determine whether the allegations <strong>of</strong> abuse or neglect have been proven by a preponderance <strong>of</strong> the<br />
evidence,” unless the parents or custodian, the guardian ad litem, or the petitioning department<br />
objects.<br />
As an alternative to removal <strong>of</strong> the child from the home, a preliminary protective order (PPO) may<br />
be sought requiring the parent or guardian to “observe reasonable conditions <strong>of</strong> behavior for a<br />
specified length <strong>of</strong> time.” Va. Code Ann. §16.1–253. These reasonable conditions <strong>of</strong> behavior<br />
may include: i) abstaining from <strong>of</strong>fensive conduct against the child; ii) cooperating in providing<br />
reasonable services or programs designed to protect the child’s life, health, or normal development;<br />
iii) allowing persons named by the court to enter the child’s home at reasonable times to visit the<br />
child or inspect the fitness <strong>of</strong> the home; iv) allowing visitation with the child by persons as<br />
determined by the court; v) refraining from acts tending to endanger the child’s life, health, or<br />
normal development; or vi) refraining from contact with the child as the court may deem<br />
appropriate, including leaving the child’s residence. An initial ex parte hearing may be held, which<br />
must be followed by a preliminary hearing within five working days. The court may grant a PPO<br />
if an affidavit or sworn testimony establishes that “the child would be subjected to an imminent<br />
threat to life or health to the extent that delay for the provision <strong>of</strong> the adversary hearing would be<br />
likely to result in serious or irremediable injury to the child’s life or health.” Va. Code Ann. §16.1–<br />
253(B).<br />
These civil child protection proceedings may be going on while a criminal investigation is occurring<br />
or while charges are being sought.<br />
C. Multidisciplinary Coordination<br />
Since 1975, the <strong>Virginia</strong> Code has provided that “[a]ll law-enforcement departments and other<br />
state and local departments, agencies, authorities and institutions shall cooperate with each childprotective<br />
services coordinator <strong>of</strong> a local department and any multi-discipline teams in the<br />
detection and prevention <strong>of</strong> child abuse.” Va. Code Ann. §63.2–1507. In addition, the <strong>Virginia</strong><br />
Code section relating to child abuse and neglect states: “[t]he local department [<strong>of</strong> Social <strong>Services</strong>]<br />
shall foster, when practicable, the creation, maintenance and coordination <strong>of</strong> hospital and<br />
community-based multi-disciplinary teams that shall include where possible, but not be limited<br />
to, members <strong>of</strong> the medical, mental health, social work, nursing, education, legal and lawenforcement<br />
pr<strong>of</strong>essions. Such teams shall assist the local departments in identifying abused and<br />
neglected children; coordinating medical, social, and legal services for the children and their families;<br />
19
developing innovative programs for detection and prevention <strong>of</strong> child abuse; promoting<br />
community concern and action in the area <strong>of</strong> child abuse and neglect; and disseminating<br />
information to the general public with respect to the problem <strong>of</strong> child abuse and neglect and the<br />
facilities and prevention and treatment methods available to combat child abuse and neglect.” Va<br />
Code Ann. §63.2-1503 (J) (emphasis added).<br />
The <strong>Child</strong>ren’s <strong>Justice</strong> Act Program, under the direction <strong>of</strong> the <strong>Virginia</strong> <strong>Department</strong> <strong>of</strong> <strong>Criminal</strong><br />
<strong>Justice</strong> <strong>Services</strong> (DCJS), supports a variety <strong>of</strong> opportunities for communities to strengthen a<br />
multidisciplinary approach to child abuse cases. Information for multidisciplinary teams can be<br />
found on the DCJS website at: http://www.dcjs.org/juvenile/cja/teams. Communities in need <strong>of</strong><br />
more information about receiving on-site training and technical assistance implementing a<br />
multidisciplinary approach should contact the <strong>Child</strong>ren’s <strong>Justice</strong> Act Program Coordinator at the<br />
<strong>Virginia</strong> <strong>Department</strong> <strong>of</strong> <strong>Criminal</strong> <strong>Justice</strong> <strong>Services</strong>.<br />
IV. Grand Juries (Va. Code Ann. §§19.2-191 to 19.2-215.11) (BACIGAL at §§12-1 through 12-7).<br />
The Commonwealth need only call enough witnesses to the grand jury to establish probable cause.<br />
Britt v. Commonwealth, 202 Va. 906, 121 S.E.2d 495 (1961). Therefore, it will not always be necessary<br />
to call the child victim as a witness. If a child does testify before a grand jury, however, prosecutors<br />
may need to use this testimony at trial to show prior consistent or prior inconsistent statements.<br />
Whether prosecutors can obtain a transcript or videotape <strong>of</strong> such testimony to use at trial is unsettled<br />
in <strong>Virginia</strong>. Transcripts <strong>of</strong> grand jury proceedings may be released to the prosecutor at the trial court’s<br />
discretion (Vihko v. Commonwealth, 10 Va. App 498, 393 S.E.2d 413 (1990)), and also might be<br />
available to the defendant if the transcript is in the prosecutor’s possession. See Gibbs v. Commonwealth,<br />
16 Va. App. 697, 432 S.E.2d 514 (1993) (defendant may use a subpoena duces tecum to<br />
obtain writings or objects that are material to the proceeding even if they are not admissible).<br />
<strong>Virginia</strong> law does not state specifically whether a prosecutor may use a grand jury transcript to impeach<br />
a witness. The law allows a grand juror to be called to testify at a perjury trial <strong>of</strong> a witness (Va.<br />
Code Ann. §19.2-192), or to testify on behalf <strong>of</strong> the accused that a government witness’s grand jury<br />
testimony is in direct conflict with trial testimony. Harris v. Commonwealth, 110 Va. 905, 68 S.E.<br />
834 (1909). No <strong>Virginia</strong> court has specifically addressed the issue <strong>of</strong> whether the Commonwealth<br />
may impeach a recanting victim with grand jury testimony.<br />
20
CHAPTER TWO<br />
Charging Considerations<br />
I. Offenses<br />
At charging, prosecutors need to be fully aware <strong>of</strong> the elements <strong>of</strong> crimes and judicial interpretation<br />
<strong>of</strong> those elements. See GROOT generally. Judicial interpretation <strong>of</strong> the elements can significantly affect<br />
how a prosecutor elects to charge a crime. See, e.g. Howard v. Commonwealth, 221 Va. 904, 275 S.E.2d<br />
602 (1981) (conduct for which defendant convicted held not to be covered by statutes charged). In<br />
addition to paying close attention to judicial interpretations <strong>of</strong> charging statutes, prosecutors must<br />
keep current with legislative changes. See Appendix A for the text <strong>of</strong> the basic <strong>Virginia</strong> child abuse<br />
charging statutes.<br />
A. Sexual Offenses (GROOT at 423-445).<br />
1. Generally<br />
To no one’s surprise, the <strong>Virginia</strong> Court <strong>of</strong> Appeals has ruled that the <strong>Virginia</strong> sodomy statute is<br />
not unconstitutionally vague, and that the due process interest in privacy does not apply to nonconsensual<br />
acts <strong>of</strong> sodomy with a 16-year-old girl. Santillo v. Commonwealth, 30 Va. App. 470,<br />
517 S.E.2d 733 (1999). Likewise, convicting a defendant <strong>of</strong> committing oral sodomy on his<br />
15-year-old nephew did not violate the uncle’s rights to “the enjoyment <strong>of</strong> life and liberty” and<br />
to “pursuing and obtaining happiness.” Paris v. Commonwealth, 35 Va. App. 377, 381, 545 S.E.2d<br />
557, 558 (2001).<br />
2. Mental State<br />
Pro<strong>of</strong> <strong>of</strong> lascivious intent or intent to defile is necessary for convictions <strong>of</strong> many child sexual<br />
abuse <strong>of</strong>fenses (e.g., indecent exposure, indecent liberties, abduction with intent to defile). Pro<strong>of</strong><br />
<strong>of</strong> intent almost always will be based on circumstantial evidence and thus poses several<br />
difficulties. For example, in McKeon v. Commonwealth, 211 Va. 24, 175 S.E.2d 282 (1970),<br />
the court held that a man who exposed his genitals to a child 35 feet away did not violate Va.<br />
Code Ann. §18.1–214 (1950) (now Va. Code Ann. §18.2–370). The defendant claimed that<br />
he had a robe on, and that, although there was a breeze, he did not believe his privates became<br />
exposed. The child testified that the man was “smiling” and standing on his porch with his<br />
hands on his hips and his genitals exposed. The court said that even accepting the victim’s<br />
testimony as true, the Commonwealth failed to prove lascivious intent:<br />
[T]here is no evidence that the defendant was sexually aroused; that he made any<br />
gestures toward himself or to her; that he made any improper remarks to her; or that<br />
he asked her to do anything wrong. The fact that defendant told [the victim] to ‘turn<br />
around’ and that he was smiling at the time, when she was 35 feet away from him,<br />
is not pro<strong>of</strong> beyond a reasonable doubt that he knowingly and intentionally exposed<br />
himself with lascivious intent. Id. at 27, 175 S.E.2d at 284.<br />
21
However, where a defendant takes a five-year-old girl to a bathroom with him and removes his<br />
pants and under shorts, exposing his erect penis, he can be convicted <strong>of</strong> taking indecent liberties<br />
with the child. Siquina v. Commonwealth, 28 Va. App. 694, 508 S.E.2d 350 (1998). Likewise,<br />
where a defendant exposes his genitals in a visibly aroused state and is masturbating, the<br />
evidence is sufficient to support a conviction under Va. Code Ann. §18.2-387 for indecent<br />
exposure. Morales v. Commonwealth, 31 Va. App. 541, 525 S.E.2d 23 (2000); Copeland v.<br />
Commonwealth, 31 Va. App. 512, 525 S.E.2d 9 (2000). See also Walker v. Commonwealth, 12<br />
Va. App. 438, 404 S.E.2d 394 (1991) (evidence sufficient to establish criminal intent in<br />
defendant’s touching the vagina <strong>of</strong> the seven-year-old daughter <strong>of</strong> his girlfriend even though<br />
he claimed to be touching her to determine if she and some boys in the neighborhood had<br />
been “touching each other”); Campbell v. Commonwealth, 227 Va. 196, 313 S.E.2d 402<br />
(1984) (evidence that man gestured to 8-year-old girl 87 feet away from him, pulled his pants<br />
down to his knees, then gestured again sufficient to establish lascivious intent); Moore v.<br />
Commonwealth, 222 Va. 72, 77, 278 S.E.2d 822, 825 (1981) (evidence sufficient to show<br />
defendant’s lascivious intent in touching his penis to the victim’s buttocks). But see Hughes v.<br />
Commonwealth, 16 Va. App. 576, 431 S.E.2d 906 (1993) (evidence that defendant<br />
commented about “nice looking women” at a party, that he talked to the victim and <strong>of</strong>fered to<br />
take her and two small boys to the bathroom, and scientific evidence that the child was not<br />
wearing her coat when in car with defendant insufficient to prove intent to defile).<br />
3. Conduct<br />
a. Force<br />
22<br />
Rape (GROOT at 425–427). Psychological coercion may satisfy the element <strong>of</strong><br />
intimidation in a rape case. Sutton v. Commonwealth, 228 Va. 654, 324 S.E.2d 665<br />
(1985). In Sutton, the victim’s uncle repeatedly attempted to rape the victim; the aunt<br />
told the victim each time that she should have submitted to him; the defendants threatened<br />
to send the victim back to her father who had a history <strong>of</strong> beating her; and the victim had<br />
a hearing disability for which she wore a hearing aid. The court held that defendants’<br />
conduct constituted intimidation under §18.2-61. Intimidation need not include overt<br />
threats–it may be caused by imposition <strong>of</strong> psychological pressure on one who, under the<br />
circumstances, is vulnerable and susceptible to such pressure. Id. at 661, 324 S.E.2d at<br />
670. Id. See also Bailey v. Commonwealth, 82 Va. 107 (1886) (consent <strong>of</strong> 14-year-old<br />
stepdaughter induced by fear <strong>of</strong> bodily harm is not consent); Myers v. Commonwealth, 11<br />
Va. App. 634, 400 S.E.2d 803 (1991) (37-year-old defendant’s behavior in driving a 15-<br />
year-old victim to a remote area and telling her she would have to walk back if she did not<br />
“do something for him” constituted intimidation). In Commonwealth v. Bower, 264 Va.<br />
41, 563 S.E.2d 736 (2002), the <strong>Virginia</strong> Supreme Court overturned the decision <strong>of</strong> the<br />
Court <strong>of</strong> Appeals reversing defendant’s conviction <strong>of</strong> animate object sexual penetration<br />
<strong>of</strong> his thirteen-year-old daughter (36 Va. App. 382, 551 S.E.2d 1 (2001)), as the parentchild<br />
relationship itself is relevant to the possibility <strong>of</strong> intimidation and the harm inherent<br />
in a sexual assault itself is sufficient to constitute fear <strong>of</strong> bodily harm to support the
conviction. The Court <strong>of</strong> Appeals itself concluded in Benyo v. Commonwealth, 38 Va. App.<br />
650, 568 S.E.2d 371 (2002), that the evidence was sufficient to convict defendant <strong>of</strong><br />
raping his stepdaughter beginning when she was fifteen years old because <strong>of</strong> his<br />
intimidation through the use <strong>of</strong> psychological and emotional pressure.<br />
Aggravated Sexual Battery (GROOT at 430-431). Fondling alone does not constitute<br />
aggravated sexual battery when there is no showing <strong>of</strong> serious injury or use <strong>of</strong> a weapon.<br />
Johnson v. Commonwealth, 5 Va. App. 529, 365 S.E.2d 237 (1988). In Johnson, the<br />
defendant lay down on a bed where the 15-year-old male victim was sleeping and touched<br />
the victim’s buttocks and penis. The victim left the room as soon as he awoke. The court<br />
held that non-consensual touching alone does not constitute force within the meaning <strong>of</strong><br />
the statute; to constitute aggravated sexual battery, there must be a showing <strong>of</strong> serious<br />
injury or use <strong>of</strong> a weapon. Because neither <strong>of</strong> these factors was demonstrated, the court<br />
reversed the defendant’s conviction.<br />
b. Penetration (GROOT at 424).<br />
The element <strong>of</strong> penetration must be proven to support a forcible sodomy conviction, and<br />
such pro<strong>of</strong> may be based solely on circumstantial evidence. Martin v. Commonwealth, 4<br />
Va. App. 438, 358 S.E.2d 415 (1987) (victim’s statements and testimony <strong>of</strong> medical<br />
expert sufficient to prove penetration). Pro<strong>of</strong> <strong>of</strong> penetration <strong>of</strong> the victim’s outer vaginal<br />
lips (labia majora) is sufficient. Love v. Commonwealth, 18 Va. App. 84, 441 S.E.2d 709,<br />
711 (1994). Pro<strong>of</strong> <strong>of</strong> penetration <strong>of</strong> the vaginal opening is not required. Id. But in Moore<br />
v. Commonwealth, 254 Va. 184, 491 S.E.2d 739 (1997), the Supreme Court <strong>of</strong> <strong>Virginia</strong><br />
ruled that a young girl’s testimony that defendant had placed his penis “on” her vagina<br />
was insufficient to prove penetration for the purpose <strong>of</strong> a prosecution for rape <strong>of</strong> a child<br />
under thirteen. Id. at 189, 491 S.E.2d at 741. Likewise, the Court <strong>of</strong> Appeals reversed<br />
the conviction <strong>of</strong> a defendant on multiple sex <strong>of</strong>fenses with a ten-year-old girl in Carter v.<br />
Commonwealth, No. 2506-01-3 (Va. App. Oct. 29, 2002) (unpublished), where the<br />
testimony referred to defendant’s tongue being placed “on” the girl’s “private” because<br />
there was insufficient evidence to establish the penetration necessary to sustain the<br />
sodomy conviction. In a similar case, Breeden v. Commonwealth, No. 0404-02-3 (Va. App.<br />
Jan. 28, 2003) (unpublished), defendant was convicted <strong>of</strong> forcible sodomy and object<br />
sexual penetration <strong>of</strong> a nine-year-old victim by a jury. Although the victim’s testimony<br />
about defendant’s tongue licking her was not sufficient to establish the penetration<br />
sufficient to establish the <strong>of</strong>fense <strong>of</strong> forcible sodomy, the medical evidence was sufficient<br />
to sustain the object sexual penetration conviction. <strong>Virginia</strong> courts also require pro<strong>of</strong> <strong>of</strong><br />
penetration in order to sustain a conviction for crimes against nature. Ashby v.<br />
Commonwealth, 208 Va. 443, 444, 158 S.E.2d 657, 658 (1968), cert. den., 393 U.S.<br />
1111 (1969) (evidence that a boy’s mouth was placed on defendant’s penis insufficient<br />
to show penetration). However, penetration is an issue for the finder <strong>of</strong> fact to determine.<br />
Ryan v. Commonwealth, 219 Va. 439, 444-45, 247 S.E.2d 698, 702 (1978) (jury finding<br />
that defendant’s mouth penetrated victim’s vagina not error).<br />
23
c. Abduction (GROOT at 1–9).<br />
The Commonwealth is not required to prove any carrying (“asportation”) <strong>of</strong> the victim to<br />
sustain a conviction for abduction; physical detention is sufficient. Scott v. Commonwealth,<br />
228 Va. 519, 323 S.E.2d 572 (1984). See Simms v. Commonwealth, 2 Va. App. 614,<br />
346 S.E.2d 734 (1986) (defendant properly convicted <strong>of</strong> abduction with intent to defile<br />
when he pulled a 16-year-old victim to the side <strong>of</strong> her house, told her to take her pants<br />
<strong>of</strong>f, and threatened to kill her if she was not quiet). But see Johnson v. Commonwealth,<br />
221 Va. 872, 275 S.E.2d 592 (1981) (defendant who seized a woman, made sexual<br />
advances and held her for 10 to 15 seconds did not abduct with intent to defile because<br />
the evidence was consistent with his intent to persuade her to engage in consensual<br />
intercourse). For other issues that have arisen in abduction with intent to defile cases, see<br />
Fitzgerald v. Commonwealth, 223 Va. 615, 292 S.E.2d 798 (1982), cert. den., 459 U.S.<br />
1228, reh’g den., 460 U.S. 1105 (1983) (upholding jury instruction that used the words<br />
“sexually molest” rather than “defile”); Hughes v. Commonwealth, 16 Va. App. 576, 431<br />
S.E.2d 906 (1993) (evidence that defendant commented about “nice looking women” at<br />
a party, that he talked to the victim and <strong>of</strong>fered to take her and two small boys to the<br />
bathroom, and scientific evidence that the child was not wearing her coat when in car<br />
with defendant insufficient to prove intent to defile); Coram v. Commonwealth, 3 Va. App.<br />
623, 352 S.E.2d 532 (1987) (holding that convictions for attempted rape and abduction<br />
with intent to defile arising from one incident did not amount to double jeopardy).<br />
d. Carnal Knowledge.<br />
A defendant was properly convicted <strong>of</strong> carnal knowledge in Shull v. Commonwealth, 247<br />
Va. 161, 440 S.E.2d 133 (1994), aff’g 16 Va. App. 667, 431 S.E.2d 924 (1993), for<br />
committing oral sodomy by placing her mouth on the penis <strong>of</strong> a fifteen-year-old boy.<br />
e. Custody or Supervision <strong>of</strong> <strong>Child</strong>.<br />
24<br />
In Krampen v. Commonwealth, 28 Va. App. 163, 510 S.E.2d 276 (1999), the Court <strong>of</strong><br />
Appeals concluded that the defendant could be convicted <strong>of</strong> taking indecent liberties with<br />
a child in violation <strong>of</strong> Section 18.2-370.1 <strong>of</strong> the Code (indecent liberties by a person in a<br />
custodial or supervisory relationship) because the mother’s entrustment <strong>of</strong> the victim to<br />
him for transporting her to and from church placed him in “a custodial or supervisory<br />
relationship.” Such status does not require any formal legal custodial relationship.<br />
Similarly, a therapist also was acting in such a capacity when he took sexually explicit<br />
photographs <strong>of</strong> a girl he was counseling during the time she was entrusted to his care.<br />
DeAmicis v. Commonwealth, 29 Va. App. 751, 514 S.E.2d 788 (1999). In Woodson v.<br />
Commonwealth, Record No. 140-98-2 (Va. App. Mar. 2, 1999) (unpublished), the court<br />
ruled that defendant was a “person responsible” for the victim’s care under Va. Code Ann.<br />
§18.2-371.1 where he lived in the same house and exercised authority over him and he<br />
thus could be convicted <strong>of</strong> neglecting the boy. However, in Kisling v. Commonwealth, Record<br />
No. 0169-98-3 (Va. App. Dec. 22, 1998) (unpublished), the court found insufficient pro<strong>of</strong>
<strong>of</strong> a “custodial or supervisory relationship” where the seventeen-year-old victim was living<br />
as a guest in Kisling’s home without him having any legal or actual authority over the<br />
girl. Although the conviction was reversed on other grounds, the Court <strong>of</strong> Appeals ruled<br />
in Quinones v. Commonwealth, 35 Va. App. 634, 547 S.E.2d 524 (2001), that a stepgrandfather<br />
could be tried as a “custodian.”<br />
B. Physical <strong>Abuse</strong> (Cruelty to <strong>Child</strong>ren, Va. Code Ann. § 40.1–103, and <strong>Abuse</strong> and Neglect <strong>of</strong><br />
<strong>Child</strong>ren, Va. Code Ann. §18.2–371.1) (GROOT at 230-231).<br />
For issues related to physical <strong>of</strong>fenses against children, see Christian v. Commonwealth, 221 Va.<br />
1078, 277 S.E.2d 205 (1981) (Commonwealth must prove beyond a reasonable doubt that the<br />
defendant was the only person who could have injured the child); Lovisi v. Commonwealth, 212<br />
Va. 848, 188 S.E.2d 206 (1972), cert. denied, 407 U.S. 922 (1972) (Va. Code Ann. §40.1–103<br />
applies to those standing in loco parentis at the time <strong>of</strong> the <strong>of</strong>fense and is not limited to those<br />
having legal custody over a child); Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d 1<br />
(1991) (bruises on three-year-old sufficient evidence to show requisite intent under malicious<br />
wounding statute); Diehl v. Commonwealth, 9 Va. App. 191, 385 S.E.2d 228 (1989) (felony<br />
abduction, Va. Code Ann. § 18.2–47, may be used against a non-custodial parent as the underlying<br />
felony in a felony murder prosecution). See also part V., supra. In Snow v. Commonwealth, 33 Va.<br />
App. 754, 537 S.E.2d 6 (2000), the court ruled that defendant could be convicted <strong>of</strong> child cruelty<br />
as a “person responsible for the care <strong>of</strong> a child” in engaging in a high speed attempt to evade the<br />
police with several children under eighteen in the automobile. He voluntarily took control <strong>of</strong> the<br />
car and drove away from the police knowing that the children were in the vehicle. However, in<br />
Commonwealth v. Carter, 21 Va. App. 150, 462 S.E.2d 582 (1995), the Court <strong>of</strong> Appeals ruled<br />
that a defendant could not be prosecuted under Va. Code Ann. §40–103 for placing children “in<br />
a situation that their life, health, or morals may be endangered” through driving under the<br />
influence <strong>of</strong> alcohol because a clause <strong>of</strong> the statute was unconstitutionally vague. Id. at 155, 462<br />
S.E.2d at 585. In another case decided a year later, Mosby v. Commonwealth, 23 Va. App. 53, 473<br />
S.E.2d 782 (1996), the court upheld the constitutionality <strong>of</strong> a different, but similar, clause in<br />
the same statute in a case where a child was injured in an automobile accident where his mother<br />
had been driving while drinking, although the conviction was overturned because the jury was<br />
instructed on simple negligence.<br />
The Court <strong>of</strong> Appeals ruled in Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453 (1999),<br />
that a mother could not be convicted <strong>of</strong> criminal neglect where she left her two young children<br />
alone napping in an apartment to visit a friend for thirty minutes in another apartment and the<br />
girls were injured in a fire because the mother left the gas stove on. There was no pro<strong>of</strong> <strong>of</strong> the<br />
requisite criminal intent to support the convictions. However, in Roberts v. Commonwealth, Record<br />
No. 1594-98-3 (Va. App. June 8, 1999) (unpublished), the court found that the evidence <strong>of</strong> felony<br />
child neglect was sufficient where the mother neglected to get necessary medical treatment for<br />
her four-year-old child when he had serious physical injuries, in spite <strong>of</strong> her claim that she lacked<br />
criminal intent because she feared her boyfriend. On the other hand, the Court <strong>of</strong> Appeals reversed<br />
a similar conviction where a mother failed to take her son to get medical attention when she saw<br />
25
injuries suffered while with a babysitter. McBeth v. Commonwealth, Record No. 1096-98-2 (Va.<br />
App. June 29, 1999) (unpublished).<br />
C. Pornography Offenses (Va. Code Ann. §§18.2–374.1 and -374.1:1) (GROOT at 384-386).<br />
1. Constitutionality<br />
The <strong>Virginia</strong> Supreme Court has upheld the constitutionality <strong>of</strong> Va. Code Ann. §18.2–374.1<br />
(1979 version). Freeman v. Commonwealth, 223 Va. 301, 309–13, 288 S.E.2d 461, 465–<br />
67 (1982). In Freeman, the court held that the statute was not overbroad because its incidental<br />
effect on speech was minor relative to the need to control behavior that harms children. Id. at<br />
309, 288 S.E.2d at 465. The court also held that the statute’s prohibition <strong>of</strong> “obscene”<br />
material was not unconstitutionally vague. Id. at 312, 288 S.E.2d at 466-67. See also Foster<br />
v. Commonwealth, 6 Va. App. 313, 369 S.E.2d 688 (1988) (the language “obscene for<br />
children” in the 1979 version <strong>of</strong> Va. Code Ann. §18.2–374.1 was severable from the<br />
definition <strong>of</strong> “sexually explicit material” and therefore any constitutional infirmities in the<br />
“obscene for children” language would not affect the conviction).<br />
2. Elements.<br />
Intent. A person charged with enticing a person to be a subject <strong>of</strong> sexually explicit material<br />
under §18.2–374.1(B) (1) must have the intent to cause the victim to be the subject <strong>of</strong> sexually<br />
explicit material. Actual publication <strong>of</strong> materials is not necessary for a conviction; because<br />
the crime covers soliciting or encouraging children to appear in sexually explicit material, a<br />
person may be convicted if the evidence shows defendant’s intent is to produce sexually explicit<br />
material even though nothing is actually produced. Frantz v. Commonwealth, 9 Va. App. 348,<br />
354, 388 S.E.2d 273, 276-77 (1990).<br />
The Court <strong>of</strong> Appeals provided a thorough discussion <strong>of</strong> intent in Foster v. Commonwealth, 6<br />
Va. App. 313, 369 S.E.2d 688 (1988). In Foster, a defendant charged with four counts under<br />
§18.2-374.1(B) (1) argued that the evidence failed to prove his intent. In the first count, the<br />
court upheld the conviction because there was evidence that the defendant showed the victim<br />
pictures <strong>of</strong> genitalia <strong>of</strong> other children, told the victim not to tell anyone, asked the victim to<br />
model as if she were dead, and asked the victim to accompany him as he took pictures <strong>of</strong> dead<br />
children. Id. at 327, 369 S.E.2d at 696–97. However, in the remaining counts, the evidence<br />
was insufficient because it failed to show an intent to cause the children to be the subjects <strong>of</strong><br />
sexually explicit material. The evidence demonstrated the following acts by the defendant: i)<br />
he showed one victim how to massage the arm <strong>of</strong> a dead person in order to be able to move it<br />
into different positions. He also took pictures <strong>of</strong> the victim in a bathing suit and showed her<br />
pictures he had taken <strong>of</strong> nude children. However, he did not ask the victim to model and the<br />
pictures he took were not sexually explicit. Id. at 328, 369 S.E.2d at 697; ii) he asked another<br />
victim to model clothing for dead people and wrote in his records that he intended to take<br />
close-up pictures <strong>of</strong> her exposed nipples. The court said that pictures <strong>of</strong> nipples were not “lewd”<br />
within the meaning <strong>of</strong> the statute. Id. at 329, 369 S.E.2d at 697–98; and iii) the defendant<br />
26
had a victim lie on a bed pretending to be dead, he took her measurements for burial clothes,<br />
and he showed her photographs <strong>of</strong> models dressed in see-through nightgowns, telling her<br />
that was what she would be doing. The court found this to be insufficient evidence to prove<br />
an intent to cause her to be the subject <strong>of</strong> sexually explicit photographs. Id. at 329–30, 369<br />
S.E.2d at 698.<br />
Sexually Explicit Visual Material. In prosecuting a case under §§18.2–374.1 or 374.1:1, the<br />
Commonwealth must prove that visual representations <strong>of</strong> children are “sexually explicit.”<br />
The Court <strong>of</strong> Appeals defined what constitutes sexually explicit material in Frantz v.<br />
Commonwealth, 9 Va. App. 348, 388 S.E.2d 273 (1990). In Frantz, the defendant took pictures<br />
<strong>of</strong> teenage boys standing in the nude; on one occasion he removed all his clothes while taking<br />
the pictures and on another occasion he masturbated while taking pictures <strong>of</strong> a nude boy. The<br />
court held that the defendant’s sexual arousal was irrelevant to determining whether the<br />
pictures were sexually explicit, and because there was no evidence that “the boys assumed<br />
erotic or provocative poses,” the photographs were not sexually explicit. Id. at 353-54, 388<br />
S.E.2d at 276.<br />
Section 18.2-374.3 is a far more important section <strong>of</strong> the Code now because <strong>of</strong> the greater<br />
use <strong>of</strong> electronic means, including computers, computer networks, and computer bulletin<br />
boards, to promote activities forbidden by Va. Code Ann. §18.2–374.1.<br />
D. Attempts (GROOT at 44-51).<br />
While punishment for attempts are codified in Va. Code Ann. §§18.2–25 to 18.2–29, the<br />
definition <strong>of</strong> an attempt is guided by case law. Johnson v. Commonwealth, 209 Va. 291, 163 S.E.2d<br />
570 (1968). Two elements must be shown in the prosecution <strong>of</strong> any attempted <strong>of</strong>fense: i) specific<br />
intent to commit the crime; and ii) an overt act made toward the commission <strong>of</strong> the crime. Thacker<br />
v. Commonwealth, 134 Va. 767, 114 S.E. 504 (1922); Hicks v. Commonwealth, 86 Va. 223, 9<br />
S.E. 1024 (1889).<br />
1. Specific Intent<br />
Specific intent may be inferred from “conduct consistent with preparation for [the crime].”<br />
Fortune v. Commonwealth, 14 Va. App. 225, 229, 416 S.E.2d 25, 27 (1992). In Fortune, for<br />
example, the court cited as conduct consistent with the crime <strong>of</strong> rape: “shoving a victim onto<br />
a bed, telling a victim to lie down, removing or attempting to remove a victim’s outer clothing<br />
or underclothing, <strong>of</strong>ten while the defendant is removing or loosening his own clothing.” Id.<br />
Likewise, in Tharrington v. Commonwealth, 2 Va. App. 491, 346 S.E.2d 337 (1986),<br />
defendant’s acts demonstrated his intent to sexually abuse the victim. In this case, defendant<br />
had an 11-year-old friend <strong>of</strong> his daughter try on some pants. Once she had the pants on, the<br />
defendant locked her in a room with him, telling the victim he wanted her to see how the<br />
clothes fit. He asked her to pull the pants down to her thighs while he felt the waistband <strong>of</strong><br />
the pants. The defendant told her he liked her underpants. Next, the defendant had the victim<br />
unbutton her shirt while he felt the inside <strong>of</strong> the shirt. Finally, the defendant sat in front <strong>of</strong><br />
27
the victim, asked her repeatedly if he could touch her, and <strong>of</strong>fered her money to let him. The<br />
court held that these acts demonstrated an intent to touch the victim’s intimate parts or the<br />
clothing covering her intimate parts. In Penley v. Commonwealth, Record No. 188-97-2 (Va.<br />
App. Sept. 8, 1998) (unpublished), the Court <strong>of</strong> Appeals concluded that the evidence was<br />
sufficient to establish Penley’s guilt <strong>of</strong> attempted taking <strong>of</strong> indecent liberties with children<br />
where he asked two girls awaiting their school bus if they had “ever seen a dick before” and if<br />
they “would like to see one.” See also Green v. Commonwealth, 223 Va. 706, 292 S.E.2d 605<br />
(1982) (specific intent found); Chittum v. Commonwealth, 211 Va. 12, 174 S.E.2d 779 (1970)<br />
(specific intent found); Ingram v. Commonwealth, 192 Va. 794, 66 S.E.2d 846 (1951) (specific<br />
intent found); Granberry v. Commonwealth, 184 Va. 674, 36 S.E.2d 547 (1946) (specific<br />
intent found).<br />
2. Overt Act<br />
An overt act toward the commission <strong>of</strong> the <strong>of</strong>fense must go beyond mere preparation. Fortune,<br />
supra, 14 Va. App. at 230, 416 S.E.2d at 28. However, “where intent has been shown, any<br />
slight act done in furtherance <strong>of</strong> this intent will constitute an attempt.” Id. In Fortune, the<br />
defendant’s acts <strong>of</strong> taking <strong>of</strong>f his pants, forcibly keeping the victim in a room, and touching<br />
her breast went beyond mere preparation. Id. See also Tharrington v. Commonwealth, 2 Va.<br />
App. 491, 496, 346 S.E.2d 337, 340 (1986) (overt acts found when defendant took victim<br />
into a locked room, asked her to undress herself, and repeatedly asked her if he could touch<br />
her). But see Previtire v. Commonwealth, 16 Va. App. 809 , 433 S.E.2d 515 (1993) (defendant’s<br />
persistence, the circumstances <strong>of</strong> time, place and relative age, and defendant’s personal<br />
relationship with victim did not show an overt act).<br />
E. Principals and Accessories (Va. Code Ann. §§18.2-18 to 18.2-21) (GROOT at 390-396).<br />
Principal in the Second Degree. A person must satisfy three elements to be a principal in the<br />
second degree: i) the <strong>of</strong>fense must be committed by a principal in the first degree; ii) the defendant<br />
must have been actually or constructively present when the <strong>of</strong>fense was committed; and iii) the<br />
defendant must have “procured, encouraged, countenanced, or approved” the commission <strong>of</strong><br />
the crime. Sutton v. Commonwealth, 228 Va. 654, 324 S.E.2d 665 (1985). In Sutton, the court<br />
held that a woman who repeatedly pressured a victim to have intercourse with a man could be<br />
convicted <strong>of</strong> rape as a principal in the second degree. First, the fact that the defendant could not<br />
have committed the <strong>of</strong>fense did not “absolve her <strong>of</strong> criminal liability for aiding and abetting”<br />
her husband. Id. at 665, 324 S.E.2d at 671. Second, the defendant was in another room in the<br />
house when the intercourse occurred, where her “malevolent, intimidating influence on her<br />
niece was present and continued unabated.” This conduct amounted to constructive presence.<br />
Id. at 666, 324 S.E.2d at 672. Third, the defendant assisted in the entire scheme <strong>of</strong> coercing<br />
the victim into having intercourse with her husband. Thus, the conviction was proper.<br />
Innocent Agent. Under an earlier version <strong>of</strong> section 18.2-61, the <strong>Virginia</strong> Supreme Court held<br />
that rape could not be committed through an innocent agent. Dusenbery v. Commonwealth, 220<br />
28
Va. 770, 263 S.E.2d 392 (1980) (defendant forced a 16-year-old boy to have intercourse with a<br />
16-year-old girl by grabbing the boy’s penis and attempting to force the boy to penetrate the girl).<br />
However, the General Assembly amended the statute following the Dusenbery case to include<br />
activity that “causes a complaining witness” to engage in the activity. Va. Code Ann. §18.2–61.<br />
II. The Charging Documents (BACIGAL at 13–1 through 13–8).<br />
A. Specificity<br />
An indictment does not have to specify the exact date <strong>of</strong> the <strong>of</strong>fense when time is not <strong>of</strong> the essence.<br />
Va. Code Ann. §19.2–226(6). Time is not <strong>of</strong> the essence in rape cases unless the age <strong>of</strong> the child at<br />
the time <strong>of</strong> the <strong>of</strong>fense is an issue. Clinebell v. Commonwealth, 3 Va. App. 362, 349 S.E.2d 676<br />
(1986), rev’d on other grounds, 235 Va. 319, 368 S.E.2d 263 (1988) (sufficient to specify a 13-<br />
month period within which a crime occurred); see Waitt v. Commonwealth, 207 Va. 230, 148<br />
S.E.2d 805 (1966) (indictment stating that <strong>of</strong>fense occurred within 16 months prior to indictment<br />
sufficient); Marlowe v. Commonwealth, 2 Va. App. 619, 347 S.E.2d 167 (1986) (failure to specify<br />
date when defendant asserted an alibi defense did not violate due process).<br />
B. Number <strong>of</strong> Counts<br />
Supreme Court Rule 3A:6(b) states:<br />
Two or more <strong>of</strong>fenses, any <strong>of</strong> which may be a felony or misdemeanor, may be charged in separate<br />
counts <strong>of</strong> an indictment or information if the <strong>of</strong>fenses are based on the same act or transaction, or on<br />
two or more acts or transactions that are connected or constitute parts <strong>of</strong> a common scheme or plan.<br />
The Court <strong>of</strong> Appeals analyzed this rule in the child abuse context in Foster v. Commonwealth, 6 Va.<br />
App. 313, 369 S.E.2d 688 (1988). In Foster, the defendant asked several children to pose nude in<br />
various situations, most <strong>of</strong> which involved acting like they were dead. The court held that the counts<br />
were misjoined because: i) a three year gap between some <strong>of</strong> the incidents indicated they were not<br />
part <strong>of</strong> a “common scheme or plan;” and ii) the conduct in one count involved activity that did not<br />
occur in any <strong>of</strong> the other counts (binding and photographing a victim). Id. at 322-23, 369 S.E.2d at<br />
694. The court then analyzed four separate counts and found harmless error in joining these counts<br />
related to defendant’s attempts to entice young girls to be photographed in casket. Because all <strong>of</strong><br />
these acts would have been admissible in separate trials as prior crimes, it was not reversible error to<br />
join all four counts in one trial. Id. at 323-24, 369 S.E.2d at 695.<br />
III. Time Considerations.<br />
A. Statutes <strong>of</strong> Limitation (Va. Code Ann. §19.2–8) (BACIGAL at 14–9).<br />
With the exception <strong>of</strong> marital rape, Va. Code Ann. §18.2–61 and marital sexual assault, Va. Code Ann.<br />
§18.2–67.2:1, there is no statute <strong>of</strong> limitations on felony charges in <strong>Virginia</strong>. Further, Va. Code Ann.<br />
§19.2–8 places a one year limitation on the prosecution <strong>of</strong> most misdemeanor charges; misdemeanors<br />
related to child abuse fall under this limitation.<br />
29
B. Speedy Trial and Due Process (Va. Code Ann. §19.2-243) (BACIGAL at 14-10 through 14-12).<br />
<strong>Virginia</strong>’s speedy trial requirements, Va. Code Ann. §19.2-243, are listed in Appendix B. None<br />
<strong>of</strong> the issues raised in the statute are necessarily unique to child abuse cases. However, one issue<br />
that does arise frequently, given the length <strong>of</strong> delay in some reports <strong>of</strong> child abuse, is whether a<br />
delay <strong>of</strong> several years violates constitutional speedy trial or due process requirements. Speedy<br />
trial guarantees apply only after a defendant is charged or indicted. United States v. Marion, 404<br />
U.S. 307 (1971). Therefore, a delay caused by the victim’s failure to report does not trigger a<br />
speedy trial analysis. However, such a delay conceivably can affect the defendant’s right to a fair<br />
trial, thus implicating due process concerns. The <strong>Virginia</strong> Supreme Court has addressed the issue<br />
and established a two-step analysis. In order for a pre-indictment delay to violate due process,<br />
there must be a showing <strong>of</strong> intentional delay by the prosecutor and actual prejudice to the<br />
defendant. Hall v. Commonwealth, 8 Va. App. 526, 383 S.E.2d 18 (1989) (a 13-year preindictment<br />
delay in first degree murder case did not deny the defendant due process).<br />
The Court <strong>of</strong> Appeals has held in a child abuse context that a lengthy pre-indictment delay did<br />
not violate due process. Johnson v. Commonwealth, 9 Va. App. 176, 385 S.E.2d 223 (1989). In<br />
Johnson, the defendant was indicted in 1986 for sexual contact with minors that occurred from<br />
1973 to 1982. Law enforcement <strong>of</strong>ficials first received information about the incidents in 1986<br />
and an indictment was returned about six months later. The defendant argued that once he<br />
established prejudice, the burden shifted to the Commonwealth to prove that unfair tactics were<br />
not used. Id. The court did not reach this argument because it found the defendant’s claim that<br />
his memory had faded, did not by itself demonstrate actual prejudice. Therefore, the preindictment<br />
delay did not warrant dismissal <strong>of</strong> the charges. In Ashby v. Commonwealth, 33 Va.<br />
App. 540, 535 S.E.2d 182 (2000), the Court <strong>of</strong> Appeals ruled that when an indictment is “nol<br />
prossed” and a new indictment issued, the speedy trial period begins anew.<br />
IV. Lesser Included Offenses<br />
An indictment can be considered to be charging a lesser <strong>of</strong>fense within the one charged if all <strong>of</strong> the<br />
elements <strong>of</strong> the lesser <strong>of</strong>fense are included in the greater. Ashby v. Commonwealth, 208 Va. 443,<br />
444-45, 158 S.E.2d 657, 658 (1968), cert. denied, 393 U.S. 1111 (1969). “An <strong>of</strong>fense is not lesserincluded<br />
within another . . . if it contains at least one necessary element not required to prove the<br />
other.” Howard v. Commonwealth, 221 Va. 904, 275 S.E.2d 602 (1981). Stated differently, the rule<br />
is: “[I]n order for one crime to be a lesser included <strong>of</strong>fense <strong>of</strong> another crime, every commission <strong>of</strong> the<br />
greater <strong>of</strong>fense must also be a commission <strong>of</strong> the lesser <strong>of</strong>fense.” Kauffmann v. Commonwealth, 8 Va.<br />
App. 400, 409, 382 S.E.2d 279, 283 (1989). The following child abuse-related <strong>of</strong>fenses have been<br />
held not to be included within a greater <strong>of</strong>fense:<br />
• Carnal knowledge is not a lesser included <strong>of</strong>fense <strong>of</strong> rape. Ragsdale v. Commonwealth, 38 Va.<br />
App. 421, 565 S.E.2d 331 (2002).<br />
• Indecent liberties with a child, contributing to the delinquency <strong>of</strong> a minor, and sexual battery<br />
are not lesser included <strong>of</strong>fenses <strong>of</strong> aggravated sexual battery. Kauffmann, supra, 8 Va. App. at<br />
30
409–10, 382 S.E.2d at 283–84. In Kauffmann, the court stated that the difference between<br />
aggravated sexual battery and sexual battery was the age <strong>of</strong> the victim. “Since the evidence would<br />
not support a finding that [the victim] was not between thirteen and fifteen years <strong>of</strong> age, it being<br />
uncontradicted that she was fourteen, a sexual battery instruction would have been inappropriate<br />
in this case.” Id. Cf. Walker v. Commonwealth, 12 Va. App. 438, 404 S.E.2d 394 (1991) (an<br />
indictment was broadly enough drawn that a conviction for sexual battery was “substantially<br />
charged” and therefore proper even though it is not a lesser included <strong>of</strong>fense <strong>of</strong> aggravated sexual<br />
battery, which was the crime charged).<br />
• Contributing to the delinquency <strong>of</strong> a minor is not a lesser included <strong>of</strong>fense <strong>of</strong> statutory rape.<br />
Commonwealth v. Brew, 43 Va. Cir. 611 (Richmond County 1996).<br />
• Fondling or feeling a child’s breast with lascivious intent is not a lesser included <strong>of</strong>fense <strong>of</strong><br />
attempted sodomy. Howard v. Commonwealth, 221 Va. 904, 275 S.E.2d 602 (1981).<br />
• Attempted rape is not a lesser included <strong>of</strong>fense <strong>of</strong> abduction with intent to defile. Simms v.<br />
Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986); Coram v. Commonwealth, 3 Va. App.<br />
623, 352 S.E.2d 532 (1987).<br />
• Indecent exposure is not a lesser included <strong>of</strong>fense <strong>of</strong> sodomy. Ashby v. Commonwealth, 208 Va.<br />
443, 158 S.E.2d 667 (1968), cert. denied, 393 U.S. 1111 (1969).<br />
The following case has found a lesser included <strong>of</strong>fense:<br />
• Simple abduction is a lesser included <strong>of</strong>fense <strong>of</strong> abduction with intent to defile. Hawks v.<br />
Commonwealth, 228 Va. 244, 321 S.E.2d 650 (1984).<br />
V. Use <strong>of</strong> Circumstantial Evidence in <strong>Child</strong> Physical <strong>Abuse</strong> and Homicide Cases<br />
A. Generally (GROOT at 271–274).<br />
First Degree Murder. (Va. Code Ann. §18.2–32). <strong>Virginia</strong> courts look primarily to five factors in<br />
determining whether circumstantial evidence is sufficient to support a finding <strong>of</strong> a premeditated<br />
intent to kill. Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982). The factors are:<br />
the brutality <strong>of</strong> the attack, the disparity in size and strength between the defendant and the victim,<br />
the concealment <strong>of</strong> the victim’s body, the defendant’s lack <strong>of</strong> remorse and efforts to avoid detection,<br />
and motive. Id. at 232, 294 S.E.2d at 892-93. These factors were applied to a child abuse context<br />
in Rhodes v. Commonwealth, 238 Va. 480, 384 S.E.2d 95 (1989). In Rhodes, a three-month-old<br />
infant died <strong>of</strong> what an expert identified as head injuries caused by “moderate to severe force”<br />
from a blunt instrument. The infant also had one old bruise behind her ear and a leg fracture that<br />
was at least two weeks old. In analyzing whether the circumstantial evidence demonstrated a<br />
premeditated intent to kill, the court determined that three <strong>of</strong> the Epperly factors had not been<br />
met: i) the defendant did not attempt to conceal the crime, ii) she showed remorse, and iii) she had<br />
no motive. The court stated it was not using the Epperly factors as a litmus test, stating that<br />
circumstantial evidence may indicate intent “whenever [the court] can say that the reasonable<br />
import <strong>of</strong> [the] evidence, considered as a whole, is sufficient to show beyond a reasonable doubt<br />
31
that the accused was the criminal agent and he acted with a premeditated intent to kill.” Id. at<br />
487, 384 S.E.2d at 99. See also Biddle v. Commonwealth, 206 Va. 14, 141 S.E.2d 710 (1965)<br />
(first degree murder conviction reversed because evidence did not show a willful or malicious act<br />
by mother who failed to feed her three month old baby during times when she and her husband<br />
were not getting along); Vaughan v. Commonwealth, 7 Va. App. 665, 376 S.E.2d 801 (1989)<br />
(evidence insufficient to support first degree murder conviction <strong>of</strong> 16-year-old mother who kept<br />
her pregnancy a secret, failed to take steps toward placing the baby for adoption, disposed <strong>of</strong> the<br />
baby’s body, and did not suffer from a mental illness).<br />
The Court <strong>of</strong> Appeals upheld a first degree murder conviction for the death <strong>of</strong> a child in Archie v.<br />
Commonwealth, 14 Va. App. 684, 689, 420 S.E.2d 718, 721 (1992), in which four <strong>of</strong> the five<br />
Epperly elements were shown. First, an expert testified that the victim died from substantial and<br />
repeated blows to the head by a flat object. Second, the defendant was a grown woman and the<br />
victim was a three-year-old child. Third, several witnesses testified as to the defendant’s lack <strong>of</strong><br />
remorse after the incident. Fourth, there was evidence that the defendant was angry with the<br />
victim and with the victim’s mother, which provided a motive. The only element that did not<br />
exist was an effort to conceal the body. However, the existence <strong>of</strong> four <strong>of</strong> the five factors was<br />
sufficient to demonstrate the defendant’s premeditated intent to kill. Id. at 689-91, 420 S.E.2d<br />
at 722. See Charles A. Phipps, “Proving <strong>Criminal</strong> Intent in Cases <strong>of</strong> <strong>Child</strong> Homicide,” 11 Update,<br />
No. 1 (1998).<br />
Second Degree Murder. (Va. Code Ann. §18.2-32). The <strong>Virginia</strong> Supreme Court held circumstantial<br />
evidence sufficient to prove malice in Pugh v. Commonwealth, 223 Va. 663, 292 S.E.2d 339<br />
(1982). The child was malnourished, had been repeatedly beaten, and died after the defendant<br />
poured black pepper down the child’s throat to the point that it suffocated her. The court stated<br />
that the acts <strong>of</strong> abuse by the defendant were “wholly unreasonable, and beyond all proportion to<br />
any ordinary response to the conduct <strong>of</strong> a recalcitrant three-year-old.” Id. See also Evans v.<br />
Commonwealth, 215 Va. 609, 212 S.E.2d 268 (1975) (evidence <strong>of</strong> victim’s bruises, defendant’s<br />
statement that he had no love for the child, and an expert’s testimony that the child’s injuries<br />
were caused by blunt trauma constituted sufficient evidence to support a conviction for second<br />
degree murder). In Smith v. Commonwealth, No. 2284-01-1 (Va. App. Nov.5, 2002) (unpublished),<br />
the evidence was sufficient to find Smith guilty <strong>of</strong> second-degree murder and child neglect in the<br />
death <strong>of</strong> her newborn infant by blunt force head injuries where she had gone to the hospital<br />
complaining <strong>of</strong> vaginal bleeding, stated that she had thought she had a fibroid tumor but had<br />
discovered a few days prior that she was pregnant, and that she had given birth but did not want<br />
her mother to know. The infant was found in her backyard, wrapped in some clothing near the<br />
trash cans and he died a few days later from the head injuries and abandonment. Likewise, in<br />
Corrales v. Commonwealth, No. 2737-01-2 (Va. App. Nov. 19, 2002) (unpublished), defendant<br />
was convicted <strong>of</strong> the second degree murder <strong>of</strong> her newborn baby where the baby was found in a<br />
closet in a double-tied plastic bag dead from asphyxiation. In Pavlick v. Commonwealth, 27 Va.<br />
App. 219, 497 S.E.2d 920 (1998) reversing 25 Va. App. 538, 489 S.E.2d 72 (1997), a child<br />
died at two months old <strong>of</strong> head injuries as a result <strong>of</strong> the “shaken baby syndrome,” and the father<br />
32
was convicted <strong>of</strong> the second degree murder <strong>of</strong> the infant. The en banc Court <strong>of</strong> Appeals decided the<br />
trial court did not err in admitting evidence <strong>of</strong> rib fractures between two to four weeks old and a<br />
separate head injury that occurred about four to eight days before the death. The prior injuries<br />
occurred during a time when either Pavlick had sole physical custody <strong>of</strong> the infant or when the<br />
paternal grandmother was present, and she testified without contradiction that she had never<br />
shaken the infant. The evidence <strong>of</strong> the prior injuries was relevant and the jury was entitled to<br />
consider the evidence in determining the credibility <strong>of</strong> the witnesses. Similarly, in Webber v.<br />
Commonwealth, 26 Va. App. 549, 496 S.E.2d 83 (1998), the evidence was deemed sufficient to<br />
prove that a father had murdered his twenty-nine-day-old son where the medical symptoms were<br />
consistent with the “shaken baby syndrome” and where that diagnosis was coupled with the<br />
father’s inculpatory admissions.<br />
Involuntary Manslaughter. In Dowden v. Commonwealth, 260 Va. 459, 536 S.E.2d 437 (2000), the<br />
circumstantial evidence that defendant was responsible for the blunt trauma fatal injuries to his<br />
seven-month-old son was sufficient to support his conviction for involuntary manslaughter. The<br />
only other possible explanation for the injuries was the administration <strong>of</strong> CPR during efforts to<br />
resuscitate the infant but the expert evidence negating that theory was overwhelming. Similarly, in<br />
Collado v. Commonwealth, 33 Va. App. 356, 533 S.E.2d 625 (2000), the evidence to support<br />
defendant’s conviction for child abuse through the “shaken baby syndrome” was sufficient in light<br />
<strong>of</strong> her sole custody <strong>of</strong> the child as a daycare provider during the day when the injuries occurred and<br />
the expert testimony regarding the time <strong>of</strong> the injuries and the symptoms. In Craig v. Commonwealth,<br />
34 Va. App. 155, 538 S.E.2d 355 (2000), defendant was properly convicted <strong>of</strong> involuntary<br />
manslaughter in a trial for second degree murder for the death <strong>of</strong> his daughter as the result <strong>of</strong> “shaken<br />
baby syndrome,” and the Commonwealth, as well as a defendant, may request an instruction on the<br />
lesser-included <strong>of</strong>fense <strong>of</strong> involuntary manslaughter in such a case.<br />
<strong>Child</strong> Physical and Sexual <strong>Abuse</strong>. The Court <strong>of</strong> Appeals has found circumstantial evidence sufficient<br />
to prove a defendant’s intent to maliciously wound a child under Va. Code Ann. §18.2–51 in<br />
Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d 1 (1991). The court in Campbell stated:<br />
The finder <strong>of</strong> fact may infer that a person intends the natural and probable consequences<br />
<strong>of</strong> his acts. . . . Thus, if a person intentionally takes an action, the probable consequence<br />
<strong>of</strong> which is the permanent disability <strong>of</strong> another, even if permanent disability does not<br />
result, he or she can be found to have intended to cause a permanent disability. Id. at<br />
484, 405 S.E.2d at 5.<br />
The court held that the trier <strong>of</strong> fact could infer from the serious nature and location <strong>of</strong> the blows<br />
to the child’s body that the defendant intended to permanently disfigure the child, even though<br />
permanent disfigurement did not occur. Id. See Christian v. Commonwealth, 221 Va. 1078, 277<br />
S.E.2d 205 (1981) (two–year–old victim’s burns, bruises and fractures supported finding <strong>of</strong><br />
criminal intent to injure under Va. Code Ann. §18.2–51). The Court <strong>of</strong> Appeals ruled in Patrick v.<br />
Commonwealth, 27 Va. App. 655, 500 S.E.2d 839 (1998), that the circumstantial evidence <strong>of</strong><br />
penetration was sufficient to support a conviction <strong>of</strong> statutory rape <strong>of</strong> an eleven-year-old girl.<br />
33
Since DNA evidence was introduced based on semen found in the girl’s vagina, it was deposited<br />
there when defendant raped the victim, “which required him to penetrate victim’s vagina with<br />
his penis.” Id. at 663, 500 S.E.2d at 843. See also Morrison v. Commonwealth, 10 Va. App. 300,<br />
391 S.E.2d 612 (1990) (although victim never testified that penetration occurred, doctor’s<br />
testimony that some object penetrated her vagina was sufficient).<br />
B. Corpus Delicti (GROOT at 260-265).<br />
In every prosecution for homicide, the Commonwealth must prove corpus delicti. Lane v.<br />
Commonwealth, 219 Va. 509, 514, 248 S.E.2d 781, 783 (1978). The doctrine <strong>of</strong> corpus delicti<br />
requires first, proving a death occurred and second, proving the death was the result <strong>of</strong> the criminal act<br />
or agency <strong>of</strong> another. Opanowich v. Commonwealth, 196 Va. 342, 83 S.E.2d 432 (1954) (evidence<br />
sufficient to support second degree murder conviction when the baby did not die <strong>of</strong> natural causes, the<br />
defendant was the only person to have contact with the child, and the defendant had stated that she<br />
wanted to get rid <strong>of</strong> the child). Corpus delicti may be proven by circumstantial evidence. Id. In Griffin v.<br />
Commonwealth, Record No. 0855-99-2 (Va. App. Oct. 17, 2000) (unpublished), the court found that<br />
although Griffin had confessed to sexual <strong>of</strong>fenses against his six-year-old daughter, there was not even<br />
the “slight corroborative evidence” to establish the corpus delicti <strong>of</strong> the <strong>of</strong>fense and justify the conviction.<br />
In cases involving the death <strong>of</strong> a newborn, the doctrine <strong>of</strong> corpus delicti requires the Commonwealth<br />
to prove that the newborn achieved an independent and separate existence apart from its mother<br />
before its death. Lane v. Commonwealth, 219 Va. 509, 514, 248 S.E.2d 781, 783 (1978). In Lane,<br />
the 17-year-old defendant testified she did not know she was pregnant until giving birth to her child<br />
in a toilet. After giving birth, she wrapped the infant in a towel, put the baby into a large plastic<br />
garbage bag, and put the bag <strong>of</strong>f the side <strong>of</strong> a road. Several doctors testified at the trial that the death<br />
resulted from a severe lack <strong>of</strong> oxygen, but they could not state the cause <strong>of</strong> death with any reasonable<br />
degree <strong>of</strong> medical certainty. The Supreme Court held that evidence showing the child breathed a few<br />
times after birth was not an unqualified opinion that the child had acquired an independent existence<br />
separate from its mother. Id. at 514, 248 S.E.2d at 784. The court further stated it could not be<br />
inferred from the evidence that the death was caused by wrapping the child in a towel or placing it in<br />
the plastic bag. Id. at 515, 248 S.E.2d at 784. Thus, the evidence was insufficient to show beyond<br />
a reasonable doubt that the child’s death was caused by a criminal act <strong>of</strong> the defendant.<br />
34
CHAPTER THREE<br />
Pre-trial Motions<br />
I. Defense Motions<br />
A. Discovery (Sup. Ct. R. 3A:11) (BACIGAL at §§14–2 through 14–6).<br />
Although there is no constitutional right to discovery in a criminal case, Lowe v. Commonwealth,<br />
218 Va. 670, 239 S.E.2d 112 (1977), cert. den., 435 U.S. 930 (1978), the <strong>Virginia</strong> Supreme Court<br />
Rules allow the defendant to obtain documents from the prosecution under certain circumstances.<br />
Va. Sup. Ct. R. 3A:11. Prosecutors must be aware that Rule 3A:11 applies only to felony prosecutions<br />
in Circuit Court, and that the defendant also may be able to obtain discovery if there is a preliminary<br />
hearing in juvenile and domestic relations district court, Va. Sup. Ct. R. 8:15, or if the victim has<br />
filed a civil suit. Va. Sup. Ct. R. 4:0–4:14. For cases involving adults charged with a crime in juvenile<br />
and domestic relations district court, see Rules <strong>of</strong> Gen. Dist. Ct. 7C:5.<br />
1. Psychological/Psychiatric Records.<br />
Supreme Court Rule 3A:11(b) (1) allows the accused to inspect “written reports <strong>of</strong> a physical<br />
or mental examination <strong>of</strong> the accused or the alleged victim made in connection with a<br />
particular case . . . that are known by the Commonwealth’s attorney to be within the<br />
possession, custody or control <strong>of</strong> the Commonwealth.” Further, the physician-patient privilege<br />
is not applicable in “any legal proceeding resulting from the filing <strong>of</strong> any report or complaint”<br />
related to child abuse or neglect. Va. Code Ann. §63.2–1519. Accordingly, statements made<br />
to a physician are not protected by privilege. Barker v. Commonwealth, 230 Va. 370, 337<br />
S.E.2d 729, 734 (1985) (medical and psychiatric records <strong>of</strong> victim discoverable if in the<br />
possession and control <strong>of</strong> the Commonwealth’s Attorney). However, the defendant must make<br />
a specific showing <strong>of</strong> relevance to obtain psychiatric records <strong>of</strong> a rape victim. Farish v.<br />
Commonwealth, 2 Va. App. 627, 346 S.E.2d 736 (1986). See also O’Dell v. Commonwealth,<br />
234 Va. 672, 364 S.E.2d 491 (1988) (Commonwealth not required under Sup. Ct. R. 3A:11(b)<br />
to disclose information about its experts to the defendant even though defendant was required<br />
to furnish information about an expert because the Commonwealth was paying the costs due<br />
to defendant’s indigence).<br />
2. Physical Examination.<br />
In Clark v. Commonwealth, 31 Va. App. 96, 521 S.E.2d 313 (1999), the Court <strong>of</strong> Appeals<br />
agreed with the defense that a trial court has the discretion to require the victim <strong>of</strong> an alleged<br />
sexual assault to submit to an independent physical examination where the defendant has<br />
made “a threshold showing <strong>of</strong> a compelling need or reason.” Id. at 109, 521 S.E.2d at 320.<br />
3. Juvenile Records<br />
A defendant’s right to confront witnesses outweighs a juvenile’s embarrassment resulting<br />
from disclosure <strong>of</strong> juvenile records. Davis v. Alaska, 415 U.S. 308 (1974) (holding that a<br />
defendant’s constitutional right to effective cross-examination <strong>of</strong> adverse witnesses outweighs<br />
35
the witness’s right to testify without the embarrassment <strong>of</strong> disclosing juvenile records when<br />
the state could refrain from calling the witness to testify). However, a defendant is not entitled<br />
to examine juvenile court documents <strong>of</strong> adverse witnesses when the Commonwealth provides<br />
a complete record <strong>of</strong> the juvenile’s adjudication history and when bias, prejudice or ulterior<br />
motive are not asserted against the witness. Scott v. Commonwealth, 7 Va. App. 252, 262,<br />
372 S.E.2d 771, 777 (1988). See Fulcher v. Commonwealth, 226 Va. 96, 306 S.E.2d 874<br />
(1983) (harmless error in limiting cross-examination <strong>of</strong> witness’s juvenile record under the<br />
unusual facts <strong>of</strong> the case); McCain v. Commonwealth, 5 Va. App. 81, 360 S.E.2d 854 (1987)<br />
(harmless error to limit cross-examination <strong>of</strong> a witness concerning his juvenile record). Juvenile<br />
records cannot be used for impeachment purposes simply as a record <strong>of</strong> a crime<br />
4. Discovery <strong>of</strong> Other Documents<br />
Va. Sup. Ct. R. 3A:11(b) (2) provides:<br />
Upon written motion <strong>of</strong> an accused, a court shall order the Commonwealth’s attorney<br />
to permit the accused to inspect and copy or photograph designated books, papers,<br />
documents, tangible objects, buildings or places, or copies or portions there<strong>of</strong>, that<br />
are within the possession, custody, or control <strong>of</strong> the Commonwealth, upon a showing<br />
that the items sought may be material to the preparation <strong>of</strong> his defense and that the<br />
request is reasonable. (emphasis added).<br />
Prosecutors should be aware <strong>of</strong> the following issues:<br />
• The Commonwealth is not required to furnish the names and addresses <strong>of</strong> witnesses. Lowe v.<br />
Commonwealth,218 Va. 670, 239 S.E.2d 112 (1977), cert. den.,435 U.S. 930 (1978); Watkins<br />
v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), cert. den., 475 U.S. 1099 (1986).<br />
• The defendant is not entitled to records that <strong>Child</strong> Protective <strong>Services</strong> has kept on the<br />
investigation. Spencer v. Commonwealth, No. 2207–01–2 (Va. Ct. App. Oct. 8, 2002)<br />
(unpublished) (the trial court did not err in denying the defense pretrial access to the CPS<br />
file, which included an audiotape and transcript <strong>of</strong> the interview with the victim).<br />
• The defendant may obtain school records if the Commonwealth intends to introduce such<br />
records in its case-in-chief. Sup. Ct. R. 3A:11.<br />
• The defendant may use a subpoena duces tecum to obtain writings or objects that are<br />
material to the proceeding even if they are not admissible. Gibbs v. Commonwealth, 16<br />
Va. App. 697, 432 S.E.2d 514 (1993).<br />
• The defendant may obtain the results <strong>of</strong> scientific tests, such as DNA tests. Va. Sup. Ct. R.<br />
3A:11(b) (1) (ii).<br />
• The defendant may obtain all relevant statements made by the defendant. Va. Sup. Ct. R.<br />
3A:11(b) (1) (i). See also Naulty v. Commonwealth, 2 Va. App. 523, 346 S.E.2d 540 (1986)<br />
(only relevant statements by the defendant are subject to discovery).<br />
36
Of importance is Rule 3A:12, which requires requested writings to be material to<br />
the proceeding. Prosecutors should move to quash requests for all documents until<br />
there has been a showing <strong>of</strong> materiality. Prosecutors may wish to request the court<br />
review records in camera, and the prosecutor also should move for copies <strong>of</strong> all records<br />
relevant to the defense to be provided to the Commonwealth.<br />
5. Exculpatory Evidence<br />
The Commonwealth must turn over all exculpatory evidence known to the<br />
Commonwealth. Bellfield v. Commonwealth, 215 Va. 303, 208 S.E.2d 771 (1974),<br />
cert. denied, 420 U.S. 965 (1975). Such evidence includes: i) statement favorable to<br />
the accused even if the Commonwealth considers the statement not credible, Hughes<br />
v. Commonwealth, 16 Va. App. 576, 431 S.E.2d 906 (1993); Cherricks v.<br />
Commonwealth, 11 Va. App. 96, 396 S.E.2d 397 (1990); ii) scientific and physical<br />
evidence, Robinson v. Commonwealth, 231 Va. 142, 341 S.E.2d 159 (1986) (a<br />
witness’s failure to pass a polygraph test and the fact that the witness possibly had<br />
human blood on his clothes should have been provided by the prosecution in response<br />
to defendant’s motion for exculpatory evidence); and iii) information in the possession<br />
<strong>of</strong> the police but not known to the prosecutor, Conway v. Commonwealth, 11 Va. App.<br />
103, 397 S.E.2d 227 (1990). See MANUAL, Chapter Four, part II.B.2.d.<br />
B. Other Defense Motions<br />
1. Request for a Bill <strong>of</strong> Particulars (BACIGAL at §13–8).<br />
One <strong>of</strong> the most popular defense motions is a request for a bill <strong>of</strong> particulars, in which<br />
the defendant attempts to force the prosecution into specifying a date for the<br />
occurrence. For discussion <strong>of</strong> this issue, see supra, Chapter Two, part II.A.<br />
2. Motion for Continuance (Va. Sup. Ct. R. 7A:14) (BACIGAL at §17–3).<br />
It is important that the defendant or the defendant’s attorney consent on the record<br />
to a continuance. Gilchrist v. Commonwealth, 227 Va. 540, 317 S.E.2d 784 (1984).<br />
By consenting, the defendant waives the right to raise Speedy Trial Act questions at a<br />
later date. “[A] statute such as <strong>Virginia</strong> Code . . . §4926, designed to aid in the<br />
constitutional guarantee <strong>of</strong> a ‘speedy trial’ for one accused <strong>of</strong> crime, may be waived<br />
and is waived where the accused consents to a continuance or a postponement.”<br />
Flannery v. Commonwealth, 35 S.E.2d 135, 139 (Va. 1945). For other issues relating<br />
to continuances, see Bennett v. Commonwealth, 236 Va. 448, 374 S.E.2d 303 (1988)<br />
(trial court’s four-day continuance to allow the Commonwealth to respond to a<br />
surprise argument by the defendant not an abuse <strong>of</strong> discretion because defendant<br />
has no constitutional “right to surprise” the Commonwealth as a defense tactic);<br />
Smith v. Commonwealth, 16 Va. App. 630, 432 S.E.2d 2 (1993) (continuance for<br />
defendant not required when on morning <strong>of</strong> trial defendant wanted more time to test<br />
37
lood sample submitted five months prior to trial for evidence <strong>of</strong> sexual activity <strong>of</strong> fourteenyear-old<br />
victim).<br />
3. Severance Motions (BACIGAL at §§14–19 through 14–20).<br />
The Commonwealth must file a motion to try jointly “persons charged with participating in<br />
contemporaneous and related acts or occurrences or in a series <strong>of</strong> acts or occurrences<br />
constituting an <strong>of</strong>fense or <strong>of</strong>fenses.” Va. Code Ann. §19.2–262.1. The court may order such<br />
a joint trial for good cause, provided it does not constitute prejudice to a defendant. Id. See<br />
also discussion supra, Chapter 2, part II.B.<br />
4. Motion to Admit Evidence <strong>of</strong> Victim’s Prior Sexual Conduct<br />
<strong>Virginia</strong>’s rape shield statute makes evidence <strong>of</strong> a victim’s prior sexual conduct inadmissible.<br />
Va. Code Ann. §18.2–67.7 (“In prosecutions [<strong>of</strong> criminal sexual assault cases], general<br />
reputation or opinion evidence <strong>of</strong> the complaining witness’s unchaste character or prior sexual<br />
conduct shall not be admitted.”). See Hoke v. Commonwealth, 237 Va. 303, 377 S.E.2d 595<br />
(1989) (evidence <strong>of</strong> victim’s reputation held clearly inadmissible under rape shield statute).<br />
See MANUAL, Chapter Four, part III.D., for further discussion <strong>of</strong> this issue.<br />
38<br />
The <strong>Virginia</strong> Supreme Court has determined that prior allegations <strong>of</strong> sexual abuse by a victim<br />
are admissible to impeach the credibility <strong>of</strong> the victim or to show that the present <strong>of</strong>fense did<br />
not occur and that such evidence does not fall within the rape shield statute. Clinebell v.<br />
Commonwealth, 235 Va. 319, 325, 368 S.E.2d 263, 266 (1988). In Clinebell, the defendant<br />
was convicted <strong>of</strong> sexually assaulting his minor daughter. Prior to trial, the Commonwealth<br />
filed a motion in limine to have the trial court prohibit reference to any past sexual contact <strong>of</strong><br />
the victim with any person other than the defendant. Specifically, the Commonwealth sought<br />
to prohibit any reference to the following statements allegedly made by the daughter: i) in<br />
1983 she told a classmate she was pregnant; ii) in 1984 she told a classmate both her father<br />
and her uncle had raped her; iii) in 1984 she told a cousin that a boy had gotten her pregnant;<br />
and iv) she had claimed her paternal grandfather had sexually abused her (the grandfather<br />
was tried and acquitted <strong>of</strong> two charges <strong>of</strong> abuse). The defendant argued the purpose <strong>of</strong> the<br />
evidence was to prove the victim falsely claimed to have engaged in sexual conduct and to<br />
attack the victim’s credibility. The Supreme Court held that the allegedly false “statements”<br />
concerning sexual behavior were not “conduct” within the meaning <strong>of</strong> <strong>Virginia</strong>’s rape shield<br />
statute and were admissible to impeach the complaining witness’s credibility. Id. at 322–º–<br />
23, 368 S.E.2d at 264–65. Further, the court held that specific acts <strong>of</strong> prior allegations are<br />
admissible as substantive evidence tending to show that the instant <strong>of</strong>fense did not occur<br />
because “the weight <strong>of</strong> authority recognizes more liberal rules concerning impeachment <strong>of</strong><br />
complaining witnesses” in sex abuse cases. Id. The one limitation on this rule is that the<br />
court must make a threshold determination that a reasonable probability <strong>of</strong> the falsity <strong>of</strong> the<br />
prior allegations exists. Id. at 326, 368 S.E.2d at 266. In this case, the court concluded that<br />
in light <strong>of</strong> her “obviously” false claims <strong>of</strong> pregnancy, a reasonable probability existed that her<br />
claims <strong>of</strong> sexual misconduct against her grandfather and uncle also were false. The court
elieved that if the jury had been informed <strong>of</strong> her prior statements, it properly could have<br />
inferred that the father’s alleged sexual acts with his daughter also were fabrications.<br />
Likewise, in Cairns v. Commonwealth, 40 Va. App. 271, 579 S.E.2d 340 (2003), where a<br />
man was convicted <strong>of</strong> three counts <strong>of</strong> forcible sodomy, one count <strong>of</strong> rape and one count <strong>of</strong><br />
producing sexually explicit material, all in connection with activities involving his fourteen–<br />
year–old stepdaughter and his eleven–year–old daughter, the Court <strong>of</strong> Appeals ruled that the<br />
trial judge erred in refusing to admit into evidence a journal kept by the older girl, because<br />
the journal was admissible as statements for specific impeachment purposes. The rape shield<br />
statute thus did not apply, but the error was harmless since the trial judge reviewed the journals<br />
and said their admission would not have influenced his decision. In a circuit court case, the<br />
judge ruled that there was no exception to the rape shield law that would allow crossexamination<br />
<strong>of</strong> a child sexual assault victim on her prior sexual experience, especially since<br />
that alleged prior experience was dissimilar to what was alleged in the case. Commonwealth v.<br />
Hagy, 41 Va. Cir. 51 (Roanoke City 1996).<br />
5. Marital Privilege (FRIEND at §7-2; BACIGAL, TATE & GUERNSEY at 270–272).<br />
The common law interspousal confidential communication privilege was not abrogated by<br />
the legislature’s enactment <strong>of</strong> Va. Code Ann. §§19.2–271.2 and 8.01–398. Church v.<br />
Commonwealth, 230 Va. 208, 335 S.E.2d 823 (1985). At the time <strong>of</strong> the Church decision,<br />
section 19.2-271.2 stated:<br />
In criminal cases neither [husband nor wife] shall be compelled . . . to be called as a<br />
witness against the other, except in the case <strong>of</strong> a prosecution for an <strong>of</strong>fense committed<br />
by one against the other or against a minor child <strong>of</strong> either . . . but if either be called and<br />
examined in any case as a witness in behalf <strong>of</strong> the other, the one so examined shall be<br />
deemed competent, and, subject to the exception stated in §8.01–398, may be compelled<br />
to testify against the other under the same rules <strong>of</strong> evidence governing other witnesses.<br />
(Emphasis added; the statute was last amended in 1996, subsequent to this case).<br />
Va. Code Ann. §8.01–398, applicable on its face only to civil proceedings, stated:<br />
[N]either husband nor wife shall, without the consent <strong>of</strong> the other, be examined in any<br />
actions as to any communications privately made by one to the other while married,<br />
nor shall either be permitted, without such consent, to reveal in testimony after the<br />
marriage relation ceases any such communication made while the marriage subsisted.<br />
The court held that the language “subject to the exception stated in §8.01-398” had the effect<br />
<strong>of</strong> retaining the repealed interspousal communication privilege within the criminal procedure<br />
statute. Thus, interspousal communications may not be compelled from a spouse under<br />
§19.2–271.2. See Appendix B for a current version <strong>of</strong> the text <strong>of</strong> the statute. Section 63.2–<br />
1519 <strong>of</strong> the Code abrogates the privilege in “any legal proceedings” resulting from a complaint<br />
or report <strong>of</strong> abuse or neglect.<br />
39
6. Venue (BACIGAL at §14–21).<br />
Change <strong>of</strong> venue based on extensive media coverage <strong>of</strong> a case depends on i) whether the media<br />
coverage is “factual and accurate;” and ii) the difficulty in selecting a jury. Mueller v.<br />
Commonwealth, 244 Va. 386, 398–99, 422 S.E.2d 380, 388–89 (1992). In Mueller, there<br />
was no contention that the media coverage was false, and only nine <strong>of</strong> 47 venirepersons had<br />
to be dismissed because <strong>of</strong> a predisposition against the defendant. Therefore, a change <strong>of</strong> venue<br />
was not required. See also Wood v. Commonwealth, 146 Va. 296, 135 S.E. 895 (1926) (need<br />
for change <strong>of</strong> venue established when defendant shows that a fair trial is impossible due to<br />
conditions existing at the time <strong>of</strong> trial).<br />
II. Prosecution Motions (See Daniel S. Armagh, “‘Pre-trial Motions in <strong>Child</strong> <strong>Abuse</strong> Cases,” 11<br />
Update, No. 3 (1998)).<br />
A. Discovery (BACIGAL at §14–6).<br />
If the defendant files a motion for discovery <strong>of</strong> prosecution records as provided by Rule 3A:11(b)<br />
(1) (ii) or (b) (2), the court must condition the defendant’s discovery order on his providing to the<br />
prosecution: i) discovery <strong>of</strong> records or reports <strong>of</strong> “autopsy examinations, ballistic tests, fingerprint,<br />
blood, urine and breath analysis, and other scientific tests” within the defendant’s control; ii)<br />
information about whether the accused intends to introduce an alibi defense; and iii) information<br />
about whether the defendant will assert an insanity defense. Va. Sup. Ct. R. 3A:11(c). The only<br />
other pre-trial information the Commonwealth may discover about defendant is that obtained<br />
from an HIV test; however, such information is not admissible at trial. Va. Code Ann. §18.2–62.<br />
B. Prosecution Motions Concerning Prior Acts <strong>of</strong> the Defendant:<br />
Evidence <strong>of</strong> “other crimes and <strong>of</strong>fenses at other times” is inadmissible to prove the defendant<br />
committed the crime for which he or she is being tried. Kirkpatrick v. Commonwealth, 211 Va.<br />
269, 272, 176 S.E.2d 802, 805 (1970). However, other crime evidence is admissible to show:<br />
• the “conduct and feeling <strong>of</strong> the accused toward his victim;”<br />
• prior relations;<br />
• any relevant element <strong>of</strong> the <strong>of</strong>fense charged;<br />
• motive, intent, or knowledge <strong>of</strong> the accused;<br />
• evidence that “leads up to the <strong>of</strong>fense;” or<br />
• the other crimes are part <strong>of</strong> a general scheme or plan that includes the crime charged. Id.<br />
See also MANUAL, Chapter Four, part IV.<br />
1. Prior Acts Involving the Same Victim (FRIEND at §§12–14 through 12–16; BACIGAL, TATE<br />
& GUERNSEY at 258–264).<br />
40
a. Sexual <strong>Abuse</strong><br />
Evidence <strong>of</strong> prior incestuous behavior by a defendant is admissible to show his or her<br />
predisposition toward incest. Brown v. Commonwealth, 208 Va. 512, 158 S.E.2d 663<br />
(1968). In Brown, the court quoted the language <strong>of</strong> 27 AM. JUR., Incest §15, pp. 296–97:<br />
[I]t is well settled that in a prosecution for incest, evidence <strong>of</strong> acts <strong>of</strong> incestuous<br />
intercourse between the parties other than those charged in the indictment or<br />
information, whether prior to or subsequent thereto, is, if not too remote in<br />
point <strong>of</strong> time, admissible for the purpose <strong>of</strong> throwing light upon the relations<br />
<strong>of</strong> the parties and the incestuous disposition <strong>of</strong> the defendant toward the other<br />
party, and to corroborate the pro<strong>of</strong> <strong>of</strong> the act relied upon for conviction. Id. at<br />
516–17, 158 S.E.2d at 667.<br />
See also Freeman v. Commonwealth, 223 Va. 301, 314, 288 S.E.2d 461, 467–68 (1982)<br />
(evidence that defendant had prior sexual contact with victim in child pornography<br />
prosecution admissible because it tended to prove that the pictures appealed to his prurient<br />
interest, which was an element <strong>of</strong> the <strong>of</strong>fense); Ryan v. Commonwealth, 219 Va. 439,<br />
247 S.E.2d 698 (1978) (evidence <strong>of</strong> defendant’s attempted rape <strong>of</strong> victim three nights<br />
before the incident for which he was convicted admissible in defendant’s trial for breaking<br />
and entering with intent to commit rape); Herron v. Commonwealth, 208 Va. 326, 327–<br />
28, 157 S.E.2d 195, 196–97 (1967) (evidence <strong>of</strong> prior intercourse between the<br />
defendant and victim <strong>of</strong> statutory rape admissible but must be limited to corroborating<br />
the victim’s testimony and not as pro<strong>of</strong> <strong>of</strong> guilt for the prior acts). In Mangum v.<br />
Commonwealth, No. 0761–02–2 (Va. App. Feb. 4, 2003), the Court <strong>of</strong> Appeals upheld<br />
the admission <strong>of</strong> prior sexual acts with the child victim for the limited purpose <strong>of</strong> showing<br />
defendant’s inclination to commit the charged acts and in corroboration <strong>of</strong> the victim’s<br />
testimony.<br />
Double Jeopardy. Evidence <strong>of</strong> a prior conviction for rape <strong>of</strong> the same victim does not<br />
constitute double jeopardy. Marshall v. Commonwealth, 5 Va. App. 248, 361 S.E.2d 634<br />
(1987). In April 1985 the defendant was indicted for rape <strong>of</strong> a child under the age <strong>of</strong> 14<br />
years for conduct occurring within five and one-half years <strong>of</strong> the indictment. In May 1985<br />
the defendant was convicted <strong>of</strong> rape <strong>of</strong> a minor under the age <strong>of</strong> 14 years for conduct<br />
occurring on March 3, 1985. During the trial <strong>of</strong> the April indictment, the victim’s mother<br />
gave a detailed description <strong>of</strong> events she witnessed on March 3, for which defendant had<br />
already been convicted. After being convicted <strong>of</strong> the <strong>of</strong>fenses set forth in the second<br />
indictment, the defendant argued that this conviction placed him in double jeopardy.<br />
The court first noted that evidence <strong>of</strong> prior acts generally is admissible in cases <strong>of</strong> incest<br />
or rape for the purpose <strong>of</strong> showing the defendant was disposed to such conduct. The court<br />
held that this raises double jeopardy problems only if it involves “the identical criminal<br />
act, not the same <strong>of</strong>fense by name.” Id. at 255, 361 S.E.2d at 638. Therefore, because the<br />
defendant was convicted for acts other than those occurring on March 3, 1985, he was<br />
41
not placed in double jeopardy. However, the court stated that once such evidence is<br />
admitted, the trial court must give a clear instruction explaining to the jury the purpose<br />
for which the evidence is to be used. The court stated:<br />
The safeguard to a fair trial for a defendant who is confronted with properly<br />
admitted evidence <strong>of</strong> <strong>of</strong>fenses for which he is not then being tried is in a clear<br />
and specific instruction . . . explaining the purpose for which the evidence is<br />
admitted and the limited consideration it may be given by the jury. Id. at 255,<br />
361 S.E.2d at 639.<br />
Because the judge’s instruction in this case was inadequate, the court reversed the<br />
conviction.<br />
b. Physical <strong>Abuse</strong> (FRIEND at §12–14; BACIGAL, TATE & GUERNSEY at 263–264).<br />
Evidence <strong>of</strong> prior physical abuse <strong>of</strong> a victim is admissible “where motive, intent or<br />
knowledge <strong>of</strong> the accused is involved, or where the evidence is connected with or leads up<br />
to the <strong>of</strong>fense for which the accused is on trial.” Evans v. Commonwealth, 215 Va. 609,<br />
614, 212 S.E.2d 268, 272 (1975). In Evans, the Supreme Court admitted evidence in a<br />
prosecution for second degree murder that the defendant previously had struck the victim.<br />
The court stated that the evidence <strong>of</strong> other beatings was relevant “to establish the intent<br />
to do serious bodily harm to the child, to show defendant’s feelings toward [the victim],<br />
and to indicate a pattern <strong>of</strong> conduct which led to [the victim’s] death.” Id. at 614, 212<br />
S.E.2d at 272. See also Estelle v. McGuire, 112 S. Ct. 475 (1991) (admission <strong>of</strong> prior<br />
injury evidence does not violate due process even though prior injuries not linked<br />
specifically to the defendant). Cf. Smarr v. Commonwealth, 219 Va. 168, 246 S.E.2d 892<br />
(1978) (reversible error to admit hospital records <strong>of</strong> prior injuries <strong>of</strong> a child in prosecution<br />
for malicious wounding when the Commonwealth failed to show that the defendant<br />
caused the prior injuries).<br />
2. Prior Acts Involving Different Victims (FRIEND at §12–14; BACIGAL, TATE & GUERNSEY<br />
at 263–264).<br />
a. Sexual <strong>Abuse</strong><br />
42<br />
Other acts evidence is admissible “if it shows the conduct or attitude <strong>of</strong> the accused toward<br />
his victim, establishes the relationship between the parties, or negates the possibility <strong>of</strong><br />
accident or mistake.” Moore v. Commonwealth, 222 Va. 72, 77, 278 S.E.2d 822, 825<br />
(1981). In Moore, the defendant was convicted <strong>of</strong> indecent liberties for conduct occurring<br />
with a boy under the age <strong>of</strong> 14. The court allowed evidence that defendant fondled the<br />
victim and another boy several months after the incident for which the defendant was<br />
convicted. Id. See also Hawks v. Commonwealth, 228 Va. 244, 321 S.E.2d 650 (1984)<br />
(testimony <strong>of</strong> witnesses tending to show defendant’s attempts to lure women into his<br />
vehicle to abduct and rape them relevant to corroborate testimony <strong>of</strong> victim and to<br />
contradict defendant’s claim that victim had “flagged him down” and “jumped in his
pickup”); Foster v. Commonwealth, 6 Va. App. 313, 323, 369 S.E.2d 688, 694 (1988)<br />
(evidence <strong>of</strong> defendant’s attempts to entice young girls to be photographed admissible to<br />
show his intent). Cf. Day v. Commonwealth, 196 Va. 907, 86 S.E.2d 23 (1955) (evidence<br />
<strong>of</strong> stalking by defendant <strong>of</strong> another victim earlier in the evening inadmissible for the<br />
purpose <strong>of</strong> showing defendant’s state <strong>of</strong> mind to molest women); White v. Commonwealth,<br />
9 Va. App. 366, 388 S.E.2d 645 (1990) and Overruled on other grounds, Lavender v.<br />
Commonwealth,Va. App. 1003, 407 S.E.2d, 910 (1991) (evidence that rapist used a knife<br />
in an attack <strong>of</strong> another victim the same night insufficient to show that the act was so<br />
unusual so as to act as a signature <strong>of</strong> the defendant). For the related issue <strong>of</strong> prior<br />
convictions, see Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986) (prior<br />
convictions admissible to impeach the defendant’s credibility only if the convictions<br />
demonstrate a lack <strong>of</strong> truth or veracity <strong>of</strong> defendant).<br />
b. Physical <strong>Abuse</strong> (BACIGAL, TATE & GUERNSEY at 258).<br />
Prior acts <strong>of</strong> abuse must be admitted for a proper purpose and not to show predisposition<br />
<strong>of</strong> defendant. Hagy v. Commonwealth, 222 Va. 599, 283 S.E.2d 187 (1981). In Hagy, the<br />
court held inadmissible evidence in a child homicide trial that the defendant had twisted<br />
the arm and feet <strong>of</strong> another child while in the defendant’s care. The court held that the<br />
victim died <strong>of</strong> injuries completely unrelated to twisting arms or feet and that such evidence<br />
only had the improper purpose <strong>of</strong> showing that the defendant was disposed toward abusing<br />
children. Id. at 604, 283 S.E.2d at 190.<br />
3. Computer Pornography.<br />
In Blaylock v. Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998), the trial court erred in<br />
admitting into evidence pornographic images from Blaylock’s computer involving children.<br />
This evidence <strong>of</strong> other and prior “bad acts” would have been relevant to prove intent but intent<br />
was not an issue in the case. Similarly, in Staton v. Commonwealth, No. 1362–01–4 (Va. Ct.<br />
App. Aug.6, 2002) (unpublished), defendant was convicted <strong>of</strong> ten counts <strong>of</strong> taking indecent<br />
liberties with a child, two counts <strong>of</strong> aggravated sexual battery and object sexual penetration,<br />
all with a twelve-year-old girl but the convictions were reversed because <strong>of</strong> the improper<br />
introduction <strong>of</strong> evidence that defendant had images <strong>of</strong> child pornography on his computer.<br />
C. Other Prosecution Motions<br />
Closed Preliminary Hearing. The court may close the courtroom for preliminary hearings on its<br />
own motion or at the request <strong>of</strong> the prosecutor, the accused, or the complaining witness. Va.<br />
Code Ann. §18.2–67.8. The court may allow a transcript to be made <strong>of</strong> this proceeding, Va.<br />
Code Ann. §19.2–185, but there is no case law on whether this proceeding can be videotaped<br />
for the purposes <strong>of</strong> preserving the child’s testimony in case the child is unable to testify at trial.<br />
See discussion infra, Chapter 5, part I.B., related to closed courtroom at trial. See also MANUAL,<br />
Chapter 6, part III.<br />
43
Motion for Admissibility <strong>of</strong> DNA Evidence. DNA pr<strong>of</strong>ile evidence is admissible in any criminal<br />
proceeding. Va. Code Ann. §19.2–270.5. See Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d<br />
609 (1990) (finding DNA print identification test scientifically reliable).<br />
Motion to Exclude Witnesses. Minor victims and their parents or guardians “may remain in the<br />
courtroom during the trial” unless they are material witnesses. Va. Code Ann. §19.2–265.01.<br />
Motion to Protect the Identity <strong>of</strong> the Victim. The Commonwealth’s Attorney, the judge, or the defendant<br />
may move to prohibit testimony as to the address or telephone number <strong>of</strong> a victim or witness if<br />
the judge determines such information is “not material under the circumstances <strong>of</strong> the case.” Va.<br />
Code Ann. §19.2–269.2.<br />
Motion to Amend Dates. An indictment may be amended any time before the verdict is handed down<br />
provided the amendment does not change the nature or character <strong>of</strong> the <strong>of</strong>fense charged. Va. Code<br />
Ann. §19.2–231. No case law addresses whether amending dates constitutes a change in the nature<br />
and character <strong>of</strong> the indictment. However, <strong>Virginia</strong> courts have long held that this provision is to be<br />
liberally construed, Chiang v. Commonwealth, 6 Va. App. 13, 365 S.E.2d 778 (1988), and prosecutors<br />
routinely amend dates as necessary. See MANUAL, Chapter Four, part V.B.<br />
Motions Regarding Bail and Pre-trial Release (BACIGAL at §§10–1 through 10–5). For a discussion<br />
<strong>of</strong> bail and pre-trial release issues in child abuse cases, see MANUAL, Chapter Four, part V.G.<br />
44
CHAPTER FOUR<br />
TRIAL<br />
I. Commonwealth’s Case.<br />
The Commonwealth’s case requires critical legal strategic decisions in areas such as jury selection, opening<br />
statements, and cross-examination techniques. For a thorough discussion <strong>of</strong> general trial strategy issues,<br />
see MANUAL, Chapter Five. The following discussion is limited in scope to trial issues for which <strong>Virginia</strong><br />
has case or statutory authority.<br />
A. Voir Dire (BACIGAL at §§16–4 through 16–6).<br />
In Smith v. Commonwealth, 40 Va. App. 595, 580 S.E.2d 481 (2003), the court reversed Smith’s<br />
convictions in a jury trial <strong>of</strong> the rape, object sexual penetration and attempted rape <strong>of</strong> two girls,<br />
one twelve and the other seventeen at the time <strong>of</strong> the incidents because the trial court erred in<br />
denying his motions for curative instructions to correct improper comments made by the<br />
prosecutor during voir dire and closing arguments. The prosecutor in this case urged that it was<br />
common for children to not report sexual assaults right away, and those comments were made<br />
both in voir dire and during summation. Although the court made a general cautionary instruction<br />
late in the case they did not address the specifics <strong>of</strong> the prosecutor’s arguments. The Court<br />
concluded that the comments were improper as they amounted to testimony, and on matters that<br />
were not put into evidence at trial. The Court also opined that “voir dire is not an opportunity for<br />
attorneys to testify or argue to the jury, especially regarding facts that will not be put into evidence.”<br />
Id. at 601, 580 S.E.2d at 484. In Skipper v. Commonwealth, 23 Va. App. 420, 477 S.E.2d 754<br />
(1996), the Court <strong>of</strong> Appeals ruled that the trial court did not violate the rights <strong>of</strong> a defendant<br />
charged with forcible rape and sodomy <strong>of</strong> a sixteen-year-old girl when it refused to permit questions<br />
<strong>of</strong> the jury venire regarding whether any juror had ever caught a child in a lie. See Victor I. Vieth,<br />
Using Voir Dire to Reduce Juror Bias in <strong>Child</strong> <strong>Abuse</strong> Cases,” 11 Update, No. 7 (1998).<br />
B. Opening Statement.<br />
See the general discussion in BACIGAL at §17–5.<br />
C. Testimony <strong>of</strong> the Victim.<br />
1. Competency <strong>of</strong> <strong>Child</strong>ren (Va. Code Ann. §8.01–396.1; BACIGAL at §17–12; FRIEND at §6–<br />
2; BACIGAL, TATE & GUERNSEY at 44; VIRGINIA EVIDENCE at §3.3).<br />
In 1993 the <strong>Virginia</strong> General Assembly enacted legislation creating a presumption that<br />
children shall not be deemed incompetent to testify solely because <strong>of</strong> age. Va. Code Ann. §8.01–<br />
396.1. See Appendix B for the text <strong>of</strong> this provision. See also MANUAL, Chapter 5, part IV.C.<br />
Prior to the enactment <strong>of</strong> this provision, <strong>Virginia</strong> case law provided the following rules for<br />
determining competency:<br />
• “There is no fixed age at which a child must have arrived in order to be competent as a<br />
witness.”” Rogers v. Commonwealth, 132 Va. 771, 111 S.E. 231 (1922) (child two months<br />
45
short <strong>of</strong> sixth birthday competent). See also Mackall v. Commonwealth, 236 Va. 240, 372<br />
S.E.2d 759 (1988), cert. den., 492 U.S. 925 (1989) (six-year-old competent to testify<br />
concerning her mother’s murder); Kirac<strong>of</strong>e v. Commonwealth, 198 Va. 883, 97 S.E.2d 14<br />
(1957) (six-year-old victim and nine-year-old witness competent to testify); Cross v.<br />
Commonwealth, 195 Va. 62, 64, 77 S.E.2d 447, 448 (1953) (there is no specific age for<br />
determining competency, but six-year-old child in this case incompetent because she did<br />
not demonstrate an independent recollection <strong>of</strong> the events and merely repeated what her<br />
mother told her to say); Mullins v. Commonwealth, 174 Va. 472, 5 S.E. 2d 499 (1939)<br />
(four and one–half and six and one–half year–olds competent); Davis v. Commonwealth,<br />
161 Va. 1037, 171 S.E. 598 (1933) (eight–year–old competent); Durant v.<br />
Commonwealth, 7 Va. App. 454, 375 S.E.2d 396 (1988) (seven-year-old’s statement that<br />
his mother’s attorney told him what to say went to the child’s credibility and not his<br />
competency); Royal v. Commonwealth, 2 Va. App. 59, 341 S.E.2d 660 (1986), rev’d on<br />
other grounds, 234 Va. 403, 362 S.E.2d 323 (1987) (ten-year-old witness competent in<br />
spite <strong>of</strong> the child’s inability to remember details <strong>of</strong> the events).<br />
• “In order to be competent as a witness, the child must have sufficient mental capacity to<br />
observe the data about which it has testified and record it in its mind, and thereafter<br />
understand questions put to it and be able to give intelligent answers.” Rogers, supra,<br />
132 Va. at 773, 111 S.E. at 231; Kirac<strong>of</strong>e, supra, 198 Va. at 840, 97 S.E.2d at 18–19.<br />
• The child should be able to communicate the observed facts accurately at the trial. Kirac<strong>of</strong>e,<br />
supra, 198 Va. at 840, 97 S.E.2d at 18. However, limited contradiction <strong>of</strong> a victim’s<br />
testimony goes to the victim’s credibility and not to her competency. Swanson v.<br />
Commonwealth, 8 Va. App. 376, 378–79, 382 S.E.2d 258, 259 (1989) (ten–year–old<br />
victim competent to testify in indecent liberties trial after being unable to state the dates<br />
<strong>of</strong> the incidents on cross-examination even though she had testified on direct examination<br />
that the incidents occurred within a specified period <strong>of</strong> months).<br />
• The child must be able to understand questions. Kirac<strong>of</strong>e, supra, 198 Va. at 840, 97 S.E.2d at 18–19.<br />
• “There must also be a sense <strong>of</strong> moral responsibility, at least to the extent <strong>of</strong> a consciousness <strong>of</strong> a<br />
duty to speak the truth.” Rogers, supra, 132 Va. at 773, 111 S.E. at 231-32.<br />
• Competency is determined at the time the child testifies rather than at the time the incident<br />
occurred. Cross, supra, 195 Va. at 64, 77 S.E.2d at 448.<br />
• The fact that a child previously has been determined incompetent does not render him or her<br />
incompetent in a later proceeding. Id.<br />
46<br />
• Competency is determined by the judge on a case-by-case basis at the time the child is <strong>of</strong>fered as a<br />
witness. The judge usually conducts a competency hearing prior to the child being <strong>of</strong>fered as a<br />
witness. The trial court’s determination <strong>of</strong> competency is within the sound discretion <strong>of</strong> the trial<br />
court and will not <strong>of</strong>ten be disturbed on appeal. Carpenter v. Commonwealth, 186 Va. 851, 44<br />
S.E.2d 419 (1947).
See generally Jennifer Massengale, “Facilitating <strong>Child</strong>ren’s Testimony,” 14 Update, No. 6 (2001).<br />
2. Uncorroborated Testimony <strong>of</strong> Victim (FRIEND at §4–16).<br />
The testimony <strong>of</strong> the victim does not have to be corroborated to support convictions for the<br />
following crimes:<br />
• Rape. Snyder v. Commonwealth, 220 Va. 792, 796, 263 S.E.2d 55, 57 (1980).<br />
• Statutory rape. Lear v. Commonwealth, 195 Va. 187, 193, 77 S.E.2d 424, 427 (1953).<br />
• Attempted rape. Fisher v. Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 203-04<br />
(1984).<br />
• Sodomy. Love v. Commonwealth, 18 Va. App. 84, 89, 441 S.E.2d 709, 713 (1994).<br />
• Aggravated sexual battery. Garland v. Commonwealth, 8 Va. App. 189, 191-92, 379 S.E.2d<br />
146, 147 (1989).<br />
• Object sexual penetration and carnal knowledge. Hebden v. Commonwealth, 26 Va. App.<br />
727, 496 S.E.2d 169 (1998) (en banc; equally divided court), rev’g 25 Va. App. 448,<br />
489 S.E.2d 245 (1997).<br />
See Victor I. Vieth, “When a <strong>Child</strong> Stands Alone: The Search for Corroborative Evidence,”<br />
11 Update, No. 6 (1999).<br />
D. Hearsay (BACIGAL at §17–19; FRIEND at §§18–1 through 18–55; BACIGAL, TATE & GUERNSEY<br />
at 84–85; VIRGINIA EVIDENTIARY FOUNDATIONS at §§ 9.1 through 9.13).<br />
<strong>Virginia</strong> has not enacted a statute providing special exceptions to the hearsay rule for criminal<br />
cases involving child sexual abuse. Cf. Va. Code Ann. §63.2-1522 (creating a special hearsay<br />
exception for civil proceedings involving the abuse or neglect <strong>of</strong> a child). Consequently, child out<strong>of</strong>-court<br />
statements must either qualify as non-hearsay or fit within one <strong>of</strong> the standard common<br />
law hearsay exceptions.<br />
1. Non-hearsay (FRIEND at §§18–3 through 18–4; BACIGAL, TATE & GUERNSEY at 85–87).<br />
An out–<strong>of</strong>–court statement made by a child is not hearsay if it is not <strong>of</strong>fered for its truth. For<br />
example, in Church v. Commonwealth, 230 Va. 208, 335 S.E.2d 823 (1985), a seven–year–<br />
old victim’s mother testified at trial that the victim told her she did not like the mother and<br />
father to have intercourse because sex was “dirty, nasty, and it hurt.” The court held that this<br />
statement was not hearsay because it was <strong>of</strong>fered to show the child’s attitude toward sex and<br />
was not <strong>of</strong>fered to prove the truth <strong>of</strong> the statement that sex is dirty, nasty and painful.<br />
However, in Kauffmann v. Commonwealth, 8 Va. App. 400, 382 S.E.2d 279 (1989), the court<br />
held that statements by the victim introduced at the father’s trial for aggravated sexual battery<br />
were not used to show her state <strong>of</strong> mind. During the course <strong>of</strong> investigating the victim’s suicide,<br />
an investigator was told by friends <strong>of</strong> the victim that she had mentioned being molested by<br />
47
her father. The investigator also discovered entries in the victim’s diary in which she stated<br />
that her father was an “incestive [sic] molesting jerk.” The trial court admitted these statements<br />
and the Court <strong>of</strong> Appeals reversed. The court stated:<br />
[T]he statements made by [the victim] to her friends and her entries in the spiral notebook<br />
both recalled past events and described the cause <strong>of</strong> her emotional distress. There was no<br />
showing, nor, do we believe, could there be, why [the victim’s] state <strong>of</strong> mind was relevant to<br />
any issue in the case. Id. at 407, 382 S.E.2d at 283.<br />
a. Prompt Complaint (GROOT at 423–424; FRIEND at §18-32; BACIGAL, TATE &<br />
GUERNSEY at 285–286).<br />
In 1993 the General Assembly enacted Va. Code Ann. §19.2–268.2, which states:<br />
Notwithstanding any other provision <strong>of</strong> law, in any prosecution for criminal sexual<br />
assault under Article 7 (§18.2–61 et. seq.) <strong>of</strong> Chapter 4 <strong>of</strong> Title 18.2, a violation<br />
<strong>of</strong> §§18.2–361, 18.2–366, 18.2–370 or §18.2–370.1, the fact that the person<br />
injured made complaint <strong>of</strong> the <strong>of</strong>fense recently after commission <strong>of</strong> the <strong>of</strong>fense is<br />
admissible, not as independent evidence <strong>of</strong> the <strong>of</strong>fense, but for the purpose <strong>of</strong><br />
corroborating the testimony <strong>of</strong> the complaining witness.<br />
Prior to the enactment <strong>of</strong> this section, the following rules had been developed, some <strong>of</strong><br />
which apparently are not affected by §19.2–268.2, and others <strong>of</strong> which are changed by<br />
this provision:<br />
• The prior rule that prompt complaints constitute inadmissible hearsay in a trial for<br />
any sexual <strong>of</strong>fense other than rape or attempted rape is explicitly changed. For case<br />
law limiting it to rape and attempted rape, see Leybourne v. Commonwealth, 222 Va.<br />
374, 282 S.E.2d 12 (1981) (prompt complaint inadmissible in contributing to the<br />
delinquency <strong>of</strong> a minor prosecution); Moore v. Commonwealth, 222 Va. 72, 278 S.E.2d<br />
822 (1981) (prompt complaint inadmissible in sodomy prosecution); Pepoon v.<br />
Commonwealth, 192 Va. 804, 66 S.E.2d 854 (1951) (prompt complaint inadmissible<br />
in sodomy prosecution); Garland v. Commonwealth, 8 Va. App. 189, 379 S.E.2d 146<br />
(1989) (prompt complaint inadmissible in aggravated sexual battery prosecution);<br />
Kauffmann v. Commonwealth, 8 Va. App. 400, 382 S.E.2d 279 (1989) (prompt<br />
complaint inadmissible in aggravated sexual battery prosecution).<br />
• A prompt complaint is admissible to corroborate the victim’s testimony. Pepoon v.<br />
Commonwealth, 192 Va. 804, 66 S.E.2d 854 (1951); Haynes v. Commonwealth, 69<br />
Va. (28 Gratt.) 942 (1877). It is not hearsay because it is not admitted for its truth–<br />
it is admitted to show that a complaint was made (under the rationale that a report <strong>of</strong><br />
abuse is less credible if it is not made immediately). However, the complaint is not<br />
admissible as “independent evidence <strong>of</strong> the <strong>of</strong>fense charged.” Pepoon, supra, 192 Va.<br />
at 810, 66 S.E.2d at 858. See Cartera v. Commonwealth, 219 Va. 516, 248 S.E.2d<br />
784 (1978) (only the fact that the complaint was made is admissible).<br />
48
• A victim’s prompt complaint can be used to corroborate not just the victim’s<br />
testimony, but also “other independent evidence <strong>of</strong> the <strong>of</strong>fense.” McManus v.<br />
Commonwealth, 16 Va. App. 310, 429 S.E.2d 475 (1993). Evidence <strong>of</strong> a “fresh<br />
complaint” <strong>of</strong> sexual abuse is not admissible without the victim’s testimony because<br />
such evidence is admissible only as corroboration. Commonwealth v. Wills, 44 Va.<br />
Cir. 459 (Spotsylvania County 1998).<br />
• A delay in making the complaint goes to the weight and not admissibility <strong>of</strong> the<br />
complaint. Herron v. Commonwealth, 208 Va. 326, 330, 157 S.E.2d 195, 198 (1967)<br />
(two day delay); Lindsey v. Commonwealth, 22 Va. App. 11, 467 S.E.2d. 824 (1996)<br />
(two months delay). In Woodard v. Commonwealth, 19 Va. App. 24, 446 S.E.2d 328<br />
(1994), a 13-year-old rape victim’s complaints to a school friend and her aunt more<br />
than two months after the assault were held admissible under the recent complaint<br />
rule. However, in Castelow v. Commonwealth, 29 Va. App. 305, 512 S.E.2d 137<br />
(1999), the Court <strong>of</strong> Appeals ruled that a girl’s complaint <strong>of</strong> sexual abuse made sixteen<br />
months after it occurred was erroneously admitted into evidence without some<br />
explanation for the extraordinary delay.<br />
• The fact that a complaint is made in response to questioning does not remove it from<br />
the rule. Herron v. Commonwealth, 208 Va. 326, 330, 157 S.E.2d 195, 198 (1967).<br />
In Almond v. Commonwealth, No. 3071–01–2 (Va. App. Dec. 17, 2002) (unpublished),<br />
the defendant was convicted <strong>of</strong> the sexual battery and forcible sodomy <strong>of</strong> a seven-yearold<br />
girl, and the court concluded that the trial judge did not err in allowing the child’s<br />
stepmother to testify regarding statements made to her by the girl pursuant to §19.2–<br />
268.2 <strong>of</strong> the Code. The Court <strong>of</strong> Appeals determined that although the statute does not<br />
require the court to make express factual findings on the record, it would be the better<br />
practice to do so. A juvenile victim’s complaint <strong>of</strong> rape made to her mother ten months<br />
after the alleged rape was admissible under the “recent complaint” exception to the<br />
hearsay rule where the delay is explained by circumstances entirely consistent with<br />
both the circumstances and the fact that the assault was on a child victim. Terry v.<br />
Commonwealth, 24 Va. App. 627, 484 S.E.2d 614 (1997). The lack <strong>of</strong> “recentness” <strong>of</strong><br />
the complaint goes to the weight <strong>of</strong> the evidence rather than its admissibility. Id. at<br />
635, 484 S.E.2d at 618. Similarly, in Mitchell v. Commonwealth, 25 Va. App. 81, 486<br />
S.E.2d 551 (1997), the Court <strong>of</strong> Appeals ruled that rebuttal testimony by the brother<br />
<strong>of</strong> a twelve-year-old victim <strong>of</strong> a sodomy proposal about statements the brother made to<br />
him was admissible as a recent complaint <strong>of</strong> sexual assault although it could not be<br />
admitted as a prior consistent statement.<br />
b. Prior Consistent Statements (FRIEND at §18–6; BACIGAL, TATE & GUERNSEY at 117–<br />
118; VIRGINIA EVIDENTIARY FOUNDATIONS at §5.10).<br />
49
Prior consistent statements generally are inadmissible as self-serving hearsay. Scott v.<br />
Moon, 143 Va. 425, 434, 130 S.E. 241, 243 (1925). Such statements are admissible<br />
only in the following limited circumstances:<br />
• To rehabilitate a witness who has been impeached with prior inconsistent statements<br />
on cross-examination. Moore v. Commonwealth, 222 Va. 72, 79, 278 S.E.2d 822,<br />
826 (1981). Such statements are admissible only to restore credibility and are not<br />
admissible for their truth. Id. In Moore, the defendant was convicted <strong>of</strong> indecent<br />
liberties with a 12-year-old boy. During cross-examination, the defense attorney<br />
attacked the victim’s credibility by pointing out four inconsistent statements he had<br />
made. The court held it was proper for the Commonwealth to rehabilitate the boy<br />
with prior consistent statements. See Creasy v. Commonwealth, 9 Va. App. 470, 389<br />
S.E.2d 316 (1990) (prior consistent statement <strong>of</strong> Commonwealth witness admissible<br />
to rehabilitate witness after impeachment by a prior inconsistent statement even<br />
though the prior inconsistent statement was introduced by the Commonwealth).<br />
• To respond to suggestions by the defense that the child had a motive to falsify his or<br />
her testimony. See Honaker Lumber Co. v. Kiser, 134 Va. 50, 113 S.E. 718 (1922).<br />
The Commonwealth may <strong>of</strong>fer the prior consistent statement to show it was made<br />
before the motive or opportunity to fabricate arose. Scott v. Moon, 143 Va. 425, 130<br />
S.E. 241 (1925).<br />
• To respond to allegations <strong>of</strong> recent fabrication by the child. Skipper v. Commonwealth,<br />
195 Va. 870, 80 S.E.2d 401 (1954); see also Manetta v. Commonwealth, 231 Va.<br />
123, 340 S.E.2d 828 (1986).<br />
2. Exceptions to the Hearsay Rule (FRIEND at § 18-10 through 18-36; BACIGAL, TATE &<br />
GUERNSEY at 89-102).<br />
a. Excited Utterance (FRIEND at §18-17; BACIGAL, TATE & GUERNSEY at 93-95).<br />
Even though the admissibility <strong>of</strong> an excited utterance is determined on a case-by-case<br />
basis, <strong>Virginia</strong> courts have examined several factors affecting spontaneous statements <strong>of</strong><br />
children. These factors include:<br />
• The lapse <strong>of</strong> time between the “startling event” and the statement. In Martin v.<br />
Commonwealth, 4 Va. App. 438, 358 S.E.2d 415 (1987), the court upheld the<br />
admissibility <strong>of</strong> a statement <strong>of</strong> a 23-month-old infant that “that boy put his pee-pee<br />
on me” made anywhere from 15 seconds to five minutes after the event. The court<br />
noted that her red face and crying demonstrated she was affected by a startling event.<br />
Further, a medical examination indicated she had suffered an injury to her rectum.<br />
• Whether the statement is made “impulsively on [the declarant’s] own initiative, or<br />
[is] a statement in response to a question.” Id. at 441, 358 S.E.2d at 417. The fact<br />
that a statement is made in response to a question does not in itself make the statement<br />
50
inadmissible so long as the question is framed in a neutral manner, such as the<br />
question: “What happened” Id. at 442, 358 S.E.2d at 418.<br />
• Whether the statement is a self-serving declaration. Doe v. Thomas, 227 Va. 466,<br />
471-72, 318 S.E.2d 382, 385 (1984).<br />
• A child’s inability to fabricate sexual events in detail. “[P]articularly in the case <strong>of</strong><br />
statements made by young children, the element <strong>of</strong> trustworthiness underscoring<br />
the spontaneous and excited utterance exception finds its source primarily in the<br />
child’s lack <strong>of</strong> capacity to fabricate rather than the lack <strong>of</strong> time to fabricate.” Martin,<br />
supra, 4 Va. App. at 442, 358 S.E.2d at 418. See also McCann v. Commonwealth, 174<br />
Va. 429, 439, 4 S.E.2d 768, 771 (1939) (a child “could not possibly have fabricated”<br />
a story minutes after an attempted rape).<br />
• In Esser v. Commonwealth, 38 Va. App. 520, 566 S.E.2d 876 (2002), a prosecution<br />
for rape and other sexual <strong>of</strong>fenses committed against a 19-year-old physically and<br />
learning disabled victim, the young woman’s statements to her mother two days after<br />
the assault were admissible as excited utterances at the trial. The statements were<br />
volunteered by the young lady while she was crying hysterically because she thought<br />
her mother was going to place her back into the custody <strong>of</strong> her uncle, the defendant,<br />
and she was frightened that she would be assaulted again. Thus, the startling event<br />
that triggered the statement was her fear that she was going to be returned to the<br />
control <strong>of</strong> Esser and that provided the spontaneity for the statement. Similarly, in<br />
Guy v. Commonwealth, No. 2276-01-1 (Va. Ct. App. Aug. 6, 2002) (unpublished), the<br />
statements <strong>of</strong> an eight-year-old girl who had been sexually victimized to her mother<br />
were admissible under the “excited utterance” exception because <strong>of</strong> the context <strong>of</strong><br />
the statements.<br />
• In Walker v. Commonwealth, 19 Va. App. 768, 454 S.E.2d 737 (1995), the Court <strong>of</strong><br />
Appeals concluded that a statement made by a six-year-old girl to her aunt, her legal<br />
guardian, the morning after a sexual assault qualified as an excited utterance in light<br />
<strong>of</strong> the surrounding circumstances, including that she complained as soon as she was<br />
returned to the aunt’s custody.<br />
b. Statements Made for Purposes <strong>of</strong> Medical Diagnosis or Treatment (FRIEND at §18–19;<br />
BACIGAL, TATE & GUERNSEY at 98-99; VIRGINIA EVIDENTIARY FOUNDATIONS at §9.9).<br />
A physician may testify as to a patient’s statements <strong>of</strong> “past pain, suffering and subjective<br />
symptoms” to show “the basis <strong>of</strong> the physician’s opinion as to the nature <strong>of</strong> the injuries<br />
or illness.” Cartera v. Commonwealth, 219 Va. 516, 518, 248 S.E.2d 784, 785-86 (1978).<br />
However, statements made by a victim to a doctor detailing the circumstances <strong>of</strong> a sexual<br />
assault and a description <strong>of</strong> the assailant do not fall within this exception to the hearsay<br />
rule. Id. In Cartera, the statements introduced went beyond descriptions <strong>of</strong> “past pain,<br />
suffering and subjective symptoms” and therefore were inadmissible. Id. The <strong>Virginia</strong><br />
51
Supreme Court ruled in Jenkins v. Commonwealth, 254 Va. 333, 492 S.E.2d 131 (1997),<br />
that the en banc Court <strong>of</strong> Appeals (22 Va. App. 58, 471 S.E.2d 785 (1996)) had erred in<br />
concluding that the trial court’s admission <strong>of</strong> expert testimony regarding the sexual abuse<br />
<strong>of</strong> a two-year-old child constituted harmless error. Reversible error was committed by<br />
allowing a licensed clinical psychologist to testify that a child “had been sexually abused.”<br />
254 Va. at 336, 492 S.E.2d at 133-34. The court also had erred in permitting the<br />
psychologist to testify that the boy told him that he had been “sexed,” because this hearsay<br />
evidence did not fit within any recognized exception to the hearsay rule.<br />
3. Pro<strong>of</strong> <strong>of</strong> Age<br />
For more than 100 years, courts in the United States have allowed a witness to testify as to his<br />
or her age even though such testimony is based on hearsay. See John Wigmore, 2 EVIDENCE<br />
IN TRIALS AT COMMON LAW §667 (Chadbourn rev. 1979) (listing jurisdictions adopting<br />
this rule). Pr<strong>of</strong>essor Myers states:<br />
When a witness testifies to his own age or date <strong>of</strong> birth, a hearsay objection is<br />
technically possible. After all, one knows her birthday only because someone told<br />
her. The hearsay objection is seldom raised, however, and when it is, courts reject<br />
it. MYERS at §7.41.<br />
<strong>Virginia</strong> courts are among the few in the country that have not ruled on the issue, but the<br />
long-established principle provides persuasive authority for allowing a victim to state his or<br />
her age.<br />
An alternative method <strong>of</strong> proving age is to allow the finder <strong>of</strong> fact to determine the person’s<br />
approximate age. For example, in Jewell v. Commonwealth, 8 Va. App. 353, 382 S.E.2d 259<br />
(1989), the court held that the trial court could have determined as a matter <strong>of</strong> fact that the<br />
defendant was more than 18 years old. The court stated that “a defendant’s physical appearance<br />
may be considered by a jury in determining his or her age.” The court also quoted Wigmore’s<br />
statement:<br />
Experience teaches us that corporal appearances are approximately an index <strong>of</strong> the age<br />
<strong>of</strong> their bearer, particularly for the marked extremes <strong>of</strong> old age and youth. In every<br />
case such evidence should be accepted and weighted for what it may be worth. Id. at<br />
356, 382 S.E.2d at 261 (quoting 2 Wigmore, Evidence §222 (Chadbourn rev. 1970)).<br />
4. Prosecution Recess to Consult with Victim.<br />
The Court <strong>of</strong> Appeals decided in Will v. Commonwealth, 31 Va. App. 571, 525 S.E.2d 37<br />
(2000), that the Confrontation Clause <strong>of</strong> the Constitution was not violated by the trial court<br />
granting a recess to allow the Commonwealth’s Attorney to talk with a testifying child victim.<br />
E. Expert Testimony (FRIEND at §17–14; BACIGAL at §17–13; BACIGAL, TATE & GUERNSEY at<br />
68-78).<br />
52
1. Province <strong>of</strong> the Jury (FRIEND at §17-14; BACIGAL, TATE & GUERNSEY at 73-74).<br />
Experts may not invade the province <strong>of</strong> the fact finder by testifying as to the ultimate issue in<br />
the case. Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978) (expert<br />
testimony that a victim was in fact raped inadmissible). See Freeman v. Commonwealth, 223<br />
Va. 301, 314-16, 288 S.E.2d 461, 468-69 (1982) (expert testimony that certain pictures <strong>of</strong><br />
nude children appealed to “prurient interests” <strong>of</strong> children did not invade the jury’s right to<br />
determine whether the pictures were “obscene for children”).<br />
2. Types <strong>of</strong> Testimony.<br />
In Mohajer v. Commonwealth, 39 Va. App. 21, 569 S.E.2d 738 (2002), aff’d, 40 Va. App.<br />
312, 579 S.E.2d 359 (2003) (en banc)), the Court <strong>of</strong> Appeals affirmed that a sexual assault<br />
nurse examiner (SANE) could present expert testimony regarding the nature <strong>of</strong> an 18-yearold<br />
high school student’s injuries and whether they indicated consensual sexual contact during<br />
the victim’s first pr<strong>of</strong>essional massage where she was allegedly subjected to a sexual assault.<br />
3. Behavioral Evidence.<br />
There are no published opinions in <strong>Virginia</strong> discussing the admissibility <strong>of</strong> child sexual abuse<br />
accommodation syndrome, a common area <strong>of</strong> expert testimony in cases <strong>of</strong> child sexual abuse.<br />
However, in Davison v. Commonwealth, 18 Va. App. 496, 445 S.E.2d 683 (1994), the Court<br />
<strong>of</strong> Appeals reversed convictions <strong>of</strong> a man for sexual assault <strong>of</strong> his stepdaughters because <strong>of</strong><br />
the admission <strong>of</strong> testimony by an expert describing the recantation phenomenon in child<br />
sexual abuse cases without the use <strong>of</strong> hypothetical questions. However, in Price v.<br />
Commonwealth, 18 Va. App. 760, 446 S.E.2d 642 (1994), the Court upheld the admission<br />
<strong>of</strong> expert testimony that the deceased one-and-a-half-year-old daughter <strong>of</strong> defendant’s girlfriend<br />
was a victim <strong>of</strong> the battered child syndrome. The prosecutor in Price used a hypothetical<br />
question and the expert did not testify that Price was the criminal agent. Id. at 763, 446<br />
S.E.2d at 644. In Lane v. Commonwealth, No. 2161-98-3, 1999 Va. App. LEXIS (Va. App.<br />
Sept. 28, 1999) (unpublished opinion), the Court <strong>of</strong> Appeals affirmed the convictions <strong>of</strong> a<br />
man for the rape and sodomy <strong>of</strong> his stepdaughter and ruled that the trial court properly<br />
admitted testimony <strong>of</strong> experts regarding the dynamics <strong>of</strong> victim recantation and the causes<br />
and effects <strong>of</strong> post-traumatic stress disorder. For a summary <strong>of</strong> case law on this topic from<br />
other jurisdictions, consult MYERS or contact the National Center at APRI. See also Mary-<br />
Ann Burkhart, “‘I take it back’: When a <strong>Child</strong> Recants,” 12 Update, No. 3 (1999).<br />
F. Admissibility <strong>of</strong> Photographs (FRIEND at §13.12; BACIGAL, TATE & GUERNSEY at 243–249;<br />
VIRGINIA EVIDENTIARY FOUNDATIONS at §4.9).<br />
Photographs are relevant if they “tend to show motive, intent, method, premeditation, malice, or<br />
the degree <strong>of</strong> atrociousness <strong>of</strong> the crime.” Gray v. Commonwealth, 233 Va. 313, 342-43, 356<br />
S.E.2d 157, 173, cert. denied, 484 U.S. 873 (1987). The admission <strong>of</strong> photographs is within the<br />
sound discretion <strong>of</strong> the trial court. Id. See Campbell v. Commonwealth, 12 Va. App. 476, 405<br />
53
S.E.2d 1 (1991) (court relies heavily on photographs in determining that evidence is sufficient to<br />
show intent in malicious wounding prosecution); Diehl v. Commonwealth, 9 Va. App. 191, 385<br />
S.E.2d 228 (1989) (photographs <strong>of</strong> a child’s buttocks relevant in felony murder prosecution to<br />
show that punishment exceeded moderation in punishing the child); Commonwealth v. Phillips,<br />
59 Va. Cir. 394 (2002) (Spotsylvania County) (circuit court ruled on a motion in limine that the<br />
probative value <strong>of</strong> photographs <strong>of</strong> the “dreadful housekeeping practices” <strong>of</strong> a mother were<br />
outweighed by their prejudicial effects in a prosecution for felony child neglect). A witness to the<br />
event must verify that the photograph fairly represents what the witness observed. Saunders v.<br />
Commonwealth, 1 Va. App. 396, 339 S.E.2d 550 (1986). The photographer does not have to<br />
testify. Id. Section 63.2-1520 permits photographs <strong>of</strong> an abused or neglected child to be admitted<br />
into evidence “in any subsequent proceeding” and provides that the court “may impose such<br />
restrictions as to the confidentiality <strong>of</strong> photographs <strong>of</strong> any minor as it deems appropriate.” See<br />
Christina Shaw, “Admissibility <strong>of</strong> Digital Photographic Evidence: Should it be Any Different Than<br />
Traditional Photography,” 15 Update, No. 10 (2002).<br />
Photographs also may be admissible in sentencing. See Poyner v. Commonwealth, 229 Va. 401,<br />
329 S.E.2d 815 (1985) (photographs <strong>of</strong> the victim at the autopsy admissible); Washington v.<br />
Commonwealth, 228 Va. 535, 323 S.E.2d 577 (1984), cert. den., 471 U.S. 1111 (1985) (color<br />
photograph <strong>of</strong> the nude body <strong>of</strong> the victim admissible to show the outrageousness <strong>of</strong> defendant’s<br />
conduct).<br />
II. The Defense Case<br />
A. Character and Credibility <strong>of</strong> the Defendant.<br />
1. Character (FRIEND at §5–4; BACIGAL, TATE & GUERNSEY at 42–43; VIRGINIA<br />
EVIDENTIARY FOUNDATIONS at §6.2).<br />
A defendant may always introduce evidence <strong>of</strong> his or her reputation for “pertinent character<br />
traits.” Weimer v. Commonwealth, 5 Va. App. 47, 52, 360 S.E.2d 381, 383 (1987) (reputation<br />
for veracity and peaceable nature). See also Barlow v. Commonwealth, 224 Va. 338, 297 S.E.2d<br />
645 (1982) (reputation for non-violent behavior). However, once the defendant opens the<br />
door to character evidence, the Commonwealth may cross-examine character witnesses and<br />
introduce testimony showing the defendant’s bad character. Weimer, supra, 5 Va. App. at 52,<br />
297 S.E.2d at 383. Testimony <strong>of</strong> an impeaching witness must be limited to reputation and<br />
may not include descriptions <strong>of</strong> specific acts. Id. at 53, 297 S.E.2d at 384. However, the<br />
prosecutor may ask a defense character witness whether the witness has heard <strong>of</strong> specific acts<br />
in order to determine the grounds <strong>of</strong> the witness’s knowledge. Id.<br />
2. Impeachment (FRIEND at §§4–1 through 4–11; BACIGAL, TATE & GUERNSEY at 104–118;<br />
VIRGINIA EVIDENTIARY FOUNDATIONS at §§5.1–5.9).<br />
There are a variety <strong>of</strong> ways in which the defendant’s credibility can be impeached. See<br />
MANUAL, Chapter 5, part IV.F.3.g.v. However, a defendant’s credibility cannot be impeached<br />
with evidence <strong>of</strong> prior convictions unless the conviction demonstrates lack <strong>of</strong> truth or veracity<br />
54
<strong>of</strong> the defendant. Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986) (indecent<br />
exposure does not involve deception or moral turpitude for purposes <strong>of</strong> determining the<br />
defendant’s character for truthfulness). Although evidence <strong>of</strong> a prior conviction for<br />
contributing to the delinquency <strong>of</strong> a minor was erroneously admitted for impeachment<br />
purposes in Jarrell v. Commonwealth, No. 0984–01–4 (Va. Ct. App. June 18, 2002)<br />
(unpublished), because it is not a crime involving moral turpitude, it was harmless error<br />
because he had already been impeached with other prior convictions.<br />
B. Admissibility <strong>of</strong> Defense Expert Testimony (FRIEND at §§17–14 through 17–25).<br />
An expert must be familiar with the facts <strong>of</strong> the case; misuse <strong>of</strong> facts may result in exclusion <strong>of</strong><br />
the expert’s testimony. In Waitt v. Commonwealth, 207 Va. 230, 148 S.E.2d 805 (1966), the<br />
<strong>Virginia</strong> Supreme Court held inadmissible an expert’s opinion as to whether the victim’s testimony<br />
was “fact or fantasy.” The court stated: “[A]n opinion given without any examination <strong>of</strong>, or<br />
acquaintance with, the subject and formed on the basis <strong>of</strong> incorrect and incomplete information,<br />
is not an opinion on which a jury should rely and it does not constitute admissible testimony.” Id.<br />
at 237, 148 S.E.2d at 810. In addition to the fact that the expert had never interviewed the<br />
victim, the court stated that the hypothetical question posed to the expert omitted many important<br />
details and misrepresented others. Therefore, the expert’s testimony was improper. See James Dean<br />
May, “Good Things Come To Those Who Seek: Ten Tips For Finding Information on Defense<br />
Experts,” 12 Update, No. 7 (1999).<br />
1. Hypnosis <strong>of</strong> the Defendant (FRIEND at §14–8; BACIGAL, TATE & GUERNSEY at 102–103).<br />
Statements made while under hypnosis are inadmissible. Greenfield v. Commonwealth, 214 Va.<br />
710, 204 S.E.2d 414 (1974). Statements made under the influence <strong>of</strong> “truth serum” likewise<br />
are inadmissible. Archie v. Commonwealth, 14 Va. App. 684, 420 S.E.2d 718 (1992). In Archie,<br />
the court held inadmissible statements made by the defendant and observations <strong>of</strong> a psychiatrist<br />
made while the defendant was under the influence <strong>of</strong> sodium amytal (commonly referred to as<br />
“truth serum”). The court reasoned: i) a defendant taking sodium amytal is highly suggestible;<br />
ii) a defendant who intends to deceive may be able to continue the deception; and iii) a defendant<br />
may tell fantasy rather than fact while under the influence <strong>of</strong> the drug. Id. at 693, 420 S.E.2d<br />
at 723. Note, however, that the trial court in Archie allowed the expert to give an opinion formed<br />
as a result <strong>of</strong> this interview, and the Court <strong>of</strong> Appeals did not reverse this ruling. Id. at 694, 420<br />
S.E.2d at 724.<br />
2. Defendant Pr<strong>of</strong>ile Evidence<br />
There are no <strong>Virginia</strong> cases addressing whether an expert may testify that the defendant does<br />
or does not fit the pr<strong>of</strong>ile <strong>of</strong> a child abuser. In United States v. Powers, 59 F.3d 1460 (4th Cir.<br />
1995), the United States Court <strong>of</strong> Appeals for the Fourth Circuit ruled that the district judge<br />
did not abuse his discretion in declining to admit defense expert testimony that defendant<br />
did not exhibit the characteristics <strong>of</strong> a “fixated pedophile.” Id. at 1470-1473. See James M.<br />
55
Peters, “Using the Abel Assessment for Sexual Interest to Infer Lack <strong>of</strong> Culpability in a <strong>Criminal</strong><br />
Case,” 14 Update, No. 12 (2001).<br />
3. Victim Pr<strong>of</strong>ile Evidence<br />
There are no <strong>Virginia</strong> cases addressing whether an expert may testify that the victim does or<br />
does not fit the pr<strong>of</strong>ile <strong>of</strong> an abused child, other than the Price case above where expert<br />
testimony was accepted about the battered child syndrome. Price v. Commonwealth, 18 Va.<br />
App. 760, 446 S.E.2d 642 (1994). See Brian Holmgren, “Should Expert Testimony on<br />
<strong>Child</strong>ren’s Suggestibility Be Admissible,” 10 Update, No. 2 (1997).<br />
III. Common Defenses<br />
The following discussion presents only a partial list <strong>of</strong> possible defenses in child abuse cases. For a<br />
more detailed discussion <strong>of</strong> other defenses, such as retaliation, custody issues, and brainwashing, see<br />
MANUAL, Chapter 5, part VIII.C.8. See, e.g., Mary-Ann Burkhart, “<strong>Child</strong> <strong>Abuse</strong> Allegations in the<br />
Midst <strong>of</strong> Divorce and Custody Battles: Convenience, Coincidence or Conspiracy,” 13 Update, No. 10<br />
(2000).<br />
Nothing Happened. <strong>Virginia</strong> courts have heard and occasionally agreed with defense arguments that:<br />
children were coached by therapists into inventing claims <strong>of</strong> sexual abuse, Fisher v. Commonwealth,<br />
11 Va. App. 302, 397 S.E.2d 901 (1990) (granting a new trial based on newly discovered evidence <strong>of</strong><br />
coaching by a therapist that the court believed would explain why the victim had drawn a sexually<br />
explicit picture implicating the defendant); the victim was mentally ill, Clinebell v. Commonwealth,<br />
235 Va. 319, 368 S.E.2d 263 (1988) (holding that an optometrist should have been allowed to testify<br />
that the victim suffered from “hysterical amblyopia,” a condition in which the person believes she<br />
cannot see but has no physiological problems); and that the victim was exacting revenge against the<br />
defendant, Fisher v. Commonwealth, 228 Va. 296, 321 S.E.2d 202 (1984) (the defendant claimed the<br />
ten-year-old victim made up story to retaliate because the defendant had sold her puppy); Johnson v.<br />
Commonwealth, 9 Va. App. 176, 385 S.E.2d 223 (1989) (the court accepted the claim that the<br />
defendant, a Baptist pastor, should have been allowed to testify that the victim falsely accused him<br />
because he tried to interfere in the victim’s lesbian relationship); Garland v. Commonwealth, 8 Va.<br />
App. 189, 379 S.E.2d 146 (1989) (the defendant should have been allowed to testify that the victim<br />
falsely accused him because she did not like his discipline).<br />
Prosecutors should keep in mind the following strategies when responding to such defense arguments:<br />
• The prosecutor may ask the child to provide sensory details such as sex-related smells, sounds,<br />
tastes and textures. See Waitt v. Commonwealth, 207 Va. 230, 148 S.E.2d 805 (1966) (expert<br />
testimony about whether rape victim’s testimony was based on fantasy found inadmissible).<br />
• The prosecutor may highlight the child’s naivete about sexual practices.<br />
• If the child’s mental health problems are likely to be used by the defense, this issue should be<br />
raised in the Commonwealth’s case-in-chief to explain the child’s emotional problems as a<br />
consequence <strong>of</strong> the abuse. If the child was taking medication at the time <strong>of</strong> the assault or the<br />
56
disclosure or is on medication during the trial, expert testimony may be necessary to explain the<br />
effects <strong>of</strong> the medication on the child’s ability to give accurate testimony.<br />
Misinterpretation <strong>of</strong> Innocent Touch. Rather than arguing that the incident did not occur, defendants<br />
occasionally argue that the act occurred but was misinterpreted. For example, in Walker v. Commonwealth,<br />
12 Va. App. 438, 404 S.E.2d 394 (1991), the defendant told a seven–year–old victim to take<br />
down her pants while they were in room alone with door shut. The defendant then touched her vagina<br />
to see if she was “wet,” allegedly because the victim and some young boys had been “touching” each<br />
other and the defendant was supposed to be disciplining her. The defendant said he had to “open” her<br />
vagina to see if she was “wet.” Defendant’s sole argument at trial was that any touching was not done<br />
with the requisite intent. The court held there was sufficient evidence to find defendant acted with<br />
the requisite intent.<br />
The following strategies may help overcome this defense:<br />
• Since the defendant admits to physical contact with the child, efforts by the defendant to keep the<br />
touching a secret are evidence <strong>of</strong> intent.<br />
• Demonstrations by the child showing the touching on a doll or a model to demonstrate it was not<br />
innocent touching.<br />
• Arguments that similar past crimes or uncharged acts by the defendant show lack <strong>of</strong> accident,<br />
motive or existence <strong>of</strong> a common design. See discussion supra, Chapter three, part II.B. for cases<br />
on other acts.<br />
Someone Else Did It. Although identity <strong>of</strong> the defendant is not frequently at issue, defendants sometimes<br />
argue that someone else abused the child. See Bridgeman v. Commonwealth, 3 Va. App. 523,<br />
351 S.E.2d 598 (1986) (defendant and victim in incest case claimed defendant was not the father <strong>of</strong><br />
the baby). The following approaches may help counter this defense:<br />
• The prosecutor should try to eliminate other suspects, especially when the child has a sexually<br />
transmitted disease or is pregnant.<br />
• The prosecutor needs to be prepared to counter arguments that the rape shield statute does not apply.<br />
Reasonable Doubt. The defense usually will argue the prosecutor failed to prove the case beyond a<br />
reasonable doubt. See Morrison v. Commonwealth, 10 Va. App. 300, 391 S.E.2d 612 (1990) (court<br />
held that victim’s testimony corroborated by physician’s testimony proved penetration beyond a reasonable<br />
doubt). In responding to this argument, prosecutors should let the jury know they cannot<br />
have it both ways–believe the child but acquit the defendant because <strong>of</strong> insufficient evidence. The<br />
jury should be urged to use the evidence they heard to make a decision–whether they think the child<br />
is truthful or whether they think she is lying. The testimony <strong>of</strong> the victim in and <strong>of</strong> itself is sufficient<br />
for conviction and the jury should be so instructed. See discussion supra, this Chapter, part I.A.2.<br />
concerning uncorroborated testimony <strong>of</strong> the victim. See also Victor I. Vieth, “Thirteen Tips for Cross<br />
Examining <strong>Child</strong> <strong>Abuse</strong> Defendants and Defense Witnesses,” 13 Update, No. 6 (2000).<br />
57
IV. Rebuttal Evidence<br />
The following are frequent situations in which rebuttal evidence is necessary in child abuse<br />
prosecutions:<br />
• When the defendant or defense witnesses lie on the stand about a detail central to the case, rebuttal<br />
witnesses may be needed to refute the testimony. See MANUAL, Chapter Five, part VII.E.<br />
• If the Commonwealth did not present expert testimony in its case-in-chief but the defense did, an<br />
appropriate expert may be helpful on rebuttal. See MANUAL, Chapter Five, part VII.E.<br />
• Some defendants assert that they would “never molest a child” or they “love children and would<br />
never harm one.” Such testimony may open the door to admission <strong>of</strong> prior bad acts with other<br />
child victims or signature acts with adult sex partners. For discussion <strong>of</strong> prior bad act cases, see<br />
discussion, supra, Chapter Three, part II.B.<br />
• If the defense attorney presents good character witnesses on behalf <strong>of</strong> the defendant, the<br />
Commonwealth can respond with “bad character” witnesses. See Land v. Commonwealth, 211 Va.<br />
223, 176 S.E.2d 586 (1970). “Bad character” witness testimony needs to be narrow and concise;<br />
such witnesses should testify that the defendant has a bad reputation, but discussion <strong>of</strong> specific<br />
bad acts on direct examination may result in a mistrial. Weimer v. Commonwealth, 5 Va. App. 47,<br />
360 S.E.2d 381 (1987). If the defense attorney cross-examines a witness about the basis for the<br />
opinion that the defendant has a bad reputation and elicits examples <strong>of</strong> rumored prior bad acts,<br />
the defense attorney will be stuck with the witness’ answer without grounds to complain later.<br />
• If the defense attorney presents witnesses to testify to the victim’s bad character, the<br />
Commonwealth will need “good character” witnesses lined up for rebuttal. <strong>Virginia</strong> courts allow<br />
evidence <strong>of</strong> specific acts <strong>of</strong> complaining witnesses in sex abuse cases to attack the complainant’s<br />
credibility. Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263 (1988) (victim’s prior<br />
complaints <strong>of</strong> abuse admissible to show charged act probably did not occur). See discussion supra,<br />
Chapter Three, part I.B.4.<br />
• The Court <strong>of</strong> Appeals reversed a conviction for sexual molestation <strong>of</strong> an eleven-year-old girl in<br />
Blaylock v. Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998), because the trial court erred<br />
in excluding the pr<strong>of</strong>fered testimony <strong>of</strong> two former neighbors <strong>of</strong> the victim that her reputation<br />
for truthfulness was bad in her old neighborhood. The remoteness <strong>of</strong> the reputation evidence was<br />
a matter <strong>of</strong> its probative value, rather than its admissibility. The prosecutor may need to be prepared<br />
to rehabilitate the victim in such a situation.<br />
For more examples and discussion <strong>of</strong> rebuttal evidence, see MANUAL, Chapter Five, part VII.<br />
V. Closing Arguments (BACIGAL at §18-5).<br />
Closing arguments are crucial for summarizing evidence for the jury in a clear manner. However, a<br />
conviction can be reversed if the prosecutor makes improper statements that “certainly” and<br />
“substantially” cause prejudice to the defendant. Jackson v. Commonwealth, 12 Va. App. 798, 799,<br />
406 S.E.2d 415, 416 (1991). The judge may grant a new trial if the prosecutor’s argument would<br />
58
cause any reasonable person to conclude that the jurors were prejudiced. Winston v. Commonwealth,<br />
12 Va. App. 363, 368-69, 404 S.E.2d 239, 242 (1991). Recall that in Smith v. Commonwealth, 40<br />
Va. App. 595, 580 S.E.2d 481 (2003), the Court <strong>of</strong> Appeals reversed defendant’s convictions in a<br />
jury trial <strong>of</strong> the rape, object sexual penetration and attempted rape <strong>of</strong> two girls because the trial court<br />
erred in denying his motions for curative instructions to correct improper comments made by the<br />
prosecutor during both voir dire and closing arguments. The prosecutor in this case urged that it was<br />
common for children to not report sexual assaults right away, and those comments were made in voir<br />
dire and during summation. Although the court made a general cautionary instruction late in the<br />
case, they did not address the specifics <strong>of</strong> the prosecutor’s arguments. The comments were improper<br />
as they amounted to testimony on matters that were not put into evidence at trial. See Suzy Boylan,<br />
“Striking Hard Blows but not Foul Ones: Special Considerations in Closing Arguments in <strong>Child</strong> <strong>Abuse</strong><br />
Trials,” 11 Update, No. 10 (1998).<br />
VI. Sentencing<br />
A. Generally<br />
Victim Impact Statement. Section 19.2–299.1 <strong>of</strong> the Code spells out what a victim impact<br />
statement must include (e.g. victim’s name, psychological injury suffered, change in victim’s<br />
lifestyle). The prosecutor may request that a victim impact statement be included in the presentence<br />
report if it is not requested by the court.<br />
Mental Evaluation. To assist the court in determining the proper sentence, the Commonwealth’s<br />
Attorney, the court, or the accused may request that a mental evaluation be performed on a<br />
defendant convicted <strong>of</strong> a crime indicating sexual abnormality. Va. Code Ann. §19.2–300.<br />
Conditions on Sentencing. The prosecutor should urge the court to use its statutory authority to<br />
order any reasonable condition on sentencing that would protect the victim and potential future<br />
victims from the defendant. See Va. Code Ann. §19.2–303 (trial court may suspend sentence in<br />
whole or in part and may place conditions upon the sentence or probation). Trial courts have<br />
broad discretion in order to serve the purpose <strong>of</strong> rehabilitating criminals. The only restriction<br />
upon the issuance <strong>of</strong> conditions is that they be “reasonable.” Dyke v. Commonwealth, 193 Va.<br />
478, 484, 69 S.E.2d 483, 486 (1952). See Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d<br />
78 (1966), rev’d on other grounds, 388 U.S. 1 (1967) (determining reasonableness requires looking<br />
at nature <strong>of</strong> <strong>of</strong>fense, background <strong>of</strong> <strong>of</strong>fender and surrounding circumstances); Nuckoles v.<br />
Commonwealth, 12 Va. App. 1083, 1085, 407 S.E.2d 355, 356 (1991) (defendant given 20–year<br />
suspended sentence with several conditions for taking indecent liberties with a minor).<br />
Some possible conditions include:<br />
• Ordering the defendant to pay for the cost <strong>of</strong> the victim’s past and future mental health<br />
counseling, or other forms <strong>of</strong> restitution. Va. Code Ann. §§19.2–303, 305, 305.1.<br />
• Ordering the defendant to have no contact with the victim or the victim’s family for a specified<br />
period <strong>of</strong> time.<br />
59
• Prohibiting the defendant from being alone with any child under the age <strong>of</strong> 18 for a certain<br />
length <strong>of</strong> time.<br />
• Using a suspended sentence to require a defendant to successfully complete mental health<br />
counseling as directed by the probation <strong>of</strong>ficer. See Nuckoles v. Commonwealth, 12 Va. App.<br />
1083, 1087, 407 S.E.2d 355, 357 (1991) (Benton, J., dissenting) (noting that one condition<br />
<strong>of</strong> defendant’s probation was to submit to a mental health clinic for counseling to be approved<br />
by probation <strong>of</strong>ficer). The prosecutor should make it clear that the defendant must actively<br />
participate and not merely give “lip service” to the counseling.<br />
See MANUAL, Chapter Three, part IV for further suggestions.<br />
B. Sex Offender Registration<br />
The <strong>Virginia</strong> General Assembly has enacted a sex <strong>of</strong>fender and crimes against minors registration<br />
statute that mandates that convicted sex <strong>of</strong>fenders register with the <strong>Department</strong> <strong>of</strong> State Police.<br />
Va. Code Ann. §§9.1–900 through–918. See Appendix B for the text <strong>of</strong> this statute.<br />
VII. Post-conviction Issues<br />
A. New Trial Based on Recantation<br />
Before a court will order a new trial based on recantation, the defendant must show by clear and<br />
convincing evidence that the testimony <strong>of</strong> a witness at the first trial was false. Fout v.<br />
Commonwealth, 199 Va. 184, 98 S.E.2d 817 (1957). <strong>Virginia</strong> courts have not addressed when<br />
post-trial recantation by a child witness necessitates a new trial.<br />
B. Bond Pending Appeal (Va. Code Ann. §8.01–676.1; Sup. Ct. R. 5:24)<br />
A defendant may request to have a bond set pending any appeal to the <strong>Virginia</strong> Court <strong>of</strong> Appeals.<br />
Va. Code Ann. §8.01-676.1; Sup. Ct. R. 5:24. However, the concern post-trial is not whether the<br />
defendant will appear in court, as required, but whether the defendant poses a risk to the<br />
community. The prosecutor should argue for the defendant’s immediate incarceration, given the<br />
danger he poses to the victim and to other children. If this argument is unsuccessful, the prosecutor<br />
should attempt to set conditions on the bond prohibiting the defendant from having any contact<br />
with the victim and the victim’s family, either directly or indirectly.<br />
60
CHAPTER FIVE<br />
SPECIAL COURTROOM PROCEDURES<br />
I. Use <strong>of</strong> Electronic Equipment.<br />
A. Videotaped Testimony.<br />
A videotaped deposition <strong>of</strong> a complaining witness may be taken in sexual assault cases provided<br />
the accused consents to the taking <strong>of</strong> any such deposition. Va. Code Ann. §18.2–67. The deposition<br />
is taken as if it were in open court, with the defendant maintaining a right to cross-examine the<br />
witness. The transcript may then be read to the jury in lieu <strong>of</strong> the witness’s testimony. Because<br />
the defendant must consent to this procedure, however, this provision is <strong>of</strong> limited use and is<br />
rarely used.<br />
B. Closed Trial (BACIGAL at §16-2).<br />
The trial court may “exclude from the trial any persons whose presence would impair the conduct<br />
<strong>of</strong> a fair trial, provided that the right <strong>of</strong> the accused to a public trial shall not be violated.” Va. Code<br />
Ann. §19.2-266. In Richmond Newspapers, Inc. v. <strong>Virginia</strong>, 448 U.S. 555 (1980), the Supreme<br />
Court found that the right <strong>of</strong> the public and press to attend criminal trials is guaranteed by the<br />
first and fourteenth amendments. The Court did not address the validity <strong>of</strong> Va. Code Ann. §19.2–<br />
266 because the issue had not been sufficiently addressed on appeal. Id. at 562–63 n.4. See also<br />
Waller v. Georgia, 467 U.S. 39 (1984) (“the explicit Sixth Amendment right <strong>of</strong> the accused is no<br />
less protective <strong>of</strong> a public trial than the implicit First Amendment right <strong>of</strong> the press and public”);<br />
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Globe Newspaper Co. v. Superior Court,<br />
457 U.S. 596 (1982) (court must articulate its findings for the record prior to closure).<br />
C. Closed Circuit Television Testimony<br />
Two-way closed-circuit television testimony may be used in prosecutions <strong>of</strong> criminal sexual assault,<br />
kidnapping, and other family <strong>of</strong>fenses (Va. Code Ann. §18.2–362 et seq.) committed against<br />
children 14 years old or younger at the time <strong>of</strong> the <strong>of</strong>fense and 16 or under at the time <strong>of</strong> trial. Va.<br />
Code Ann. §18.2–67.9 (applies also to witnesses 14 or younger at the time <strong>of</strong> trial). Either the<br />
Commonwealth’s Attorney or the defendant may apply for an order authorizing the closed-circuit<br />
television testimony but the application must be made at least seven days before the trial or the<br />
preliminary hearing. See <strong>Department</strong> <strong>of</strong> <strong>Criminal</strong> <strong>Justice</strong> <strong>Services</strong>, CHILD WITNESS TESTIMONY<br />
IN COURT: USING CLOSED-CIRCUIT EQUIPMENT (June, 2002).<br />
In Johnson v. Commonwealth, 40 Va. App.605, 580 S.E.2d 486 (2003), the Court <strong>of</strong> Appeals<br />
upheld the constitutionality <strong>of</strong> §18.2–67.9, and also its use in the case where a foundation was<br />
laid by evidence that the then seven-year-old child victim <strong>of</strong> sexual abuse said “she would run out<br />
<strong>of</strong> court and run away” if put on the witness stand in open court. Id. at 611, 580 S.E.2d at 489.<br />
Likewise, in Parrish v. Commonwealth, 38 Va. App. 607, 567 S.E.2d 576 (2002), defendant was<br />
convicted <strong>of</strong> the sexual abuse <strong>of</strong> his six-year-old daughter, and he contested on appeal the ruling <strong>of</strong><br />
the trial judge allowing the testimony <strong>of</strong> the girl by closed-circuit television. The court permitted<br />
61
the use <strong>of</strong> closed-circuit television after a voir dire hearing was held satisfying the requirements<br />
<strong>of</strong> the statute permitting the use <strong>of</strong> such testimony, including expert testimony about the young<br />
girl’s fear <strong>of</strong> court, her short attention span, and the likelihood <strong>of</strong> emotional trauma based on her<br />
experience while testifying in juvenile court. Also, in Civitello v. Commonwealth, No. 1963–01-2<br />
(Va. Ct. App. Jan. 7, 2003) (unpublished), the defendant was convicted <strong>of</strong> twenty counts <strong>of</strong> taking<br />
indecent liberties with a child, seven counts <strong>of</strong> aggravated sexual battery, three counts <strong>of</strong> forcible<br />
sodomy, three counts <strong>of</strong> child pornography, one count <strong>of</strong> rape and one count <strong>of</strong> attempted sodomy.<br />
There were six complaining child witnesses and the court permitted two to testify by the use <strong>of</strong><br />
closed circuit television, action the appellate court upheld because <strong>of</strong> sufficient findings by the<br />
trial court to warrant the use <strong>of</strong> that method <strong>of</strong> testimony.<br />
As illustrated by Johnson, Parrish, and Civitello, in order for a court to order the use <strong>of</strong> closed–<br />
circuit television, it must find the child unavailable to testify in open court for at least one <strong>of</strong> the<br />
following reasons: i) the child persistently refuses to testify despite judicial requests to do so; ii)<br />
the child is substantially unable to communicate about the <strong>of</strong>fense; or iii) there is substantial<br />
likelihood, based upon expert opinion testimony, that the child will suffer severe emotional trauma<br />
from testifying in open court. Va. Code Ann. §18.2–67.9. The court must include in the record or<br />
in written findings the reasons for finding unavailability.<br />
II. Other Special Procedures<br />
The conduct <strong>of</strong> the trial <strong>of</strong> a criminal case rests within the sound discretion <strong>of</strong> the trial judge and will<br />
be reversed on appeal only if the judge abuses that discretion. Justus v. Commonwealth, 22 Va. 667,<br />
676, 283 S.E.2d 905, 910 (1981), cert. den., 455 U.S. 983 (1982). A well-educated and<br />
understanding trial judge can provide a great deal <strong>of</strong> protection to a child victim while at the same<br />
time preserving all <strong>of</strong> a defendant’s constitutional rights. Among the possible protective actions are<br />
the following:<br />
• The use <strong>of</strong> leading questions. (FRIEND at §3.5; BACIGAL, TATE & GUERNSEY at 181). Flint v.<br />
Commonwealth, 114 Va. 820, 76 S.E. 308 (1912) (holding that the trial court has much discretion<br />
to allow leading questions). The prosecutor ought to learn outside the presence <strong>of</strong> the jury how<br />
much latitude the court is willing to allow.<br />
• The use <strong>of</strong> anatomically correct dolls. Kehinde v. Commonwealth, 1 Va. App. 342, 338 S.E.2d 356<br />
(1986) (use <strong>of</strong> anatomical dolls as demonstrative evidence is within the discretion <strong>of</strong> the trial<br />
court and it is for the jury to determine as a factual matter the exact body part that the victim is<br />
identifying when using the doll). See Lori S. Holmes, “Using Anatomical Dolls in <strong>Child</strong> Sexual<br />
<strong>Abuse</strong> Forensic Interviews,” 13 Update, No. 8 (2000).<br />
• The presence <strong>of</strong> a guardian ad litem or other support person. If a preliminary hearing has been<br />
closed under the provisions <strong>of</strong> Va. Code Ann. §18.2–67.8, a request that a support person be<br />
allowed nonetheless may be honored by the judge. Similarly, the court may allow an adult support<br />
person chosen by the child to remain in the courtroom during the child’s testimony and may<br />
allow the person to sit with the child as long as the person does not speak to or signal to the child.<br />
62
Va. Code Ann. §§16.1–302.1, 19.2–265.01. In addition, §19.2–11.1 <strong>of</strong> the Code provides for<br />
victim-witness assistance programs. See Susanne Walters, “Effective Strategies for Victim<br />
Advocates in <strong>Child</strong> <strong>Abuse</strong> Cases,” 13 Update, No. 12 (2000).<br />
• The court may require that defense counsel not ask compound, leading questions, or use language<br />
that the child cannot understand. In Crump v. Commonwealth, 20 Va. App. 609, 460 S.E.2d 238<br />
(1995), the Court <strong>of</strong> Appeals ruled that the defendant was not denied his right to confrontation<br />
when the eight-year-old victim refused to answer questions on cross-examination that were<br />
repetitive <strong>of</strong> her testimony on direct examination. The court also found that the defendant was<br />
given “a full opportunity to conduct an effective cross-examination” and “[w]hen the child failed<br />
to respond, she had been extensively and repetitively questioned by two lawyers and the judge.”<br />
Id. at 616–617, 460 S.E.2d at 241. The court also observed that “the transcript does suggest<br />
that the child was being questioned in a manner that did not reflect a sensitivity for her age.” Id.<br />
• The prosecutor must object to improper questions that confuse or badger the child.<br />
• In Parrish v. Commonwealth, 38 Va. App. 607, 567 S.E.2d 576 (2002), the court did not rule <strong>of</strong><br />
the propriety <strong>of</strong> the child victim coloring in a coloring book during cross-examination since<br />
defendant did not object at trial and there was no showing that a failure to address the issue<br />
would constitute a “miscarriage <strong>of</strong> justice.”<br />
• The prosecutor may schedule a child’s testimony in a way that gives the child frequent<br />
opportunities to break for a few minutes without inconveniencing the court and also takes in to<br />
account the time <strong>of</strong> day that is best for the child.<br />
See also MANUAL, Chapter Six, part V, for more ideas.<br />
63
Appendix A<br />
<strong>Child</strong> <strong>Abuse</strong> Charging Statutes<br />
Murder VA Code §18.2–32<br />
Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful,<br />
deliberate, and premeditated killing, or in the commission <strong>of</strong>, or attempt to commit, arson, rape, forcible<br />
sodomy, inanimate or animate object sexual penetration, robbery, burglary or abduction, except as provided<br />
in §18.2–31, is murder <strong>of</strong> the first degree, punishable as a Class 2 felony.<br />
All murder other than capital murder and murder in the first degree is murder <strong>of</strong> the second degree and is<br />
punishable by confinement in a state correctional facility for not less than five nor more than forty years.<br />
Murder <strong>of</strong> a pregnant woman VA Code §18.2–32.1<br />
The willful and deliberate killing <strong>of</strong> a pregnant woman without premeditation by one who knows that the<br />
woman is pregnant and has the intent to cause the involuntary termination <strong>of</strong> the woman’s pregnancy<br />
without a live birth shall be punished by a term <strong>of</strong> imprisonment <strong>of</strong> not less than ten years nor more than<br />
forty years.<br />
Felony murder VA Code §18.2–33<br />
The killing <strong>of</strong> one accidentally, contrary to the intention <strong>of</strong> the parties, while in the prosecution <strong>of</strong> some<br />
felonious act other than those specified in §§18.2–31 and 18.2–32, is murder <strong>of</strong> the second degree and<br />
is punishable by confinement in a state correctional facility for not less than five years nor more than<br />
forty years.<br />
Abduction with intent to defile VA Code §18.2–48<br />
Abduction (i) with the intent to extort money or pecuniary benefit, (ii) <strong>of</strong> any person with intent to defile<br />
such person, or (iii) <strong>of</strong> any child under sixteen years <strong>of</strong> age for the purpose <strong>of</strong> concubinage or prostitution,<br />
shall be a Class 2 felony.<br />
Rape VA Code §18.2–61<br />
A. If any person has sexual intercourse with a complaining witness who is not his or her spouse or<br />
causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse<br />
with any other person and such act is accomplished (i) against the complaining witness’s will, by<br />
force, threat or intimidation <strong>of</strong> or against the complaining witness or another person, or (ii) through<br />
the use <strong>of</strong> the complaining witness’s mental incapacity or physical helplessness, or (iii) with a<br />
child under age thirteen as the victim, he or she shall be guilty <strong>of</strong> rape.<br />
B. If any person has sexual intercourse with his or her spouse and such act is accomplished against<br />
the spouse’s will by force, threat or intimidation <strong>of</strong> or against the spouse or another, he or she<br />
shall be guilty <strong>of</strong> rape.<br />
Appendix A<br />
C. A violation <strong>of</strong> this section shall be punishable, in the discretion <strong>of</strong> the court or jury, by confinement<br />
in a state correctional facility for life or for any term not less than five years. There shall be a<br />
rebuttable presumption that a juvenile over the age <strong>of</strong> 10 but less than 12, does not possess the<br />
65
physical capacity to commit a violation <strong>of</strong> this section. In any case deemed appropriate by the<br />
court, all or part <strong>of</strong> any sentence imposed for a violation <strong>of</strong> subsection B may be suspended upon<br />
the defendant’s completion <strong>of</strong> counseling or therapy, if not already provided, in the manner<br />
prescribed under §19.2–218.1 if, after consideration <strong>of</strong> the views <strong>of</strong> the complaining witness<br />
and such other evidence as may be relevant, the court finds such action will promote maintenance<br />
<strong>of</strong> the family unit and will be in the best interest <strong>of</strong> the complaining witness.<br />
D. Upon a finding <strong>of</strong> guilt under subsection B in any case tried by the court without a jury, the court,<br />
without entering a judgment <strong>of</strong> guilt, upon motion <strong>of</strong> the defendant and with the consent <strong>of</strong> the<br />
complaining witness and the attorney for the Commonwealth, may defer further proceedings and<br />
place the defendant on probation pending completion <strong>of</strong> counseling or therapy, if not already<br />
provided, in the manner prescribed under §19.2–218.1. If the defendant fails to so complete such<br />
counseling or therapy, the court may make final disposition <strong>of</strong> the case and proceed as otherwise<br />
provided. If such counseling is completed as prescribed under §19.2–218.1, the court may discharge<br />
the defendant and dismiss the proceedings against him if, after consideration <strong>of</strong> the views <strong>of</strong> the<br />
complaining witness and such other evidence as may be relevant, the court finds such action will<br />
promote maintenance <strong>of</strong> the family unit and be in the best interest <strong>of</strong> the complaining witness.<br />
Carnal knowledge <strong>of</strong> child between 13 and 15 VA Code §18.2–63<br />
If any person carnally knows, without the use <strong>of</strong> force, a child thirteen years <strong>of</strong> age or older but under<br />
fifteen years <strong>of</strong> age, such person shall be guilty <strong>of</strong> a Class 4 felony.<br />
However, if such child is thirteen years <strong>of</strong> age or older but under fifteen years <strong>of</strong> age and consents to sexual<br />
intercourse and the accused is a minor and such consenting child is three years or more the accused’s<br />
junior, the accused shall be guilty <strong>of</strong> a Class 6 felony. If such consenting child is less than 3 years the<br />
accused’s junior, the accused shall be guilty <strong>of</strong> a Class 4 misdemeanor.<br />
In calculating whether such child is three years or more a junior <strong>of</strong> the accused minor, the actual dates <strong>of</strong><br />
birth <strong>of</strong> the child and the accused, respectively, shall be used.<br />
For the purposes <strong>of</strong> this section, (i) a child under the age <strong>of</strong> thirteen years shall not be considered a consenting<br />
child and (ii) “carnal knowledge” includes the acts <strong>of</strong> sexual intercourse, cunnilingus, fellatio, anallingus,<br />
anal intercourse, and animate and inanimate object sexual penetration.<br />
Carnal knowledge <strong>of</strong> certain minors VA Code §18.2–64.1<br />
If any person providing services, paid or unpaid, to juveniles under the purview <strong>of</strong> the Juvenile and<br />
Domestic Relations District Court Law, or to juveniles who have been committed to the custody <strong>of</strong> the<br />
State <strong>Department</strong> <strong>of</strong> Youth and Family <strong>Services</strong>, carnally knows, without the use <strong>of</strong> force, any minor<br />
fifteen years <strong>of</strong> age or older, when such minor is confined or detained in jail, is detained in any facility<br />
mentioned in §16.1–249, or has been committed to custody <strong>of</strong> the <strong>Department</strong> <strong>of</strong> Youth and Family<br />
<strong>Services</strong> pursuant to §16.1–278.8, knowing or having good reason to believe that (i) such minor is in<br />
such confinement or detention status, or (ii) such minor is a ward <strong>of</strong> the <strong>Department</strong> <strong>of</strong> Youth <strong>Services</strong>,<br />
or (iii) such minor is on probation, furlough, or leave from or has escaped or absconded from such<br />
confinement, detention, or custody; he shall be guilty <strong>of</strong> a Class 6 felony.<br />
66<br />
Appendix A
For the purposes <strong>of</strong> this section, “carnal knowledge” includes the acts <strong>of</strong> sexual intercourse, cunnilingus,<br />
fellation, anallingus, anal intercourse, and inanimate object sexual penetration.<br />
Forcible sodomy VA Code §18.2–67.1<br />
A. An accused shall be guilty <strong>of</strong> forcible sodomy if he or she engages in cunnilingus, fellatio, anallingus,<br />
or anal intercourse with a complaining witness who is not his or her spouse, or causes a complaining<br />
witness, whether or not his or her spouse, to engage in such acts with any other person, and<br />
1. The complaining witness is less than thirteen years <strong>of</strong> age, or<br />
2. The act is accomplished against the will <strong>of</strong> the complaining witness, by force, threat or<br />
intimidation <strong>of</strong> or against the complaining witness or another person, or through the use <strong>of</strong><br />
the complaining witness’s mental incapacity or physical helplessness.<br />
B. An accused shall be guilty <strong>of</strong> forcible sodomy if (i) he or she engages in cunnilingus, fellatio,<br />
anallingus, or anal intercourse with his or her spouse, and (ii) such act is accomplished against<br />
the will <strong>of</strong> the spouse, by force, threat or intimidation <strong>of</strong> or against the spouse or another person.<br />
However, no person shall be found guilty under this subsection unless, at the time <strong>of</strong> the alleged<br />
<strong>of</strong>fense, (i) the spouses were living separate and apart, or (ii) the defendant caused bodily injury to<br />
the spouse by the use <strong>of</strong> force or violence.<br />
C. Forcible sodomy is a felony punishable by confinement in a state correctional facility for life or<br />
for any term not less than five years. In any case deemed appropriate by the court, all or part <strong>of</strong><br />
any sentence imposed for a violation <strong>of</strong> subsection B may be suspended upon the defendant’s<br />
completion <strong>of</strong> counseling or therapy, if not already provided, in the manner prescribed under<br />
§19.2–218.1 if, after consideration <strong>of</strong> the views <strong>of</strong> the complaining witness and such other<br />
evidence as may be relevant, the court finds such action will promote maintenance <strong>of</strong> the family<br />
unit and will be in the best interest <strong>of</strong> the complaining witness.<br />
D. Upon a finding <strong>of</strong> guilt under subsection B in any case tried by the court without a jury, the court,<br />
without entering a judgment <strong>of</strong> guilt, upon motion <strong>of</strong> the defendant and with the consent <strong>of</strong> the<br />
complaining witness and the attorney for the Commonwealth, may defer further proceedings<br />
and place the defendant on probation pending completion <strong>of</strong> counseling or therapy, if not already<br />
provided, in the manner prescribed under §19.2–218.1. If the defendant fails to so complete<br />
such counseling or therapy, the court may make final disposition <strong>of</strong> the case and proceed as<br />
otherwise provided. If such counseling is completed as prescribed under §19.2–218.1, the court<br />
may discharge the defendant and dismiss the proceedings against him if, after consideration <strong>of</strong><br />
the views <strong>of</strong> the complaining witness and such other evidence as may be relevant, the court finds<br />
such action will promote maintenance <strong>of</strong> the family unit and be in the best interest <strong>of</strong> the<br />
complaining witness.<br />
Object sexual penetration VA Code §18.2–67.2<br />
Appendix A<br />
A. An accused shall be guilty <strong>of</strong> inanimate or animate object sexual penetration if he or she penetrates<br />
the labia majora or anus <strong>of</strong> a complaining witness who is not his or her spouse with any object,<br />
67
other than for a bona fide medical purpose, or causes such complaining witness to so penetrate<br />
his or her own body with an object or causes a complaining witness, whether or not his or her<br />
spouse, to engage in such acts with any other person or to penetrate, or to be penetrated by, an<br />
animal, and<br />
1. The complaining witness is less than thirteen years <strong>of</strong> age, or<br />
2. The act is accomplished against the will <strong>of</strong> the complaining witness, by force, threat or<br />
intimidation <strong>of</strong> or against the complaining witness or another person, or through the use <strong>of</strong><br />
the complaining witness’s mental incapacity or physical helplessness.<br />
[Subsections B, C, and D omitted]<br />
Aggravated sexual battery VA Code §18.2–67.3<br />
A. An accused shall be guilty <strong>of</strong> aggravated sexual battery if he or she sexually abuses the complaining<br />
witness, and<br />
1. The complaining witness is less than thirteen years <strong>of</strong> age, or<br />
2. The act is accomplished against the will <strong>of</strong> the complaining witness, by force, threat or<br />
intimidation, or through the use <strong>of</strong> the complaining witness’s mental incapacity or physical<br />
helplessness, and<br />
a. The complaining witness is at least thirteen but less than fifteen years <strong>of</strong> age, or<br />
b. The accused causes serious bodily or mental injury to the complaining witness, or<br />
c. The accused uses or threatens to use a dangerous weapon.<br />
B. Aggravated sexual battery is a felony punishable by confinement in a state correctional facility<br />
for a term <strong>of</strong> not less than one nor more than twenty years and by a fine <strong>of</strong> not more than $100,000.<br />
Sexual battery VA Code §18.2–67.4<br />
A. An accused shall be guilty <strong>of</strong> sexual battery if he or she sexually abuses, as defined in §18.2–<br />
67.10, (i) the complaining witness against the will <strong>of</strong> the complaining witness, by force, threat,<br />
intimidation or ruse, or through the use <strong>of</strong> the complaining witness’s mental incapacity or physical<br />
helplessness, or (ii) an inmate who has been committed to jail or convicted and sentenced to<br />
confinement in a state or local correctional facility or regional jail, and the accused is an employee<br />
or contractual employee <strong>of</strong>, or a volunteer with, the state or local correctional facility or regional<br />
jail; is in a position <strong>of</strong> authority over the inmate; and knows that the inmate is under the<br />
jurisdiction <strong>of</strong> the state or local correctional facility or regional jail, or (iii) a probationer, parolee,<br />
or a pretrial or posttrial <strong>of</strong>fender under the jurisdiction <strong>of</strong> the <strong>Department</strong> <strong>of</strong> Corrections, a local<br />
community-based probation program, a pretrial services program, a local or regional jail for the<br />
purposes <strong>of</strong> imprisonment, a work program or any other parole/probationary or pretrial services<br />
program and the accused is an employee or contractual employee <strong>of</strong>, or a volunteer with, the<br />
<strong>Department</strong> <strong>of</strong> Corrections, a local community-based probation program, a pretrial services<br />
68<br />
Appendix A
program or a local or regional jail; is in a position <strong>of</strong> authority over an <strong>of</strong>fender; and knows that<br />
the <strong>of</strong>fender is under the jurisdiction <strong>of</strong> the <strong>Department</strong> <strong>of</strong> Corrections, a local community-based<br />
probation program, a pretrial services program or a local or regional jail.<br />
B. Sexual battery is a Class 1 misdemeanor.<br />
Attempts VA Code §18.2–67.5<br />
A. An attempt to commit rape, forcible sodomy, or inanimate or animate object sexual penetration<br />
shall be punishable as a Class 4 felony.<br />
B. An attempt to commit aggravated sexual battery shall be a felony punishable as a Class 6 felony.<br />
C. An attempt to commit sexual battery is a Class 1 misdemeanor.<br />
Definitions VA Code §18.2–67.10<br />
As used in this article:<br />
1. “Complaining witness” means the person alleged to have been subjected to rape, forcible<br />
sodomy, inanimate or animate object sexual penetration, marital sexual assault, aggravated<br />
sexual battery, or sexual battery.<br />
2. “Intimate parts” means the genitalia, anus, groin, breast, or buttocks <strong>of</strong> any person.<br />
3. “Mental incapacity” means that condition <strong>of</strong> the complaining witness existing at the time <strong>of</strong><br />
an <strong>of</strong>fense under this article which prevents the complaining witness from understanding<br />
the nature or consequences <strong>of</strong> the sexual act involved in such <strong>of</strong>fense and about which the<br />
accused knew or should have known.<br />
4. “Physical helplessness” means unconsciousness or any other condition existing at the time<br />
<strong>of</strong> an <strong>of</strong>fense under this article which otherwise rendered the complaining witness physically<br />
unable to communicate an unwillingness to act and about which the accused knew or should<br />
have known.<br />
5. The complaining witness’s “prior sexual conduct” means any sexual conduct on the part <strong>of</strong><br />
the complaining witness which took place before the conclusion <strong>of</strong> the trial, excluding the<br />
conduct involved in the <strong>of</strong>fense alleged under this article.<br />
6. “Sexual abuse” means an act committed with the intent to sexually molest, arouse, or gratify<br />
any person, where:<br />
a. The accused intentionally touches the complaining witness’s intimate parts or material<br />
directly covering such intimate parts;<br />
b. The accused forces the complaining witness to touch the accused’s, the witness’s own, or<br />
another person’s intimate parts or material directly covering such intimate parts; or<br />
Appendix A<br />
c. The accused forces another person to touch the complaining witness’s intimate parts or<br />
material directly covering such intimate parts.<br />
69
Fornication. <strong>Virginia</strong> Code §18.2–344. Any person, not being married, who voluntarily<br />
shall have sexual intercourse with any other person, shall be guilty <strong>of</strong> fornication,<br />
punishable as a Class 4 misdemeanor.<br />
Pandering VA Code §18.2–355<br />
Any person who:<br />
A. For purposes <strong>of</strong> prostitution or unlawful sexual intercourse, takes any person into, or persuades,<br />
encourages or causes any person to enter, a bawdy place, or takes or causes such person to be taken<br />
to any place against his or her will for such purposes; or,<br />
B. Takes or detains a person against his or her will with the intent to compel such person, by force,<br />
threats, persuasions, menace or duress, to marry him or her or to marry any other person, or to be<br />
defiled; or,<br />
C. Being parent, guardian, legal custodian or one standing in loco parentis <strong>of</strong> a person, consents to such<br />
person being taken or detained by any person for the purpose <strong>of</strong> prostitution or unlawful sexual<br />
intercourse; is guilty <strong>of</strong> pandering, and shall be guilty <strong>of</strong> a Class 4 felony.<br />
Crimes against nature VA Code §18.2–361<br />
A. If any person carnally knows in any manner any brute animal, or carnally knows any male or<br />
female person by the anus or by or with the mouth, or voluntarily submits to such carnal<br />
knowledge, he or she shall be guilty <strong>of</strong> a Class 6 felony, except as provided in subsection B.<br />
B. Any person who carnally knows by the anus or by or with the mouth his daughter or granddaughter,<br />
son or grandson, brother or sister, or father or mother shall be guilty <strong>of</strong> a Class 5 felony. However, if<br />
a parent or grandparent commits any such act with his child or grandchild and such child or<br />
grandchild is at least thirteen but less than eighteen years <strong>of</strong> age at the time <strong>of</strong> the <strong>of</strong>fense, such<br />
parent or grandparent shall be guilty <strong>of</strong> a Class 3 felony.<br />
Incest VA Code §18.2–366<br />
A. Any person who commits adultery or fornication with any person whom he or she is forbidden by<br />
law to marry shall be guilty <strong>of</strong> a Class 1 misdemeanor, except as provided by subsection B.<br />
B. Any person who commits adultery or fornication with his daughter, or granddaughter, or with<br />
her son or grandson, or her father or his mother, shall be guilty <strong>of</strong> a Class 5 felony. However, if<br />
a parent or grandparent commits adultery or fornication with his or her child or grandchild,<br />
and such child or grandchild is at least thirteen years <strong>of</strong> age but less than eighteen years <strong>of</strong> age<br />
at the time <strong>of</strong> the <strong>of</strong>fense, such parent or grandparent shall be guilty <strong>of</strong> a Class 3 felony.<br />
Taking indecent liberties with children VA Code §18.2–370<br />
A. Any person eighteen years <strong>of</strong> age or over, who, with lascivious intent, shall knowingly and<br />
intentionally commit any <strong>of</strong> the following acts with any child under the age <strong>of</strong> fourteen years<br />
shall be guilty <strong>of</strong> a Class 5 felony:<br />
70<br />
Appendix A
1. Expose his or her sexual or genital parts to any child to whom such person is not legally married<br />
or propose that any such child expose his or her sexual or genital parts to such person; or<br />
2. [Repealed.]<br />
3. Propose that any such child feel or fondle the sexual or genital parts <strong>of</strong> such person or propose<br />
that such person feel or fondle the sexual or genital parts <strong>of</strong> any such child; or<br />
4. Propose to such child the performance <strong>of</strong> an act <strong>of</strong> sexual intercourse or any act constituting<br />
an <strong>of</strong>fense under §18.2–361; or<br />
5. Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place,<br />
for any <strong>of</strong> the purposes set forth in the preceding subdivisions <strong>of</strong> this section.<br />
B. Any person eighteen years <strong>of</strong> age or over who, with lascivious intent, knowingly and intentionally<br />
receives money, property, or any other remuneration for allowing, encouraging, or enticing any<br />
person under the age <strong>of</strong> eighteen years to perform in or be a subject <strong>of</strong> sexually explicit visual<br />
material as defined in §18.2–374.1 or who knowingly encourages such person to perform in or<br />
be a subject <strong>of</strong> sexually explicit material; shall be guilty <strong>of</strong> a Class 5 felony.<br />
C. Any person who is convicted <strong>of</strong> a second or subsequent violation <strong>of</strong> this section shall be guilty <strong>of</strong><br />
a Class 4 felony; provided that (i) the <strong>of</strong>fenses were not part <strong>of</strong> a common act, transaction or scheme,<br />
(ii) the accused was at liberty as defined in §53.1-151 between each conviction, and (iii) it is<br />
admitted, or found by the jury or judge before whom the person is tried, that the accused was<br />
previously convicted <strong>of</strong> a violation <strong>of</strong> this section.<br />
Indecent liberties by children; penalty VA Code §18.2–370.01<br />
Any child over the age <strong>of</strong> thirteen years but under the age <strong>of</strong> eighteen who, with lascivious intent, knowingly<br />
and intentionally exposes his or her sexual or genital parts to any other child under the age <strong>of</strong> fourteen<br />
years who, measured by actual dates <strong>of</strong> birth, is five or more years the accused’s junior, or proposes that<br />
any such child expose his or her sexual or genital parts to such person, shall be guilty <strong>of</strong> a Class 1<br />
misdemeanor.<br />
Taking indecent liberties with child by person in custodial<br />
or supervisory relationship VA Code §18.2–370.1<br />
A. Any person eighteen years <strong>of</strong> age or older who maintains a custodial or supervisory relationship<br />
over a child under the age <strong>of</strong> eighteen, including but not limited to the parent, step-parent,<br />
grandparent, step-grandparent, or who stands in loco parentis with respect to such child and is<br />
not legally married to such child, and who, with lascivious intent, knowingly and intentionally<br />
(i) proposes that any such child feel or fondle the sexual or genital parts <strong>of</strong> such person or that<br />
such person feel or handle the sexual or genital parts <strong>of</strong> the child, or (ii) proposes to such child the<br />
performance <strong>of</strong> an act <strong>of</strong> sexual intercourse or any act constituting an <strong>of</strong>fense under §18.2–361,<br />
or (iii) exposes his or her sexual or genital parts to such child, or (iv) proposes that any such child<br />
expose his or her sexual or genital parts to such person, or (v) proposes to the child that the child<br />
Appendix A<br />
71
engage in sexual intercourse, sodomy or fondling <strong>of</strong> sexual or genital parts with another person,<br />
or (vi) sexually abuses the child as defined in §18.2–67.10 (6), shall be guilty <strong>of</strong> a Class 6 felony.<br />
B. Any person who is convicted <strong>of</strong> a second or subsequent violation <strong>of</strong> this section shall be guilty <strong>of</strong><br />
a Class 5 felony; provided that (i) the <strong>of</strong>fenses were not part <strong>of</strong> a common act, transaction or scheme,<br />
(ii) the accused was at liberty as defined in §53.1–151 between each conviction, and (iii) it is<br />
admitted, or found by the jury or judge before whom the person is tried, that the accused was<br />
previously convicted <strong>of</strong> a violation <strong>of</strong> this section.<br />
Sex <strong>of</strong>fenses prohibiting proximity to children VA Code §18.2–370.2<br />
A. “Offense prohibiting proximity to children” means a violation or an attempt to commit a violation<br />
<strong>of</strong> (i) subsection A <strong>of</strong> §18.2–47, clause (ii) or (iii) <strong>of</strong> §18.2–48, subsection B <strong>of</strong> §18.2–361, or<br />
subsection B <strong>of</strong> §18.2–366, where the victim <strong>of</strong> one <strong>of</strong> the foregoing <strong>of</strong>fenses was a minor, or (ii)<br />
subsection A (iii) <strong>of</strong> §18.2–61, §§18.2–63, 18.2–64.1, subdivision A 1 <strong>of</strong> §18.2–67.1,<br />
subdivision A 1 <strong>of</strong> §18.2–67.2, or subdivision A 1 or A 2 (a) <strong>of</strong> §18.2-67.3, or §§18.2–370,<br />
18.2–370.1, clause (ii) <strong>of</strong> §18.2–371, §§18.2–374.1, 18.2–374.1:1 or § 18.2–379.<br />
B. Every adult who is convicted <strong>of</strong> an <strong>of</strong>fense prohibiting proximity to children when the <strong>of</strong>fense<br />
occurred on or after July 1, 2000, shall as part <strong>of</strong> his sentence be forever prohibited from loitering<br />
within 100 feet <strong>of</strong> the premises <strong>of</strong> any place he knows or has reason to know is a primary, secondary<br />
or high school. A violation <strong>of</strong> this section is punishable as a Class 6 felony.<br />
Causing or encouraging acts rendering children<br />
delinquent, abused, etc.; penalty VA Code §18.2–371<br />
Any person eighteen 18 years <strong>of</strong> age or older, including the parent <strong>of</strong> any child, who (i) willfully contributes<br />
to, encourages, or causes any act, omission, or condition which renders a child delinquent, in need <strong>of</strong><br />
services, in need <strong>of</strong> supervision, or abused or neglected as defined in §16.1–228, or (ii) engages in<br />
consensual sexual intercourse with a child 15 or older not his spouse, child, or grandchild, shall be guilty<br />
<strong>of</strong> a Class 1 misdemeanor. This section shall not be construed as repealing, modifying, or in any way<br />
affecting §§18.2–18, 18.2–19, 18.2–61, 18.2–63, 18.2–66, and 18.2–347.<br />
If the prosecution under this section is based solely on the accused parent having left the child at a hospital<br />
or rescue squad, it shall be an affirmative defense to prosecution <strong>of</strong> a parent under this section that such<br />
parent safely delivered the child to a hospital that provides 24-hour emergency services or to an attended<br />
rescue squad that employs emergency medical technicians, within the first 14 days <strong>of</strong> the child’s life.<br />
<strong>Abuse</strong> and neglect <strong>of</strong> children; penalty VA Code §18.2–371.1<br />
A. Any parent, guardian, or other person responsible for the care <strong>of</strong> a child under the age <strong>of</strong> eighteen<br />
18 who by willful act or omission or refusal to provide any necessary care for the child’s health<br />
causes or permits serious injury to the life or health <strong>of</strong> such child shall be guilty <strong>of</strong> a Class 4<br />
felony. For purposes <strong>of</strong> this subsection, “serious injury” shall include, but not be limited to (i)<br />
disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, (vi)<br />
forced ingestion <strong>of</strong> dangerous substances, or (vii) life-threatening internal injuries.<br />
72<br />
Appendix A
B. 1. Any parent, guardian, or other person responsible for the care <strong>of</strong> a child under the age <strong>of</strong><br />
eighteen 18 whose willful act or omission in the care <strong>of</strong> such child was so gross, wanton and<br />
culpable as to show a reckless disregard for human life shall be guilty <strong>of</strong> a Class 6 felony.<br />
2. If a prosecution under this subsection is based solely on the accused parent having left the child<br />
at a hospital or rescue squad, it shall be an affirmative defense to prosecution <strong>of</strong> a parent under<br />
this subsection that such parent safely delivered the child to a hospital that provides 24-hour<br />
emergency services or to an attended rescue squad that employs emergency medical technicians,<br />
within the first 14 days <strong>of</strong> the child’s life.<br />
C. Any parent, guardian or other person having care, custody, or control <strong>of</strong> a minor child who in<br />
good faith is under treatment solely by spiritual means through prayer in accordance with the<br />
tenets and practices <strong>of</strong> a recognized church or religious denomination shall not, for that reason<br />
alone, be considered in violation <strong>of</strong> this section.<br />
Production, publication, sale, possession with intent to<br />
distribute financing, etc., <strong>of</strong> sexually explicit items involving<br />
children; presumption as to age; severability VA Code §18.2–374.1.<br />
A. For the purposes <strong>of</strong> this article and Article 4 (§18.2–362 et seq.) <strong>of</strong> this chapter, the term “sexually<br />
explicit visual material” means a picture, photograph, drawing, sculpture, motion picture film,<br />
digital image or similar visual representation which depicts sexual bestiality, a lewd exhibition <strong>of</strong><br />
nudity, as nudity is defined in §18.2–390, or sexual excitement, sexual conduct or<br />
sadomasochistic abuse, as also defined in §18.2–390, or a book, magazine or pamphlet which<br />
contains such a visual representation. An undeveloped photograph or similar visual material may<br />
be sexually explicit material notwithstanding that processing or other acts may be required to<br />
make its sexually explicit content apparent.<br />
B. A person shall be guilty <strong>of</strong> a Class 5 felony who:<br />
1. Accosts, entices or solicits a person less than eighteen years <strong>of</strong> age with intent to induce or<br />
force such person to perform in or be a subject <strong>of</strong> sexually explicit visual material; or<br />
2. Produces or makes or attempts or prepares to produce or make sexually explicit visual material<br />
which utilizes or has as a subject a person less than eighteen years <strong>of</strong> age; or<br />
3. Who knowingly takes part in or participates in the filming, photographing or other reproduction<br />
<strong>of</strong> sexually explicit visual material by any means, including but not limited to computer-generated<br />
reproduction, which utilizes or has as a subject a person less than eighteen years <strong>of</strong> age; or<br />
4. Sells, gives away, distributes, electronically transmits, displays with lascivious intent,<br />
purchases, or possesses with intent to sell, give away, distribute, transmit or display with<br />
lascivious intent sexually explicit visual material which utilizes or has as a subject a person<br />
less than eighteen years <strong>of</strong> age.<br />
5. [Repealed.]<br />
Appendix A<br />
73
B. 1. [Repealed.]<br />
C. A person shall be guilty <strong>of</strong> a Class 4 felony who knowingly finances or attempts or prepares to<br />
finance sexually explicit visual material which utilizes or has as a subject a person less than<br />
eighteen years <strong>of</strong> age.<br />
D. For the purposes <strong>of</strong> this section, a person who is depicted as, or presents the appearance <strong>of</strong>, being<br />
less than eighteen years <strong>of</strong> age in sexually explicit visual material is prima facie presumed to be<br />
less than eighteen years <strong>of</strong> age.<br />
E. The provisions <strong>of</strong> this section shall be severable and, if any <strong>of</strong> its provisions shall be held<br />
unconstitutional by a court <strong>of</strong> competent jurisdiction, then the decision <strong>of</strong> such court shall not<br />
affect or impair any <strong>of</strong> the remaining provisions.<br />
Possession <strong>of</strong> child pornography VA Code §18.2–374.1:1<br />
A. Any person who knowingly possesses any sexually explicit visual material utilizing or having as<br />
a subject a person less than 18 years <strong>of</strong> age shall be guilty <strong>of</strong> a Class 6 felony. However, no<br />
prosecution for possession <strong>of</strong> material prohibited by this section shall lie where the prohibited<br />
material comes into the possession <strong>of</strong> the person charged from a law-enforcement <strong>of</strong>ficer or lawenforcement<br />
agency.<br />
B. The provisions <strong>of</strong> this section shall not apply to any such material which is possessed for a bona<br />
fide artistic, medical, scientific, educational, religious, governmental, judicial or other proper<br />
purpose by a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide<br />
studies or research, librarian, clergyman, attorney, judge, or other person having a proper interest<br />
in the material.<br />
C. All sexually explicit visual material which utilizes or has as a subject a person less than 18 years<br />
<strong>of</strong> age shall be subject to lawful seizure and forfeiture pursuant to §18.2–374.2.<br />
D. Any person convicted <strong>of</strong> a second or subsequent <strong>of</strong>fense under this section shall be guilty <strong>of</strong> a<br />
Class 5 felony.<br />
Seizure and forfeiture <strong>of</strong> property used in connection<br />
with production <strong>of</strong> sexually explicit items involving children. VA Code §18.2–374.2<br />
All audio and visual equipment, electronic equipment, devices and other personal property used<br />
in connection with the production, distribution, publication, sale, possession with intent to<br />
distribute or making <strong>of</strong> sexually explicit visual material having a person less than eighteen years<br />
<strong>of</strong> age as a subject shall be subject to lawful seizure by a law-enforcement <strong>of</strong>ficer and shall be<br />
subject to forfeiture to the Commonwealth pursuant to Chapter 22 (§19.2–369 et seq.) <strong>of</strong> Title<br />
19.2 by order <strong>of</strong> the court in which a conviction under §18.2–374.1 is obtained. Notwithstanding<br />
the provisions <strong>of</strong> §19.2–381, the court shall dispose <strong>of</strong> the forfeited property as it deems proper,<br />
including awarding the property to a state agency for lawful purposes. If the property is disposed<br />
<strong>of</strong> by sale, the court shall provide that the proceeds be paid into the Literary Fund.<br />
74<br />
Appendix A
A forfeiture under this section shall not extinguish the rights <strong>of</strong> any person without knowledge<br />
<strong>of</strong> the illegal use <strong>of</strong> the property who (i) is the lawful owner or (ii) has a valid and perfected lien on<br />
the property.<br />
Use <strong>of</strong> communications systems to facilitate certain <strong>of</strong>fenses<br />
involving children. VA Code §18.2–374.3<br />
A. It shall be unlawful for any person to use a communications system, including but not limited to<br />
computers or computer networks or bulletin boards, or any other electronic means for the purposes<br />
<strong>of</strong> procuring or promoting the use <strong>of</strong> a minor for any activity in violation <strong>of</strong> §18.2–370 or §18.2–<br />
374.1. A violation <strong>of</strong> this section shall be punishable as a Class 6 felony.<br />
B. It shall be unlawful for any person over the age <strong>of</strong> 18 to use a communications system, including<br />
but not limited to computers or computer networks or bulletin boards, or any other electronic<br />
means, for the purposes <strong>of</strong> soliciting any person he knows or has reason to believe is a minor child<br />
less than 18 years <strong>of</strong> age for (i) any activity in violation <strong>of</strong> §§18.2–355, 18.2–358, 18.2–361<br />
or §18.2–370, (ii) any activity in violation <strong>of</strong> §18.2–374.1, or (iii) a violation <strong>of</strong> §18.2–374.1:1.<br />
As used in this subsection, “use a communications system” means making personal contact or<br />
direct contact through any agent or agency, any print medium, the United States mail, any common<br />
carrier or communication common carrier, any electronic communications system, or any<br />
telecommunications, wire, computer, or radio communications system. A violation <strong>of</strong> this section<br />
shall be punishable as a Class 5 felony.<br />
Indecent exposure VA Code §18.2–387<br />
Every person who intentionally makes an obscene display or exposure <strong>of</strong> his person, or the private parts<br />
there<strong>of</strong>, in any public place, or in any place where others are present, or procures another to so expose<br />
himself, shall be guilty <strong>of</strong> a Class 1 misdemeanor. No person shall be deemed to be in violation <strong>of</strong> this<br />
section for breastfeeding a child in any public place or any place where others are present.<br />
Definitions VA Code §18.2–390<br />
As used in this article:<br />
A. “Juvenile” means a person less than eighteen years <strong>of</strong> age.<br />
B. “Nudity” means a state <strong>of</strong> undress so as to expose the human male or female genitals, pubic area<br />
or buttocks with less than a full opaque covering, or the showing <strong>of</strong> the female breast with less<br />
than a fully opaque covering <strong>of</strong> any portion there<strong>of</strong> below the top <strong>of</strong> the nipple, or the depiction <strong>of</strong><br />
covered or uncovered male genitals in a discernibly turgid state.<br />
C. “Sexual conduct” means actual or explicitly simulated acts <strong>of</strong> masturbation, homosexuality, sexual<br />
intercourse, or physical contact in an act <strong>of</strong> apparent sexual stimulation or gratification with a<br />
persons’ clothed or unclothed genitals, pubic area, buttocks or, if such be female, breast.<br />
D. “Sexual excitement” means the condition <strong>of</strong> human male or female genitals when in a state <strong>of</strong><br />
sexual stimulation or arousal.<br />
Appendix A<br />
75
E. “Sadomasochistic abuse” means actual or explicitly simulated flagellation or torture by or upon a<br />
person who is nude or clad in undergarments, a mask or bizarre costume, or the condition <strong>of</strong><br />
being fettered, bound or otherwise physically restrained on the part <strong>of</strong> one so clothed.<br />
F. “Harmful to juveniles” means that quality <strong>of</strong> any description or representation, in whatever form,<br />
<strong>of</strong> nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (a) predominantly<br />
appeals to the prurient, shameful or morbid interest <strong>of</strong> juveniles, (b) is patently <strong>of</strong>fensive to<br />
prevailing standards in the adult community as a whole with respect to what is suitable material<br />
for juveniles, and (c) is, when taken as a whole, lacking in serious literary, artistic, political or<br />
scientific value for juveniles.<br />
G. “Knowingly” means having general knowledge <strong>of</strong>, or reason to know, or a belief or ground for<br />
belief which warrants further inspection or inquiry <strong>of</strong> both (a) the character and content <strong>of</strong> any<br />
material described herein which is reasonably susceptible <strong>of</strong> examination by the defendant, and<br />
(b) the age <strong>of</strong> the juvenile, provided however, that an honest mistake shall constitute an excuse<br />
from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the<br />
true age <strong>of</strong> such juvenile.<br />
<strong>Child</strong> Pornography Images Registry; maintenance; access VA Code §19.2–390.3<br />
A. The Office <strong>of</strong> the Attorney General, in cooperation with the <strong>Department</strong> <strong>of</strong> State Police, shall keep<br />
and maintain a <strong>Child</strong> Pornography Registry to be located within the State Police, separate and apart<br />
from all other records maintained by either department. The purpose <strong>of</strong> the Registry shall be to<br />
assist the efforts <strong>of</strong> law-enforcement agencies statewide to protect their communities from repeat<br />
child pornographers and to protect children from becoming victims <strong>of</strong> criminal <strong>of</strong>fenders by aiding<br />
in identifying victims and perpetrators. <strong>Criminal</strong> justice agencies, including law-enforcement<br />
agencies, may request <strong>of</strong> the State Police a search and comparison <strong>of</strong> child pornography images<br />
contained within the Registry with those images obtained by criminal justice agencies during the<br />
course <strong>of</strong> <strong>of</strong>ficial investigations.<br />
B. The Registry shall include images <strong>of</strong> sexually explicit visual material in any form including any<br />
picture, photograph, drawing, sculpture, motion picture film, digital image or similar visual<br />
representation, presented as evidence and used in any conviction for any <strong>of</strong>fense enumerated in<br />
§§18.2–374.1 and 18.2–374.1:1.<br />
C. Registry information provided under this section shall be used for the purposes <strong>of</strong> the<br />
administration <strong>of</strong> criminal justice or for the protection <strong>of</strong> the public in general and children in<br />
particular. Use <strong>of</strong> the information or the images contained therein for purposes not authorized by<br />
this section is prohibited and a willful violation <strong>of</strong> this section with the intent to harass or<br />
intimidate another shall be punished as a Class 6 felony.<br />
76<br />
D. 1. The <strong>Virginia</strong> <strong>Criminal</strong> Information Network and any form or document used by the<br />
<strong>Department</strong> <strong>of</strong> State Police to disseminate information from the Registry shall provide notice<br />
that any unauthorized possession, use or dissemination <strong>of</strong> the information or images is a<br />
crime punishable as a Class 6 felony.<br />
Appendix A
2. That the provisions <strong>of</strong> this act may result in a net increase in periods <strong>of</strong> imprisonment or<br />
commitment. Pursuant to §30–19.1:4, the estimated amount <strong>of</strong> the necessary appropriation<br />
cannot be determined for periods <strong>of</strong> imprisonment in state adult correctional facilities and is<br />
$0 for periods <strong>of</strong> commitment to the custody <strong>of</strong> the <strong>Department</strong> <strong>of</strong> Juvenile <strong>Justice</strong>.<br />
3. The Superintendent <strong>of</strong> State Police, in consultation with the Office <strong>of</strong> the Attorney General,<br />
shall promulgate regulations governing the operation and maintenance <strong>of</strong> the Registry.<br />
4. On or before January 1, 2004, the Office <strong>of</strong> the Attorney General and the State Police shall<br />
develop and maintain a system for making certain a registry <strong>of</strong> information and images <strong>of</strong><br />
child pornography is established, protected, and, where applicable, encrypted. The system<br />
shall be secure and not capable <strong>of</strong> being altered except by the State Police. The State Police<br />
shall remove all information that it knows to be inaccurate from the Registry.<br />
Desertion and nonsupport VA Code §20–61<br />
Any spouse who, without cause, deserts or willfully neglects or refuses or fails to provide for the support<br />
and maintenance <strong>of</strong> his or her spouse, and any parent who deserts or willfully neglects or refuses or fails<br />
to provide for the support and maintenance <strong>of</strong> his or her child under the age <strong>of</strong> 18 years <strong>of</strong> age, or child <strong>of</strong><br />
whatever age who is crippled or otherwise incapacitated from earning a living, the spouse child or children<br />
being then and there in necessitous circumstances, shall be guilty <strong>of</strong> a misdemeanor and upon conviction<br />
shall be punished by a fine <strong>of</strong> not exceeding $500, or confinement in jail not exceeding 12 months, or<br />
both, or on work release employment as provided in §53.1–131 for a period <strong>of</strong> not less than 90 days nor<br />
more than 12 months; or in lieu <strong>of</strong> the fine or confinement being imposed upon conviction by the court<br />
or by verdict <strong>of</strong> a jury he or she may be required by the court to suffer a forfeiture <strong>of</strong> an amount not<br />
exceeding the sum <strong>of</strong> $1,000 and the fine or forfeiture may be directed by the court to be paid in whole or<br />
in part to the spouse, or to the guardian, curator, custodian or trustee <strong>of</strong> the minor child or children, or to<br />
some discreet person or responsible organization designated by the court to receive it. This section shall<br />
not apply to any parent <strong>of</strong> any child <strong>of</strong> whatever age, if the child qualifies for and is totally disabled; or is<br />
an adult and meets the visual requirements for aid to the blind; and for this purpose any state agency shall<br />
use only the financial resources <strong>of</strong> the child <strong>of</strong> whatever age in determining eligibility.<br />
Cruelty and injuries to children; penalty VA Code §40.1–103<br />
A. It shall be unlawful for any person employing or having the custody <strong>of</strong> any child willfully or<br />
negligently to cause or permit the life <strong>of</strong> such child to be endangered or the health <strong>of</strong> such child to<br />
be injured, or willfully or negligently to cause or permit such child to be placed in a situation that<br />
its life, health or morals may be endangered, or to cause or permit such child to be overworked,<br />
tortured, tormented, mutilated, beaten or cruelly treated. Any person violating this section shall<br />
be guilty <strong>of</strong> a Class 6 felony.<br />
Appendix A<br />
B. If a prosecution under this section is based solely on the accused parent having left the child at a<br />
hospital or rescue squad, it shall be an affirmative defense to prosecution <strong>of</strong> a parent under this<br />
section that such parent safely delivered the child to a hospital that provides 24-hour emergency<br />
services or to an attended rescue squad that employs emergency medical technicians, within the<br />
first 14 days <strong>of</strong> the child’s life.<br />
77
78 Appendix A
Appendix B<br />
<strong>Child</strong> <strong>Abuse</strong> Procedural and Evidentiary Statutes<br />
Immunity <strong>of</strong> hospital or rescue squad personnel<br />
for the acceptance <strong>of</strong> certain infants VA Code §8.01–226.5:2<br />
Any personnel <strong>of</strong> a hospital or rescue squad receiving a child under the circumstances described in<br />
subsection B <strong>of</strong> §18.2–371, subdivision B 2 <strong>of</strong> §18.2–371.1 or subsection B <strong>of</strong> §40.1–103 shall be<br />
immune from civil liability or criminal prosecution for injury or other damage to the child unless such<br />
injury or other damage is the result <strong>of</strong> gross negligence or willful misconduct by such personnel.<br />
Competency <strong>of</strong> witness VA Code §8.01–396.1<br />
No child shall be deemed incompetent to testify solely because <strong>of</strong> age.<br />
Purpose <strong>of</strong> the Sex Offender and Crimes Against Minors Registry VA Code §9.1–900<br />
The purpose <strong>of</strong> the Sex Offender and Crimes Against Minors Registry (Registry) shall be to assist the efforts<br />
<strong>of</strong> law-enforcement agencies and others to protect their communities and families from repeat sex <strong>of</strong>fenders<br />
and to protect children from becoming victims <strong>of</strong> criminal <strong>of</strong>fenders by helping to prevent such individuals<br />
from being allowed to work directly with children.<br />
Persons for whom registration required VA Code §9.1–901<br />
Every person convicted on or after July 1, 1994, <strong>of</strong> an <strong>of</strong>fense set forth in §9.1–902 shall register and<br />
reregister as required by this chapter. Every person serving a sentence <strong>of</strong> confinement on or after July 1,<br />
1994, for a conviction <strong>of</strong> an <strong>of</strong>fense set forth in §9.1–902 shall register and reregister as required by this<br />
chapter. Every person under community supervision as defined by §53.1–1 or any similar form <strong>of</strong><br />
supervision under the laws <strong>of</strong> the United States or any political subdivision there<strong>of</strong>, on or after July 1,<br />
1994, resulting from a conviction <strong>of</strong> an <strong>of</strong>fense set forth in §9.1-902 shall register and reregister as<br />
required by this chapter.<br />
Offenses requiring registration VA Code §9.1-902<br />
A. For purposes <strong>of</strong> this chapter “Offense for which registration is required” means:<br />
1. A violation or attempted violation <strong>of</strong> §§18.2–63, 18.2–64.1, 18.2–67.2:1, 18.2–90 with<br />
the intent to commit rape, §18.2–374.1 or subsection D <strong>of</strong> §18.2–374.1:1 or a third or<br />
subsequent conviction <strong>of</strong> §18.2–67.4 or a third or subsequent conviction <strong>of</strong> subsection C <strong>of</strong><br />
§18.2–67.5;<br />
2. Where the victim is a minor or is physically helpless or mentally incapacitated as defined in<br />
§18.2–67.10, a violation or attempted violation <strong>of</strong> subsection A <strong>of</strong> §18.2–47, clause (i) or<br />
(iii) <strong>of</strong> § 18.2–48, § 18.2–67.4, subsection C <strong>of</strong> §18.2–67.5, §18.2–361 or §18.2–366;<br />
3. A violation <strong>of</strong> Chapter 117 (18 U.S.C. §2421 et seq.) <strong>of</strong> Title 18 <strong>of</strong> the United States Code; or<br />
4. A “sexually violent <strong>of</strong>fense.” “Sexually violent <strong>of</strong>fense” means a violation or attempted<br />
violation <strong>of</strong>:<br />
Appendix B<br />
79
a. Clause (ii) <strong>of</strong> §18.2–48, §§18.2–61, 18.2–67.1, 18.2–67.2, 18.2–67.3, subsections<br />
A and B <strong>of</strong> §18.2–67.5, §18.2–370 or §18.2–370.1; or<br />
b. Sections 18.2–63, 18.2–64.1, 18.2–67.2:1, §18.2–90 with the intent to commit rape<br />
or, where the victim is a minor or is physically helpless or mentally incapacitated as defined<br />
in §18.2–67.10, a violation or attempted violation <strong>of</strong> subsection A <strong>of</strong> §18.2–47, §18.2–<br />
67.4, subsection C <strong>of</strong> §18.2–67.5, clause (i) or (iii) <strong>of</strong> §18.2–48, §§18.2–361, 18.2–<br />
366, or §18.2–374.1. Conviction <strong>of</strong> an <strong>of</strong>fense listed under this subdivision shall be<br />
deemed a sexually violent <strong>of</strong>fense only if the person has been convicted <strong>of</strong> any two or<br />
more such <strong>of</strong>fenses, provided that person had been at liberty between such convictions.<br />
B. “Offense for which registration is required” and “sexually violent <strong>of</strong>fense” shall also include any<br />
similar <strong>of</strong>fense under the laws <strong>of</strong> the United States or any political subdivision there<strong>of</strong>.<br />
Registration procedures VA Code §9.1–903<br />
A. Every person convicted, including juveniles tried and convicted in the circuit courts pursuant to<br />
§16.1–269.1, whether sentenced as an adult or juvenile, <strong>of</strong> an <strong>of</strong>fense for which registration is<br />
required shall be required upon conviction to register and reregister with the <strong>Department</strong> <strong>of</strong> State<br />
Police. The court shall order the person to provide to the local law-enforcement agency <strong>of</strong> the<br />
county or city all information required by the State Police for inclusion in the Registry. The court<br />
shall remand the person to the custody <strong>of</strong> the local law-enforcement agency for the purpose <strong>of</strong><br />
obtaining the person’s fingerprints and photographs <strong>of</strong> a type and kind specified by the State<br />
Police for inclusion in the Registry. The local law-enforcement agency shall forward to the State<br />
Police all the necessary registration information within seven days <strong>of</strong> the date <strong>of</strong> sentencing.<br />
B. Every person required to register shall register in person within 10 days <strong>of</strong> his release from<br />
confinement in a state, local or juvenile correctional facility or, if a sentence <strong>of</strong> confinement is<br />
not imposed, within 10 days <strong>of</strong> suspension <strong>of</strong> the sentence or in the case <strong>of</strong> a juvenile <strong>of</strong> disposition.<br />
The local law-enforcement agency shall obtain from the person who presents himself for<br />
registration or reregistration two sets <strong>of</strong> fingerprints, pro<strong>of</strong> <strong>of</strong> residency and two photographs <strong>of</strong><br />
a type and kind specified by the State Police for inclusion in the Registry and advise the person <strong>of</strong><br />
his duties regarding reregistration. The local law-enforcement agency shall promptly forward to<br />
the State Police all necessary registration information.<br />
C. To establish pro<strong>of</strong> <strong>of</strong> residence in <strong>Virginia</strong>, a person shall present one photo-identification form<br />
issued by a governmental agency <strong>of</strong> the Commonwealth which contains the person’s complete<br />
name, gender, date <strong>of</strong> birth and complete address.<br />
D. Any person required to register shall also reregister in person within 10 days with the local lawenforcement<br />
agency following any change <strong>of</strong> residence, whether within or without the<br />
Commonwealth. If a probation or parole <strong>of</strong>ficer becomes aware <strong>of</strong> a change <strong>of</strong> residence for any <strong>of</strong><br />
his probationers or parolees required to register, the probation or parole <strong>of</strong>ficer shall notify the<br />
State Police within 10 days <strong>of</strong> learning <strong>of</strong> the change <strong>of</strong> residence. Whenever a person subject to<br />
80<br />
Appendix B
egistration changes residence to another state, the State Police shall notify the designated lawenforcement<br />
agency <strong>of</strong> that state.<br />
E. The registration shall be maintained in the Registry and shall include the person’s name, all aliases<br />
that he has used or under which he may have been known, the date and locality <strong>of</strong> the conviction for<br />
which registration is required, his fingerprints and a photograph <strong>of</strong> a type and kind specified by the<br />
State Police, his date <strong>of</strong> birth, social security number, current physical and mailing address and a<br />
description <strong>of</strong> the <strong>of</strong>fense or <strong>of</strong>fenses for which he was convicted. The registration shall also include<br />
the locality <strong>of</strong> the conviction and a description <strong>of</strong> the <strong>of</strong>fense or <strong>of</strong>fenses for previous convictions<br />
for the <strong>of</strong>fenses set forth in §9.1–902.<br />
F. The local law-enforcement agency shall promptly forward to the State Police all necessary<br />
registration or reregistration information received by it. Upon receipt <strong>of</strong> registration or<br />
reregistration information the State Police shall forthwith notify the chief law-enforcement <strong>of</strong>ficer<br />
<strong>of</strong> the locality listed as the person’s address on the registration and reregistration.<br />
Reregistration VA Code §9.1–904<br />
Every person required to register, other than a person convicted <strong>of</strong> a sexually violent <strong>of</strong>fense, shall reregister<br />
with the State Police on an annual basis from the date <strong>of</strong> the initial registration. Every person convicted <strong>of</strong><br />
a sexually violent <strong>of</strong>fense shall reregister with the State Police every 90 days from the date <strong>of</strong> initial<br />
registration. Reregistration means that the person has notified the State Police, confirmed his current<br />
physical and mailing address and provided such other information, including identifying information,<br />
which the State Police may require. Upon registration and as may be necessary thereafter, the State Police<br />
shall provide the person with an address verification form to be used for reregistration. The form shall<br />
contain in bold print a statement indicating that failure to comply with the registration required is<br />
punishable as a Class 1 misdemeanor or a Class 6 felony as provided in §18.2–472.1.<br />
New residents and nonresident <strong>of</strong>fenders; registration required VA Code §9.1–905<br />
A. All persons required to register shall register within 10 days <strong>of</strong> establishing a residence in the<br />
Commonwealth.<br />
B. Nonresident <strong>of</strong>fenders entering the Commonwealth for employment, to carry on a vocation, or as<br />
a student attending school who are required to register in their state <strong>of</strong> residence or who would be<br />
required to register if a resident <strong>of</strong> the Commonwealth shall, within 10 days <strong>of</strong> accepting<br />
employment or enrolling in school in the Commonwealth, be required to register and reregister<br />
in person with the local law-enforcement agency.<br />
C. To document employment or school attendance in <strong>Virginia</strong> a person shall present pro<strong>of</strong> <strong>of</strong><br />
enrollment as a student or suitable pro<strong>of</strong> <strong>of</strong> temporary employment in the Commonwealth and<br />
one photo-identification form issued by a governmental agency <strong>of</strong> the person’s state <strong>of</strong> residence<br />
which contains the person’s complete name, gender, date <strong>of</strong> birth and complete address.<br />
D. For purposes <strong>of</strong> this section: “Employment” and “carry on a vocation” include employment that<br />
is full-time or part-time for a period <strong>of</strong> time exceeding 14 days or for an aggregate period <strong>of</strong> time<br />
Appendix B<br />
81
exceeding 30 days during any calendar year, whether financially compensated, volunteered, or<br />
for the purpose <strong>of</strong> government or educational benefit. “Student” means a person who is enrolled<br />
on a full-time or part-time basis, in any public or private educational institution, including any<br />
secondary school, trade or pr<strong>of</strong>essional institution, or institution <strong>of</strong> higher education.<br />
Enrollment or employment at institution <strong>of</strong> higher learning;<br />
information required VA Code §9.1–906<br />
A. Persons required to register or reregister who are enrolled in or employed at institutions <strong>of</strong> higher<br />
learning shall, in addition to other registration requirements, indicate on their registration and<br />
reregistration form the name and location <strong>of</strong> the institution attended by or employing the registrant<br />
whether such institution is within or without the Commonwealth. In addition, persons required<br />
to register or reregister shall notify the local law-enforcement agency in person within 10 days <strong>of</strong><br />
any change in their enrollment or employment status with an institution <strong>of</strong> higher learning. The<br />
local law-enforcement agency shall promptly forward to the State Police all necessary registration<br />
or reregistration information received by it.<br />
B. Upon receipt <strong>of</strong> a registration or reregistration indicating enrollment or employment with an institute<br />
<strong>of</strong> higher learning or notification <strong>of</strong> a change in status, the State Police shall notify the chief lawenforcement<br />
<strong>of</strong>ficer <strong>of</strong> the institution’s law-enforcement agency or, if there is no institutional lawenforcement<br />
agency, the local law-enforcement agency serving that institution, <strong>of</strong> the registration,<br />
reregistration, or change in status. The law-enforcement agency receiving notification under this section<br />
shall make such information available upon request.<br />
C. For purposes <strong>of</strong> this section: “Employment” includes full- or part-time, temporary or permanent<br />
or contractual employment at an institution <strong>of</strong> higher learning either with or without<br />
compensation. “Enrollment” includes both full- and part-time. “Institution <strong>of</strong> higher learning”<br />
means any post-secondary school, trade or pr<strong>of</strong>essional institution, or institution <strong>of</strong> higher<br />
education.<br />
Procedures upon a failure to register or reregister VA Code §9.1–907<br />
Whenever it appears from the records <strong>of</strong> the State Police that a person has failed to comply with the duty<br />
to register or reregister, the State Police shall promptly investigate and, if there is probable cause to believe<br />
a violation has occurred, obtain a warrant charging a violation <strong>of</strong> §18.2–472.1 in the jurisdiction in<br />
which the person last registered or reregistered or, if the person failed to comply with the duty to register,<br />
in the jurisdiction in which the person was last convicted <strong>of</strong> an <strong>of</strong>fense for which registration or<br />
reregistration is required. The State Police shall forward to the jurisdiction, together with the warrant, an<br />
affidavit signed by the custodian <strong>of</strong> the records that such person failed to comply with the duty to register<br />
or reregister. Such affidavit shall be admitted into evidence as prima facie evidence <strong>of</strong> the failure to comply<br />
with the duty to register or reregister in any trial for the violation <strong>of</strong> §18.2–472.1. The State Police shall<br />
also promptly notify the local law-enforcement agency <strong>of</strong> the jurisdiction <strong>of</strong> the person’s last known<br />
residence as shown in the records <strong>of</strong> the State Police.<br />
82<br />
Appendix B
Duration <strong>of</strong> registration requirement VA Code §9.1–908<br />
Any person required to register or reregister shall be required to register for a period <strong>of</strong> 10 years from the<br />
date <strong>of</strong> initial registration, except that any person who has been convicted <strong>of</strong> (i) any sexually violent <strong>of</strong>fense,<br />
or (ii) §18.2–67.2:1 shall have a continuing duty to reregister for life. Any period <strong>of</strong> confinement in a<br />
federal, state or local correctional facility, hospital or any other institution or facility during the otherwise<br />
applicable 10-year period shall toll the registration period and the duty to reregister shall be extended.<br />
Persons confined in a federal, state, or local correctional facility shall not be required to reregister until<br />
released from custody.<br />
Relief from registration or reregistration VA Code §9.1–909<br />
A. Upon expiration <strong>of</strong> three years from the date upon which the duty to register as a sexually<br />
violent <strong>of</strong>fender is imposed, the person required to register may petition the court in which he<br />
was convicted for relief from the requirement to reregister every 90 days. The court shall hold<br />
a hearing on the petition, on notice to the attorney for the Commonwealth, to determine whether<br />
the person suffers from a mental abnormality or a personality disorder that makes the person a<br />
menace to the health and safety <strong>of</strong> others or significantly impairs his ability to control his<br />
sexual behavior. Prior to the hearing the court shall order a comprehensive assessment <strong>of</strong> the<br />
applicant by a panel <strong>of</strong> three certified sex <strong>of</strong>fender treatment providers as defined in §54.1–<br />
3600. A report <strong>of</strong> the assessment shall be filed with the court prior to the hearing. The costs <strong>of</strong><br />
the assessment shall be taxed as costs <strong>of</strong> the proceeding.<br />
If, after consideration <strong>of</strong> the report and such other evidence as may be presented at the hearing, the<br />
court finds by clear and convincing evidence that the person does not suffer from a mental<br />
abnormality or a personality disorder that makes the person a menace to the health and safety <strong>of</strong><br />
others or significantly impairs his ability to control his sexual behavior, the petition shall be granted<br />
and the duty to reregister every 90 days shall be terminated. The court shall promptly notify the<br />
State Police upon entry <strong>of</strong> an order granting the petition and the State Police shall remove Registry<br />
information on the <strong>of</strong>fender from the Internet system. The person shall, however, be under a<br />
continuing duty to register annually for life. If the petition is denied, the duty to reregister every 90<br />
days shall continue. An appeal from the denial <strong>of</strong> a petition shall lie to the Supreme Court.<br />
A petition for relief pursuant to this subsection may not be filed within three years from the date<br />
on which any previous petition for such relief was denied.<br />
B. The duly appointed guardian <strong>of</strong> a person convicted <strong>of</strong> an <strong>of</strong>fense requiring registration or<br />
reregistration as either a sex <strong>of</strong>fender or sexually violent <strong>of</strong>fender, who due to a physical condition<br />
is incapable <strong>of</strong> (i) re<strong>of</strong>fending and (ii) reregistering, may petition the court in which the person<br />
was convicted for relief from the requirement to reregister.<br />
The court shall hold a hearing on the petition, on notice to the attorney for the Commonwealth,<br />
to determine whether the person suffers from a physical condition that makes the person (i) no<br />
longer a menace to the health and safety <strong>of</strong> others and (ii) incapable <strong>of</strong> reregistering. Prior to the<br />
Appendix B<br />
83
hearing the court shall order a comprehensive assessment <strong>of</strong> the applicant by at least two licensed<br />
physicians other than the person’s primary care physician. A report <strong>of</strong> the assessment shall be<br />
filed with the court prior to the hearing. The costs <strong>of</strong> the assessment shall be taxed as costs <strong>of</strong> the<br />
proceeding.<br />
If, after consideration <strong>of</strong> the report and such other evidence as may be presented at the hearing,<br />
the court finds by clear and convincing evidence that due to his physical condition the person (i)<br />
no longer poses a menace to the health and safety <strong>of</strong> others and (ii) is incapable <strong>of</strong> reregistering,<br />
the petition shall be granted and the duty to reregister shall be terminated. However, for a person<br />
whose duty to reregister was terminated under this subsection, the <strong>Department</strong> <strong>of</strong> State Police<br />
shall, annually for sex <strong>of</strong>fenders and quarterly for sexually violent <strong>of</strong>fenders, verify and report to<br />
the attorney for the Commonwealth in the jurisdiction in which the person resides that the person<br />
continues to suffer from the physical condition that resulted in such termination.<br />
The court shall promptly notify the State Police upon entry <strong>of</strong> an order granting the petition to<br />
terminate the duty to reregister and the State Police shall remove any Registry information on the<br />
<strong>of</strong>fender from the Internet system.<br />
If the petition is denied, the duty to reregister shall continue. An appeal from the denial <strong>of</strong> a<br />
petition shall be to the <strong>Virginia</strong> Supreme Court.<br />
A petition for relief pursuant to this subsection may not be filed within three years from the date<br />
on which any previous petition for such relief was denied.<br />
If, at any time, the person’s physical condition changes so that he is capable <strong>of</strong> re<strong>of</strong>fending or<br />
reregistering, the attorney for the Commonwealth shall file a petition with the circuit court in<br />
the jurisdiction where the person resides and the court shall hold a hearing on the petition, with<br />
notice to the person and his guardian, to determine whether the person still suffers from a physical<br />
condition that makes the person (i) no longer a menace to the health and safety <strong>of</strong> others and (ii)<br />
incapable <strong>of</strong> reregistering. If the petition is granted, the duty to reregister shall commence from<br />
the date <strong>of</strong> the court’s order. An appeal from the denial or granting <strong>of</strong> a petition shall be to the<br />
<strong>Virginia</strong> Supreme Court. Prior to the hearing the court shall order a comprehensive assessment <strong>of</strong><br />
the applicant by at least two licensed physicians other than the person’s primary care physician.<br />
A report <strong>of</strong> the assessment shall be filed with the court prior to the hearing. The costs <strong>of</strong> the<br />
assessment shall be taxed as costs <strong>of</strong> the proceeding.<br />
Removal <strong>of</strong> name and information from Registry VA Code §9.1–910<br />
84<br />
A. Any person required to register, other than a person who has been convicted <strong>of</strong> any (i) sexually<br />
violent <strong>of</strong>fense, (ii) two or more <strong>of</strong>fenses for which registration is required or (iii) a violation <strong>of</strong><br />
§18.2–67.2:1, may petition the circuit court in which he was convicted or the circuit court in<br />
the jurisdiction where he then resides for removal <strong>of</strong> his name and all identifying information<br />
from the Registry. A petition may not be filed earlier than 10 years after the date <strong>of</strong> initial<br />
registration. The court shall hold a hearing on the petition at which the applicant and any interested<br />
persons may present witnesses and other evidence. If, after such hearing, the court is satisfied<br />
Appendix B
that such person no longer poses a risk to public safety, the court shall grant the petition. In the<br />
event the petition is not granted, the person shall wait at least 24 months from the date <strong>of</strong> the<br />
denial to file a new petition for removal from the Registry.<br />
B. The State Police shall remove from the Registry the name <strong>of</strong> any person and all identifying<br />
information upon receipt <strong>of</strong> an order granting a petition pursuant to subsection A or at the end <strong>of</strong><br />
the period for which the person is required to register under §9.1–908.<br />
Registry maintenance VA Code §9.1–911<br />
The Registry shall include conviction data received from the courts, including the disposition records for<br />
juveniles tried and convicted in the circuit courts pursuant to §16.1–269.1, on convictions for <strong>of</strong>fenses<br />
for which registration is required and registrations and deregistration received from persons required to<br />
do so. The Registry shall also include a separate indication that a person has been convicted <strong>of</strong> a sexually<br />
violent <strong>of</strong>fense. The State Police shall forthwith transmit the appropriate information as required by the<br />
Federal Bureau <strong>of</strong> Investigation for inclusion in the National Sex Offender Registry.<br />
Registry access and dissemination; fees VA Code §9.1–912<br />
A. Except as provided in §9.1–913 and subsection B <strong>of</strong> this section, Registry information shall be<br />
disseminated upon request made directly to the State Police or to the State Police through a local<br />
law-enforcement agency. Such information may be disclosed to any person requesting information<br />
on a specific individual in accordance with subsection B. The State Police shall make Registry<br />
information available, upon request, to criminal justice agencies including local law-enforcement<br />
agencies through the <strong>Virginia</strong> <strong>Criminal</strong> Information Network (VCIN). Registry information<br />
provided under this section shall be used for the purposes <strong>of</strong> the administration <strong>of</strong> criminal justice,<br />
for the screening <strong>of</strong> current or prospective employees or volunteers or otherwise for the protection<br />
<strong>of</strong> the public in general and children in particular. The Superintendent <strong>of</strong> State Police may, by<br />
regulation, establish a fee not to exceed $15 for responding to requests for information from the<br />
Registry. Any fees collected shall be deposited in a special account to be used to <strong>of</strong>fset the costs <strong>of</strong><br />
administering the Registry.<br />
B. Information regarding a specific person shall be disseminated upon receipt <strong>of</strong> an <strong>of</strong>ficial request<br />
form that may be submitted directly to the State Police or to the State Police through a local lawenforcement<br />
agency. The <strong>of</strong>ficial request form shall include a statement <strong>of</strong> the reason for the<br />
request; the name and address <strong>of</strong> the person requesting the information; the name, address and, if<br />
known, the social security number <strong>of</strong> the person about whom information is sought; and such<br />
other information as the State Police may require to ensure reliable identification.<br />
Public dissemination by means <strong>of</strong> the Internet VA Code §9.1–913<br />
The State Police shall develop and maintain a system for making certain Registry information on violent<br />
sex <strong>of</strong>fenders publicly available by means <strong>of</strong> the Internet. The information to be made available shall<br />
include the <strong>of</strong>fender’s name; all aliases that he has used or under which he may have been known; the date<br />
and locality <strong>of</strong> the conviction and a brief description <strong>of</strong> the <strong>of</strong>fense; his age, current address and photograph;<br />
and such other information as the State Police may from time to time determine is necessary to preserve<br />
Appendix B<br />
85
public safety including but not limited to the fact that an individual is wanted for failing to register or<br />
reregister. The system shall be secure and not capable <strong>of</strong> being altered except by the State Police. The system<br />
shall be updated each business day with newly received registrations and deregistration. The State Police<br />
shall remove all information that it knows to be inaccurate from the Internet system.<br />
Automatic notification <strong>of</strong> registration to certain entities VA Code §9.1–914<br />
Any school, day-care service and child-minding service, and any state-regulated or state-licensed child day<br />
center, child day program, children’s residential facility, family day home or foster home as defined in<br />
§63.2–100 may request from the State Police and, upon compliance with the requirements therefore<br />
established by the State Police, shall be eligible to receive from the State Police electronic notice <strong>of</strong> the<br />
registration or reregistration <strong>of</strong> any sex <strong>of</strong>fender. Entities that request and are entitled to this notification,<br />
and that do not have the capability <strong>of</strong> receiving such electronic notice, may register with the State Police<br />
to receive written notification <strong>of</strong> sex <strong>of</strong>fender registration or reregistration.<br />
Within three business days <strong>of</strong> receipt by the State Police <strong>of</strong> registration or reregistration, the State Police<br />
shall electronically or in writing notify an entity that has requested such notification, has complied with<br />
the requirements established by the State Police and is located in the same or a contiguous zip code area as<br />
the address <strong>of</strong> the <strong>of</strong>fender as shown on the registration.<br />
The State Police shall establish reasonable guidelines governing the automatic dissemination <strong>of</strong> Registry<br />
information, which may include the payment <strong>of</strong> a fee, whether a one-time fee or a regular assessment, to<br />
maintain the electronic access. The fee, if any, shall defray the costs <strong>of</strong> establishing and maintaining the<br />
electronic notification system and notice by mail.<br />
For the purposes <strong>of</strong> this section, “day-care service” means provision <strong>of</strong> supplementary care and protection<br />
during a part <strong>of</strong> the day for the minor child <strong>of</strong> another; “child-minding service” means provision <strong>of</strong><br />
temporary custodial care or supervisory services for the minor child <strong>of</strong> another; and “school” means any<br />
public, parochial, denominational or private educational institution, including any preschool, elementary<br />
school, secondary school, post-secondary school, trade or pr<strong>of</strong>essional institution, or institution <strong>of</strong> higher<br />
education.<br />
Regulations VA Code §9.1–915<br />
The Superintendent <strong>of</strong> State Police shall promulgate regulations and develop forms to implement and<br />
enforce this chapter; including the operation and maintenance <strong>of</strong> the Registry and the removal <strong>of</strong> records<br />
on persons who are deceased, whose convictions have been reversed or who have been pardoned, and<br />
those for whom an order <strong>of</strong> removal or relief from frequent registration has been entered. Such regulations<br />
and forms shall not be subject to the provisions <strong>of</strong> Article 2 (§2.2–4006 et seq.) <strong>of</strong> the Administrative<br />
Process Act.<br />
Limitation on liability VA Code §9.1–916<br />
No liability shall be imposed upon any law-enforcement <strong>of</strong>ficial who disseminates information or fails to<br />
disseminate information in good faith compliance with the requirements <strong>of</strong> this chapter, but this provision<br />
shall not be construed to grant immunity for gross negligence or willful misconduct.<br />
86<br />
Appendix B
Misuse <strong>of</strong> registry information; penalty VA Code §9.1–917<br />
Use <strong>of</strong> registry information for purposes not authorized by this chapter is prohibited, the unlawful use <strong>of</strong><br />
the information contained in or derived from the Registry for purposes <strong>of</strong> intimidating or harassing another<br />
is prohibited, and a willful violation <strong>of</strong> this chapter is a Class 1 misdemeanor.<br />
Severability; liberal construction VA Code §9.1–918<br />
The provisions <strong>of</strong> this chapter are severable, and if any <strong>of</strong> its provisions shall be declared unconstitutional<br />
or invalid by any court <strong>of</strong> competent jurisdiction, the decision <strong>of</strong> such court shall not affect or impair any<br />
<strong>of</strong> the other provisions <strong>of</strong> this chapter. This chapter, being necessary for the welfare <strong>of</strong> the Commonwealth<br />
and its inhabitants, shall be liberally construed to effect the purposes here<strong>of</strong>.<br />
Power <strong>of</strong> circuit court over juvenile <strong>of</strong>fender VA Code §16.1–272<br />
A. In any case in which a juvenile is indicted, the <strong>of</strong>fense for which he is indicted and all ancillary charges<br />
shall be tried in the same manner as provided for in the trial <strong>of</strong> adults, except as otherwise provided<br />
with regard to sentencing. Upon a finding <strong>of</strong> guilty <strong>of</strong> any charge other than capital murder, the court<br />
shall fix the sentence without the intervention <strong>of</strong> a jury.<br />
1. If a juvenile is convicted <strong>of</strong> a violent juvenile felony, for that <strong>of</strong>fense and for all ancillary<br />
crimes the court may order that (i) the juvenile serve a portion <strong>of</strong> the sentence as a serious<br />
juvenile <strong>of</strong>fender under §16.1-285.1 and the remainder <strong>of</strong> such sentence in the same manner<br />
as provided for adults; (ii) the juvenile serve the entire sentence in the same manner as provided<br />
for adults; or (iii) the portion <strong>of</strong> the sentence to be served in the same manner as provided for<br />
adults be suspended conditioned upon successful completion <strong>of</strong> such terms and conditions as<br />
may be imposed in a juvenile court upon disposition <strong>of</strong> a delinquency case including, but not<br />
limited to, commitment under subdivision 14 <strong>of</strong> §16.1–278.8 or §16.1–285.1.<br />
2. If the juvenile is convicted <strong>of</strong> any other felony, the court may sentence or commit the juvenile<br />
<strong>of</strong>fender in accordance with the criminal laws <strong>of</strong> this Commonwealth or may in its discretion<br />
deal with the juvenile in the manner prescribed in this chapter for the hearing and disposition<br />
<strong>of</strong> cases in the juvenile court, including, but not limited to, commitment under §16.1–285.1<br />
or may in its discretion impose an adult sentence and suspend the sentence conditioned upon<br />
successful completion <strong>of</strong> such terms and conditions as may be imposed in a juvenile court<br />
upon disposition <strong>of</strong> a delinquency case.<br />
3. If the juvenile is not convicted <strong>of</strong> a felony but is convicted <strong>of</strong> a misdemeanor, the court shall<br />
deal with the juvenile in the manner prescribed by law for the disposition <strong>of</strong> a delinquency<br />
case in the juvenile court.<br />
B. If the circuit court decides to deal with the juvenile in the same manner as a case in the juvenile<br />
court and places the juvenile on probation, the juvenile may be supervised by a juvenile probation<br />
<strong>of</strong>ficer.<br />
Appendix B<br />
87
C. Whether the court sentences and commits the juvenile as a juvenile under this chapter or under<br />
the criminal law, in cases where the juvenile is convicted <strong>of</strong> a felony in violation <strong>of</strong> §§18.2–61,<br />
18.2–63, 18.2–64.1, 18.2–67.1, 18.2–67.2, 18.2–67.3, 18.2–67.5, 18.2–370 or 18.2–<br />
370.1 or, where the victim is a minor or is physically helpless or mentally incapacitated as defined<br />
in §18.2–67.10, subsection B <strong>of</strong> §18.2–361 or subsection B <strong>of</strong> §18.2–366, the clerk shall make<br />
the report required by §19.2–390 to the Sex Offender and Crimes Against Minors Registry<br />
established pursuant to §19.2–390.1 Chapter 9 (§9.1-900 et seq.) <strong>of</strong> Title 9.1.<br />
Mandatory HIV testing VA Code §18.2–62<br />
A. As soon as practicable following arrest, the attorney for the Commonwealth may request, after<br />
consultation with any victim, that any person charged with any crime involving sexual assault<br />
pursuant to this article or any <strong>of</strong>fenses against children as prohibited by §§18.2–361, 18.2–366,<br />
18.2–370, and 18.2–370.1 be requested to submit to testing for infection with human<br />
immunodeficiency virus. The person so charged shall be counseled about the meaning <strong>of</strong> the test,<br />
about acquired immunodeficiency syndrome, and about the transmission and prevention <strong>of</strong> infection<br />
with human immunodeficiency virus.<br />
If the person so charged refuses to submit to the test or the competency <strong>of</strong> the person to consent to<br />
the test is at issue, the court with jurisdiction <strong>of</strong> the case shall hold a hearing to determine whether<br />
there is probable cause that the individual has committed the crime with which he is charged. If<br />
the court finds probable cause, the court shall order the accused to undergo testing for infection<br />
with human immunodeficiency virus. The court may enter such an order in the absence <strong>of</strong> the<br />
defendant if the defendant is represented at the hearing by counsel or a guardian ad litem. The<br />
court’s finding shall be without prejudice to either the Commonwealth or the person charged and<br />
shall not be evidence in any proceeding, civil or criminal.<br />
B. Upon conviction, or adjudication as delinquent in the case <strong>of</strong> a juvenile, <strong>of</strong> any crime involving<br />
sexual assault pursuant to this article or any <strong>of</strong>fenses against children as prohibited by §§18.2–<br />
361, 18.2–366, 18.2–370, and 18.2–370.1, the attorney for the Commonwealth may, after<br />
consultation with any victim and, upon the request <strong>of</strong> any victim shall, request and the court<br />
shall order the defendant to submit to testing for infection with human immunodeficiency virus.<br />
Any test conducted following conviction shall be in addition to such tests as may have been<br />
conducted following arrest pursuant to subsection A.<br />
C. Confirmatory tests shall be conducted before any test result shall be determined to be positive.<br />
The results <strong>of</strong> the tests for infection with human immunodeficiency virus shall be confidential as<br />
provided in §32.1–36.1; however, the <strong>Department</strong> <strong>of</strong> Health shall also disclose the results to any<br />
victim and <strong>of</strong>fer appropriate counseling as provided by subsection B <strong>of</strong> §32.1–37.2. The<br />
<strong>Department</strong> shall conduct surveillance and investigation in accordance with §32.1–39.<br />
The results <strong>of</strong> such tests shall not be admissible as evidence in any criminal proceeding.<br />
88<br />
The cost <strong>of</strong> such tests shall be paid by the Commonwealth and taxed as part <strong>of</strong> the cost <strong>of</strong> such<br />
criminal proceedings.<br />
Appendix B
Use <strong>of</strong> videotaped testimony VA Code §18.2–67<br />
Before or during the trial for an <strong>of</strong>fense or attempted <strong>of</strong>fense under this article, the judge <strong>of</strong> the court in<br />
which the case is pending, with the consent <strong>of</strong> the accused first obtained in open court, by an order <strong>of</strong><br />
record, may direct that the deposition <strong>of</strong> the complaining witness be taken at the time and place designated<br />
in the order, and the judge may adjourn the taking there<strong>of</strong> to such other time and places as he may deem<br />
necessary. Such deposition shall be taken before a judge <strong>of</strong> a circuit court in the county or city in which<br />
the <strong>of</strong>fense was committed or the trial is had, and the judge shall rule upon all questions <strong>of</strong> evidence, and<br />
otherwise control the taking <strong>of</strong> the same as though it were taken in open court. At the taking <strong>of</strong> such<br />
deposition the attorney for the Commonwealth, as well as the accused and his attorneys, shall be present<br />
and they shall have the same rights in regard to the examination <strong>of</strong> such witness as if he or she were<br />
testifying in open court. No other person shall be present unless expressly permitted by the judge. Such<br />
deposition shall be read to the jury at the time such witness might have testified is such deposition shall<br />
be read to the jury at the time such witness might have testified if such deposition had not been taken, and<br />
shall be considered by them, and shall have the same force and effect as though such testimony had been<br />
given orally in court. The judge may, in like manner, direct other depositions <strong>of</strong> the complaining witness,<br />
in rebuttal or otherwise, which shall be taken and read in the manner and under the conditions herein<br />
prescribed as to the first deposition. The cost <strong>of</strong> taking such depositions shall be paid by the Commonwealth.<br />
Admission <strong>of</strong> evidence (rape shield) VA Code §18.2–67.7<br />
A. In prosecutions under this article, general reputation or opinion evidence <strong>of</strong> the complaining<br />
witness’s unchaste character or prior sexual conduct shall not be admitted. Unless the complaining<br />
witness voluntarily agrees otherwise, evidence <strong>of</strong> specific instances <strong>of</strong> his or her prior sexual<br />
conduct shall be admitted only if it is relevant and is:<br />
1. Evidence <strong>of</strong>fered to provide an alternative explanation for physical evidence <strong>of</strong> the <strong>of</strong>fense<br />
charged which is introduced by the prosecution, limited to evidence designed to explain the<br />
presence <strong>of</strong> semen, pregnancy, disease, or physical injury to the complaining witness’s intimate<br />
parts; or<br />
2. Evidence <strong>of</strong> sexual conduct between the complaining witness and the accused <strong>of</strong>fered to<br />
support a contention that the alleged <strong>of</strong>fense was not accomplished by force, threat or<br />
intimidation or through the use <strong>of</strong> the complaining witness’s mental incapacity or physical<br />
helplessness, provided that the sexual conduct occurred within a period <strong>of</strong> time reasonably<br />
proximate to the <strong>of</strong>fense charged under the circumstances <strong>of</strong> this case; or<br />
3. Evidence <strong>of</strong>fered to rebut evidence <strong>of</strong> the complaining witness’s prior sexual conduct<br />
introduced by the prosecution.<br />
B. Nothing contained in this section shall prohibit the accused from presenting evidence relevant to<br />
show that the complaining witness had a motive to fabricate the charge against the accused. If<br />
such evidence relates to the past sexual conduct <strong>of</strong> the complaining witness with a person other<br />
than the accused, it shall not be admitted and may not be referred to at any preliminary hearing or<br />
trial unless the party <strong>of</strong>fering same files a written notice generally describing the evidence prior<br />
Appendix B<br />
89
to the introduction <strong>of</strong> any evidence, or the opening statement <strong>of</strong> either counsel, whichever first<br />
occurs, at the preliminary hearing or trial at which the admission <strong>of</strong> the evidence may be sought.<br />
C. Evidence described in subsection A and B <strong>of</strong> this section shall not be admitted and may not be<br />
referred to at any preliminary hearing or trial until the court first determines the admissibility <strong>of</strong><br />
that evidence at an evidentiary hearing to be held before the evidence is introduced at such<br />
preliminary hearing or trial. The court shall exclude from the evidentiary hearing al persons except<br />
the accused, the complaining witness, other necessary witnesses, and required court personnel. If<br />
the court determines that the evidence meets the requirements <strong>of</strong> subsections A and B <strong>of</strong> this<br />
section, it shall be admissible before the judge or jury trying the case in the ordinary course <strong>of</strong> the<br />
preliminary hearing or trial. If the court initially determines that the evidence is inadmissible,<br />
but new information is discovered during the course <strong>of</strong> the preliminary hearing or trial which<br />
may make such evidence admissible, the court shall determine in an evidentiary hearing whether<br />
such evidence is admissible.<br />
Closed preliminary hearings VA Code §18.2–67.8<br />
In preliminary hearings for <strong>of</strong>fenses charged under this article or under §§18.2–361, 18.2–366, 18.2–<br />
370 or 18.2–370.1, the court may, on its own motion or at the request <strong>of</strong> the Commonwealth, the<br />
complaining witness, the accused, or their counsel, exclude from the courtroom all persons except <strong>of</strong>ficers<br />
<strong>of</strong> the court and persons whose presence, in the judgment <strong>of</strong> the court, would be supportive <strong>of</strong> the<br />
complaining witness or the accused and would not impair the conduct <strong>of</strong> a fair hearing.<br />
Use <strong>of</strong> closed-circuit television testimony VA Code §18.2–67.9<br />
A. The provisions <strong>of</strong> this section shall apply to an alleged victim who was fourteen years <strong>of</strong> age or<br />
under at the time <strong>of</strong> the alleged <strong>of</strong>fense and is sixteen or under at the time <strong>of</strong> the trial and to a<br />
witness who is fourteen years <strong>of</strong> age or under at the time <strong>of</strong> the trial.<br />
In any criminal proceeding, including preliminary hearings, involving an alleged <strong>of</strong>fense against a<br />
child, relating to a violation <strong>of</strong> the laws pertaining to kidnapping (§18.2–47 et seq.), criminal sexual<br />
assault (§18.2–61 et seq.) or family <strong>of</strong>fenses pursuant to Article 4 (§18.2–362 et seq.) <strong>of</strong> Chapter<br />
8 <strong>of</strong> Title 18.2, or involving an alleged murder <strong>of</strong> a person <strong>of</strong> any age, the attorney for the<br />
Commonwealth or the defendant may apply for an order from the court that the testimony <strong>of</strong> the<br />
alleged victim or a child witness be taken in a room outside the courtroom and be televised by twoway<br />
closed-circuit television. The party seeking such order shall apply for the order at least seven<br />
days before the trial date or at least seven days before such other preliminary proceeding to which<br />
the order is to apply.<br />
B. The court may order that the testimony <strong>of</strong> the child be taken by closed-circuit television as provided<br />
in subsection A if it finds that the child is unavailable to testify in open court in the presence <strong>of</strong><br />
the defendant, the jury, the judge, and the public, for any <strong>of</strong> the following reasons:<br />
1. The child’s persistent refusal to testify despite judicial requests to do so;<br />
2. The child’s substantial inability to communicate about the <strong>of</strong>fense; or<br />
90<br />
Appendix B
3. The substantial likelihood, based upon expert opinion testimony, that the child will suffer<br />
severe emotional trauma from so testifying.<br />
Any ruling on the child’s unavailability under this subsection shall be supported by the court<br />
with findings on the record or with written findings in a court not <strong>of</strong> record.<br />
C. In any proceeding in which closed-circuit television is used to receive testimony, the attorney for the<br />
Commonwealth and the defendant’s attorney shall be present in the room with the child, and the<br />
child shall be subject to direct and cross-examination. The only other persons allowed to be present<br />
in the room with the child during his testimony shall be those persons necessary to operate the<br />
closed-circuit equipment, and any other person whose presence is determined by the court to be<br />
necessary to the welfare and well-being <strong>of</strong> the child.<br />
D. The child’s testimony shall be transmitted by closed-circuit television into the courtroom for the<br />
defendant, jury, judge and public to view. The defendant shall be provided with a means <strong>of</strong> private,<br />
contemporaneous communication with his attorney during the testimony.<br />
E. Notwithstanding any other provision <strong>of</strong> law, none <strong>of</strong> the cost <strong>of</strong> the two-way closed-circuit<br />
television shall be assessed against the defendant.<br />
Venue where any person transported for criminal sexual assault,<br />
attempted criminal sexual assault, or purposes <strong>of</strong> unlawful<br />
sexual intercourse, crimes against nature, and indecent<br />
liberties with children VA Code §18.2–359<br />
A. Any person transporting or attempting to transport through or across this Commonwealth, any<br />
person for the purposes <strong>of</strong> unlawful sexual intercourse or prostitution, or for the purpose <strong>of</strong><br />
committing any crime specified in §18.2- 361 or §18.2-370, may be presented, indicted, tried,<br />
and convicted in any county or city in which any part <strong>of</strong> such transportation occurred.<br />
B. Venue for the trial <strong>of</strong> any person charged with committing or attempting to commit criminal<br />
sexual assault under Article 7 (§18.2-61 et seq.) <strong>of</strong> Chapter 4 <strong>of</strong> this title may be had in the<br />
county or city in which such crime is alleged to have occurred or in any county or city through<br />
which the victim was transported by the defendant prior to the commission <strong>of</strong> such <strong>of</strong>fense.<br />
Providing false information or failing to provide<br />
registration information; penalty; prima facie evidence VA Code §18.2–472.1<br />
Any person subject to §19.2–298.1 Chapter 9 (§ 9.1–900 et seq.) <strong>of</strong> Title 9.1, other than a person<br />
convicted <strong>of</strong> a sexually violent <strong>of</strong>fender <strong>of</strong>fense, who knowingly fails to register or reregister, or who<br />
knowingly provides materially false information to the Sex Offender and Crimes Against Minors Registry<br />
shall be is guilty <strong>of</strong> a Class 1 misdemeanor. However, any person convicted <strong>of</strong> a sexually violent <strong>of</strong>fense, as<br />
defined in §19.2–298.1 9.1–902, who knowingly fails to register or reregister, or who knowingly provides<br />
materially false information to the Sex Offender and Crimes Against Minors Registry established pursuant<br />
to §19.2–390.1 shall be is guilty <strong>of</strong> a Class 6 felony.<br />
Appendix B<br />
91
A prosecution pursuant to this section shall be brought in the city or county where the registrant <strong>of</strong>fender<br />
can be found or where the <strong>of</strong>fender last registered or reregistered or, if the <strong>of</strong>fender failed to comply with<br />
the duty to register, where the <strong>of</strong>fender was last convicted <strong>of</strong> an <strong>of</strong>fense for which registration or<br />
reregistration is required.<br />
At any trial pursuant to this section, an affidavit from the State Police issued as required in subsection H<br />
<strong>of</strong> §19.2–298.1 §9.1–907 shall be admitted into evidence as prima facie evidence <strong>of</strong> the failure to comply<br />
with the duty to register or reregister and a copy <strong>of</strong> such affidavit shall be provided to the registrant or his<br />
counsel seven days prior to hearing or trial by the attorney for the Commonwealth.<br />
Crime victim and witness rights VA Code §19.2–11.01<br />
A. In recognition <strong>of</strong> the Commonwealth’s concern for the victims and witnesses <strong>of</strong> crime, it is the<br />
purpose <strong>of</strong> this chapter to ensure that the full impact <strong>of</strong> crime is brought to the attention <strong>of</strong> the<br />
courts <strong>of</strong> the Commonwealth; that crime victims and witnesses are treated with dignity, respect<br />
and sensitivity; and that their privacy is protected to the extent permissible under law.<br />
It is the further purpose <strong>of</strong> this chapter to ensure that victims and witnesses are informed <strong>of</strong> the<br />
rights provided to them under the laws <strong>of</strong> the Commonwealth; that they receive authorized services<br />
as appropriate; and that they have the opportunity to be heard by law-enforcement agencies,<br />
attorneys for the Commonwealth, corrections agencies and the judiciary at all critical stages <strong>of</strong><br />
the criminal justice process to the extent permissible under law. Unless otherwise stated and subject<br />
to the provisions <strong>of</strong> §19.2–11.1, it shall be the responsibility <strong>of</strong> a locality’s crime victim and<br />
witness assistance program to provide the information and assistance required by this chapter,<br />
including verification that the standardized form listing the specific rights afforded to crime<br />
victims has been received by the victim.<br />
Following a crime, law-enforcement personnel shall provide the victim with a standardized form<br />
listing the specific rights afforded to crime victims. The form shall include a telephone number<br />
by which the victim can receive further information and assistance in securing the rights afforded<br />
crime victims.<br />
1. Victim and witness protection.<br />
a. In order that victims and witnesses receive protection from harm and threats <strong>of</strong> harm<br />
arising out <strong>of</strong> their cooperation with law-enforcement, or prosecution efforts, they shall<br />
be provided with information as to the level <strong>of</strong> protection which may be available pursuant<br />
to §52-35 or to any other federal, state or local program providing protection, and shall<br />
be assisted in obtaining this protection from the appropriate authorities.<br />
b. Victims and witnesses shall be provided, where available, a separate waiting area during<br />
court proceedings that affords them privacy and protection from intimidation.<br />
2. Financial assistance.<br />
92<br />
a. Victims shall be informed <strong>of</strong> financial assistance and social services available to them as<br />
victims <strong>of</strong> a crime, including information on their possible right to file a claim for<br />
Appendix B
compensation from the Crime Victims’ Compensation Fund pursuant to Chapter 21.1<br />
(§19.2–368.1 et seq.) <strong>of</strong> this title and on other available assistance and services.<br />
b. Victims shall be assisted in having any property held by law-enforcement agencies for<br />
evidentiary purposes returned promptly in accordance with §§19.2–270.1 and 19.2–<br />
270.2.<br />
c. Victims shall be advised that restitution is available for damages or loss resulting from an<br />
<strong>of</strong>fense and shall be assisted in seeking restitution in accordance with §§19.2–305, 19.2–<br />
305.1, Chapter 21.1 (§19.2–368.1 et seq.) <strong>of</strong> this title, Article 21 (§58.1–520 et seq.)<br />
<strong>of</strong> Chapter 3 <strong>of</strong> Title 58.1, and other applicable laws <strong>of</strong> the Commonwealth.<br />
3. Notices.<br />
a. Victims and witnesses shall be (i) provided with appropriate employer intercession services to<br />
ensure that employers <strong>of</strong> victims and witnesses will cooperate with the criminal justice process<br />
in order to minimize an employee’s loss <strong>of</strong> pay and other benefits resulting from court<br />
appearances and (ii) advised that pursuant to §18.2–465.1 it is unlawful for an employer to<br />
penalize an employee for appearing in court pursuant to a summons or subpoena.<br />
b. Victims shall receive advance notification when practicable from the attorney for the<br />
Commonwealth <strong>of</strong> judicial proceedings relating to their case and shall be notified when<br />
practicable <strong>of</strong> any change in court dates in accordance with §19.2–265.01 if they have<br />
provided their names, current addresses and telephone numbers.<br />
c. Victims shall receive notification, if requested, subject to such reasonable procedures as<br />
the Attorney General may require pursuant to §2.2–511, from the Attorney General <strong>of</strong><br />
the filing and disposition <strong>of</strong> any appeal or habeas corpus proceeding involving their case.<br />
d. Victims shall be notified by the <strong>Department</strong> <strong>of</strong> Corrections or a sheriff or jail<br />
superintendent in whose custody an escape, change <strong>of</strong> name, transfer, release or discharge<br />
<strong>of</strong> a prisoner occurs pursuant to the provisions <strong>of</strong> §§53.1–133.02 and 53.1–160 if they<br />
have provided their names, current addresses and telephone numbers in writing.<br />
e. Victims shall be advised that, in order to protect their right to receive notices and <strong>of</strong>fer<br />
input, all agencies and persons having such duties must have current victim addresses<br />
and telephone numbers given by the victims. Victims shall also be advised that any such<br />
information given shall be confidential as provided by §19.2–11.2.<br />
4. Victim input.<br />
a. Victims shall be given the opportunity, pursuant to §19.2–299.1, to prepare a written<br />
victim impact statement prior to sentencing <strong>of</strong> a defendant and may provide information<br />
to any individual or agency charged with investigating the social history <strong>of</strong> a person or<br />
preparing a victim impact statement under the provisions <strong>of</strong> §§16.1–273 and 53.1–<br />
155 or any other applicable law.<br />
Appendix B<br />
93
. Victims shall have the right to remain in the courtroom during a criminal trial or<br />
proceeding pursuant to the provisions <strong>of</strong> §19.2–265.01.<br />
c. On motion <strong>of</strong> the attorney for the Commonwealth, victims shall be given the opportunity,<br />
pursuant to §§19.2–264.4 and 19.2–295.3, to testify prior to sentencing <strong>of</strong> a defendant<br />
regarding the impact <strong>of</strong> the <strong>of</strong>fense.<br />
d. In a felony case, the attorney for the Commonwealth, upon the victim’s written request,<br />
shall consult with the victim either verbally or in writing (i) to inform the victim <strong>of</strong> the<br />
contents <strong>of</strong> a proposed plea agreement and (ii) to obtain the victim’s views concerning<br />
plea negotiations. However, nothing in this section shall limit the ability <strong>of</strong> the attorney<br />
for the Commonwealth to exercise his discretion on behalf <strong>of</strong> the citizens <strong>of</strong> the<br />
Commonwealth in the disposition <strong>of</strong> any criminal case. The court shall not accept the<br />
plea agreement unless it finds that, except for good cause shown, the Commonwealth has<br />
complied with clauses (i) and (ii). Good cause shown shall include, but not be limited to,<br />
the unavailability <strong>of</strong> the victim due to incarceration, hospitalization, failure to appear at<br />
trial when subpoenaed, or change <strong>of</strong> address without notice.<br />
Upon the victim’s written request, the victim shall be notified in accordance with<br />
subdivision A 3 b <strong>of</strong> any proceeding in which the plea agreement will be tendered to the<br />
court.<br />
The responsibility to consult with the victim under this subdivision shall not confer upon<br />
the defendant any substantive or procedural rights and shall not affect the validity <strong>of</strong> any<br />
plea entered by the defendant.<br />
5. Courtroom assistance.<br />
a. Victims and witnesses shall be informed that their addresses and telephone numbers may<br />
not be disclosed, pursuant to the provisions <strong>of</strong> §§19.2–11.2 and 19.2–269.2, except<br />
when necessary for the conduct <strong>of</strong> the criminal proceeding.<br />
b. Victims and witnesses shall be advised that they have the right to the services <strong>of</strong> an<br />
interpreter in accordance with §§19.2–164 and 19.2–164.1.<br />
c. Victims and witnesses <strong>of</strong> certain sexual <strong>of</strong>fenses shall be advised that there may be a closed<br />
preliminary hearing in accordance with §18.2–67.8 and, if a victim was fourteen years<br />
<strong>of</strong> age or younger on the date <strong>of</strong> the <strong>of</strong>fense and is sixteen or under at the time <strong>of</strong> the trial,<br />
or a witness to the <strong>of</strong>fense is fourteen years <strong>of</strong> age or younger at the time <strong>of</strong> the trial, that<br />
two-way closed-circuit television may be used in the taking <strong>of</strong> testimony in accordance<br />
with §18.2–67.9.<br />
B. For purposes <strong>of</strong> this chapter, “victim” means (i) a person who has suffered physical, psychological<br />
or economic harm as a direct result <strong>of</strong> the commission <strong>of</strong> a felony or <strong>of</strong> assault and battery in<br />
violation <strong>of</strong> §18.2–57 or §18.2–57.2, stalking in violation <strong>of</strong> §18.2–60.3, sexual battery in<br />
94<br />
Appendix B
violation <strong>of</strong> §18.2–67.4, attempted sexual battery in violation <strong>of</strong> §18.2–67.5, maiming or<br />
driving while intoxicated in violation <strong>of</strong> §18.2–51.4 or §18.2–266, (ii) a spouse or child <strong>of</strong><br />
such a person, (iii) a parent or legal guardian <strong>of</strong> such a person who is a minor, or (iv) a spouse,<br />
parent, sibling or legal guardian <strong>of</strong> such a person who is physically or mentally incapacitated or<br />
was the victim <strong>of</strong> a homicide; however, “victim” does not mean a parent, child, spouse, sibling or<br />
legal guardian who commits a felony or other enumerated criminal <strong>of</strong>fense against a victim as<br />
defined in clause (i).<br />
C. Officials and employees <strong>of</strong> the judiciary, including court services units, law-enforcement agencies,<br />
the <strong>Department</strong> <strong>of</strong> Corrections, attorneys for the Commonwealth and public defenders, shall be<br />
provided with copies <strong>of</strong> this chapter by the <strong>Department</strong> <strong>of</strong> <strong>Criminal</strong> <strong>Justice</strong> <strong>Services</strong> or a crime<br />
victim and witness assistance program. Each agency, <strong>of</strong>ficer or employee who has a responsibility<br />
or responsibilities to victims under this chapter or other applicable law shall make reasonable<br />
efforts to become informed about these responsibilities and to ensure that victims and witnesses<br />
receive such information and services to which they may be entitled under applicable law, provided<br />
that no liability or cause <strong>of</strong> action shall arise from the failure to make such efforts or from the<br />
failure <strong>of</strong> such victims or witnesses to receive any such information or services.<br />
Victim-witness assistance programs VA Code §19.2–11.1<br />
Any local governmental body which establishes, operates and maintains a crime victim and witness<br />
assistance program, whose funding is provided in whole or part by grants administered by the<br />
<strong>Department</strong> <strong>of</strong> <strong>Criminal</strong> <strong>Justice</strong> <strong>Services</strong> pursuant to §9.1–104, shall operate the program in accordance<br />
with guidelines which shall be established by the <strong>Department</strong> to implement the provisions <strong>of</strong> this chapter<br />
and other applicable laws establishing victims’ rights.<br />
Crime victim’s right to nondisclosure <strong>of</strong> certain information;<br />
exceptions; testimonial privilege VA Code §19.2–11.2<br />
Upon request <strong>of</strong> any crime victim, neither a law-enforcement agency, the attorney for the<br />
Commonwealth, a court nor the <strong>Department</strong> <strong>of</strong> Corrections, nor any employee <strong>of</strong> any <strong>of</strong> them, may<br />
disclose, except among themselves, the residential address, telephone number, or place <strong>of</strong> employment<br />
<strong>of</strong> the victim or a member <strong>of</strong> the victim’s family, except to the extent that disclosure is (i) <strong>of</strong> the site <strong>of</strong><br />
the crime, (ii) required by law or Rules <strong>of</strong> the Supreme Court, (iii) necessary for law-enforcement purposes,<br />
or (iv) permitted by the court for good cause.<br />
Except with the written consent <strong>of</strong> the victim, a law-enforcement agency may not disclose to the public<br />
information which directly or indirectly identifies the victim <strong>of</strong> a crime involving any sexual assault,<br />
sexual abuse or family abuse, except to the extent that disclosure is (i) <strong>of</strong> the site <strong>of</strong> the crime, (ii) required<br />
by law, (iii) necessary for law-enforcement purposes, or (iv) permitted by the court for good cause.<br />
Nothing herein shall limit the right to examine witnesses in a court <strong>of</strong> law or otherwise affect the<br />
conduct <strong>of</strong> any criminal proceeding.<br />
Appendix B<br />
95
Establishment <strong>of</strong> victim-<strong>of</strong>fender reconciliation program VA Code §19.2–11.4<br />
A. Any Crime Victim and Witness Assistance Program may establish a victim-<strong>of</strong>fender reconciliation<br />
program to provide an opportunity after conviction for a victim, at his request and upon the<br />
subsequent agreement <strong>of</strong> the <strong>of</strong>fender, to:<br />
1. Meet with the <strong>of</strong>fender in a safe, controlled environment;<br />
2. Give to the <strong>of</strong>fender, either orally or in writing, a summary <strong>of</strong> the financial, emotional, and<br />
physical effects <strong>of</strong> the <strong>of</strong>fense on the victim or the victim’s family; and<br />
3. Discuss a proposed restitution agreement which may be submitted for consideration by the<br />
sentencing court for damages incurred by the victim as a result <strong>of</strong> the <strong>of</strong>fense.<br />
B. If the victim chooses to participate in a victim-<strong>of</strong>fender reconciliation program under this section,<br />
the victim shall execute a waiver releasing the Crime Victim and Witness Assistance Program,<br />
attorney for the <strong>of</strong>fender and the attorney for the Commonwealth from civil and criminal liability<br />
for actions taken by the victim or <strong>of</strong>fender as a result <strong>of</strong> participation by the victim or the <strong>of</strong>fender<br />
in a victim-<strong>of</strong>fender reconciliation program.<br />
C. A victim shall not be required to participate in a victim-<strong>of</strong>fender reconciliation program under<br />
this section.<br />
D. The failure <strong>of</strong> any person to participate in a reconciliation program pursuant to this section shall<br />
not be used directly or indirectly at sentencing.<br />
Arrest without a warrant in cases <strong>of</strong> assault and battery<br />
against a household member VA Code §19.2–81.3<br />
A. Any law-enforcement <strong>of</strong>ficer, as defined in §19.2–81, may arrest without a warrant for an alleged<br />
violation <strong>of</strong> §§18.2–57.2, 18.2–60.4 or §16.1–253.2 regardless <strong>of</strong> whether such violation<br />
was committed in his presence, if such arrest is based on probable cause or upon personal<br />
observations or the reasonable complaint <strong>of</strong> a person who observed the alleged <strong>of</strong>fense or upon<br />
personal investigation.<br />
B. A law-enforcement <strong>of</strong>ficer having probable cause to believe that a violation <strong>of</strong> §18.2–57.2 or<br />
§16.1-253.2 has occurred shall arrest and take into custody the person he has probable cause to<br />
believe, based on the totality <strong>of</strong> the circumstances, was the primary physical aggressor unless<br />
there are special circumstances which would dictate a course <strong>of</strong> action other than an arrest.<br />
C. Regardless <strong>of</strong> whether an arrest is made, the <strong>of</strong>ficer shall file a written report with his department,<br />
which shall state whether any arrests were made, and if so, the number <strong>of</strong> arrests, specifically<br />
including any incident in which he has probable cause to believe family abuse has occurred, and,<br />
where required, including a complete statement in writing that there are special circumstances that<br />
would dictate a course <strong>of</strong> action other than an arrest. The <strong>of</strong>ficer shall provide the allegedly abused<br />
person, both orally and in writing, information regarding the legal and community resources available<br />
to the allegedly abused person.<br />
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Appendix B
Upon request <strong>of</strong> the allegedly abused person, the department shall make a summary <strong>of</strong> the report<br />
available to the allegedly abused person.<br />
D. In every case in which a law-enforcement <strong>of</strong>ficer makes an arrest under this section, he shall<br />
petition for an emergency protective order as authorized in §16.1–253.4 when the person arrested<br />
and taken into custody is brought before the magistrate, except if the person arrested is a minor, a<br />
petition for an emergency protective order shall not be required. Regardless <strong>of</strong> whether an arrest<br />
is made, if the <strong>of</strong>ficer has probable cause to believe that a danger <strong>of</strong> acts <strong>of</strong> family abuse exists, the<br />
law-enforcement <strong>of</strong>ficer shall seek an emergency protective order under §16.1–253.4, except if<br />
the suspected abuser is a minor, a petition for an emergency protective order shall not be required.<br />
E. A law-enforcement <strong>of</strong>ficer investigating any complaint <strong>of</strong> family abuse, including but not limited<br />
to assault and battery against a family or household member shall, upon request, transport, or<br />
arrange for the transportation <strong>of</strong> an abused person to a hospital, safe shelter, or magistrate. Any<br />
local law-enforcement agency may adopt a policy requiring an <strong>of</strong>ficer to transport or arrange for<br />
transportation <strong>of</strong> an abused person as provided in this subsection.<br />
F. The definition <strong>of</strong> “family or household member” in §16.1–228 applies to this section.<br />
G. As used in this section, a “law-enforcement <strong>of</strong>ficer” means (i) any full-time or part-time employee<br />
<strong>of</strong> a police department or sheriff’s <strong>of</strong>fice which is part <strong>of</strong> or administered by the Commonwealth<br />
or any political subdivision there<strong>of</strong> and who is responsible for the prevention and detection <strong>of</strong><br />
crime and the enforcement <strong>of</strong> the penal, traffic or highway laws <strong>of</strong> this Commonwealth and (ii)<br />
any member <strong>of</strong> an auxiliary police force established pursuant to subsection B <strong>of</strong> §15.2–1731.<br />
Part-time employees are compensated <strong>of</strong>ficers who are not full-time employees as defined by the<br />
employing police department or sheriff’s <strong>of</strong>fice.<br />
Speedy trial VA Code §19.2–243<br />
Where a general district court has found that there is probable cause to believe that the accused has<br />
committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged<br />
from prosecution for such <strong>of</strong>fense if no trial is commenced in the circuit court within five months from<br />
the date such probable cause was found by the district court; and if the accused is not held in custody but<br />
has been recognized for his appearance in the circuit court to answer for such <strong>of</strong>fense, he shall be forever<br />
discharged from prosecution therefore if no trial is commenced in the circuit court within nine months<br />
from the date such probable cause was found.<br />
If there was no preliminary hearing in the district court, or if such preliminary hearing was waived by the<br />
accused, the commencement <strong>of</strong> the running <strong>of</strong> the five and nine months periods, respectively, set forth in<br />
this section, shall be from the date an indictment or presentment is found against the accused.<br />
If an indictment or presentment is found against the accused but he has not been arrested for the <strong>of</strong>fense<br />
charged therein, the five and nine months periods, respectively, shall commence to run from the date <strong>of</strong><br />
his arrest thereon.<br />
Appendix B<br />
97
Where a case is before a circuit court on appeal from a conviction <strong>of</strong> a misdemeanor or traffic infraction in<br />
a district court, the accused shall be forever discharged from prosecution for such <strong>of</strong>fense if the trial de<br />
novo in the circuit court is not commenced (i) within five months from the date <strong>of</strong> the conviction if the<br />
accused has been held continuously in custody or (ii) within nine months <strong>of</strong> the date <strong>of</strong> the conviction if<br />
the accused has been recognized for his appearance in the circuit court.<br />
The provisions <strong>of</strong> this section shall not apply to such period <strong>of</strong> time as the failure to try the accused was<br />
caused:<br />
A. By his insanity or by reason <strong>of</strong> his confinement in a hospital for care and observation;<br />
B. By the witnesses for the Commonwealth being enticed or kept away, or prevented from attending<br />
by sickness or accident;<br />
C. By the granting <strong>of</strong> a separate trial at the request <strong>of</strong> a person indicted jointly with others for a<br />
felony;<br />
D. By continuance granted on the motion <strong>of</strong> the accused or his counsel, or by concurrence <strong>of</strong> the<br />
accused or his counsel in such a motion by the attorney for the Commonwealth, or by the failure<br />
<strong>of</strong> the accused or his counsel to make a timely objection to such a motion by the attorney for the<br />
Commonwealth, or by reason <strong>of</strong> his escaping from jail or failing to appear according to his<br />
recognizance; or<br />
E. By the inability <strong>of</strong> the jury to agree in their verdict.<br />
But the time during the pendency <strong>of</strong> any appeal in any appellate court shall not be included as<br />
applying to the provisions <strong>of</strong> this section.<br />
For the purposes <strong>of</strong> this section, a trial is deemed commenced at the point when jeopardy would<br />
attach or when a plea <strong>of</strong> guilty or nolo contendere is tendered by the defendant.<br />
Joinder <strong>of</strong> defendants VA Code §19.2–262.1<br />
On motion <strong>of</strong> the Commonwealth, for good cause shown, the court shall order persons charged with<br />
participating in contemporaneous and related acts or occurrences or in a series <strong>of</strong> acts or occurrences<br />
constituting an <strong>of</strong>fense or <strong>of</strong>fenses, to be tried jointly unless such joint trial would constitute prejudice to<br />
a defendant. If the court finds that a joint trial would constitute prejudice to a defendant, the court shall<br />
order severance as to that defendant or provide such other relief justice requires.<br />
Excluding witnesses VA Code §19.2–265.01<br />
During the trial <strong>of</strong> every criminal case and in all court proceedings attendant to trial, whether before,<br />
during or after trial, including any proceedings occurring after an appeal by the defendant or the<br />
Commonwealth, at which attendance by the defendant is permitted, whether in a circuit or district court,<br />
any victim as defined in §19.2–11.01 may remain in the courtroom and shall not be excluded unless the<br />
court determines, in its discretion, the presence <strong>of</strong> the victim would impair the conduct <strong>of</strong> a fair trial. In<br />
any case involving a minor victim, the court may permit an adult chosen by the minor to be present in the<br />
courtroom during any proceedings in addition to or in lieu <strong>of</strong> the minor’s parent or guardian.<br />
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Appendix B
The attorney for the Commonwealth shall give prior notice when practicable <strong>of</strong> such trial and attendant<br />
proceedings and changes in the scheduling there<strong>of</strong> to any known victim and to any known adult chosen in<br />
accordance with this section by a minor victim, at the address or telephone number, or both, provided in<br />
writing by such person.<br />
Provisions applicable to witnesses in criminal as well as<br />
civil cases; obligation to attend; summons VA Code §19.2–267<br />
Sections 8.01–396.1, 8.01–402, 8.01–405 and 8.01–407 to 8.01–410, inclusive, shall apply to a<br />
criminal as well as a civil case in all respects, except that a witness in a criminal case shall be obliged to<br />
attend, and may be proceeded against for failing to do so, although there may not previously have been<br />
any payment, or tender to him <strong>of</strong> anything for attendance, mileage, or tolls. In a criminal case a summons<br />
for a witness may be issued by the attorney for the Commonwealth or other attorney charged with the<br />
responsibility for the prosecution <strong>of</strong> a violation <strong>of</strong> any ordinance; however, any attorney who issues such<br />
a summons shall, at the time <strong>of</strong> the issuance, file with the clerk <strong>of</strong> the court the names and addresses <strong>of</strong><br />
such witnesses.<br />
Prompt complaint VA Code §19.2–268.2<br />
Notwithstanding any other provision <strong>of</strong> law, in any prosecution for criminal sexual assault under Article<br />
7 (§18.2–61 et. seq.) <strong>of</strong> Chapter 4 <strong>of</strong> Title 18.2, a violation <strong>of</strong> §§18.2–361, 18.2–366, 18.2–370 or<br />
§18.2–370.1, the fact that the person injured made complaint <strong>of</strong> the <strong>of</strong>fense recently after commission<br />
<strong>of</strong> the <strong>of</strong>fense is admissible, not as independent evidence <strong>of</strong> the <strong>of</strong>fense, but for the purpose <strong>of</strong> corroborating<br />
the testimony <strong>of</strong> the complaining witness.<br />
Protecting the identity <strong>of</strong> witnesses VA Code §19.2–269.2<br />
During any criminal proceeding, upon motion <strong>of</strong> the defendant or the attorney for the Commonwealth, a judge<br />
may prohibit testimony as to the current address or telephone number <strong>of</strong> a victim or witness if the judge<br />
determines that this information is not material under the circumstances <strong>of</strong> the case.<br />
Admissibility <strong>of</strong> DNA evidence VA Code §19.2–270.5<br />
In any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific<br />
technique and the evidence <strong>of</strong> a DNA pr<strong>of</strong>ile comparison may be admitted to prove or disprove the identity<br />
<strong>of</strong> any person. This section shall not otherwise limit the introduction <strong>of</strong> any relevant evidence bearing<br />
upon any question at issue before the court, including the accuracy and reliability <strong>of</strong> the procedures<br />
employed in the collection and analysis <strong>of</strong> a particular DNA sample. The court shall, regardless <strong>of</strong> the<br />
results <strong>of</strong> the DNA analysis, if any, consider such other relevant evidence <strong>of</strong> the identity <strong>of</strong> the accused as<br />
shall be admissible in evidence.<br />
Appendix B<br />
At least twenty-one days prior to commencement <strong>of</strong> the proceeding in which the results <strong>of</strong> a DNA analysis<br />
will be <strong>of</strong>fered as evidence, the party intending to <strong>of</strong>fer the evidence shall notify the opposing party, in<br />
writing, <strong>of</strong> the intent to <strong>of</strong>fer the analysis and shall provide or make available copies <strong>of</strong> the pr<strong>of</strong>iles and<br />
the report or statement to be introduced. In the event that such notice is not given, and the person pr<strong>of</strong>fers<br />
such evidence, then the court may in its discretion either allow the opposing party a continuance or, under<br />
appropriate circumstances, bar the person from presenting such evidence. The period <strong>of</strong> any such<br />
99
continuance shall not be counted for speedy trial purposes under §19.2–243. If the opposing party intends<br />
to object to the admissibility <strong>of</strong> such evidence he shall give written notice <strong>of</strong> that fact and the basis for his<br />
objections at least ten days prior to commencement <strong>of</strong> the proceedings.<br />
Evidence <strong>of</strong> abuse VA Code §19.2–270.6<br />
In any criminal prosecution alleging personal injury or death, or the attempt to cause personal injury or<br />
death, relevant evidence <strong>of</strong> repeated physical and psychological abuse <strong>of</strong> the accused by the victim shall be<br />
admissible, subject to the general rules <strong>of</strong> evidence.<br />
Marital privilege VA Code §19.2–271.2<br />
In criminal cases husband and wife shall be allowed, and, subject to the rules <strong>of</strong> evidence governing other<br />
witnesses and subject to the exception stated in §8.01–398, may be compelled to testify in behalf <strong>of</strong> each<br />
other, but neither shall be compelled to be called as a witness against the other, except (i) in the case <strong>of</strong> a<br />
prosecution for an <strong>of</strong>fense committed by one against the other or against a minor child <strong>of</strong> either, (ii) in any<br />
case where either is charged with forgery <strong>of</strong> the name <strong>of</strong> the other or uttering or attempting to utter a<br />
writing bearing the allegedly forged signature <strong>of</strong> the other or (iii) in any proceeding relating to a violation<br />
<strong>of</strong> the laws pertaining to criminal sexual assault (§§18.2–61 through 18.2–67.10), crimes against nature<br />
(§18.2–361) involving a minor as a victim and provided the defendant and the victim are not married to<br />
each other, incest (§ 18.2–366), or abuse <strong>of</strong> children (§§18.2–370 through 18.2–371). The failure <strong>of</strong><br />
either husband or wife to testify, however, shall create no presumption against the accused, nor be the<br />
subject <strong>of</strong> any comment before the court or jury by any attorney.<br />
In the prosecution for a criminal <strong>of</strong>fense as set forth in (i), (ii) or (iii) above, each shall be a competent<br />
witness except as to privileged communications.<br />
Victim Impact Statement VA Code §19.2–299<br />
A. [Subsection A omitted]<br />
B. As a part <strong>of</strong> any presentence investigation conducted pursuant to subsection A when the <strong>of</strong>fense<br />
for which the defendant was convicted was a felony, the court probation <strong>of</strong>ficer shall advise any<br />
victim <strong>of</strong> such <strong>of</strong>fense in writing that he may submit to the <strong>Virginia</strong> Parole Board a written request<br />
(i) to be given the opportunity to submit to the Board a written statement in advance <strong>of</strong> any parole<br />
hearing describing the impact <strong>of</strong> the <strong>of</strong>fense upon him and his opinion regarding the defendant’s<br />
release and (ii) to receive copies <strong>of</strong> such other notifications pertaining to the defendant as the<br />
Board may provide pursuant to subsection B <strong>of</strong> §53.1–155.<br />
C. D. [Subsections C and D omitted]<br />
Victim Impact Statement VA Code §19.2–299.1<br />
The presentence report prepared pursuant to §19.2–299 shall, with the consent <strong>of</strong> the victim, as defined<br />
in §19.2–11.01, in all cases involving <strong>of</strong>fenses other than capital murder, include a Victim Impact<br />
Statement. Victim Impact Statements in all cases involving capital murder shall be prepared and submitted<br />
in accordance with the provisions <strong>of</strong> §19.2–264.5.<br />
100<br />
Appendix B
A Victim Impact Statement shall be kept confidential and shall be sealed upon entry <strong>of</strong> the sentencing order. If<br />
prepared by someone other than the victim, it shall (i) identify the victim, (ii) itemize any economic loss suffered<br />
by the victim as a result <strong>of</strong> the <strong>of</strong>fense, (iii) identify the nature and extent <strong>of</strong> any physical or psychological injury<br />
suffered by the victim as a result <strong>of</strong> the <strong>of</strong>fense, (iv) detail any change in the victim’s personal welfare, lifestyle<br />
or familial relationships as a result <strong>of</strong> the <strong>of</strong>fense, (v) identify any request for psychological or medical services<br />
initiated by the victim or the victim’s family as a result <strong>of</strong> the <strong>of</strong>fense, and (vi) provide such other information<br />
as the court may require related to the impact <strong>of</strong> the <strong>of</strong>fense upon the victim.<br />
If the court does not order a presentence investigation and report, the attorney for the Commonwealth shall, at the<br />
request <strong>of</strong> the victim, submit a Victim Impact Statement. In any event, a victim shall be advised by the local crime<br />
victim and witness assistance program that he may submit in his own words a written Victim Impact Statement<br />
prepared by the victim or someone the victim designates in writing.<br />
The Victim Impact Statement may be considered by the court in determining the appropriate sentence. A<br />
copy <strong>of</strong> the statement prepared pursuant to this section shall be made available to the defendant or counsel<br />
for the defendant without court order at least five days prior to the sentencing hearing. The statement shall<br />
not be admissible in any civil proceeding for damages arising out <strong>of</strong> the acts upon which the conviction was<br />
based. The statement, however, may be utilized by the <strong>Virginia</strong> Workers’ Compensation Commission in its<br />
determinations on claims by victims <strong>of</strong> crimes pursuant to Chapter 21.1 (§19.2–368.1 et seq.) <strong>of</strong> this title.<br />
Mental evaluation <strong>of</strong> defendant VA Code §19.2–300<br />
In the case <strong>of</strong> the conviction in any circuit court <strong>of</strong> any person for any criminal <strong>of</strong>fense which indicates<br />
sexual abnormality, the trial judge may on his own initiative, or shall upon application <strong>of</strong> the attorney for<br />
the Commonwealth, the defendant, or counsel for defendant or other person acting for the defendant,<br />
defer sentence until the report <strong>of</strong> a mental examination conducted as provided in §19.2–301 <strong>of</strong> the<br />
defendant can be secured to guide the judge in determining what disposition shall be made <strong>of</strong> the defendant.<br />
Reports to be made by local law-enforcement <strong>of</strong>ficers, conservators <strong>of</strong> the peace, clerks <strong>of</strong> court, Secretary<br />
<strong>of</strong> the Commonwealth and Corrections <strong>of</strong>ficials to State Police; material submitted by other agencies. VA<br />
Code §19.2–390.<br />
A. 1. Every state <strong>of</strong>ficial or agency having the power to arrest, the sheriffs <strong>of</strong> counties, the police<br />
<strong>of</strong>ficials <strong>of</strong> cities and towns, and any other local law-enforcement <strong>of</strong>ficer or conservator <strong>of</strong> the<br />
peace having the power to arrest for a felony shall make a report to the Central <strong>Criminal</strong><br />
Records Exchange, on forms provided by it, <strong>of</strong> any arrest, including those arrests involving<br />
the taking into custody <strong>of</strong>, or service <strong>of</strong> process upon, any person on charges resulting from<br />
an indictment, presentment or information, the arrest on capias or warrant for failure to<br />
appear, and the service <strong>of</strong> a warrant for another jurisdiction, on any <strong>of</strong> the following charges:<br />
a. Treason;<br />
b. Any felony;<br />
c. Any <strong>of</strong>fense punishable as a misdemeanor under Title 54.1; or<br />
Appendix B<br />
d. Any misdemeanor punishable by confinement in jail under Title 18.2 or 19.2, except an<br />
101
arrest for a violation <strong>of</strong> §18.2–119, Article 2 (§18.2–266 et seq.) <strong>of</strong> Chapter 7 <strong>of</strong> Title<br />
18.2, Article 2 (§18.2–415 et seq.) <strong>of</strong> Chapter 9 <strong>of</strong> Title 18.2, or any similar ordinance<br />
<strong>of</strong> any county, city or town.<br />
The reports shall contain such information as is required by the Exchange and shall be<br />
accompanied by fingerprints <strong>of</strong> the individual arrested. Fingerprint cards prepared by a<br />
law-enforcement agency for inclusion in a national criminal justice file shall be forwarded<br />
to the Exchange for transmittal to the appropriate bureau.<br />
2. For persons arrested and released on summonses in accordance with §19.2–74, such report<br />
shall not be required until (i) a conviction is entered and no appeal is noted or if an appeal is<br />
noted, the conviction is upheld upon appeal or the person convicted withdraws his appeal; (ii)<br />
the court dismisses the proceeding pursuant to §18.2–251; or (iii) an acquittal by reason <strong>of</strong><br />
insanity pursuant to §19.2–182.2 is entered. Upon such conviction or acquittal, the court<br />
shall remand the individual to the custody <strong>of</strong> the <strong>of</strong>fice <strong>of</strong> the chief law-enforcement <strong>of</strong>ficer<br />
<strong>of</strong> the county or city. It shall be the duty <strong>of</strong> the chief law-enforcement <strong>of</strong>ficer, or his designee<br />
who may be the arresting <strong>of</strong>ficer, to ensure that such report is completed after a determination<br />
<strong>of</strong> guilt or acquittal by reason <strong>of</strong> insanity. The court shall require the <strong>of</strong>ficer to complete the<br />
report immediately following the person’s conviction or acquittal, and the individual shall<br />
be discharged from custody forthwith, unless the court has imposed a jail sentence to be served<br />
by him or ordered him committed to the custody <strong>of</strong> the Commissioner <strong>of</strong> the <strong>Department</strong> <strong>of</strong><br />
Mental Health, Mental Retardation and Substance <strong>Abuse</strong> <strong>Services</strong>.<br />
B. Within seventy-two 72 hours following the receipt <strong>of</strong> (i) a warrant or capias for the arrest <strong>of</strong> any<br />
person on a charge <strong>of</strong> a felony or (ii) a Governor’s warrant <strong>of</strong> arrest <strong>of</strong> a person issued pursuant to<br />
§19.2–92, the law-enforcement agency which received the warrant shall enter the person’s name<br />
and other appropriate information required by the <strong>Department</strong> <strong>of</strong> State Police into the<br />
“information systems” known as the <strong>Virginia</strong> <strong>Criminal</strong> Information Network (VCIN), established<br />
and maintained by the <strong>Department</strong> pursuant to Chapter 2 (§52–12 et seq.) <strong>of</strong> Title 52 and the<br />
National Crime Information Center (NCIC), maintained by the Federal Bureau <strong>of</strong> Investigation.<br />
The report shall include the person’s name, date <strong>of</strong> birth, social security number and such other<br />
known information which the State Police or Federal Bureau <strong>of</strong> Investigation may require. Where<br />
feasible and practical, the magistrate or court issuing the warrant or capias may transfer<br />
information electronically into VCIN. When the information is electronically transferred to VCIN,<br />
the court or magistrate shall forthwith forward the warrant or capias to the local police department<br />
or sheriff’s <strong>of</strong>fice. When criminal process has been ordered destroyed pursuant to §19.2–76.1,<br />
the law-enforcement agency destroying such process shall ensure the removal <strong>of</strong> any information<br />
relating to the destroyed criminal process from the VCIN and NCIC systems.<br />
C. The clerk <strong>of</strong> each circuit court and district court shall make a report to the Central <strong>Criminal</strong> Records<br />
Exchange <strong>of</strong> (i) any dismissal, indefinite postponement or continuance, charge still pending due<br />
to mental incompetency or incapacity, nolle prosequi, acquittal, or conviction <strong>of</strong>, including any<br />
sentence imposed, or failure <strong>of</strong> a grand jury to return a true bill as to, any person charged with an<br />
102<br />
Appendix B
<strong>of</strong>fense listed in subsection A, including any action which may have resulted from an indictment,<br />
presentment or information, and (ii) any adjudication <strong>of</strong> delinquency based upon an act which, if<br />
committed by an adult, would require fingerprints to be filed pursuant to subsection A. In the<br />
case <strong>of</strong> <strong>of</strong>fenses not required to be reported to the Exchange by subsection A, the reports <strong>of</strong> any <strong>of</strong><br />
the foregoing dispositions shall be filed by the law-enforcement agency making the arrest with<br />
the arrest record required to be maintained by §15.2–1722. Upon conviction <strong>of</strong> any person,<br />
including juveniles tried and convicted in the circuit courts pursuant to §16.1–269.1, whether<br />
sentenced as adults or juveniles, for an <strong>of</strong>fense for which registration is required as defined in<br />
§19.2–298.1 9.1–902, the clerk shall within seven days <strong>of</strong> sentencing submit a report to the<br />
Sex Offender and Crimes Against Minors Registry. The report to the Registry shall include the<br />
name <strong>of</strong> the person convicted and all aliases which he is known to have used, the date and locality<br />
<strong>of</strong> the conviction for which registration is required, his date <strong>of</strong> birth, social security number, last<br />
known address, and specific reference to the <strong>of</strong>fense for which he was convicted. No report <strong>of</strong><br />
conviction or adjudication in a district court shall be filed unless the period allowed for an appeal<br />
has elapsed and no appeal has been perfected. In the event that the records in the <strong>of</strong>fice <strong>of</strong> any clerk<br />
show that any conviction or adjudication has been nullified in any manner, he shall also make a<br />
report <strong>of</strong> that fact to the Exchange and, if appropriate, to the Registry. In addition, each clerk <strong>of</strong> a<br />
circuit court, upon receipt <strong>of</strong> certification there<strong>of</strong> from the Supreme Court, shall report to the<br />
Exchange or the Registry, or to the law-enforcement agency making the arrest in the case <strong>of</strong> <strong>of</strong>fenses<br />
not required to be reported to the Exchange, on forms provided by the Exchange or Registry, as the<br />
case may be, any reversal or other amendment to a prior sentence or disposition previously reported.<br />
When criminal process is ordered destroyed pursuant to §19.2–76.1, the clerk shall report such<br />
action to the law-enforcement agency that entered the warrant or capias into the VCIN system.<br />
D. In addition to those <strong>of</strong>fenses enumerated in subsection A <strong>of</strong> this section, the Central <strong>Criminal</strong><br />
Records Exchange may receive, classify and file any other fingerprints and records <strong>of</strong> arrest or<br />
confinement submitted to it by any law-enforcement agency or any correctional institution.<br />
E. Corrections <strong>of</strong>ficials, sheriffs, and jail superintendents <strong>of</strong> regional jails, responsible for<br />
maintaining correctional status information, as required by the regulations <strong>of</strong> the <strong>Department</strong><br />
<strong>of</strong> <strong>Criminal</strong> <strong>Justice</strong> <strong>Services</strong>, with respect to individuals about whom reports have been made<br />
under the provisions <strong>of</strong> this chapter shall make reports <strong>of</strong> changes in correctional status<br />
information to the Central <strong>Criminal</strong> Records Exchange. The reports to the Exchange shall include<br />
any commitment to or release or escape from a state or local correctional facility, including<br />
commitment to or release from a parole or probation agency.<br />
F. Any pardon, reprieve or executive commutation <strong>of</strong> sentence by the Governor shall be reported to<br />
the Exchange by the <strong>of</strong>fice <strong>of</strong> the Secretary <strong>of</strong> the Commonwealth.<br />
G. Officials responsible for reporting disposition <strong>of</strong> charges, and correctional changes <strong>of</strong> status <strong>of</strong><br />
individuals under this section, including those reports made to the Registry, shall adopt procedures<br />
reasonably designed at a minimum (i) to ensure that such reports are accurately made as soon as<br />
feasible by the most expeditious means and in no instance later than thirty 30 days after occurrence<br />
Appendix B<br />
103
<strong>of</strong> the disposition or correctional change <strong>of</strong> status; and (ii) to report promptly any correction,<br />
deletion, or revision <strong>of</strong> the information.<br />
H. Upon receiving a correction, deletion, or revision <strong>of</strong> information, the Central <strong>Criminal</strong> Records<br />
Exchange shall notify all criminal justice agencies known to have previously received the<br />
information.<br />
As used in this section, the term “chief law-enforcement <strong>of</strong>ficer” means the chief <strong>of</strong> police <strong>of</strong><br />
cities and towns and sheriffs <strong>of</strong> counties, unless a political subdivision has otherwise designated<br />
its chief law-enforcement <strong>of</strong>ficer by appropriate resolution or ordinance, in which case the local<br />
designation shall be controlling.<br />
Sex Offender and Crimes Against Minors Registry;<br />
maintenance; access VA Code §19.2–390.1<br />
The <strong>Department</strong> <strong>of</strong> State Police shall keep and maintain a Sex Offender and Crimes Against Minors Registry,<br />
separate and apart from all other records maintained by it.<br />
Application for driver’s license; pro<strong>of</strong> <strong>of</strong> completion<br />
<strong>of</strong> driver education program; penalty VA Code §46.2–323<br />
A. Every application for a driver’s license, temporary driver’s permit, learner’s permit, or motorcycle<br />
learner’s permit shall be made on a form prescribed by the <strong>Department</strong> and the applicant shall<br />
write his usual signature in ink in the space provided on the form. The form shall include notice<br />
to the applicant <strong>of</strong> the duty to register with the <strong>Department</strong> <strong>of</strong> State Police as provided in §19.2–<br />
298.1 Chapter 9 (§9.1–900 et seq.) <strong>of</strong> Title 9.1, if the applicant has been convicted <strong>of</strong> an <strong>of</strong>fense<br />
for which registration with the Sex Offender and Crimes Against Minors Registry is required.<br />
B. Every application shall state the name, year, month and date <strong>of</strong> birth, social security number, sex,<br />
and residence address <strong>of</strong> the applicant; whether or not the applicant has previously been licensed<br />
as a driver and, if so, when and by what state, and whether or not his license has ever been suspended<br />
or revoked and, if so, the date <strong>of</strong> and reason for such suspension or revocation. The <strong>Department</strong>, as<br />
a condition for the issuance <strong>of</strong> any driver’s license, temporary driver’s permit, learner’s permit,<br />
or motorcycle learner’s permit may require the surrender <strong>of</strong> any driver’s license or, in the case <strong>of</strong><br />
a motorcycle learner’s permit, a motorcycle license issued by another state and held by the<br />
applicant. The applicant shall also answer any questions on the application form or otherwise<br />
propounded by the <strong>Department</strong> incidental to the examination. The applicant may also be required<br />
to present to the person conducting the examination a birth certificate or other evidence, reasonably<br />
acceptable to the <strong>Department</strong>, <strong>of</strong> his name and date <strong>of</strong> birth.<br />
The applicant shall also certify that he is a resident <strong>of</strong> the Commonwealth by signing a certification<br />
statement, on a form prescribed by the Commissioner, and by providing satisfactory pro<strong>of</strong> that he<br />
is a resident <strong>of</strong> the Commonwealth. The Commissioner may adopt regulations to determine the<br />
process by which applicants prove that they are residents <strong>of</strong> the Commonwealth.<br />
104<br />
Appendix B
If the applicant either (i) fails or refuses to sign the certification statement or (ii) fails to follow the<br />
process determined by the Commissioner for proving residency, the <strong>Department</strong> shall not issue<br />
the applicant a driver’s license, temporary driver’s permit, learner’s permit or motorcycle learner’s<br />
permit.<br />
Any applicant who knowingly makes a false certification <strong>of</strong> <strong>Virginia</strong> residency or supplies false or<br />
fictitious evidence <strong>of</strong> <strong>Virginia</strong> residency shall be punished as provided in §46.2–348.<br />
The Commissioner may, on a case-by-case basis, waive any provision <strong>of</strong> such regulations for good<br />
cause shown.<br />
C. Every application for a driver’s license shall include a color photograph <strong>of</strong> the applicant supplied<br />
under arrangements made by the <strong>Department</strong>. The photograph shall be processed by the<br />
<strong>Department</strong> so that the photograph can be made part <strong>of</strong> the issued license.<br />
D. Notwithstanding the provisions <strong>of</strong> §46.2–334, every applicant for a driver’s license who is under<br />
nineteen 19 years <strong>of</strong> age shall furnish the <strong>Department</strong> with satisfactory pro<strong>of</strong> <strong>of</strong> his successful<br />
completion <strong>of</strong> a driver education program approved by the State <strong>Department</strong> <strong>of</strong> Education.<br />
Jailer to give notice <strong>of</strong> release <strong>of</strong> certain prisoners VA Code §53.1–116.1<br />
Prior to the release or discharge <strong>of</strong> any prisoner serving a sentence upon a conviction <strong>of</strong> for an <strong>of</strong>fense for<br />
which registration with the Sex Offender and Crimes Against Minors Registry is required as defined in<br />
§19.2-298.1 pursuant to Chapter 9 (§9.1-900 et seq.) <strong>of</strong> Title 9.1, the sheriff, jail superintendent or<br />
other jail administrator shall give notice to the prisoner <strong>of</strong> his duty to register with the State Police in<br />
accordance with §19.2-298.1. The sheriff, jail superintendent or other jail administrator shall also obtain<br />
from that person all necessary registration information, including fingerprints and photographs <strong>of</strong> a type<br />
and kind approved by the <strong>Department</strong> <strong>of</strong> State Police; inform the person <strong>of</strong> his duties regarding<br />
reregistration and change <strong>of</strong> address; and inform the person <strong>of</strong> his duty to register under this section. The<br />
sheriff, jail superintendent or other jail administrator shall forward the registration information to the<br />
<strong>Department</strong> <strong>of</strong> State Police within seven days <strong>of</strong> receipt.<br />
<strong>Department</strong> to give notice <strong>of</strong> release <strong>of</strong> certain prisoners VA Code §53.1–160.1<br />
Prior to the release or discharge <strong>of</strong> any prisoner serving a sentence upon a conviction <strong>of</strong> for an <strong>of</strong>fense for<br />
which registration with the Sex Offender and Crimes Against Minors Registry is required as defined in §19.2–<br />
298.1 pursuant to Chapter 9 (§9.1–900 et seq.) <strong>of</strong> Title 9.1, the <strong>Department</strong> shall give notice to the prisoner<br />
<strong>of</strong> his duty to register with the State Police in accordance with §19.2–298.1. The <strong>Department</strong> shall also<br />
obtain from that person all necessary registration information, including fingerprints and photographs <strong>of</strong> a<br />
type and kind approved by the <strong>Department</strong> <strong>of</strong> State Police, inform the person <strong>of</strong> his duties regarding<br />
reregistration and change <strong>of</strong> address, and inform the person <strong>of</strong> his duty to register under this section. The<br />
<strong>Department</strong> shall forward the registration information to the <strong>Department</strong> <strong>of</strong> State Police within seven days<br />
<strong>of</strong> receipt.<br />
Appendix B<br />
105
106
Appendix C<br />
Civil <strong>Child</strong> <strong>Abuse</strong> Statutes<br />
Autopsies VA Code §32.1–285<br />
[I]n all cases <strong>of</strong> death suspected to be attributable to Sudden Infant Death Syndrome (SIDS), an autopsy<br />
shall be advisable and in the public interest and shall be performed as required by §32.1–285.1.<br />
Deaths <strong>of</strong> infants under 18 months <strong>of</strong> age VA Code §32.1–285.1<br />
An autopsy shall be performed in the case <strong>of</strong> any infant death which is suspected to be attributable to<br />
Sudden Infant Death Syndrome (SIDS).<br />
For the purposes <strong>of</strong> this section, “Sudden Infant Death Syndrome” (SIDS), a diagnosis <strong>of</strong> exclusion, means<br />
the sudden and unexpected death <strong>of</strong> an infant less than eighteen months <strong>of</strong> age whose death remains<br />
unexplained after a thorough postmortem examination which includes an autopsy.<br />
Definitions VA Code §63.2–100<br />
As used in this title, unless the context requires a different meaning: “<strong>Abuse</strong>d or neglected child” means<br />
any child less than eighteen years <strong>of</strong> age:<br />
A. Whose parents or other person responsible for his care creates or inflicts, threatens to create or<br />
inflict, or allows to be created or inflicted upon such child a physical or mental injury by other<br />
than accidental means, or creates a substantial risk <strong>of</strong> death, disfigurement, or impairment <strong>of</strong><br />
bodily or mental functions;<br />
B. Whose parents or other person responsible for his care neglects or refuses to provide care necessary<br />
for his health.<br />
However, no child who in good faith is under treatment solely by spiritual means through prayer<br />
in accordance with the tenets and practices <strong>of</strong> a recognized church or religious denomination<br />
shall for that reason alone be considered to be an abused or neglected child;<br />
C. Whose parents or other person responsible for his care abandons such child;<br />
D. Whose parents or other person responsible for his care commits or allows to be committed any<br />
act <strong>of</strong> sexual exploitation or any sexual act upon a child in violation <strong>of</strong> the law; or<br />
E. Who is without parental care or guardianship caused by the unreasonable absence or the mental<br />
or physical incapacity <strong>of</strong> the child’s parent, guardian, legal custodian or other person standing in<br />
loco parentis.<br />
“Board” means the State Board <strong>of</strong> Social <strong>Services</strong>.<br />
“<strong>Child</strong>” means any natural person under eighteen years <strong>of</strong> age.<br />
“<strong>Child</strong>-protective services” means the identification, receipt and immediate response to complaints and<br />
reports <strong>of</strong> alleged child abuse or neglect for children under eighteen years <strong>of</strong> age. It also includes assessment,<br />
Appendix C<br />
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and arranging for and providing necessary protective and rehabilitative services for a child and his family<br />
when the child has been found to have been abused or neglected or is at risk <strong>of</strong> being abused or neglected.<br />
“Commissioner” means the Commissioner <strong>of</strong> the <strong>Department</strong>, his designee or authorized representative.<br />
“<strong>Department</strong>” means the State <strong>Department</strong> <strong>of</strong> Social <strong>Services</strong>.<br />
“Foster care placement” means placement <strong>of</strong> a child through (i) an agreement between the parents or<br />
guardians and the local board or the public agency designated by the community policy and management<br />
team where legal custody remains with the parents or guardians or (ii) an entrustment or commitment <strong>of</strong><br />
the child to the local board or licensed child-placing agency.<br />
“Foster home” means the place <strong>of</strong> residence <strong>of</strong> any natural person in which any child, other than a child by<br />
birth or adoption <strong>of</strong> such person, resides as a member <strong>of</strong> the household.<br />
“Independent foster home” means a private family home in which any child, other than a child by birth or<br />
adoption <strong>of</strong> such person, resides as a member <strong>of</strong> the household and has been placed therein independently<br />
<strong>of</strong> a child-placing agency except (i) a home in which are received only children related by birth or adoption<br />
<strong>of</strong> the person who maintains such home and children <strong>of</strong> personal friends <strong>of</strong> such person and (ii) a home in<br />
which is received a child or children committed under the provisions <strong>of</strong> subdivision A 4 <strong>of</strong> §16.1–278.2,<br />
subdivision 6 <strong>of</strong> §16.1–278.4, or subdivision A 13 <strong>of</strong> §16.1–278.8.<br />
Acceptance <strong>of</strong> children by local departments <strong>of</strong> social services VA Code §63.2–910.1<br />
A local department <strong>of</strong> social services has the authority to take custody <strong>of</strong> abandoned children, to arrange<br />
appropriate placements for abandoned children, including foster care, and to institute proceedings for the<br />
termination <strong>of</strong> parental rights <strong>of</strong> abandoned children as provided in this title and Title 16.1.<br />
Definitions VA Code §63.2–1501<br />
As used in this chapter unless the context requires a different meaning:<br />
“Court” means the juvenile and domestic relations district court <strong>of</strong> the county or city.<br />
“Prevention” means efforts that (i) promote health and competence in people and (ii) create, promote and<br />
strengthen environments that nurture people in their development.<br />
Establishment <strong>of</strong> <strong>Child</strong>-Protective <strong>Services</strong> Unit; duties VA Code §63.2–1502<br />
There is created a <strong>Child</strong>-Protective <strong>Services</strong> Unit in the <strong>Department</strong> that shall have the following powers<br />
and duties:<br />
A. To evaluate and strengthen all local, regional and state programs dealing with child abuse and<br />
neglect.<br />
B. To assume primary responsibility for directing the planning and funding <strong>of</strong> child-protective<br />
services. This shall include reviewing and approving the annual proposed plans and budgets for<br />
protective services submitted by the local departments.<br />
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C. To assist in developing programs aimed at discovering and preventing the many factors causing<br />
child abuse and neglect.<br />
D. To prepare and disseminate, including the presentation <strong>of</strong>, educational programs and materials<br />
on child abuse and neglect.<br />
E. To provide educational programs for pr<strong>of</strong>essionals required by law to make reports under this<br />
chapter.<br />
F. To establish standards <strong>of</strong> training and provide educational programs to qualify workers in the<br />
field <strong>of</strong> child-protective services.<br />
G. To establish standards <strong>of</strong> training and educational programs to qualify workers to determine<br />
whether complaints <strong>of</strong> abuse or neglect <strong>of</strong> a child in a private or state-operated hospital, institution<br />
or other facility, or public school, are founded.<br />
H. To maintain staff qualified pursuant to Board regulations to assist local department personnel in<br />
determining whether an employee <strong>of</strong> a private or state-operated hospital, institution or other<br />
facility or an employee <strong>of</strong> a school board, abused or neglected a child in such hospital, institution,<br />
or other facility, or public school.<br />
I. To monitor the processing and determination <strong>of</strong> cases where an employee <strong>of</strong> a private or stateoperated<br />
hospital, institution or other facility, or an employee <strong>of</strong> a school board, is suspected <strong>of</strong><br />
abusing or neglecting a child in such hospital, institution, or other facility, or public school.<br />
J. To help coordinate child-protective services at the state, regional, and local levels with the efforts<br />
<strong>of</strong> other state and voluntary social, medical and legal agencies.<br />
K. To maintain a child abuse and neglect information system that includes all cases <strong>of</strong> child abuse<br />
and neglect within the Commonwealth.<br />
L. To provide for methods to preserve the confidentiality <strong>of</strong> all records in order to protect the rights<br />
<strong>of</strong> the child, and his parents or guardians.<br />
Duties <strong>of</strong> child protective services VA Code §63.2–1503<br />
Appendix C<br />
A. Each local department shall establish child-protective services under a departmental coordinator<br />
within such department or with one or more adjacent local departments that shall be staffed with<br />
qualified personnel pursuant to regulations adopted by the Board. The local department shall be<br />
the public agency responsible for receiving and responding to complaints and reports, except that<br />
(i) in cases where the reports or complaints are to be made to the court and the judge determines that<br />
no local department within a reasonable geographic distance can impartially respond to the report,<br />
the court shall assign the report to the court services unit for evaluation; and (ii) in cases where an<br />
employee at a private or state-operated hospital, institution or other facility, or an employee <strong>of</strong> a<br />
school board is suspected <strong>of</strong> abusing or neglecting a child in such hospital, institution or other facility,<br />
or public school, the local department shall request the <strong>Department</strong> and the relevant private or stateoperated<br />
hospital, institution or other facility, or school board to assist in conducting a joint<br />
109
investigation in accordance with regulations adopted by the Board, in consultation with the<br />
<strong>Department</strong>s <strong>of</strong> Education, Health, Medical Assistance <strong>Services</strong>, Mental Health, Mental Retardation<br />
and Substance <strong>Abuse</strong> <strong>Services</strong>, Juvenile <strong>Justice</strong> and Corrections.<br />
B. The local department shall ensure, through its own personnel or through cooperative arrangements<br />
with other local agencies, the capability <strong>of</strong> receiving reports or complaints and responding to them<br />
promptly on a twenty-four-hours-a-day, seven-days-per-week basis.<br />
C. The local department shall widely publicize a telephone number for receiving complaints and<br />
reports.<br />
D. The local department shall upon receipt <strong>of</strong> a complaint, report immediately to the attorney for<br />
the Commonwealth and the local law-enforcement agency and make available to them the records<br />
<strong>of</strong> the local department when abuse or neglect is suspected in any case involving (i) death <strong>of</strong> a<br />
child; (ii) injury or threatened injury to the child in which a felony or Class 1 misdemeanor is also<br />
suspected; (iii) any sexual abuse, suspected sexual abuse or other sexual <strong>of</strong>fense involving a child,<br />
including but not limited to the use or display <strong>of</strong> the child in sexually explicit visual material, as<br />
defined in §18.2–374.1; (iv) any abduction <strong>of</strong> a child; (v) any felony or Class 1 misdemeanor<br />
drug <strong>of</strong>fense involving a child; or (vi) contributing to the delinquency <strong>of</strong> a minor in violation <strong>of</strong><br />
§18.2–371, and provide the attorney for the Commonwealth and the local law-enforcement<br />
agency with records <strong>of</strong> any complaints <strong>of</strong> abuse or neglect involving the victim or the alleged<br />
perpetrator. The local department shall not allow reports <strong>of</strong> the death <strong>of</strong> the victim from other<br />
local agencies to substitute for direct reports to the attorney for the Commonwealth and the local<br />
law-enforcement agency.<br />
E. When abuse or neglect is suspected in any case involving the death <strong>of</strong> a child, the local department<br />
shall report the case immediately to the regional medical examiner and the local law-enforcement<br />
agency.<br />
F. The local department shall use reasonable diligence to locate (i) any child for whom a report <strong>of</strong><br />
suspected abuse or neglect has been received and is under investigation, receiving family<br />
assessment, or for whom a founded determination <strong>of</strong> abuse and neglect has been made and a childprotective<br />
services case opened and (ii) persons who are the subject <strong>of</strong> a report that is under<br />
investigation or receiving family assessment, if the whereabouts <strong>of</strong> the child or such persons are<br />
unknown to the local department.<br />
G. When an abused or neglected child and the persons who are the subject <strong>of</strong> an open child-protective<br />
services case have relocated out <strong>of</strong> the jurisdiction <strong>of</strong> the local department, the local department<br />
shall notify the child-protective services agency in the jurisdiction to which such persons have<br />
relocated, whether inside or outside <strong>of</strong> the Commonwealth, and forward to such agency relevant<br />
portions <strong>of</strong> the case record. The receiving local department shall arrange protective and<br />
rehabilitative services as required by this section.<br />
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H. When a child for whom a report <strong>of</strong> suspected abuse or neglect has been received and is under<br />
investigation or receiving family assessment and the child and the child’s parents or other persons<br />
responsible for the child’s care who are the subject <strong>of</strong> the report that is under investigation or<br />
family assessment have relocated out <strong>of</strong> the jurisdiction <strong>of</strong> the local department, the local<br />
department shall notify the child-protective services agency in the jurisdiction to which the child<br />
and such persons have relocated, whether inside or outside <strong>of</strong> the Commonwealth, and complete<br />
such investigation or family assessment by requesting such agency’s assistance in completing the<br />
investigation or family assessment. The local department that completes the investigation or family<br />
assessment shall forward to the receiving agency relevant portions <strong>of</strong> the case record in order for<br />
the receiving agency to arrange protective and rehabilitative services as required by this section.<br />
I. Upon receipt <strong>of</strong> a report <strong>of</strong> child abuse or neglect, the local department shall determine the validity<br />
<strong>of</strong> such report and shall make a determination to conduct an investigation pursuant to §63.2–<br />
1505 or, if designated as a child-protective services differential response agency by the <strong>Department</strong><br />
according to §63.2–1504, a family assessment pursuant to §63.2–1506.<br />
J. The local department shall foster, when practicable, the creation, maintenance and coordination<br />
<strong>of</strong> hospital and community-based multi-disciplinary teams that shall include where possible, but<br />
not be limited to, members <strong>of</strong> the medical, mental health, social work, nursing, education, legal<br />
and law-enforcement pr<strong>of</strong>essions. Such teams shall assist the local departments in identifying<br />
abused and neglected children; coordinating medical, social, and legal services for the children<br />
and their families; developing innovative programs for detection and prevention <strong>of</strong> child abuse;<br />
promoting community concern and action in the area <strong>of</strong> child abuse and neglect; and disseminating<br />
information to the general public with respect to the problem <strong>of</strong> child abuse and neglect and the<br />
facilities and prevention and treatment methods available to combat child abuse and neglect. These<br />
teams may be the family assessment and planning teams established pursuant to §2.2–5207.<br />
Multi-disciplinary teams may develop agreements regarding the exchange <strong>of</strong> information among<br />
the parties for the purposes <strong>of</strong> the investigation and disposition <strong>of</strong> complaints <strong>of</strong> child abuse and<br />
neglect, delivery <strong>of</strong> services, and child protection. Any information exchanged in accordance with<br />
the agreement shall not be considered to be a violation <strong>of</strong> the provisions <strong>of</strong> §§63.2–102, 63.2–<br />
104 or §63.2–105.<br />
The local department shall also coordinate its efforts in the provision <strong>of</strong> these services for abused<br />
and neglected children with the judge and staff <strong>of</strong> the court.<br />
K. The local department shall develop, where practical, memoranda <strong>of</strong> understanding for responding<br />
to reports <strong>of</strong> child abuse and neglect with local law enforcement and the attorney for the<br />
Commonwealth.<br />
L. The local department shall report annually on its activities concerning abused and neglected<br />
children to the court and to the <strong>Child</strong>-Protective <strong>Services</strong> Unit in the <strong>Department</strong> on forms provided<br />
by the <strong>Department</strong>.<br />
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M. Statements, or any evidence derived there from, made to local department child-protective services<br />
personnel, or to any person performing the duties <strong>of</strong> such personnel, by any person accused <strong>of</strong> the<br />
abuse, injury, neglect or death <strong>of</strong> a child after the arrest <strong>of</strong> such person, shall not be used in evidence<br />
in the case-in-chief against such person in the criminal proceeding on the question <strong>of</strong> guilt or<br />
innocence over the objection <strong>of</strong> the accused, unless the statement was made after such person was<br />
fully advised (i) <strong>of</strong> his right to remain silent, (ii) that anything he says may be used against him in<br />
a court <strong>of</strong> law, (iii) that he has a right to the presence <strong>of</strong> an attorney during any interviews, and (iv)<br />
that if he cannot afford an attorney, one will be appointed for him prior to any questioning.<br />
N. Notwithstanding any other provision <strong>of</strong> law, the local department, in accordance with Board<br />
regulations, shall transmit information regarding founded complaints or family assessments and<br />
may transmit other information regarding reports, complaints, family assessments and<br />
investigations involving active duty military personnel or members <strong>of</strong> their household to family<br />
advocacy representatives <strong>of</strong> the United States Armed Forces.<br />
<strong>Child</strong>-protective services differential response system VA Code §63.2–1504<br />
The <strong>Department</strong> shall implement a child-protective services differential response system in all local<br />
departments. The differential response system allows local departments to respond to valid reports or<br />
complaints <strong>of</strong> child abuse or neglect by conducting either an investigation or a family assessment. The<br />
<strong>Department</strong> shall publish a plan to implement the child-protective services differential response system in<br />
local departments by July 1, 2000, and complete implementation in all local departments by July 1, 2003.<br />
The <strong>Department</strong> shall develop a training program for all staff persons involved in the differential response<br />
system, and all such staff shall receive this training.<br />
Investigations by local departments VA Code §63.2–1505<br />
A. An investigation requires the collection <strong>of</strong> information necessary to determine:<br />
1. The immediate safety needs <strong>of</strong> the child;<br />
2. The protective and rehabilitative services needs <strong>of</strong> the child and family that will deter abuse<br />
or neglect;<br />
3. Risk <strong>of</strong> future harm to the child;<br />
4. Alternative plans for the child’s safety if protective and rehabilitative services are indicated<br />
and the family is unable or unwilling to participate in services;<br />
5. Whether abuse or neglect has occurred;<br />
6. If abuse or neglect has occurred, who abused or neglected the child; and<br />
7. A finding <strong>of</strong> either founded or unfounded based on the facts collected during the investigation.<br />
B. If the local department responds to the report or complaint by conducting an investigation, the<br />
local department shall:<br />
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1. Make immediate investigation and, if the report or complaint was based upon one <strong>of</strong> the factors<br />
specified in subsection B <strong>of</strong> §63.2–1509, the local department may file a petition pursuant<br />
to §16.1–241.3;<br />
2. Complete a report and transmit it forthwith to the <strong>Department</strong>, except that no such report<br />
shall be transmitted in cases in which the cause to suspect abuse or neglect is one <strong>of</strong> the factors<br />
specified in subsection B <strong>of</strong> §63.2–1509 and the mother sought substance abuse counseling<br />
or treatment prior to the child’s birth;<br />
3. Consult with the family to arrange for necessary protective and rehabilitative services to be<br />
provided to the child and his family;<br />
4. Petition the court for services deemed necessary including, but not limited to, removal <strong>of</strong> the<br />
child or his siblings from their home;<br />
5. Determine within forty-five days if a report <strong>of</strong> abuse or neglect is founded or unfounded and<br />
transmit a report to such effect to the <strong>Department</strong> and to the person who is the subject <strong>of</strong> the<br />
investigation. However, upon written justification by the local department, such<br />
determination may be extended, not to exceed a total <strong>of</strong> sixty days. If through the exercise <strong>of</strong><br />
reasonable diligence the local department is unable to find the child who is the subject <strong>of</strong> the<br />
report, the time the child cannot be found shall not be computed as part <strong>of</strong> the forty-five-day<br />
or sixty-day period and documentation <strong>of</strong> such reasonable diligence shall be placed in the<br />
record; and<br />
6. If a report <strong>of</strong> abuse or neglect is unfounded, transmit a report to such effect to the complainant<br />
and parent or guardian and the person responsible for the care <strong>of</strong> the child in those cases<br />
where such person was suspected <strong>of</strong> abuse or neglect.<br />
Family assessments by local departments VA Code §63.2–1506<br />
A. A family assessment requires the collection <strong>of</strong> information necessary to determine:<br />
1. The immediate safety needs <strong>of</strong> the child;<br />
2. The protective and rehabilitative services needs <strong>of</strong> the child and family that will deter abuse<br />
or neglect;<br />
3. Risk <strong>of</strong> future harm to the child; and<br />
4. Alternative plans for the child’s safety if protective and rehabilitative services are indicated<br />
and the family is unable or unwilling to participate in services.<br />
B. When a local department has been designated as a child-protective services differential response<br />
system participant by the <strong>Department</strong> pursuant to §63.2–1504 and responds to the report or<br />
complaint by conducting a family assessment, the local department shall:<br />
Appendix C<br />
113
1. Conduct an immediate family assessment and, if the report or complaint was based upon one<br />
<strong>of</strong> the factors specified in subsection B <strong>of</strong> §63.2–1509, the local department may file a petition<br />
pursuant to §16.1–241.3;<br />
2. Immediately contact the subject <strong>of</strong> the report and the family <strong>of</strong> the child alleged to have been<br />
abused or neglected and give each a written and an oral explanation <strong>of</strong> the family assessment<br />
procedure. The family assessment shall be in writing and shall be completed in accordance<br />
with Board regulation;<br />
3. Complete the family assessment within forty-five days and transmit a report to such effect to<br />
the <strong>Department</strong> and to the person who is the subject <strong>of</strong> the family assessment. However, upon<br />
written justification by the local department, the family assessment may be extended, not to<br />
exceed a total <strong>of</strong> sixty days;<br />
4. Consult with the family to arrange for necessary protective and rehabilitative services to be<br />
provided to the child and his family. Families have the option <strong>of</strong> declining the services <strong>of</strong>fered<br />
as a result <strong>of</strong> the family assessment. If the family declines the services, the case shall be closed<br />
unless the local department determines that sufficient cause exists to redetermine the case as<br />
one that needs to be investigated. In no instance shall a case be redetermined as an investigation<br />
solely because the family declines services;<br />
5. Petition the court for services deemed necessary;<br />
6. Make no disposition <strong>of</strong> founded or unfounded for reports in which a family assessment is<br />
completed. Reports in which a family assessment is completed shall not be entered into the<br />
central registry contained in §63.2–1515; and<br />
7. Commence an immediate investigation, if at any time during the completion <strong>of</strong> the family<br />
assessment, the local department determines that an investigation is required.<br />
C. When a local department has been designated as a child-protective services differential response<br />
agency by the <strong>Department</strong>, the local department may investigate any report <strong>of</strong> child abuse or<br />
neglect, but the following valid reports <strong>of</strong> child abuse or neglect shall be investigated: (i) sexual<br />
abuse, (ii) child fatality, (iii) abuse or neglect resulting in serious injury as defined in §18.2–<br />
371.1, (iv) child has been taken into the custody <strong>of</strong> the local department, or (v) cases involving a<br />
caretaker at a state-licensed child day center, religiously exempt child day center, licensed, registered<br />
or approved family day home, private or public school, hospital or any institution.<br />
Multi-disciplinary cooperation VA Code §63.2–1507<br />
All law enforcement departments and other state and local departments, agencies, authorities and<br />
institutions shall cooperate with each <strong>Child</strong> Protective <strong>Services</strong> Coordinator <strong>of</strong> a local department and<br />
any multi-discipline teams in the detection and prevention <strong>of</strong> child abuse.<br />
Valid report or complaint. VA Code §63.2–1508. A valid report or complaint means the local department<br />
has evaluated the information and allegations <strong>of</strong> the report or complaint and determined that the local<br />
department shall conduct an investigation or family assessment because the following elements are present:<br />
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A. The alleged victim child or children are under the age <strong>of</strong> eighteen at the time <strong>of</strong> the complaint or<br />
report;<br />
B. The alleged abuser is the alleged victim child’s parent or other caretaker;<br />
C. The local department receiving the complaint or report has jurisdiction; and<br />
D. The circumstances described allege suspected child abuse or neglect.<br />
Nothing in this section shall relieve any person specified in §63.2-1509 from making a report<br />
required by that section, regardless <strong>of</strong> the identity <strong>of</strong> the person suspected to have caused such<br />
abuse or neglect.<br />
Physicians, nurses, teachers, etc., to report certain injuries<br />
to children; penalty for failure to report VA Code §63.2–1509<br />
A. The following persons who, in their pr<strong>of</strong>essional or <strong>of</strong>ficial capacity, have reason to suspect that a<br />
child is an abused or neglected child, shall report the matter immediately to the local department<br />
<strong>of</strong> the county or city wherein the child resides or wherein the abuse or neglect is believed to have<br />
occurred or to the <strong>Department</strong>’s toll-free child abuse and neglect hotline:<br />
1. Any person licensed to practice medicine or any <strong>of</strong> the healing arts;<br />
2. Any hospital resident or intern, and any person employed in the nursing pr<strong>of</strong>ession;<br />
3. Any person employed as a social worker;<br />
4. Any probation <strong>of</strong>ficer;<br />
5. Any teacher or other person employed in a public or private school, kindergarten or nursery<br />
school;<br />
6. Any person providing full-time or part-time child care for pay on a regularly planned basis;<br />
7. Any duly accredited Christian Science practitioner;<br />
8. Any mental health pr<strong>of</strong>essional;<br />
9. Any law-enforcement <strong>of</strong>ficer;<br />
10. Any mediator eligible to receive court referrals pursuant to §8.01–576.8;<br />
11. Any pr<strong>of</strong>essional staff person, not previously enumerated, employed by a private or stateoperated<br />
hospital, institution or facility to which children have been committed or where<br />
children have been placed for care and treatment;<br />
12. Any person associated with or employed by any private organization responsible for the care,<br />
custody or control <strong>of</strong> children; and<br />
Appendix C<br />
115
13. Any person who is designated a court-appointed special advocate pursuant to Article 5 (§9.1–<br />
151 et seq.) <strong>of</strong> Chapter 1 <strong>of</strong> Title 9.1.<br />
If neither the locality in which the child resides nor where the abuse or neglect is believed to<br />
have occurred is known, then such report shall be made to the local department <strong>of</strong> the county<br />
or city where the abuse or neglect was discovered or to the <strong>Department</strong>’s toll-free child abuse<br />
and neglect hotline.<br />
If an employee <strong>of</strong> the local department is suspected <strong>of</strong> abusing or neglecting a child, the report<br />
shall be made to the court <strong>of</strong> the county or city where the abuse or neglect was discovered.<br />
Upon receipt <strong>of</strong> such a report by the court, the judge shall assign the report to a local department<br />
that is not the employer <strong>of</strong> the suspected employee for investigation or family assessment.<br />
The judge may consult with the <strong>Department</strong> in selecting a local department to respond to the<br />
report or the complaint.<br />
If the information is received by a teacher, staff member, resident, intern or nurse in the course<br />
<strong>of</strong> pr<strong>of</strong>essional services in a hospital, school or similar institution, such person may, in place<br />
<strong>of</strong> said report, immediately notify the person in charge <strong>of</strong> the institution or department, or<br />
his designee, who shall make such report forthwith.<br />
The initial report may be an oral report but such report shall be reduced to writing by the<br />
child abuse coordinator <strong>of</strong> the local department on a form prescribed by the Board. Any person<br />
required to make the report pursuant to this subsection shall disclose all information that is<br />
the basis for his suspicion <strong>of</strong> abuse or neglect <strong>of</strong> the child and, upon request, shall make<br />
available to the child-protective services coordinator and the local department, which is the<br />
agency <strong>of</strong> jurisdiction, any information, records or reports that document the basis for the<br />
report. All persons required by this subsection to report suspected abuse or neglect who<br />
maintain a record <strong>of</strong> a child who is the subject <strong>of</strong> such a report shall cooperate with the<br />
investigating agency and shall make related information, records and reports available to the<br />
investigating agency unless such disclosure violates the federal Family Educational Rights<br />
and Privacy Act (20 U.S.C. §1232(g)). Provision <strong>of</strong> such information, records and reports by<br />
a health care provider shall not be prohibited by §8.01–399. <strong>Criminal</strong> investigative reports<br />
received from law-enforcement agencies shall not be further disseminated by the investigating<br />
agency nor shall they be subject to public disclosure.<br />
B. For purposes <strong>of</strong> subsection A, “reason to suspect that a child is abused or neglected” shall include<br />
(i) a finding made by an attending physician within seven days <strong>of</strong> a child’s birth that the results <strong>of</strong><br />
a blood or urine test conducted within forty-eight hours <strong>of</strong> the birth <strong>of</strong> the child indicate the<br />
presence <strong>of</strong> a controlled substance not prescribed for the mother by a physician; (ii) a finding by<br />
an attending physician made within forty-eight hours <strong>of</strong> a child’s birth that the child was born<br />
dependent on a controlled substance which was not prescribed by a physician for the mother and<br />
has demonstrated withdrawal symptoms; (iii) a diagnosis by an attending physician made within<br />
seven days <strong>of</strong> a child’s birth that the child has an illness, disease or condition which, to a reasonable<br />
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degree <strong>of</strong> medical certainty, is attributable to in utero exposure to a controlled substance which<br />
was not prescribed by a physician for the mother or the child; or (iv) a diagnosis by an attending<br />
physician made within seven days <strong>of</strong> a child’s birth that the child has fetal alcohol syndrome<br />
attributable to in utero exposure to alcohol. When “reason to suspect” is based upon this<br />
subsection, such fact shall be included in the report along with the facts relied upon by the person<br />
making the report.<br />
C. Any person who makes a report or provides records or information pursuant to subsection A or<br />
who testifies in any judicial proceeding arising from such report, records or information shall be<br />
immune from any civil or criminal liability or administrative penalty or sanction on account <strong>of</strong><br />
such report, records, information or testimony, unless such person acted in bad faith or with<br />
malicious purpose.<br />
D. Any person required to file a report pursuant to this section who fails to do so within seventy-two<br />
hours <strong>of</strong> his first suspicion <strong>of</strong> child abuse or neglect shall be fined not more than $500 for the<br />
first failure and for any subsequent failures not less than $100 nor more than $1,000.<br />
Complaints by others <strong>of</strong> certain injuries to children VA Code §63.2–1510<br />
Any person who suspects that a child is an abused or neglected child may make a complaint concerning<br />
such child, except as hereinafter provided, to the local department <strong>of</strong> the county or city wherein the child<br />
resides or wherein the abuse or neglect is believed to have occurred or to the <strong>Department</strong>’s toll-free child<br />
abuse and neglect hotline. If an employee <strong>of</strong> the local department is suspected <strong>of</strong> abusing or neglecting a<br />
child, the complaint shall be made to the court <strong>of</strong> the county or city where the abuse or neglect was<br />
discovered. Upon receipt <strong>of</strong> such a report by the court, the judge shall assign the report to a local department<br />
that is not the employer <strong>of</strong> the suspected employee for investigation or family assessment; or, if the judge<br />
believes that no local department in a reasonable geographic distance can be impartial in responding to<br />
the reported case, the judge shall assign the report to the court service unit <strong>of</strong> his court for evaluation. The<br />
judge may consult with the <strong>Department</strong> in selecting a local department to respond to the report or<br />
complaint. Such a complaint may be oral or in writing and shall disclose all information which is the<br />
basis for the suspicion <strong>of</strong> abuse or neglect <strong>of</strong> the child.<br />
Complaints <strong>of</strong> abuse and neglect against school personnel VA Code §63.2–1511<br />
Appendix C<br />
A. If a teacher, principal or other person employed by a local school board or employed in a school<br />
operated by the Commonwealth is suspected <strong>of</strong> abusing or neglecting a child in the course <strong>of</strong> his<br />
educational employment, the complaint shall be investigated in accordance with §§63.2–1503<br />
and, 63.2–1505 and 63.2–1516.1. Pursuant to §22.1–279.1, no teacher, principal or other<br />
person employed by a school board or employed in a school operated by the Commonwealth shall<br />
subject a student to corporal punishment. However, this prohibition <strong>of</strong> corporal punishment shall<br />
not be deemed to prevent (i) the use <strong>of</strong> incidental, minor or reasonable physical contact or other<br />
actions designed to maintain order and control; (ii) the use <strong>of</strong> reasonable and necessary force to<br />
quell a disturbance or remove a student from the scene <strong>of</strong> a disturbance that threatens physical<br />
injury to persons or damage to property; (iii) the use <strong>of</strong> reasonable and necessary force to prevent<br />
a student from inflicting physical harm on himself; (iv) the use <strong>of</strong> reasonable and necessary force<br />
117
for self-defense or the defense <strong>of</strong> others; or (v) the use <strong>of</strong> reasonable and necessary force to obtain<br />
possession <strong>of</strong> weapons or other dangerous objects or controlled substances or paraphernalia that<br />
are upon the person <strong>of</strong> the student or within his control. In determining whether the actions <strong>of</strong> a<br />
teacher, principal or other person employed by a school board or employed in a school operated by<br />
the Commonwealth are within the exceptions provided in this section, the local department shall<br />
examine whether the actions at the time <strong>of</strong> the event that were made by such person were<br />
reasonable.<br />
B. For purposes <strong>of</strong> this section, “corporal punishment” or “abused or neglected child” shall not include<br />
physical pain, injury or discomfort caused by the use <strong>of</strong> incidental, minor or reasonable physical<br />
contact or other actions designed to maintain order and control as permitted in clause (i) <strong>of</strong><br />
subsection A or the use <strong>of</strong> reasonable and necessary force as permitted by clauses (ii), (iii), (iv), and<br />
(v) <strong>of</strong> subsection A, or by participation in practice or competition in an interscholastic sport, or<br />
participation in physical education or an extracurricular activity.<br />
C. Each local department <strong>of</strong> social services and local school division shall adopt a written interagency<br />
agreement as a protocol for investigating child abuse and neglect reports against school personnel.<br />
The interagency agreement shall be based on recommended procedures for conducting<br />
investigations developed by the <strong>Department</strong>s <strong>of</strong> Education and Social <strong>Services</strong>.<br />
Immunity <strong>of</strong> person making report, etc., from liability VA Code §63.2–1512<br />
Any person making a report pursuant to §63.2–1509, a complaint pursuant to §63.2–1510, or who<br />
takes a child into custody pursuant to §63.2–1517, or who participates in a judicial proceeding resulting<br />
there from shall be immune from any civil or criminal liability in connection therewith, unless it is proven<br />
that such person acted in bad faith or with malicious intent.<br />
Knowingly making false reports; penalties VA Code §63.2–1513<br />
A. Any person fourteen years <strong>of</strong> age or older who makes or causes to be made a report <strong>of</strong> child abuse<br />
or neglect pursuant to this chapter that he knows to be false shall be guilty <strong>of</strong> a Class 1<br />
misdemeanor. Any person fourteen years <strong>of</strong> age or older who has been previously convicted under<br />
this subsection and who is subsequently convicted under this subsection shall be guilty <strong>of</strong> a Class<br />
6 felony.<br />
B. The child-protective services records regarding the person who was alleged to have committed abuse<br />
or neglect that result from a report for which a conviction is obtained under this section shall be<br />
purged immediately by any custodian <strong>of</strong> such records upon presentation to the custodian <strong>of</strong> a certified<br />
copy <strong>of</strong> such conviction. After purging the records, the custodian shall notify the person in writing<br />
that such records have been purged.<br />
Retention <strong>of</strong> records in all reports; procedures regarding unfounded<br />
reports alleged to be made in bad faith or with malicious intent VA Code §63.2–1514<br />
A. The local department shall retain the records <strong>of</strong> all reports or complaints made pursuant to this<br />
chapter, in accordance with regulations adopted by the Board.<br />
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B. The <strong>Department</strong> shall maintain a child abuse and neglect information system that includes a<br />
central registry <strong>of</strong> founded complaints, pursuant to §63.2–1515. The <strong>Department</strong> shall maintain<br />
all (i) unfounded investigations, (ii) family assessments, and (iii) reports or complaints determined<br />
to be not valid in a record which is separate from the central registry and accessible only to the<br />
<strong>Department</strong> and to local departments for child-protective services. The purpose <strong>of</strong> retaining these<br />
complaints or reports is to provide local departments with information regarding prior complaints<br />
or reports. In no event shall the mere existence <strong>of</strong> a prior complaint or report be used to determine<br />
that a subsequent complaint or report is founded. The subject <strong>of</strong> the complaint or report is the<br />
person who is alleged to have committed abuse or neglect. The subject <strong>of</strong> the complaint or report<br />
shall have access to his own record. The record <strong>of</strong> unfounded investigations and complaints and<br />
reports determined to be not valid shall be purged one year after the date <strong>of</strong> the complaint or<br />
report if there are no subsequent complaints or reports regarding the same child or the person<br />
who is the subject <strong>of</strong> the complaint or report in that one year. The local department shall retain<br />
such records for an additional period <strong>of</strong> up to two years if requested in writing by the person who<br />
is the subject <strong>of</strong> such complaint or report. The record <strong>of</strong> family assessments shall be purged three<br />
years after the date <strong>of</strong> the complaint or report if there are no subsequent complaints or reports<br />
regarding the same child or the person who is the subject <strong>of</strong> the report in that three-year period.<br />
The child-protective services records regarding the petitioner which result from such complaint<br />
or report shall be purged immediately by any custodian <strong>of</strong> such records upon presentation to the<br />
custodian <strong>of</strong> a certified copy <strong>of</strong> a court order that there has been a civil action that determined<br />
that the complaint or report was made in bad faith or with malicious intent. After purging the<br />
records, the custodian shall notify the petitioner in writing that the records have been purged.<br />
C. At the time the local department notifies a person who is the subject <strong>of</strong> a complaint or report<br />
made pursuant to this chapter that such complaint or report is either an unfounded investigation<br />
or a completed family assessment, it shall notify him how long the record will be retained and <strong>of</strong><br />
the availability <strong>of</strong> the procedures set out in this section regarding reports or complaints alleged to<br />
be made in bad faith or with malicious intent.<br />
D. Any person who is the subject <strong>of</strong> an unfounded report or complaint made pursuant to this chapter<br />
who believes that such report or complaint was made in bad faith or with malicious intent may<br />
petition the circuit court in the jurisdiction in which the report or complaint was made for the<br />
release to such person <strong>of</strong> the records <strong>of</strong> the investigation or family assessment. Such petition shall<br />
specifically set forth the reasons such person believes that such report or complaint was made in<br />
bad faith or with malicious intent. Upon the filing <strong>of</strong> such petition, the circuit court shall request<br />
and the local department shall provide to the circuit court its records <strong>of</strong> the investigation or family<br />
assessment for the circuit court’s in camera review. The petitioner shall be entitled to present<br />
evidence to support his petition. If the circuit court determines that there is a reasonable question<br />
<strong>of</strong> fact as to whether the report or complaint was made in bad faith or with malicious intent and<br />
that disclosure <strong>of</strong> the identity <strong>of</strong> the complainant would not be likely to endanger the life or safety<br />
<strong>of</strong> the complainant, it shall provide to the petitioner a copy <strong>of</strong> the records <strong>of</strong> the investigation or<br />
Appendix C<br />
119
family assessment. The original records shall be subject to discovery in any subsequent civil action<br />
regarding the making <strong>of</strong> a complaint or report in bad faith or with malicious intent.<br />
Central registry; disclosure <strong>of</strong> information VA Code §63.2–1515<br />
The central registry shall contain such information as shall be prescribed by Board regulation; however,<br />
when the founded case <strong>of</strong> abuse or neglect does not name the parents or guardians <strong>of</strong> the child as the<br />
abuser or neglector, and the abuse or neglect occurred in a licensed or unlicensed child day center, a licensed,<br />
registered or approved family day home, a private or public school, or a children’s residential facility, the<br />
child’s name shall not be entered on the registry without consultation with and permission <strong>of</strong> the parents<br />
or guardians. If a child’s name currently appears on the registry without consultation with and permission<br />
<strong>of</strong> the parents or guardians for a founded case <strong>of</strong> abuse and neglect that does not name the parents or<br />
guardians <strong>of</strong> the child as the abuser or neglector, such parents or guardians may have the child’s name<br />
removed by written request to the <strong>Department</strong>. The information contained in the central registry shall<br />
not be open to inspection by the public. However, appropriate disclosure may be made in accordance with<br />
Board regulations.<br />
The <strong>Department</strong> shall respond to requests for a search <strong>of</strong> the central registry made by (i) local departments<br />
and (ii) local school boards regarding applicants for employment, pursuant to §§22.1–296.4, in cases<br />
where there is no match within the central registry within ten business days <strong>of</strong> receipt <strong>of</strong> such requests. In<br />
cases where there is a match within the central registry regarding applicants for employment, the<br />
<strong>Department</strong> shall respond to requests made by local departments and local school boards within thirty<br />
business days <strong>of</strong> receipt <strong>of</strong> such requests. The response may be by first-class mail or facsimile transmission.<br />
Any central registry check <strong>of</strong> a person who has applied to be a volunteer with a (a) <strong>Virginia</strong> affiliate <strong>of</strong> Big<br />
Brothers/Big Sisters <strong>of</strong> America, (b) <strong>Virginia</strong> affiliate <strong>of</strong> Compeer, (c) volunteer fire company or volunteer<br />
rescue squad, or (d) with a court-appointed special advocate program pursuant to §9.1–153 shall be<br />
conducted at no charge.<br />
Tape recording child abuse investigations VA Code §63.2-1516<br />
Any person who is suspected <strong>of</strong> abuse or neglect <strong>of</strong> a child and who is the subject <strong>of</strong> an investigation or<br />
family assessment pursuant to this chapter may tape record any communications between him and childprotective<br />
services personnel that take place during the course <strong>of</strong> such investigation or family assessment,<br />
provided all parties to the conversation are aware the conversation is to be recorded. The parties’ knowledge<br />
<strong>of</strong> the recording shall be demonstrated by a declaration at the beginning <strong>of</strong> the recorded portion <strong>of</strong> the<br />
conversation that the recording is to be made. If a person who is suspected <strong>of</strong> abuse or neglect <strong>of</strong> a child and<br />
who is the subject <strong>of</strong> an investigation or family assessment pursuant to this chapter elects to make a tape<br />
recording as provided in this section, the child-protective services personnel may also make such a recording.<br />
Investigation procedures when school employee is subject <strong>of</strong> the<br />
complaint or report; release <strong>of</strong> information in joint investigations VA Code §63.2–1516.1<br />
A. Except as provided in subsection B <strong>of</strong> this section, in cases where a child is alleged to have been<br />
abused or neglected by a teacher, principal or other person employed by a local school board or<br />
employed in a school operated by the Commonwealth, in the course <strong>of</strong> such employment in a<br />
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nonresidential setting, the local department conducting the investigation shall comply with the<br />
following provisions in conducting its investigation:<br />
1. The local department shall conduct a face-to-face interview with the person who is the subject<br />
<strong>of</strong> the complaint or report.<br />
2. At the onset <strong>of</strong> the initial interview with the alleged abuser or neglector, the local department<br />
shall notify him in writing <strong>of</strong> the general nature <strong>of</strong> the complaint and the identity <strong>of</strong> the<br />
alleged child victim regarding the purpose <strong>of</strong> the contacts.<br />
3. The written notification shall include the information that the alleged abuser or neglector<br />
has the right to have an attorney or other representative <strong>of</strong> his choice present during his<br />
interviews. However, the failure by a representative <strong>of</strong> the <strong>Department</strong> <strong>of</strong> Social <strong>Services</strong> to so<br />
advise the subject <strong>of</strong> the complaint shall not cause an otherwise voluntary statement to be<br />
inadmissible in a criminal proceeding.<br />
4. Written notification <strong>of</strong> the findings shall be submitted to the alleged abuser or neglector. The<br />
notification shall include a summary <strong>of</strong> the investigation and an explanation <strong>of</strong> how the<br />
information gathered supports the disposition.<br />
5. The written notification <strong>of</strong> the findings shall inform the alleged abuser or neglector <strong>of</strong> his<br />
right to appeal.<br />
6. The written notification <strong>of</strong> the findings shall inform the alleged abuser or neglector <strong>of</strong> his<br />
right to review information about himself in the record with the following exceptions:<br />
a. The identity <strong>of</strong> the person making the report.<br />
b. Information provided by any law-enforcement <strong>of</strong>ficial.<br />
c. Information that may endanger the well-being <strong>of</strong> the child.<br />
d. The identity <strong>of</strong> a witness or any other person if such release may endanger the life or<br />
safety <strong>of</strong> such witness or person.<br />
B. In all cases in which an alleged act <strong>of</strong> child abuse or neglect is also being criminally investigated<br />
by a law-enforcement agency, and the local department is conducting a joint investigation with a<br />
law-enforcement <strong>of</strong>ficer in regard to such an alleged act, no information in the possession <strong>of</strong> the<br />
local department from such joint investigation shall be released by the local department except as<br />
authorized by the investigating law-enforcement <strong>of</strong>ficer or his supervisor or the local attorney for<br />
the Commonwealth.<br />
C. Failure to comply with investigation procedures does not preclude a finding <strong>of</strong> abuse or neglect if<br />
such a finding is warranted by the facts.<br />
Appendix C<br />
121
Authority to take child into custody VA Code §63.2–1517<br />
A. A physician or child-protective services worker <strong>of</strong> a local department or law-enforcement <strong>of</strong>ficial<br />
investigating a report or complaint <strong>of</strong> abuse and neglect may take a child into custody for up to<br />
seventy-two hours without prior approval <strong>of</strong> parents or guardians provided:<br />
1. The circumstances <strong>of</strong> the child are such that continuing in his place <strong>of</strong> residence or in the care<br />
or custody <strong>of</strong> the parent, guardian, custodian or other person responsible for the child’s care,<br />
presents an imminent danger to the child’s life or health to the extent that severe or<br />
irremediable injury would be likely to result or if evidence <strong>of</strong> abuse is perishable or subject to<br />
deterioration before a hearing can be held;<br />
2. A court order is not immediately obtainable;<br />
3. The court has set up procedures for placing such children;<br />
4. Following taking the child into custody, the parents or guardians are notified as soon as<br />
practicable that he is in custody;<br />
5. A report is made to the local department; and<br />
6. The court is notified and the person or agency taking custody <strong>of</strong> such child obtains, as soon as<br />
possible, but in no event later than seventy-two hours, an emergency removal order pursuant<br />
to §16.1–251; however, if a preliminary removal order is issued after a hearing held in<br />
accordance with §16.1–252 within seventy-two hours <strong>of</strong> the removal <strong>of</strong> the child, an<br />
emergency removal order shall not be necessary.<br />
B. If the seventy-two-hour period for holding a child in custody and for obtaining a preliminary or<br />
emergency removal order expires on a Saturday, Sunday, or legal holiday or day on which the<br />
court is lawfully closed, the seventy-two hours shall be extended to the next day that is not a<br />
Saturday, Sunday, or legal holiday or day on which the court is lawfully closed.<br />
Authority to talk to child or sibling VA Code §63.2–1518<br />
Any person required to make a report or conduct an investigation or family assessment, pursuant to this<br />
chapter may talk to any child suspected <strong>of</strong> being abused or neglected or to any <strong>of</strong> his siblings without<br />
consent <strong>of</strong> and outside the presence <strong>of</strong> his parent, guardian, legal custodian, or other person standing in<br />
loco parentis, or school personnel.<br />
Physician-patient and husband-wife privileges inapplicable VA Code §63.2–1519<br />
In any legal proceeding resulting from the filing <strong>of</strong> any report or complaint pursuant to this chapter, the<br />
physician-patient and husband-wife privileges shall not apply.<br />
Photographs and X-rays <strong>of</strong> child; use as evidence VA Code §63.2–1520<br />
In any case <strong>of</strong> suspected child abuse, photographs and X-rays <strong>of</strong> the child may be taken without the consent<br />
<strong>of</strong> the parent or other person responsible for such child as a part <strong>of</strong> the medical evaluation. Photographs <strong>of</strong><br />
the child may also be taken without the consent <strong>of</strong> the parent or other person responsible for such child as<br />
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a part <strong>of</strong> the investigation or family assessment <strong>of</strong> the case by the local department or the court; however,<br />
such photographs shall not be used in lieu <strong>of</strong> medical evaluation. Such photographs and X-rays may be<br />
introduced into evidence in any subsequent proceeding.<br />
The court receiving such evidence may impose such restrictions as to the confidentiality <strong>of</strong> photographs<br />
<strong>of</strong> any minor as it deems appropriate.<br />
Testimony by child using two-way closed-circuit television VA Code §63.2–1521<br />
A. In any civil proceeding involving alleged abuse or neglect <strong>of</strong> a child pursuant to this chapter or<br />
pursuant to §§16.1–241, 16.1–251, 16.1–252, 16.1–253, 16.1–283 or §20–107.2, the<br />
child’s attorney or guardian ad litem or, if the child has been committed to the custody <strong>of</strong> a local<br />
department, the attorney for the local department may apply for an order from the court that the<br />
testimony <strong>of</strong> the alleged victim or <strong>of</strong> a child witness be taken in a room outside the courtroom and<br />
be televised by two-way closed-circuit television. The person seeking such order shall apply for<br />
the order at least seven days before the trial date.<br />
B. The provisions <strong>of</strong> this section shall apply to the following:<br />
1. An alleged victim who was fourteen years <strong>of</strong> age or under on the date <strong>of</strong> the alleged <strong>of</strong>fense<br />
and is sixteen or under at the time <strong>of</strong> the trial; and<br />
2. Any child witness who is fourteen years <strong>of</strong> age or under at the time <strong>of</strong> the trial.<br />
C. The court may order that the testimony <strong>of</strong> the child be taken by closed-circuit television as provided<br />
in subsections A and B if it finds that the child is unavailable to testify in open court in the presence<br />
<strong>of</strong> the defendant, the jury, the judge, and the public, for any <strong>of</strong> the following reasons:<br />
1. The child’s persistent refusal to testify despite judicial requests to do so;<br />
2. The child’s substantial inability to communicate about the <strong>of</strong>fense; or<br />
3. The substantial likelihood, based upon expert opinion testimony, that the child will suffer<br />
severe emotional trauma from so testifying.<br />
Any ruling on the child’s unavailability under this subsection shall be supported by the court<br />
with findings on the record or with written findings in a court not <strong>of</strong> record.<br />
D. In any proceeding in which closed-circuit television is used to receive testimony, the attorney for<br />
the child and the defendant’s attorney and, if the child has been committed to the custody <strong>of</strong> a<br />
local board, the attorney for the local board shall be present in the room with the child, and the<br />
child shall be subject to direct and cross examination. The only other persons allowed to be present<br />
in the room with the child during his testimony shall be the guardian ad litem, those persons<br />
necessary to operate the closed-circuit equipment, and any other person whose presence is<br />
determined by the court to be necessary to the welfare and well-being <strong>of</strong> the child.<br />
Appendix C<br />
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E. The child’s testimony shall be transmitted by closed-circuit television into the courtroom for the<br />
defendant, jury, judge and public to view. The defendant shall be provided with a means <strong>of</strong> private,<br />
contemporaneous communication with his attorney during the testimony.<br />
Admission <strong>of</strong> evidence <strong>of</strong> sexual acts with children VA Code §63.2–1522<br />
A. In any civil proceeding involving alleged abuse or neglect <strong>of</strong> a child pursuant to this chapter or<br />
pursuant to §§16.1–241, 16.1–251, 16.1–252, 16.1–253, 16.1–283 or §20–107.2, an out<strong>of</strong>-court<br />
statement made by a child the age <strong>of</strong> twelve or under at the time the statement is <strong>of</strong>fered<br />
into evidence, describing any act <strong>of</strong> a sexual nature performed with or on the child by another, not<br />
otherwise admissible by statute or rule, may be admissible in evidence if the requirements <strong>of</strong><br />
subsection B are met.<br />
B. An out-<strong>of</strong>-court statement may be admitted into evidence as provided in subsection A if:<br />
1. The child testifies at the proceeding, or testifies by means <strong>of</strong> a videotaped deposition or closedcircuit<br />
television, and at the time <strong>of</strong> such testimony is subject to cross examination concerning<br />
the out-<strong>of</strong>-court statement or the child is found by the court to be unavailable to testify on any<br />
<strong>of</strong> these grounds:<br />
a. The child’s death;<br />
b. The child’s absence from the jurisdiction, provided such absence is not for the purpose <strong>of</strong><br />
preventing the availability <strong>of</strong> the child to testify;<br />
c. The child’s total failure <strong>of</strong> memory;<br />
d. The child’s physical or mental disability;<br />
e. The existence <strong>of</strong> a privilege involving the child;<br />
f. The child’s incompetency, including the child’s inability to communicate about the <strong>of</strong>fense<br />
because <strong>of</strong> fear or a similar reason; and<br />
g. The substantial likelihood, based upon expert opinion testimony, that the child would<br />
suffer severe emotional trauma from testifying at the proceeding or by means <strong>of</strong> a<br />
videotaped deposition or closed-circuit television.<br />
2. The child’s out-<strong>of</strong>-court statement is shown to possess particularized guarantees <strong>of</strong><br />
trustworthiness and reliability.<br />
C. A statement may not be admitted under this section unless the proponent <strong>of</strong> the statement notifies<br />
the adverse party <strong>of</strong> his intention to <strong>of</strong>fer the statement and the substance <strong>of</strong> the statement<br />
sufficiently in advance <strong>of</strong> the proceedings to provide the adverse party with a reasonable<br />
opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses.<br />
D. In determining whether a statement possesses particularized guarantees <strong>of</strong> trustworthiness and<br />
reliability under subdivision B 2, the court shall consider, but is not limited to, the following<br />
factors:<br />
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1. The child’s personal knowledge <strong>of</strong> the event;<br />
2. The age and maturity <strong>of</strong> the child;<br />
3. Certainty that the statement was made, including the credibility <strong>of</strong> the person testifying about<br />
the statement and any apparent motive such person may have to falsify or distort the event<br />
including bias, corruption or coercion;<br />
4. Any apparent motive the child may have to falsify or distort the event, including bias,<br />
corruption, or coercion;<br />
5. The timing <strong>of</strong> the child’s statement;<br />
6. Whether more than one person heard the statement;<br />
7. Whether the child was suffering pain or distress when making the statement;<br />
8. Whether the child’s age makes it unlikely that the child fabricated a statement that represents<br />
a graphic, detailed account beyond the child’s knowledge and experience;<br />
9. Whether the statement has internal consistency or coherence, and uses terminology<br />
appropriate to the child’s age;<br />
10. Whether the statement is spontaneous or directly responsive to questions;<br />
11. Whether the statement is responsive to suggestive or leading questions; and<br />
12. Whether extrinsic evidence exists to show the defendant’s opportunity to commit the act<br />
complained <strong>of</strong> in the child’s statement.<br />
E. The court shall support with findings on the record, or with written findings in a court not <strong>of</strong><br />
record, any rulings pertaining to the child’s unavailability and the trustworthiness and reliability<br />
<strong>of</strong> the out-<strong>of</strong>-court statement.<br />
Use <strong>of</strong> videotaped statements <strong>of</strong> complaining witnesses as evidence VA Code §63.2–1523<br />
A. In any civil proceeding involving alleged abuse or neglect <strong>of</strong> a child pursuant to this chapter or<br />
pursuant to §§16.1–241, 16.1–251, 16.1–252, 16.1–253, 16.1–283 or §20–107.2, a<br />
recording <strong>of</strong> a statement <strong>of</strong> the alleged victim <strong>of</strong> the <strong>of</strong>fense, made prior to the proceeding, may be<br />
admissible as evidence if the requirements <strong>of</strong> subsection B are met and the court determines that:<br />
1. The alleged victim is the age <strong>of</strong> twelve or under at the time the statement is <strong>of</strong>fered into<br />
evidence;<br />
2. The recording is both visual and oral, and every person appearing in, and every voice recorded<br />
on, the tape is identified;<br />
3. The recording is on videotape or was recorded by other electronic means capable <strong>of</strong> making an<br />
accurate recording;<br />
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4. The recording has not been altered;<br />
5. No attorney for any party to the proceeding was present when the statement was made;<br />
6. The person conducting the interview <strong>of</strong> the alleged victim was authorized to do so by the<br />
child-protective services coordinator <strong>of</strong> the local department;<br />
7. All persons present at the time the statement was taken, including the alleged victim, are<br />
present and available to testify or be cross examined at the proceeding when the recording is<br />
<strong>of</strong>fered; and<br />
8. The parties or their attorneys were provided with a list <strong>of</strong> all persons present at the recording<br />
and were afforded an opportunity to view the recording at least ten days prior to the scheduled<br />
proceedings.<br />
B. A recorded statement may be admitted into evidence as provided in subsection A if:<br />
1. The child testifies at the proceeding, or testifies by means <strong>of</strong> closed-circuit television, and at<br />
the time <strong>of</strong> such testimony is subject to cross examination concerning the recorded statement<br />
or the child is found by the court to be unavailable to testify on any <strong>of</strong> these grounds:<br />
a. The child’s death;<br />
b. The child’s absence from the jurisdiction, provided such absence is not for the purpose <strong>of</strong><br />
preventing the availability <strong>of</strong> the child to testify;<br />
c. The child’s total failure <strong>of</strong> memory;<br />
d. The child’s physical or mental disability;<br />
e. The existence <strong>of</strong> a privilege involving the child;<br />
f. The child’s incompetency, including the child’s inability to communicate about the <strong>of</strong>fense<br />
because <strong>of</strong> fear or a similar reason;<br />
g. The substantial likelihood, based upon expert opinion testimony, that the child would<br />
suffer severe emotional trauma from testifying at the proceeding or by means <strong>of</strong> closedcircuit<br />
television; and<br />
2. The child’s recorded statement is shown to possess particularized guarantees <strong>of</strong><br />
trustworthiness and reliability.<br />
C. A recorded statement may not be admitted under this section unless the proponent <strong>of</strong> the statement<br />
notifies the adverse party <strong>of</strong> his intention to <strong>of</strong>fer the statement and the substance <strong>of</strong> the statement<br />
sufficiently in advance <strong>of</strong> the proceedings to provide the adverse party with a reasonable<br />
opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses.<br />
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D. In determining whether a recorded statement possesses particularized guarantees <strong>of</strong><br />
trustworthiness and reliability under subdivision B 2, the court shall consider, but is not limited<br />
to, the following factors:<br />
1. The child’s personal knowledge <strong>of</strong> the event;<br />
2. The age and maturity <strong>of</strong> the child;<br />
3. Any apparent motive the child may have to falsify or distort the event, including bias,<br />
corruption, or coercion;<br />
4. The timing <strong>of</strong> the child’s statement;<br />
5. Whether the child was suffering pain or distress when making the statement;<br />
6. Whether the child’s age makes it unlikely that the child fabricated a statement that represents<br />
a graphic, detailed account beyond the child’s knowledge and experience;<br />
7. Whether the statement has a “ring <strong>of</strong> verity,” has internal consistency or coherence, and uses<br />
terminology appropriate to the child’s age;<br />
8. Whether the statement is spontaneous or directly responsive to questions;<br />
9. Whether the statement is responsive to suggestive or leading questions; and<br />
10. Whether extrinsic evidence exists to show the defendant’s opportunity to commit the act<br />
complained <strong>of</strong> in the child’s statement.<br />
E. The court shall support with findings on the record, or with written findings in a court not <strong>of</strong><br />
record, any rulings pertaining to the child’s unavailability and the trustworthiness and reliability<br />
<strong>of</strong> the recorded statement<br />
Court may order certain examinations VA Code §63.2–1524<br />
The court may order psychological, psychiatric and physical examinations <strong>of</strong> the child alleged to be abused<br />
or neglected and <strong>of</strong> the parents, guardians, caretakers or siblings <strong>of</strong> a child suspected <strong>of</strong> being neglected or<br />
abused.<br />
Prima facie evidence for removal <strong>of</strong> child custody VA Code §63.2–1525<br />
In the case <strong>of</strong> a petition in the court for removal <strong>of</strong> custody <strong>of</strong> a child alleged to have been abused or<br />
neglected, competent evidence by a physician that a child is abused or neglected shall constitute prima<br />
facie evidence to support such petition.<br />
Appeals <strong>of</strong> certain actions <strong>of</strong> local departments VA Code §63.2–1526<br />
A. A person who is suspected <strong>of</strong> or is found to have committed abuse or neglect may, within thirty<br />
days <strong>of</strong> being notified <strong>of</strong> that determination, request the local department rendering such<br />
determination to amend the determination and the local department’s related records. Upon<br />
written request, the local department shall provide the appellant all information used in making<br />
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its determination. Disclosure <strong>of</strong> the reporter’s name or information which may endanger the wellbeing<br />
<strong>of</strong> a child shall not be released. The identity <strong>of</strong> a collateral witness or any other person shall<br />
not be released if disclosure may endanger his life or safety. Information prohibited from being<br />
disclosed by state or federal law or regulation shall not be released. The local department shall<br />
hold an informal conference or consultation where such person, who may be represented by<br />
counsel, shall be entitled to informally present testimony <strong>of</strong> witnesses, documents, factual data,<br />
arguments or other submissions <strong>of</strong> pro<strong>of</strong> to the local department. With the exception <strong>of</strong> the local<br />
director, no person whose regular duties include substantial involvement with child abuse and<br />
neglect cases shall preside over the informal conference. If the local department refuses the request<br />
for amendment or fails to act within forty-five days after receiving such request, the person may,<br />
within thirty days thereafter, petition the Commissioner, who shall grant a hearing to determine<br />
whether it appears, by a preponderance <strong>of</strong> the evidence, that the determination or record contains<br />
information which is irrelevant or inaccurate regarding the commission <strong>of</strong> abuse or neglect by<br />
the person who is the subject <strong>of</strong> the determination or record and therefore shall be amended. A<br />
person who is the subject <strong>of</strong> a report who requests an amendment to the record, as provided above,<br />
has the right to obtain an extension for an additional specified period <strong>of</strong> up to sixty days by<br />
requesting in writing that the forty-five days in which the local department must act be extended.<br />
The extension period, which may be up to sixty days, shall begin at the end <strong>of</strong> the forty-five days<br />
in which the local department must act. When there is an extension period, the thirty-day period<br />
to request an administrative hearing shall begin on the termination <strong>of</strong> the extension period.<br />
B. The Commissioner shall designate and authorize one or more members <strong>of</strong> his staff to conduct<br />
such hearings. The decision <strong>of</strong> any staff member so designated and authorized shall have the same<br />
force and effect as if the Commissioner had made the decision. The hearing <strong>of</strong>ficer shall have the<br />
authority to issue subpoenas for the production <strong>of</strong> documents and the appearance <strong>of</strong> witnesses.<br />
The hearing <strong>of</strong>ficer is authorized to determine the number <strong>of</strong> depositions that will be allowed and<br />
to administer oaths or affirmations to all parties and witnesses who plan to testify at the hearing.<br />
The Board shall adopt regulations necessary for the conduct <strong>of</strong> such hearings. Such regulations<br />
shall include provisions stating that the person who is the subject <strong>of</strong> the report has the right (i) to<br />
submit oral or written testimony or documents in support <strong>of</strong> himself and (ii) to be informed <strong>of</strong> the<br />
procedure by which information will be made available or withheld from him. In case <strong>of</strong> any<br />
information withheld, such person shall be advised <strong>of</strong> the general nature <strong>of</strong> such information and<br />
the reasons, for reasons <strong>of</strong> privacy or otherwise, that it is being withheld. Upon giving reasonable<br />
notice, either party at his own expense may depose a nonparty and submit such deposition at the<br />
hearing pursuant to Board regulation. Upon good cause shown, after a party’s written motion,<br />
the hearing <strong>of</strong>ficer may issue subpoenas for the production <strong>of</strong> documents or to compel the<br />
attendance <strong>of</strong> witnesses at the hearing, except that alleged child victims <strong>of</strong> the person and their<br />
siblings shall not be subpoenaed, deposed or required to testify. The person who is the subject <strong>of</strong><br />
the report may be represented by counsel at the hearing. Upon petition, the court shall have the<br />
power to enforce any subpoena that is not complied with or to review any refusal to issue a<br />
subpoena. Such decisions may not be further appealed except as part <strong>of</strong> a final decision that is<br />
128<br />
Appendix C
subject to judicial review. Such hearing <strong>of</strong>ficers are empowered to order the amendment <strong>of</strong> such<br />
determination or records as is required to make them accurate and consistent with the requirements<br />
<strong>of</strong> this chapter or the regulations adopted hereunder. If, after hearing the facts <strong>of</strong> the case, the<br />
hearing <strong>of</strong>ficer determines that the person who is the subject <strong>of</strong> the report has presented<br />
information that was not available to the local department at the time <strong>of</strong> the local conference and<br />
which if available may have resulted in a different determination by the local department, he may<br />
remand the case to the local department for reconsideration. The local department shall have<br />
fourteen days in which to reconsider the case. If, at the expiration <strong>of</strong> fourteen days, the local<br />
department fails to act or fails to amend the record to the satisfaction <strong>of</strong> the appellant, the case<br />
shall be returned to the hearing <strong>of</strong>ficer for a determination. If aggrieved by the decision <strong>of</strong> the<br />
hearing <strong>of</strong>ficer, such person may obtain further review <strong>of</strong> the decision in accordance with Article<br />
5 (§2.2–4025 et seq.) <strong>of</strong> the Administrative Process Act (§2.2–4000 et seq.).<br />
C. Whenever an appeal <strong>of</strong> the local department’s finding is made and a criminal charge is also filed<br />
against the appellant for the same conduct involving the same victim as investigated by the local<br />
department, the appeal process shall automatically be stayed until the criminal prosecution in<br />
circuit court is completed. During such stay, the appellant’s right <strong>of</strong> access to the records <strong>of</strong> the<br />
local department regarding the matter being appealed shall also be stayed. Once the criminal<br />
prosecution in circuit court has been completed, the local department shall advise the appellant<br />
in writing <strong>of</strong> his right to resume his appeal within the time frames provided by law and regulation.<br />
Appendix C<br />
129
130
Appendix D<br />
<strong>Virginia</strong> Supreme Court Rules<br />
Joining <strong>of</strong>fenses<br />
Sup. Ct. R. 3A:6(b)<br />
Two or more <strong>of</strong>fenses, any <strong>of</strong> which may be a felony or misdemeanor, may be charged in separate counts <strong>of</strong> an<br />
indictment or information if the <strong>of</strong>fenses are based on the same act or transaction, or on two or more acts or<br />
transactions that are connected or constitute parts <strong>of</strong> a common scheme or plan.<br />
Trial together <strong>of</strong> more than one <strong>of</strong>fense<br />
Sup. Ct. R. 3A:10(c)<br />
The court may direct that an accused be tried at one time for all <strong>of</strong>fenses then pending against him, if<br />
justice does not require separate trials and (i) the <strong>of</strong>fenses meet the requirements <strong>of</strong> Rule 3A:6(b) or (ii) the<br />
accused and the Commonwealth’s attorney consent thereto.<br />
Discovery and Inspection Sup. Ct. R. 3A:11<br />
A. Application <strong>of</strong> Rule. This Rule applies only to prosecution for a felony in a circuit court.<br />
B. Discovery by the Accused.<br />
1. Upon written motion <strong>of</strong> an accused a court shall order the Commonwealth’s attorney to permit<br />
the accused to inspect and copy or photograph any relevant (i) written or recorded statements<br />
or confessions made by the accused, or copies there<strong>of</strong>, or the substance <strong>of</strong> any oral statements<br />
or confessions made by the accused to any law enforcement <strong>of</strong>ficer, the existence <strong>of</strong> which is<br />
known to the attorney for the Commonwealth, and (ii) written reports <strong>of</strong> autopsies, ballistic<br />
tests, fingerprint analyses, handwriting analyses, blood, urine and breath tests, other scientific<br />
reports, and written reports <strong>of</strong> a physical or mental examination <strong>of</strong> the accused or the alleged<br />
victim made in connection with the particular case, or copies there<strong>of</strong>, that are known by the<br />
Commonwealth’s attorney to be within the possession, custody or control <strong>of</strong> the<br />
Commonwealth.<br />
2. Upon written motion <strong>of</strong> an accused a court shall order the Commonwealth’s attorney to permit<br />
the accused to inspect and copy or photograph designated books, papers, documents, tangible<br />
objects, buildings or places, or copies or portions there<strong>of</strong>, that are within the possession,<br />
custody, or control <strong>of</strong> the Commonwealth, upon a showing that the items sought may be<br />
material to the preparation <strong>of</strong> his defense and that the request is reasonable. This subparagraph<br />
does not authorize the discovery or inspection <strong>of</strong> statements made by Commonwealth<br />
witnesses or prospective Commonwealth witnesses to agents <strong>of</strong> the Commonwealth or <strong>of</strong><br />
reports, memoranda or other internal Commonwealth documents made by agents in<br />
connection with the investigation or prosecution <strong>of</strong> the case, except as provided in clause (ii)<br />
<strong>of</strong> subparagraph (b) (1) <strong>of</strong> this Rule.<br />
C. Discovery by the Commonwealth. If the court grants relief sought by the accused under clause (ii)<br />
<strong>of</strong> subparagraph (b) (1) or under subparagraph (b) (2) <strong>of</strong> this Rule, it shall, upon motion <strong>of</strong> the<br />
Commonwealth, condition its order by requiring that:<br />
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1. The accused shall permit the Commonwealth within a reasonable time but not less than ten<br />
(10) days before trial or sentencing, as the case may be, to inspect, copy or photograph any<br />
written reports <strong>of</strong> autopsy examinations, ballistic tests, fingerprint, blood, urine and breath<br />
analyses, and other scientific tests that may be within the accused’s possession, custody or<br />
control and which the defense intends to pr<strong>of</strong>fer or introduce into evidence at trial or<br />
sentencing.<br />
2. The accused disclose whether he intends to introduce evidence to establish an alibi and, if so,<br />
that the accused disclose the place at which he claims to have been at the time <strong>of</strong> the<br />
commission <strong>of</strong> the alleged <strong>of</strong>fense.<br />
3. If the accused intends to rely upon the defense <strong>of</strong> insanity or feeble-mindedness, the accused<br />
shall permit the Commonwealth to inspect, copy or photograph any written reports <strong>of</strong> physical<br />
or mental examination <strong>of</strong> the accused made in connection with the particular case, provided,<br />
however, that no statement made by the accused in the course <strong>of</strong> an examination provided for<br />
by this Rule shall be used by the Commonwealth in its case-in-chief, whether the examination<br />
shall be with or without the consent <strong>of</strong> the accused.<br />
D. Time <strong>of</strong> Motion. A motion by the accused under this Rule must be made at least 10 days before<br />
the day fixed for trial. The motion shall include all relief sought under this Rule. A subsequent<br />
motion may be made only upon a showing <strong>of</strong> cause why such motion would be in the interest <strong>of</strong><br />
justice.<br />
E. Time, Place and Manner <strong>of</strong> Discovery and Inspection. An order granting relief under this Rule<br />
shall specify the time, place and manner <strong>of</strong> making the discovery and inspection permitted and<br />
may prescribe such terms and conditions as are just.<br />
F. Protective Order. Upon a sufficient showing the court may at any time order that the discovery or<br />
inspection be denied, restricted or deferred, or make such other order as is appropriate. Upon<br />
motion by the Commonwealth the court may permit the Commonwealth to make such showing,<br />
in whole or in part, in the form <strong>of</strong> a written statement to be inspected by the court in camera. If<br />
the court denies discovery or inspection following a showing in camera, the entire text <strong>of</strong> the<br />
Commonwealth’s statement shall be sealed and preserved in the records <strong>of</strong> the court to be made<br />
available to the appellate court in the event <strong>of</strong> an appeal by the accused.<br />
G. Continuing Duty to Disclose; Failure to Comply. If, after disposition <strong>of</strong> a motion filed under this<br />
Rule, and before or during trial, counsel or a party discovers additional material previously<br />
requested or falling within the scope <strong>of</strong> an order previously entered, that is subject to discovery or<br />
inspection under this Rule, he shall promptly notify the other party or his counsel or the court <strong>of</strong><br />
the existence <strong>of</strong> the additional material. If at any time during the course <strong>of</strong> the proceedings, it is<br />
brought to the attention <strong>of</strong> the court that a party has failed to comply with this Rule or with an<br />
order issued pursuant to this Rule, the court shall order such party to permit the discovery or<br />
inspection <strong>of</strong> materials not previously disclosed, and may grant such other relief as it may deem<br />
appropriate.<br />
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Appendix D
Discovery Sup. Ct. R. 7C:5<br />
A. Application <strong>of</strong> Rule. This Rule applies only to the prosecution for a misdemeanor which may be<br />
punished by confinement in jail and to a preliminary hearing for a felony.<br />
B. Definitions. For purposes <strong>of</strong> discovery under this Rule 1) the prosecuting attorney is the attorney for<br />
the Commonwealth or the city attorney, county attorney, or town attorney, who is responsible for<br />
prosecuting the case; 2) if no prosecuting attorney prosecutes the case, the representative <strong>of</strong> the<br />
Commonwealth shall be the law enforcement <strong>of</strong>ficer, or, if none, such person who appears on behalf <strong>of</strong><br />
the Commonwealth, county, city or town in the case.<br />
C. Discovery by the Accused. Upon motion <strong>of</strong> an accused, the court shall order the prosecuting<br />
attorney or representative <strong>of</strong> the Commonwealth to permit the accused to hear, inspect and copy<br />
or photograph the following information or material when the existence <strong>of</strong> such is known or<br />
becomes known to the prosecuting attorney or representative <strong>of</strong> the Commonwealth and such<br />
material or information is to be <strong>of</strong>fered in evidence against the accused in a General District Court:<br />
1. Any relevant written or recorded statements or confessions made by the accused, or copies<br />
there<strong>of</strong> and the substance <strong>of</strong> any oral statements and confessions made by the accused to any<br />
law enforcement <strong>of</strong>ficer; and<br />
2. Any criminal record <strong>of</strong> the accused.<br />
D. Time <strong>of</strong> Motion. A motion by the accused under this Rule shall be made in writing and filed with<br />
the Court and a copy there<strong>of</strong> mailed, faxed, or otherwise delivered to the prosecuting attorney<br />
and, if applicable, to the representative <strong>of</strong> the Commonwealth at least 10 days before the day<br />
fixed for trial or preliminary hearing. The motion shall include the specific information or material<br />
sought under this Rule.<br />
E. Time, Place and Manner <strong>of</strong> Discovery and Inspection. An order granting relief under this Rule<br />
shall specify the time, place and manner <strong>of</strong> making the discovery and inspection permitted and<br />
may prescribe such terms and conditions as are just.<br />
F. Failure to Comply. If at any time during the course <strong>of</strong> the proceedings, it is brought to the attention<br />
<strong>of</strong> the court that the prosecuting attorney or representative <strong>of</strong> the Commonwealth has failed to<br />
comply with this Rule or with an order issued pursuant to this Rule, the court shall order the<br />
prosecuting attorney or representative <strong>of</strong> the Commonwealth to permit the discovery or inspection<br />
<strong>of</strong> the material not previously disclosed, and may grant such continuance to the accused as it<br />
deems appropriate.<br />
Discovery Sup. Ct. R. 8:15<br />
A. Adult <strong>Criminal</strong> Case. In any cases involving adults charged with crime, the provisions <strong>of</strong> Rule<br />
7C:5 shall govern discovery.<br />
B. Juvenile Delinquency Cases. In juvenile delinquency cases, when the juvenile is charged with an<br />
act that would be a felony if committed by an adult, or in a transfer hearing or a preliminary<br />
Appendix D<br />
133
hearing to certify charges pursuant to §16.1–269.1, the court shall, upon motion timely made<br />
by the juvenile or the Commonwealth’s Attorney, and for good cause, enter such orders in aid <strong>of</strong><br />
discovery and inspection <strong>of</strong> evidence as provided under Rule 3A:11.<br />
In juvenile delinquency cases when the juvenile is charged with an act that would be a<br />
misdemeanor if committed by an adult, the court shall, upon motion timely made and for good<br />
cause, enter such orders for discovery as provided under Rule 7C:5.<br />
C. Other Cases. In all other proceedings, the court may, upon motion timely made and for good cause,<br />
enter such orders in aid <strong>of</strong> discovery and inspection <strong>of</strong> evidence as permitted under Part Four <strong>of</strong><br />
the Rules, except that no depositions may be taken.<br />
D. In proceedings concerning civil support, the judge may require parties to file a statement <strong>of</strong> gross<br />
income together with documentation in support <strong>of</strong> the statement.<br />
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135