Virginia General Assembly Enacts and Amends Laws Regarding Sexual Assault, Sex Offenders, and for the Protection of Children

During the 2020 session, the Virginia General Assembly enacted and amended laws designed to protect children and adults from sex offenders and sexual assault.  This article summarizes the 2020 legislation and provides links to the text of the bills and their legislative history.

protect children

The Virginia General Assembly enacted and amended laws designed to protect children and adults from sex offenders and sexual assault.

Statutes of Limitation

Sexual Abuse

Under Virginia law, individuals who were sexually abused when they were a minor or were incapacitated have 20 years to file a lawsuit stemming from the abuse.  In 2020 the General Assembly amended Virginia Code § 8.01-243 to require all other claims arising from sexual abuse to be filed within 10 years of the date that the case of action accrued.[1]

Misdemeanor Sexual Offenses Where the Victim is a Minor

Virginia Code § 19.2-8 governs the statute of limitations for children who were:

  • sexually abused while they were incarcerated or detained (Virginia Code § 18.2-64.2),
  • victims of sexual battery (Virginia Code § 18.2-67.4),
  • sexually abused by an individual with HIV, syphilis, or hepatitis B (Virginia Code § 18.2-67.4:1),
  • sexually abused by an adult when they were between the ages of 13 and 15 (Virginia Code § 18.2-67.4:2),
  • subjected to attempted rape, forcible sodomy, object sexual penetration, or aggravated sexual battery (Virginia Code § 18.2-67.5), or
  • subjected to penetration of the mouth with lascivious intent by an adult when they were younger than 13 (Virginia Code § 18.2-370.6).

Before it was amended, the statute said that these child-victims had one year after they turned 18 years old (until their 19th birthday) to file a lawsuit arising from the abuse.  As of July 1, 2020, these victims will have 5 years from the date that they turn 18 years old (until their 23rd birthday) to file a lawsuit against their assailant.[2]

Protective Orders

Where Prosecuted

As of July 1, 2020, anyone who violates a protective order can be prosecuted in the jurisdiction where the protective order was issued, or in any county or city where any violation occurred.[3]  The prior version of the statutes did not specify where the violator could be prosecuted.

Issuance Upon Convictions for Certain Felonies

The General Assembly amended Virginia Code § 19.2-152.10 during the 2020 Session.  The amendment gives courts the authority to issue a protective order against any person who is convicted of an act of violence: first and secondary murder, voluntary manslaughter, mob-related felonies, felonious kidnaping or abduction, malicious felonious bodily assault, malicious bodily wounding, robbery, carjacking, criminal sexual assault and arson.  The amendment specifies that the court can issue the protective order for any reasonable period of time, including up to the lifetime of the defendant, deemed necessary to protect the health and safety of the victim.  The court also has the authority to extend the protective order as many times as necessary.[4]

Crimes Against Children

Child Pornography

Effective July 1, 2020, a criminal suspect accused of possessing, distributing, producing, publishing, selling, or financing child pornography can be prosecuted in the jurisdiction where the alleged offender resides.  The prior version of the law required suspects to be prosecuted in the jurisdiction where the unlawful act occurred or where any sexually explicit visual material associated with the unlawful act was produced, reproduced, found, stored, or possessed.[5]

Mandatory Reporting of Child Abuse and Neglect by Public Sports Programs

The General Assembly now requires athletic coaches, directors, and other persons 18 years of age or older who are employed by or volunteer with a public sports organization or team to report suspected child abuse or neglect.  Under the prior version of the statute, private sports organizations and teams were mandatory reporters, but public sports organizations and teams were exempt from the reporting requirement.[6]

Sex Offender and Crimes Against Minors Registry

Virginia Code § 9.1-902 requires individuals to register with the Sex Offender and Crimes Against Minors Registry if they have been convicted of:

  1. Criminal homicide;
  2. Murder;
  3. A sexually violent offense; or,
  4. Any offense for which registration in a sex offender or crimes against minors registry is required under the laws of the jurisdiction where the offender was convicted.

The statute also requires individuals to register if they have been convicted of crimes of violation, attempting to violate, or conspiring to violate. These crimes include rape, child molestation, object penetration, entering a dwelling house with the intent to commit rape, solicitation, prostitution, human trafficking, sex trafficking, crimes involving child pornography, indecent liberties with children, and sexual battery.

As of July 1, 2020, any individual who is convicted of three or more offenses of unlawfully disseminating or selling images of another person must also register.[7]  Individuals must also register if they were required to register in another jurisdiction (in another state besides Virginia) or if they were convicted in another jurisdiction of committing the same types of offenses that are prohibited under Virginia law.[8]

The statute now classifies the offenses requiring registration as Tier I, Tier II, or Tier III offenses.  Tier I offenses includes the most serious crimes, like murder.  Tier III offenses include lesser crimes like videotaping or photographing nude or semi-nude individuals without their consent.[9]

Central Registry; Unfounded Investigations of Child Abuse and Neglect

Under current law, Virginia Code § 63.2-1514 requires the Department of Social Services to retain records of unfounded investigations of child abuse or neglect in its central registry for one year.  As of July 1, 2020, the Department will be required to retain these records for three years.[10]

Child Care Centers and Providers

Out-of-State Background Checks

Effective immediately, Virginia requires childcare providers, employees, and volunteers of licensed child day centers and licensed family day homes to submit to a background check that includes a criminal history record information check and sex offender registry check in any state in which the applicant has resided in the preceding five years.[11]

Fingerprint-Based Criminal Background Checks

Virginia law requires fingerprint-based national criminal history background checks for:

  1. applicants, employees, and volunteers of any licensed family day system, child day center exempt from licensure due to its operation by a religious institution, registered family day home, or family day home approved by a family day system;
  2. applicants for licensure as a family day system, registration as a family day home, or approval as a family day home by a family day system, as well as agents of such applicants and any adult living in such family day home; and
  3. individuals who apply for or enter into a contract with the Department of Social Services under which a child day center, family day home, or child day program will provide child care services funded by the Child Care and Development Block Grant Act, as well as the applicant’s current or prospective employees and volunteers, agents, and any adult living in the child day center or family day home.[12]

In 2020, the General Assembly repealed the sunset provisions for these requirements.

Religious-Exempt Child Day Centers, Staff-to-Children Ratios

Before it was amended, Virginia Code § 63.2-1716 required child day centers operated by religious institutions to have the following ratio of staff to children:

  • One staff member to four children from ages zero to 16 months.
  • One staff member to five children from ages 16 months to 24 months.
  • One staff member to eight children from ages 24 months to 36 months.
  • One staff member to 10 children from ages 36 months to five years.
  • One staff member to 20 children from ages five years to nine years.
  • One staff member to 25 children from ages nine years to 12 years.

Beginning on July 1, 2020, the age of the youngest child in the group will determine the staff-to-children ratio that applies to the group.[13]

Search and Seizure

Custodial Interrogation of a Child

Effective July 1, 2020, Virginia Code § 16.1-247.1 provides that any law-enforcement officer who arrests a child for breaking a law or ordinance committed in the officer’s presence, or for shoplifting, assault and battery, carrying a weapon on school property, or any felony, must contact the child’s parent, guardian, or legal custodian and allow the child to have contact with them.  Notice and contact can be done in person, electronically, by telephone, or by video conference.

These requirements do not apply if:

  1. the child’s parent, guardian, or legal custodian is a co-defendant in the alleged offense;
  2. the child’s parent, guardian, or legal custodian has been arrested for, has been charged with, or is being investigated for a crime against the child;
  3. if, after every reasonable effort has been made to comply with the requirements, the child’s parent, guardian, or legal custodian cannot be located or refuses contact with the child; or
  4. if the law-enforcement officer conducting the custodial interrogation reasonably believes the information sought is necessary to protect life, limb, or property from an imminent danger and the law-enforcement officer’s questions are limited to those that are reasonably necessary to obtain such information.[14]

Strip Searches of Children

Virginia Code § 19.2-59.1 specifies when and under what circumstances law-enforcement officers and jail officers can perform strip searches.  As of July 1, 2020, strip searches and body cavity searches of any individual under the age of 18 are prohibited except for:

  1. children committed to the Department of Juvenile Justice or confined or detained in a secure local facility for juveniles or a jail or other facility for the detention of adults;
  2. persons taken into custody by or remanded to a law-enforcement officer pursuant to a circuit or district court order; and
  3. children in custodial arrest when there is reasonable cause to believe on the part of a law-enforcement officer or jail officer authorizing the search that the child is concealing a weapon.[15]

Strip Searches When Entering State Correctional Facilities

Pursuant to Virginia Code § 53.1-30, the Department of Corrections is not allowed to perform a strip search or body cavity search of any child under the age of 18 under any circumstances on or after July 1, 2020.  The Department is allowed to prohibit individuals who refuse a strip search or body cavity search from entering a state correctional facility, but it is not allowed to permanently ban individuals, or to threaten to permanently ban them, if they refuse to consent to a strip search or body cavity search.[16]

Occupations

Physical Therapists and Massage Therapists

As of July 1, 2020, any physical therapist or massage therapist who sexually abuses their patient or client is guilty of aggravated sexual battery in violation of Virginia Code § 18.2-67.3.[17]

Bail Bondsmen and Bondswomen

Virginia Code § 18.2-64.2 prohibits any owner or employee of a bail company, or anyone else who has the authority to revoke bond, to have carnal knowledge of any pre-trial or post-trial detainee.  In 2020, the General Assembly increased the penalty for violating this statute from a Class 1 misdemeanor to a Class 6 felony.[18]

Tow Truck Drivers

Virginia Code § 46.2-116 proscribes when the Department of Criminal Justice Services may issue a registration from the Board of Towing and Recovery Operators.  As of July 1, 2020, the Department is prohibited from providing registrations to registered sex offenders or anyone who has been convicted of a violent crime, or a drug or alcohol offense, within the past 15 years.  The Department may issue registrations to tow truck drivers who were convicted more than 15 years ago, but only if the person has satisfied the conditions of their parole or probation.[19]

Human Trafficking

“Human Trafficking” Replaces “Sex Trafficking”

During the 2020 Session, the General Assembly revised and expanded several statutes by replacing the term “sex trafficking” with the broader term “human trafficking.”  The legislature also amended Virginia Code § 63.2-1506.1 to allow local social services departments conducting such human trafficking assessments to interview the alleged child victim and the child’s siblings without the consent and outside the presence of the child‘s or siblings‘ parent, guardian, legal custodian, or other person standing in loco parentis, or school personnel.[20]

Prostitution

The General Assembly has amended three statutes (Virginia Code §§ 18.2-346, 18.2-348, and 18.2-356) regarding prostitution.  Effective July 1, 2020, it is a Class 4 felony for any person who receives any money on account of procuring for or placing in a house of prostitution any person for the purpose of causing such person to engage in particular sexual acts.[21]

Services

Services for Survivors of Sexual Assault Victims

The Virginia General Assembly has enacted new legislation to provide services for survivors of sexual assault.  These statutes, codified at Virginia Code §§ 32.1-162.15:2 through 32.1-162.15:11, require every hospital in the Commonwealth to provide treatment or transfer services, as defined in the bill, to survivors of sexual assault pursuant to a plan approved by the Department of Health.  The new laws establish specific requirements for providers of services to pediatric survivors of sexual assault, and also establish the Task Force on Services for Survivors of Sexual Assault to facilitate the development of services for survivors of sexual assault.  (Note: certain provisions of the bill have a delayed effective date of July 1, 2023).[22]

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Footnotes

[1] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+HB870ER; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB870

[2] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+HB298ER; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB298

[3] See Virginia Code §§ 16.1-253.2 and 18.2-60.4; Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0487; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB1181

[4] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+SB144ER; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+SB144

[5] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0489; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB1330

[6] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0461; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB904

[7] Text (HB 253): https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0389; Legislative History (HB 253): https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB253

 

[8] Text (HB 492):  https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+SB492ER; Legislative History (SB 492): https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+SB492

[9] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+SB579ER; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+SB579

[10] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0038; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB287

[11] See Virginia Code §§ 63.2-1720.1 and 63.2-1721.1; Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+SB668ER; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+SB668

[12] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0462; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB997

[13] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0494;Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB1235

[14] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0480; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB746

[15] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+HB1544ER2; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB1544

[16] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+SB1089ER; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+SB1089

[17] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+SB42ER; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+SB42

[18] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0479; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB557

[19] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+HB1577ER2; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB1577

[20] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0006; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB1006

[21] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+HB1524ER; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB1524

[22] Text: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+HB808ER; Legislative History: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB808