Child Abuse - Virginia Department of Criminal Justice Services

This document may be used as a supplement to the publication “Investigation and Prosecution of
Child Abuse: Third Edition”published by American Prosecutors Research Institute’s National Center
for the Prosecution of Child Abuse
Inquiries should be directed to:
Children’s Justice Act Program
Juvenile Services Section
Virginia Department of Criminal Justice Services
805 East Broad Street
Richmond, VA 23219
(804) 371-0534
www.dcjs.org/juvenile/cja
December 2003
1

ACKNOWLEDGMENTS
The Department of Criminal Justice Services (DCJS) would like to express appreciation to the following
individual for his work on the 2003 edition of this document:
Robert E. Shepherd, Jr.
Emeritus Professor, T.C. Williams School of Law
University of Richmond
DCJS also recognizes the following individuals 1 for their contributions to the development of previous
versions of this document:
• National Center for the Prosecution of Child Abuse
American Prosecutors Research Institute
• Mark Ells, Senior Attorney
• Ryan Rainey, Senior Attorney
• Sue Perlis Marx, Senior Attorney
• Charles Phipps, Staff Attorney
• Frank Gallo
Commonwealth’s Attorney, Fluvana County
• William E. Jarvis
Assistant Commonwealth’s Attorney, Pittsylvania County
• Cathy E. Krinick
Deputy Commonwealth’s Attorney, City of Hampton
• Richard Moore
Assistant Commonwealth’s Attorney, City of Staunton
• Sally Steel
Assistant Commonwealth’s Attorney, City of Lynchburg
• Sandra Sylvester
Assistant Commonwealth’s Attorney, Prince William County
This document is supported by Children’s Justice Act Grant No. G-0101VACJA1, awarded by the U.S. Department of Health
and Human Services, Administration for Children, Youth and Families. Points of view or opinions expressed do not necessarily
represent the official position of the Department of Health and Human Services.
1
These individuals are listed according to their professional position at the time of their contribution to the document in 1994.
3

TABLE OF CONTENTS
Preface ................................................................................................................ 9
Introduction ....................................................................................................... 11
CHAPTER ONE: Investigation
I. The Role of Law Enforcement .............................................................................................. 13
A. Search Warrants ........................................................................................................... 13
B. Pretext Conversation Recordings and Electronic Surveillance ....................................... 14
C. Social Worker Involvement in Interrogation ................................................................. 14
D. Medical Examinations and Forensic Photographs .......................................................... 14
1. Physical or Sexual Abuse or Neglect ........................................................................ 14
2. Death of a Child ..................................................................................................... 15
E. Forensic Analysis .......................................................................................................... 15
F. Polygraph Tests ............................................................................................................ 15
G. Hypnosis ......................................................................................................................16
H. Arrest ........................................................................................................................... 16
II. The Role of Child Protective Services................................................................................... 16
III. The Roles of Other Agencies ................................................................................................ 17
A. Action By Physician, Protective Services Worker or Law Enforcement Official .............. 18
B. Civil Child Protection Proceedings ................................................................................ 18
C. Multi-disciplinary Coordination ................................................................................... 19
IV. Grand Juries .................................................................................................................20
CHAPTER TWO: Charging Considerations
I. Offenses ............................................................................................................................. 21
A. Sexual Offenses ............................................................................................................ 21
1. Generally ............................................................................................................... 21
2. Mental State ........................................................................................................... 21
3. Conduct ................................................................................................................. 22
a. Force ................................................................................................................ 22
b. Penetration ...................................................................................................... 23
c. Abduction........................................................................................................ 24
d. Carnal Knowledge ............................................................................................ 24
e. Custody or Supervision of Child ....................................................................... 24

B. Physical Abuse: Cruelty to Children .............................................................................. 25
C. Pornography Offenses .................................................................................................. 26
1. Constitutionality .................................................................................................. 26
2. Elements ............................................................................................................... 26
D. Attempts ......................................................................................................................27
1. Specific Intent ........................................................................................................ 27
2. Overt Action .......................................................................................................... 28
E. Principals and Accessories ............................................................................................ 28
II. The Charging Documents .................................................................................................... 29
A. Specificity .................................................................................................................... 29
B. Number of Counts ........................................................................................................ 29
III. Time Considerations ........................................................................................................... 29
A. Statutes of Limitation ................................................................................................... 29
B. Speedy Trial and Due Process ........................................................................................ 30
IV. Lesser Included Offenses .....................................................................................................30
V. Use of Circumstantial Evidence in Child Physical Abuse and Homicide Cases ..................... 31
A. Generally ...................................................................................................................... 31
B. Corpus Delicti .............................................................................................................. 34
CHAPTER THREE: Pre-trial Motions
I. Defense Motions ................................................................................................................. 35
A. Discovery .....................................................................................................................35
1. Psychological/Psychiatric Records .......................................................................... 35
2. Physical Examination ............................................................................................ 35
3. Juvenile Records ..................................................................................................... 35
4. Discovery of Other Documents ............................................................................... 36
5. Exculpatory Evidence ............................................................................................. 37
B. Other Defense Motions ................................................................................................. 37
1. Request for a Bill of Particulars .............................................................................. 37
2. Motion for Continuance ......................................................................................... 37
3. Severance Motions ................................................................................................. 38
4. Motion to Admit Evidence of Victim’s Prior Sexual Conduct ................................... 38
5. Marital Privilege1 .................................................................................................. 39
6. Venue ..................................................................................................................... 40
II. Prosecution Motions ........................................................................................................... 40
A. Discovery .....................................................................................................................40
B. Prosecution Motions Concerning Prior Acts of the Defendant ....................................... 40
1. Prior Acts Involving the Same Victim ..................................................................... 40
a. Sexual Abuse ................................................................................................... 41
b. Physical Abuse ................................................................................................. 42

2. Prior Acts Involving Different Victims .................................................................... 42
a. Sexual Abuse ................................................................................................... 42
b. Physical Abuse ................................................................................................. 43
3. Computer Pornography .......................................................................................... 43
C. Other Prosecution Motions ........................................................................................... 43
CHAPTER FOUR: Trial
I. Commonwealth’s Case ........................................................................................................ 45
A. Voir Dire ....................................................................................................................... 45
B. Opening Statement ....................................................................................................... 45
C. Testimony of the Victim ............................................................................................... 45
1. Competency of Children ......................................................................................... 45
2. Uncorroborated Testimony of Victim ...................................................................... 47
D. Hearsay ........................................................................................................................ 47
1. Non-hearsay ........................................................................................................... 47
a. Prompt Complaint ........................................................................................... 48
b. Prior Consistent Statements ............................................................................. 49
2. Exceptions to the Hearsay Rule .............................................................................. 50
a. Excited Utterance ............................................................................................. 50
b. Statements Made for Purposes of Medical Diagnosis or Treatment .................... 51
3. Proof of Age ........................................................................................................... 52
4. Prosecution Recess to Consult with Victim ............................................................. 52
E. Expert Testimony ......................................................................................................... 52
1. Province of the Jury ................................................................................................ 53
2. Types of Testimony ................................................................................................ 53
3. Behavioral Evidence ............................................................................................... 53
F. Admissibility of Photographs ....................................................................................... 53
II. The Defense Case ................................................................................................................ 54
A. Character and Credibility of the Defendant ................................................................... 54
1. Character ............................................................................................................... 54
2. Impeachment ......................................................................................................... 54
B. Admissibility of Defense Expert Testimony .................................................................. 55
1. Hypnosis of the Defendant ..................................................................................... 55
2. Defendant Profile Evidence .................................................................................... 55
3. Victim Profile Evidence .......................................................................................... 56
III. Common Defenses .............................................................................................................. 56
IV. Rebuttal Evidence ............................................................................................................... 58
V. Closing Arguments .............................................................................................................58
VI. Sentencing .......................................................................................................................... 59
A. Generally ...................................................................................................................... 59

B. Sex Offender Registration ............................................................................................. 60
VII.Post-conviction Issues ......................................................................................................... 60
A. New Trial Based on Recantation .................................................................................... 60
B. Bond Pending Appeal .................................................................................................... 60
CHAPTER FIVE: Special Courtroom Procedures
I. Use of Electronic Equipment ............................................................................................... 61
A. Videotaped Testimony .................................................................................................. 61
B. Closed Trial ................................................................................................................. 61
C. Closed Circuit Television Testimony ............................................................................ 61
II. Other Special Procedures .................................................................................................... 62
Appendix A: Child Abuse Charging Statutes ............................................................................ 65
Murder ....................................................................................... VA Code §18.2-32
Murder of a pregnant woman .................................................. VA Code §18.2-32.1
Felony murder............................................................................ VA Code §18.2-33
Abduction with intent to defile .................................................. VA Code §18.2-48
Rape........................................................................................... VA Code §18.2-61
Carnal knowledge if a child between 13 and 15.......................... VA Code §18.2-63
Carnal knowledge of certain minors ........................................ VA Code §18.2-64.1
Forcible sodomy ...................................................................... VA Code §18.2-67.1
Object sexual penetration ........................................................ VA Code §18.2-67.2
Aggravated sexual battery ....................................................... VA Code §18.2-67.3
Sexual battery ......................................................................... VA Code §18.2-67.4
Attempts ................................................................................. VA Code §18.2-67.5
Definitions ........................................................................... VA Code §18.2-67.10
Pandering ................................................................................ VA Code §18.2-355
Crimes against nature .............................................................. VA Code §18.2-361
Incest ....................................................................................... VA Code §18.2-366
Taking indecent liberties with children .................................... VA Code §18.2-370
Indecent liberties by children; penalty ................................ VA Code §18.2-370.01
Taking indecent liberties with child by person
in custodial or supervisory relationship .............................. VA Code §18.2-370.1
Sex offenses prohibiting proximity to children ...................... VA Code §18.2-370.2
Causing or encouraging acts rendering children
delinquent, abused, etc.; penalty ............................................ VA Code §18.2-371
Abuse and neglect of children; penalty .................................. VA Code §18.2-371.1
Production, publication, sale, possession with intent to
distribute financing, etc., of sexually explicit items involving
children; presumption as to age; severability ....................... VA Code §18.2-374.1

Possession of child pornography........................................ VA Code §18.2-374.1:1
Seizure and forfeiture of property used in
connection with production of sexually explicit
items involving children ..................................................... VA Code §18.2-374.2
Use of communications systems to facilitate certain
offenses involving children ................................................. VA Code §18.2-374.3
Indecent exposure .................................................................... VA Code §18.2-387
Definitions .............................................................................. VA Code §18.2-390
Child Pornography Images Registry; maintenance; access ................. VA Code §18.2-390.3
Desertion and nonsupport ..............................................................VA Code §20-61
Cruelty and injuries to children; penalty .................................. VA Code §40.1-103
Appendix B: Child Abuse Procedural and Evidentiary Statutes ............................................. 79
Immunity of hospital or rescue squad personnel
for the acceptance of certain infants ................................ VA Code §8.01-226.5:2
Competency of witness ......................................................... VA Code §8.01-396.1
Purpose of the Sex Offender and Crimes Against Minors Registry .......... VA Code §9.1-900
Persons for whom registration required ...................................... VA Code §9.1-901
Offenses requiring registration .................................................. VA Code §9.1-902
Registration procedures.............................................................. VA Code §9.1-903
Reregistration ............................................................................ VA Code §9.1-904
New residents and nonresident offenders; registration required ........ VA Code §9.1-905
Enrollment or employment at institution of
higher learning; information required ...................................... VA Code §9.1-906
Procedures upon a failure to register or reregister ....................... VA Code §9.1-907
Duration of registration requirement ......................................... VA Code §9.1-908
Relief from registration or reregistration .................................... VA Code §9.1-909
Removal of name and information from Registry ....................... VA Code §9.1-910
Registry maintenance ................................................................. VA Code §9.1-911
Registry access and dissemination; fees ...................................... VA Code §9.1-912
Public dissemination by means of the Internet ........................... VA Code §9.1-913
Automatic notification of registration to certain entities ....................... VA Code §9.1-914
Regulations ................................................................................ VA Code §9.1-915
Limitation on liability ............................................................... VA Code §9.1-916
Misuse of Registry information; penalty ..................................... VA Code §9.1-917
Severability; liberal construction ............................................... VA Code §9.1-918
Power of circuit court over juvenile offender ............................. VA Code §16.1-272
Mandatory HIV testing ................................................................ VA Code §18.2-62
Use of videotaped testimony ....................................................... VA Code §18.2-67

Admission of evidence (rape shield) .......................................... VA Code §18.2-67.7
Closed preliminary hearings .................................................... VA Code §18.2-67.8
Use of closed-circuit television testimony ................................. VA Code §18.2-67.9
Venue where any person transported for criminal sexual assault,attempted
criminal sexual assault, or purposes of unlawful sexual intercourse, crimes
against nature, indecent liberties with children ...................... VA Code §18.2-359
Providing false information or failing to provide registration information; penalty;
prima facie evidence ............................................................VA Code §18.2-472.1
Crime victim and witness rights ............................................ VA Code §19.2-11.01
Victim-witness assistance programs ......................................... VA Code §19.2-11.1
Crime victim’s right to nondisclosure of certain information;exceptions;
testimonial privilege .............................................................. VA Code §19.2-11.2
Establishment of victim-offender reconciliation program ................... VA Code §19.2-11.4
Arrest without a warrant in cases of assault and battery against
a household member .............................................................. VA Code §19.2-81.3
Speedy trial ............................................................................... VA Code §19.2-243
Joinder of defendants ............................................................ VA Code §19.2-262.1
Excluding witnesses ............................................................ VA Code §19.2-265.01
Provisions applicable to witnesses in criminal as well as
civil cases; obligation to attend; summons .............................. VA Code §19.2-267
Prompt complaint ................................................................. VA Code §19.2-268.2
Protecting the identity of witnesses ........................................VA Code §19.2-269.2
Admissibility of DNA evidence ...............................................VA Code §19.2-270.5
Evidence of abuse ...................................................................VA Code §19.2-270.6
Marital privilege ................................................................... VA Code §19.2-271.2
Victim Impact Statement ........................................................... VA Code §19.2-299
Victim Impact Statement ....................................................... VA Code §19.2-299.1
Mental evaluation of defendant ................................................. VA Code §19.2-300
Sex Offender and Crimes Against Minors Registry;
maintenance; access ............................................................ VA Code §19.2-390.1
Application for driver’s license; proof of completion of driver
education program; penalty .................................................... VA Code §46.2-323
Jailer to give notice of release to certain prisoners .................. VA Code §53.1-116.1
Department to give notice of release of certain prisoners .................. VA Code §53.1-160.1
Appendix C: Civil Child Abuse Statutes ................................................................................. 107
Autopsies .................................................................................. VA Code §32.1-285

Deaths of infants under 18 months of age ............................. VA Code §32.1-285.1
Definitions ............................................................................... VA Code §63.2-100
Acceptance of children by local department of social services .............. VA Code §63.2-910.1
Definitions ............................................................................ VA Code §63.2-1501
Establishment of Child-Protective Services Unit; duties .......... VA Code §63.2-1502
Duties of child protective services .......................................... VA Code §63.2-1503
Child-protective services differential response system .............. VA Code §63.2-1504
Investigations by local departments ....................................... VA Code §63.2-1505
Family assessments by local departments ............................... VA Code §63.2-1506
Muti-disciplinary cooperation ................................................ VA Code §63.2-1507
Physicians, nurses, teachers, etc., to report certain injuries to children; penalty
for failure to report .............................................................. VA Code §63.2-1509
Complaints by others of certain injuries to children ............... VA Code §63.2-1510
Complaints of abuse and neglect against school personnel ................. VA Code §63.2-1511
Immunity of person making report, etc., from liability ...................... VA Code §63.2-1512
Knowingly making false reports; penalties ............................. VA Code §63.2-1513
Retention of records in all reports; procedures regarding unfounded reports alleged
to be made in bad faith or with malicious intent .................. VA Code §63.2-1514
Central registry; disclosure of information ............................. VA Code §63.2-1515
Tape recording child abuse investigations ............................... VA Code §63.2-1516
Investigation procedures when school employee is subject of the complaint or report;
release of information in joint investigations .................... VA Code §63.2-1516.1
Authority to take child into custody ....................................... VA Code §63.2-1517
Authority to talk to child or sibling ........................................ VA Code §63.2-1518
Physician-patient and husband-wife privileges inapplicable ................. VA Code §63.2-1519
Photographs and X-rays of child; use as evidence .................... VA Code §63.2-1520
Testimony by child using two way closed-circuit television .... VA Code §63.2-1521
Admission of evidence of sexual acts with children ................ VA Code §63.2-1522
Use of videotaped statements of complaining witnesses as evidence .... VA Code §63.2-1523
Court may order certain examinations ................................... VA Code §63.2-1524
Prima facie evidence for removal of child custody ................... VA Code §63.2-1525
Appeals of certain actions of local departments ...................... VA Code §63.2-1526
Appendix D: Virginia Supreme Court Rules ........................................................................... 131
Joining offenses .......................................................................... Sup. Ct. R. 3A:6(b)
Trial together of more than one offense ..................................... Sup. Ct. R. 3A:10(c)
Discovery and Inspection ............................................................. Sup. Ct. R. 3A:11
Discovery ....................................................................................... Sup. Ct. R. 7C: 5
Discovery ........................................................................................ Sup. Ct. R. 8:15

PREFACE
The Department of Criminal Justice Services has been designated by the Governor to administer federal
funds granted to Virginia through the Children’s Justice Act. This federal funding has been specifically
earmarked for the improvement of legal and administrative proceedings regarding the investigation and
prosecution of child abuse, child sexual abuse and child maltreatment fatalities. Emphasis has been placed
on interdisciplinary activities that reduce or limit trauma to child victims.
For a number of years the Department of Criminal Justice Services has provided multidisciplinary training
and technical assistance for law enforcement and child protective service professionals, Commonwealth’s
Attorneys and medical and mental health professionals. In addition, profession-specific conferences and
technical assistance have been developed and offered to these targeted groups. This document was originally
developed in response to requests by local prosecutors for an easy reference on child abuse statutes and
Virginia case law relevant to the prosecution of child abuse cases.
At that time, the Department of Criminal Justice Services contracted with the American Prosecutors
Research Institute’s National Center for the Prosecution of Child Abuse to provide training and technical
assistance in Virginia. This document was initially developed by Virginia prosecutors and attorneys from
the National Center for the Prosecution of Child Abuse, and it was later reviewed and edited by experienced
child abuse prosecutors in Virginia. The 2003 revision was done by Emeritus Professor Robert E. Shepherd,
Jr., of the T.C. Williams School of Law of the University of Richmond.
This document was originally designed as a supplement for a publication of the National Center entitled
INVESTIGATION AND PROSECUTION OF CHILD ABUSE (hereinafter MANUAL), first published in 1987
and revised in 1994 and 2003. This MANUAL provides general strategy and step-by-step guidance in
evaluating, investigating, charging and trying child abuse cases. Although the current edition of CHILD
ABUSE: VIRGINIA STATUTES AND CASE LAW (hereinafter VIRGINIA STATUTES) cross-references the
2003 National Center’s MANUAL, VIRGINIA STATUTES can be used independently. While the National
Center’s publication is a useful tool for prosecutors, VIRGINIA STATUTES provides a practical resource
for Virginia prosecutors as they handle these cases.
9

INTRODUCTION AND RESOURCES CITED
The purpose of this publication is to provide Virginia prosecutors with a reference to Virginia statutory
and case law authority on issues arising frequently in the prosecution of child abuse. This publication
was initially designed as a supplement to THE INVESTIGATION AND PROSECUTION OF CHILD ABUSE
(hereinafter MANUAL) published by the American Prosecutors Research Institute (APRI). This MANUAL
provides general strategy advice on the prosecution of child abuse cases and such a discussion here would
be redundant. This publication references the third edition of the MANUAL for the reader’s convenience,
however it is not necessary to use this document. Virginia law and practice unique to child abuse
prosecution is the main focus of this publication and by maintaining a narrow focus, the authors and
editors intend to provide a practical resource for Virginia prosecutors. Virginia statutes, Rules and case
law are current as of July 1, 2003.
VIRGINIA STATUTES should not be read as advocating a single “correct” approach to the investigation
and prosecution of child abuse. The information provided in VIRGINIA STATUTES should be evaluated in
the context of the reader’s community, the facts of individual cases, evolving case law, departmental policy,
and the interests of justice. The authors, editors and revisor recognize that because the circumstances of
each case differ, a prosecutor’s judgment in a given case may differ from recommendations provided by
this document.
There are a number of additional resources that will be helpful to prosecutors handling these cases, and
references will be made to a number of them in this publication. The APRI is a principal resource itself
through its National Center for the Prosecution of Child Abuse located at 99 Canal Center Plaza, Suite
510, Alexandria, Virginia 22314, its training programs, its publications such as the MANUAL, which is
revised periodically, and Update and Update Express, which may be subscribed to at no charge or accessed
through the Internet on line at www.ndaa-apri.org/publications/newsletters/update_index.html or
www.ndaa-apri.org/apri/programs/ncpca/update_express_index.html, and through technical assistance.
The Virginia CLE publication, JUVENILE LAW AND PRACTICE IN VIRGINIA (Second Edition 2002)
(hereinafter JUVENILE LAW HANDBOOK), edited by Professor Shepherd, is an indispensable resource for
handling these cases in the juvenile and domestic relations district court, and the chapters on “Child
Psychology and Development” and “Physical and Medical Aspects of Child Abuse and Neglect” are especially
useful for background information in this area. In addition, the chapters on “Abuse and Neglect
Proceedings” and “Foster Care and Termination of Parental Rights” provide helpful material on the civil
side of these cases.
Other valuable resources are Roger D. Groot, CRIMINAL OFFENSES AND DEFENSES IN VIRGINIA (Fourth
Edition 1998 (Supplemented annually)) (hereinafter GROOT), the recognized authority on substantive
criminal law in the state; Ronald J. Bacigal, VIRGINIA CRIMINAL PROCEDURE (Fourth Edition 1999
(Supplemented annually)) (hereinafter BACIGAL), likewise the acknowledged authority on Virginia criminal
procedure; Ronald J. Bacigal, Joseph S. Tate and Thomas F. Guernsey, ADMISSIBILITY OF EVIDENCE IN
VIRGINIA: A MANUAL FOR TRIAL LAWYERS (Second Edition 1998 (Supplemented in 2002)) (hereinafter
BACIGAL, TATE & GUERNSEY), Charles E. Friend, THE LAW OF EVIDENCE IN VIRGINIA (Fifth Edition
11

1999 (Supplemented in 2002)) (hereinafter FRIEND), the longtime authority in Virginia courts; Kent
Sinclair, Joseph C. Kearfott, Paul F. Sheridan and Edward J. Imwinkelried, VIRGINIA EVIDENTIARY
FOUNDATIONS (1998 (Supplemented in 2002-2003)) (hereinafter SINCLAIR ET AL); and Boyd-Graves
Conference of the Virginia Bar Association, A GUIDE TO EVIDENCE IN VIRGINIA (2003 Edition)
(hereinafter GUIDE). These resources will be cited throughout this publication for a fuller exposition of
the principle or rule stated in the text.
Two national publications by Professor John E. B. Myers are especially useful in handling these cases—
John E. B. Myers, LEGAL ISSUES IN CHILD ABUSE AND NEGLECT PRACTICE (Second edition1998), and
John E. B. Myers, EVIDENCE IN CHILD ABUSE AND NEGLECT CASES (Third edition 1997) (hereinafter
MYERS). The second publication, in two volumes, is an extremely helpful resource in trying these cases
and it gives useful practice tips and excerpts from transcripts that are useful in trying cases with difficult
and unusual evidentiary problems.
12

CHAPTER ONE
Investigation
I. The Role of Law Enforcement
Law enforcement agencies have powers of investigation unavailable to any other agency. This authority
must be used appropriately in order to obtain evidence that will be admissible in a criminal case.
The following discussion provides Virginia law on the most commonly used investigative tools for
law enforcement.
A. Search Warrants (BACIGAL at §§ 4–4 through 4–16):
Child abuse investigators frequently use two types of warrants in their investigations. One type
of warrant is the expertise warrant, in which probable cause to search a person’s residence is based
on the professional opinion of an expert who indicates why certain items will be at the person’s
residence. For example, an expert in the field of child molestation may testify that a pedophile is
highly unlikely to throw away child pornography, and therefore that child pornography delivered
to an individual in the past is probably still in that person’s possession. Virginia courts have not
addressed the validity of expertise warrants per se, but the Virginia Supreme Court has upheld an
affidavit that took into account past sexual deviation by the defendant. Drumheller v.
Commonwealth, 223 Va. 695, 292 S.E.2d 602 (1982), cert. den., 459 U.S. 913 (1982).
The second type of warrant, the anticipatory warrant, is “a warrant based upon an affidavit showing
probable cause that at some future time (but not presently) certain evidence of crime will be located
at a specified place.” 2 Wayne R. LaFave, SEARCH AND SEIZURE §3.7(c) (Third edition 1996).
Such warrants are particularly appropriate for use in child pornography investigations when
investigators know child pornography will be delivered to a particular location at a particular
time, and are valid in Virginia so long as there is probable cause to believe that the contraband
will be on the premises at the time the warrant is executed. McNeill v. Commonwealth, 10 Va. App.
674, 677, 395 S.E.2d 460, 463 (1990) (anticipatory warrant based on tip from out–of–state
authorities about delivery of cocaine to defendant’s home). It is sufficient for purposes of
establishing probable cause to show that the contraband is on a “sure course” to the premises at
the time the warrant is requested. Id. at 677, 395 S.E.2d at 463. Proof that the contraband is in
the mail and will be delivered to suspect’s residence is sufficient proof of the “sure course” element.
Id. at 678, 395 S.E.2d at 463. However, where the information provided for the affidavit to
support an anticipatory search warrant was not sufficiently precise to identify when the contraband
to be seized would be at the site described in the search warrant or how the affiant knew of the
date, the warrant is invalid. Colaw v. Commonwealth, 32 Va. App. 806, 812, 531 S.E.2d 31 (2000).
Even though the warrant authorizing the search of defendant Moyer’s apartment at a military academy
where he taught might have been deficient, the seizure of his diaries containing photographs mentioned
in the diaries, which journals described inappropriate activities involving juvenile students was legal
and the motion to suppress was properly denied. Moyer v. Commonwealth,33 Va. App. 8, 531 S.E.2d 580
(2000) (rehearing en banc), reversing 30 Va. App. 744, 520 S.E.2d 371 (1999).
13

B. Pretext Conversation Recordings and Electronic Surveillance (BACIGAL at §§5-1 through 5-6;
FRIEND AT §14-10).
One effective investigative technique is to request the victim to call the perpetrator on the telephone
and record the conversation. See MANUAL, Chapter Two, part V.D. Although the issue of such oneparty
consent recordings of telephone conversations between a victim and accused has not been
specifically addressed in child sexual abuse cases, the practice was held constitutional in Cogdill
v. Commonwealth, 219 Va. 272, 247 S.E.2d 392 (1978) (telephone call in which defendant offered
female adult caller money for sex). See also Va. Code Ann. §19.2-66 (authorizing the Attorney
General to seek a court order to intercept communications while investigating the felonies of
extortion, bribery, kidnapping, murder, any felony violation of §§18.2-248 or -248.1, any felony
violation of Chapter 29 of Title 59.1, any felony violation of Article 2.2 of Chapter 4 of Title
18.2, or any conspiracy to commit any of the specified offenses).
For a discussion of the use of electronic surveillance to investigate child abuse, see MANUAL,
Chapter Two, part VI.D. For a discussion of the use of electronic or Internet surveillance in Virginia,
see BACIGAL at §5-1. In Bloom v. Commonwealth, 262 Va. 814, 554 S.E.2d 84 (2001), the
Supreme Court of Virginia upheld the conviction of a man for attempting to take indecent liberties
with a child and solicitation to commit sodomy where the police monitored the man’s Internet
communications with a 13-year-old girl and set up a meeting where he was arrested (affirming
the decision of the Court of Appeals found at 34 Va. App. 364, 542 S.E.2d 18 (2001)). The evidence
established the identity of the defendant as sender through his “screen name,” personal details
communicated in the messages, and other facts that matched the defendant. In United States v.
Jarrett, 229 F.Supp.2d 503 (E.D.Va. 2002), the United States District Judge denied a motion to
suppress Internet pornography evidence obtained by a foreign Internet user who had gained
unauthorized access to defendant’s computer.
C. Social Worker Involvement in Interrogation.
Section 63.2-1503.M. of the Code provides that no statement made by a person after his or her
arrest to a child protective services worker regarding the abuse or neglect of a child shall be
admissible unless the person is first advised of his or her Miranda rights. In Terry v. Commonwealth,
30 Va. App. 192, 516 S.E. 2d 233 (1999) (rehearing en banc), the Court of Appeals, sitting en
banc, ruled that a defendant had waived his right to challenge the admissibility of a confession by
pleading guilty, but a three-judge panel had previously reversed the conviction because a confession
was obtained by a protective services worker accompanied by a police officer after counsel had
been appointed for the accused (See 27 Va. App. 664, 500 S.E.2d 843 (1998)).
D. Medical Examinations and Forensic Photographs.
1. Physical or Sexual Abuse or Neglect (Va. Code Ann. §§63.2-1517 -1520).
14
When a child is examined in response to an allegation of abuse, especially in the hospital or
emergency room, investigators need to obtain appropriate consent before the exam, treatment
and evidence collection. Hospitals generally have consent forms developed specifically for
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 of which is that a
child is in imminent danger — a child may be taken into protective custody by a local physician,
law enforcement officer or child protective services worker. Va. Code Ann. §63.2–1517. A
representative of the child protective services agency may then sign an appropriate consent
form as the temporary guardian of the child to authorize the procedures.
Investigators also should seek permission for any photographs taken during the medical exam
with the understanding they may be used as evidence. Photographs may be taken of known or
suspected child abuse victims without parental consent and may be introduced in any
“subsequent proceeding,” but may not be used in lieu of a medical evaluation. Va. Code Ann.
§63.2–1520. Restrictions regarding the use of photographs may be imposed by the court.
Investigators need to be sensitive to the child’s possible embarrassment about such
photographs and make sure they are the least intrusive necessary to document the necessary
findings.
2. Death of a Child (Va. Code Ann. §32.1–285.1).
The Code of Virginia requires an autopsy be performed on any infant whose death is suspected
as being attributable to Sudden Infant Death Syndrome (SIDS). Va. Code Ann. §§32.1–285–
285.1. The Board of Health has promulgated regulations providing exceptions to this
requirement for objections based on bona fide religious beliefs.
E. Forensic Analysis:
The following tests used by investigators have been held admissible in criminal proceedings:
• DNA profile evidence is admissible in any criminal proceeding. Va. Code Ann. §19.2–270.5.
See Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609 (1990) (finding DNA print
identification test scientifically reliable).
• Electrophoretic tests are sufficiently reliable to be admissible. See O’Dell v. Commonwealth,
234 Va. 672, 364 S.E.2d 491 (1988) (declining to adopt the test of Frye v. United States,
293 F. 1013 (D.C. Cir. 1923), but nonetheless finding electrophoretic tests generally accepted
by the scientific community).
• Human Leucocyte Antigen (HLA) blood tests are admissible. See Bridgeman v. Commonwealth,
3 Va. App. 523, 351 S.E.2d 598 (1986) (HLA blood tests admissible but insufficient to support
an incest conviction when defendant and victim both denied sexual contact).
F. Polygraph Tests (BACIGAL at §17–24; FRIEND at §14–7; BACIGAL, TATE & GUERNSEY at 252–253).
Results of polygraph tests are not admissible for the purposes of proving either guilt or innocence.
Odum v. Commonwealth, 225 Va. 123, 301 S.E.2d 145 (1983) (polygraph tests found unreliable
and inadmissible even though Commonwealth’s Attorney and defendant agreed to use the results
of a test favorable to defendant). See also Robinson v. Commonwealth, 231 Va. 142, 341 S.E.2d
159 (1986) (defendant may not impeach a Commonwealth witness with polygraph evidence);
15

Crumpton v. Commonwealth, 9 Va. App. 131, 384 S.E.2d 339 (1989) (defendant must have an
opportunity to explain prior inconsistent statements when he had altered his statements at the
end of a polygraph examination because the defendant’s credibility was critical to the ultimate
issue that must be determined by the jury).
G. Hypnosis (FRIEND at §14-8; BACIGAL, TATE & GUERNSEY at 102-103).
Witnesses are not allowed to testify regarding facts recalled during or as the result of pre-trial
hypnosis. Witnesses, however, may testify to facts recalled prior to hypnotic sessions, but the
party offering the facts remembered prior to hypnosis has the burden of proving that the facts
were actually recalled before the witness submitted to hypnosis. Hall v. Commonwealth, 12 Va.
App. 198, 403 S.E.2d 362 (1991). See also Hopkins v. Commonwealth, 230 Va. 280, 337 S.E.2d
264 (1985) (trial court has discretion to determine whether hypnosis made witness incompetent
to testify). In Hall the Court recommended that any hypnosis session follow the established
guidelines set forth in State v. Hurd, 432 A.2d 86 (N.J. 1981). These guidelines state: i) the hypnosis
must be conducted by a psychiatrist or psychologist trained in hypnosis; ii) the conductor should
be independent of either the prosecution or the defense; iii) information given to the conductor
by the prosecution or defense prior to the session should be recorded in writing or other “suitable
form;” iv) the conductor should obtain a detailed record of the facts from the subject as he or she
remembers them prior to the session; v) all contacts between the conductor and the subject must
be recorded; and vi) only the conductor and the subject should be present during the session. Hall,
supra,.12 Va. App. at 212, n.4, 403 S.E.2d at 371, n.4. See also discussion, infra, Chapter Four,
part II.B.1., concerning the use of hypnosis on a defendant.
H. Arrest (Va. Code Ann. §19.2-81.3) (BACIGAL at §§2-1 through 2-6).
A law enforcement officer may arrest a person without a warrant who commits a crime in the
officer’s presence or a person whom the officer has probable cause or reasonable grounds to believe
committed a felony not in the officer’s presence. Va. Code Ann. §19.2-81. Additionally, an officer
may arrest without a warrant a person who commits misdemeanor assault and battery not in the
officer’s presence, or for assault and battery against a family or household member and stalking
in violation of a protective order. Id.; Va. Code Ann. §19.2-81.3. If a law enforcement officer has
reasonable grounds to believe that a person has committed an assault and battery against, or has
stalked a household member, the officer shall: i) upon request, transport or arrange to transport
the victim to a hospital, safe shelter, or magistrate and ii) petition for an emergency protective
order in every case in which the officer makes an arrest or has probable cause to believe a danger
of family abuse exists. Va. Code Ann. §19.2-81.3.
Caveat: Prosecutors need to be aware that if they act as police investigators, they open themselves up to
civil liability. See Pachaly v. City of Lynchburg, 897 F.2d 723 (4th Cir. 1990).
II. The Role of Child Protective Services (JUVENILE LAW HANDBOOK 12.2)
Child Protective Services (CPS) workers are employees of a local Department of Social Services charged
with investigation of child abuse or neglect committed in their locality. Va. Code Ann. §63.2-1503.
16

The governing statutes allow investigation by CPS only if the parent, guardian, or other person
responsible for the child’s care is the offender. Id. Once the department receives a complaint, CPS
workers must either conduct a family assessment pursuant to the differential response system or
investigate the complaint and determine within 45 days if the report is “founded” or “unfounded”
and transmit a report to such effect to the central registry and to the person who is the subject of the
investigation. However, upon written justification by the local department, the investigation may be
extended, not to exceed a total of sixty days. Va. Code Ann. §63.2–1505. The findings pursuant to an
investigation are defined as follows: “founded” means there is a preponderance of the evidence to
establish that abuse or neglect occurred, and “unfounded” means there is insufficient evidence that
abuse or neglect occurred. Virginia Department of Social Services, Child Protective Services, Vol. VII,
Sec. III, Ch. A (October, 2002).
If CPS investigates and finds the complaint to be substantiated, it must offer services to the victim,
the perpetrator, and other family members as appropriate.
CPS workers must report to the Commonwealth’s Attorney, and the local law enforcement agency
in the jurisdiction in which the alleged abuse is believed to have occurred, all cases involving: i) the
death of a child; ii) any injury or threatened injury to a child in which a felony or Class 1
misdemeanor is suspected; iii) any sexual abuse, suspected sexual abuse or other sexual offenses
involving a child; iv) any abduction of a child; v) any felony or Class 1 misdemeanor drug offense
involving a child; or vi) contributing to the delinquency of a minor. Va. Code Ann. §63.2–1503.
The department must then make available to the Commonwealth’s Attorney and local law
enforcement all of its records that relate to any complaints of abuse or neglect involving the victim
or alleged perpetrator. Id. Similarly, law enforcement and other agencies are mandated to cooperate
with the Child Protective Services Coordinator of the local Department of Social Services in “the
detection and prevention of child abuse.” Va. Code Ann. §63.2–1507.
As noted above, any statements made by a suspect to a CPS worker during an investigation after the
suspect has been arrested are inadmissible in any criminal proceeding unless the worker has advised
the accused of his or her Miranda rights. Va. Code Ann. §63.2–1503.M. During an investigation, any
person who is mandated by statute to report or investigate suspected abuse may speak with the alleged
child victim or his or her siblings without the permission of, and outside the presence of the
child’s parents or legal guardians. Va. Code Ann. §63.2–1518.
Interviewing techniques of social workers and police investigators have come under increasing scrutiny
in recent years. Consequently, social workers and investigators must be aware of attacks that may
likely be made at trial concerning leading questions, anatomical dolls, and videotaped interviews. For
a thorough discussion of these issues, see MANUAL Chapter Two, part I, and MYERS at Volume 1,
Chapter 1; Victor I. Vieth, “Defending the Investigative Interview,” 12 Update, No. 2 (1999).
III. The Roles of Other Agencies (JUVENILE LAW HANDBOOK 12.2).
To many prosecutors, the civil child protection system is foreign territory since city, county, or private
attorneys pursue civil actions in juvenile and domestic relations district courts. However, prosecutors
17

need to understand generally how civil child protection laws work and what they can do to protect
children.
A. Action By Physician, Protective Services Worker or Law Enforcement Official (Va. Code Ann.
§63.2-1517).
A child may be taken into custody without a court order under certain circumstances. Under §63.2-
1517 of the Code a physician, protective service worker, or law enforcement official investigating
a report of child abuse and neglect may take a child into custody for up to 72 hours without prior
approval of parent or guardians, provided: i) remaining in the present circumstances presents an
imminent danger to the child’s life or health to the extent that severe or irremediable injury would
be likely to result; ii) a court order is not immediately obtainable; iii) the court has set up procedures
for placing such children; iv) the parents are notified as soon as practicable after the child is taken
into custody; v) a report is made to the local department; and vi) the court is notified and the
person or agency taking custody obtains an emergency removal order as soon as possible, but no
later than 72 hours after the removal. If a preliminary removal order is issued within 72 hours,
an emergency removal order is not necessary.
B. Civil Child Protection Proceedings (JUVENILE LAW HANDBOOK 12.3).
As defined by Va. Code Ann. §63.2-1505, civil child protection actions typically are initiated by
the local department of social services filing a petition; however, individuals such as police officers,
probation officers, or guardians ad litem also may initiate such proceedings. In all civil child
protection actions, the court is required to appoint a qualified attorney to act as the child’s guardian
ad litem while the action is pending. The court has the power to provide the following types of
protection for the child.
An emergency removal order (ERO) may be secured on an ex parte basis that removes a child from
the custody of the parent or custodian to prevent a child being subjected to circumstances where
injury or death might occur if he or she were left with the parent or custodian before a court
hearing can be held. At the time an emergency removal order is requested, a petition alleging that
the child is abused or neglected must be filed with the court, supported by an affidavit or sworn
testimony in person before the judge or intake officer within 72 hours of the removal of the child
or otherwise in accordance with §63.2-1517 of the Code. Va. Code Ann. §16.1-251. The petition
must establish that i) the child would be subjected to an imminent threat to life or health, to the
extent that severe or irremediable injury would be likely to result if the child were left in the
custody of, or returned to, the parent or custodian pending a final hearing on the petition; ii)
reasonable efforts have been made to prevent the removal of the child. If there is no reasonable
opportunity to provide preventive services, reasonable efforts are deemed to have been made; and
iii) there are no less drastic alternatives which could reasonably protect the child’s life or health
pending a final hearing on the petition. Id.
Once an ERO is entered, a preliminary removal order (PRO) hearing will be scheduled as soon as
practicable, but no later than five business days. Va. Code Ann. §16.1-252. The scheduling
18

equirement has caused this hearing to be referred to frequently as the “five-day hearing.” Notice
of the hearing, as well as a copy of the petition, must be given at least 24 hours in advance to the
child’s parents or custodian, the guardian ad litem, and to the child if the child is 12 years of age
or older. Id. If notice cannot be given despite reasonable efforts to do so, the hearing will still be
held, and the parent(s) or custodian will then be provided a later hearing regarding the removal of
the child if they make a motion for such hearing. For the court to maintain the child’s removal
from the home, the department must prove, by a preponderance of the evidence, the same elements
required to obtain an emergency removal. At the preliminary removal hearing, the court “shall
determine whether the allegations of abuse or neglect have been proven by a preponderance of the
evidence,” unless the parents or custodian, the guardian ad litem, or the petitioning department
objects.
As an alternative to removal of the child from the home, a preliminary protective order (PPO) may
be sought requiring the parent or guardian to “observe reasonable conditions of behavior for a
specified length of time.” Va. Code Ann. §16.1–253. These reasonable conditions of behavior
may include: i) abstaining from offensive conduct against the child; ii) cooperating in providing
reasonable services or programs designed to protect the child’s life, health, or normal development;
iii) allowing persons named by the court to enter the child’s home at reasonable times to visit the
child or inspect the fitness of the home; iv) allowing visitation with the child by persons as
determined by the court; v) refraining from acts tending to endanger the child’s life, health, or
normal development; or vi) refraining from contact with the child as the court may deem
appropriate, including leaving the child’s residence. An initial ex parte hearing may be held, which
must be followed by a preliminary hearing within five working days. The court may grant a PPO
if an affidavit or sworn testimony establishes that “the child would be subjected to an imminent
threat to life or health to the extent that delay for the provision of the adversary hearing would be
likely to result in serious or irremediable injury to the child’s life or health.” Va. Code Ann. §16.1–
253(B).
These civil child protection proceedings may be going on while a criminal investigation is occurring
or while charges are being sought.
C. Multidisciplinary Coordination
Since 1975, the Virginia Code has provided that “[a]ll law-enforcement departments and other
state and local departments, agencies, authorities and institutions shall cooperate with each childprotective
services coordinator of a local department and any multi-discipline teams in the
detection and prevention of child abuse.” Va. Code Ann. §63.2–1507. In addition, the Virginia
Code section relating to child abuse and neglect states: “[t]he local department [of Social Services]
shall foster, when practicable, the creation, maintenance and coordination of hospital and
community-based multi-disciplinary teams that shall include where possible, but not be limited
to, members of the medical, mental health, social work, nursing, education, legal and lawenforcement
professions. Such teams shall assist the local departments in identifying abused and
neglected children; coordinating medical, social, and legal services for the children and their families;
19

developing innovative programs for detection and prevention of child abuse; promoting
community concern and action in the area of child abuse and neglect; and disseminating
information to the general public with respect to the problem of child abuse and neglect and the
facilities and prevention and treatment methods available to combat child abuse and neglect.” Va
Code Ann. §63.2-1503 (J) (emphasis added).
The Children’s Justice Act Program, under the direction of the Virginia Department of Criminal
Justice Services (DCJS), supports a variety of opportunities for communities to strengthen a
multidisciplinary approach to child abuse cases. Information for multidisciplinary teams can be
found on the DCJS website at: http://www.dcjs.org/juvenile/cja/teams. Communities in need of
more information about receiving on-site training and technical assistance implementing a
multidisciplinary approach should contact the Children’s Justice Act Program Coordinator at the
Virginia Department of Criminal Justice Services.
IV. Grand Juries (Va. Code Ann. §§19.2-191 to 19.2-215.11) (BACIGAL at §§12-1 through 12-7).
The Commonwealth need only call enough witnesses to the grand jury to establish probable cause.
Britt v. Commonwealth, 202 Va. 906, 121 S.E.2d 495 (1961). Therefore, it will not always be necessary
to call the child victim as a witness. If a child does testify before a grand jury, however, prosecutors
may need to use this testimony at trial to show prior consistent or prior inconsistent statements.
Whether prosecutors can obtain a transcript or videotape of such testimony to use at trial is unsettled
in Virginia. Transcripts of grand jury proceedings may be released to the prosecutor at the trial court’s
discretion (Vihko v. Commonwealth, 10 Va. App 498, 393 S.E.2d 413 (1990)), and also might be
available to the defendant if the transcript is in the prosecutor’s possession. See Gibbs v. Commonwealth,
16 Va. App. 697, 432 S.E.2d 514 (1993) (defendant may use a subpoena duces tecum to
obtain writings or objects that are material to the proceeding even if they are not admissible).
Virginia law does not state specifically whether a prosecutor may use a grand jury transcript to impeach
a witness. The law allows a grand juror to be called to testify at a perjury trial of a witness (Va.
Code Ann. §19.2-192), or to testify on behalf of the accused that a government witness’s grand jury
testimony is in direct conflict with trial testimony. Harris v. Commonwealth, 110 Va. 905, 68 S.E.
834 (1909). No Virginia court has specifically addressed the issue of whether the Commonwealth
may impeach a recanting victim with grand jury testimony.
20

CHAPTER TWO
Charging Considerations
I. Offenses
At charging, prosecutors need to be fully aware of the elements of crimes and judicial interpretation
of those elements. See GROOT generally. Judicial interpretation of the elements can significantly affect
how a prosecutor elects to charge a crime. See, e.g. Howard v. Commonwealth, 221 Va. 904, 275 S.E.2d
602 (1981) (conduct for which defendant convicted held not to be covered by statutes charged). In
addition to paying close attention to judicial interpretations of charging statutes, prosecutors must
keep current with legislative changes. See Appendix A for the text of the basic Virginia child abuse
charging statutes.
A. Sexual Offenses (GROOT at 423-445).
1. Generally
To no one’s surprise, the Virginia Court of Appeals has ruled that the Virginia sodomy statute is
not unconstitutionally vague, and that the due process interest in privacy does not apply to nonconsensual
acts of sodomy with a 16-year-old girl. Santillo v. Commonwealth, 30 Va. App. 470,
517 S.E.2d 733 (1999). Likewise, convicting a defendant of committing oral sodomy on his
15-year-old nephew did not violate the uncle’s rights to “the enjoyment of life and liberty” and
to “pursuing and obtaining happiness.” Paris v. Commonwealth, 35 Va. App. 377, 381, 545 S.E.2d
557, 558 (2001).
2. Mental State
Proof of lascivious intent or intent to defile is necessary for convictions of many child sexual
abuse offenses (e.g., indecent exposure, indecent liberties, abduction with intent to defile). Proof
of intent almost always will be based on circumstantial evidence and thus poses several
difficulties. For example, in McKeon v. Commonwealth, 211 Va. 24, 175 S.E.2d 282 (1970),
the court held that a man who exposed his genitals to a child 35 feet away did not violate Va.
Code Ann. §18.1–214 (1950) (now Va. Code Ann. §18.2–370). The defendant claimed that
he had a robe on, and that, although there was a breeze, he did not believe his privates became
exposed. The child testified that the man was “smiling” and standing on his porch with his
hands on his hips and his genitals exposed. The court said that even accepting the victim’s
testimony as true, the Commonwealth failed to prove lascivious intent:
[T]here is no evidence that the defendant was sexually aroused; that he made any
gestures toward himself or to her; that he made any improper remarks to her; or that
he asked her to do anything wrong. The fact that defendant told [the victim] to ‘turn
around’ and that he was smiling at the time, when she was 35 feet away from him,
is not proof beyond a reasonable doubt that he knowingly and intentionally exposed
himself with lascivious intent. Id. at 27, 175 S.E.2d at 284.
21

However, where a defendant takes a five-year-old girl to a bathroom with him and removes his
pants and under shorts, exposing his erect penis, he can be convicted of taking indecent liberties
with the child. Siquina v. Commonwealth, 28 Va. App. 694, 508 S.E.2d 350 (1998). Likewise,
where a defendant exposes his genitals in a visibly aroused state and is masturbating, the
evidence is sufficient to support a conviction under Va. Code Ann. §18.2-387 for indecent
exposure. Morales v. Commonwealth, 31 Va. App. 541, 525 S.E.2d 23 (2000); Copeland v.
Commonwealth, 31 Va. App. 512, 525 S.E.2d 9 (2000). See also Walker v. Commonwealth, 12
Va. App. 438, 404 S.E.2d 394 (1991) (evidence sufficient to establish criminal intent in
defendant’s touching the vagina of the seven-year-old daughter of his girlfriend even though
he claimed to be touching her to determine if she and some boys in the neighborhood had
been “touching each other”); Campbell v. Commonwealth, 227 Va. 196, 313 S.E.2d 402
(1984) (evidence that man gestured to 8-year-old girl 87 feet away from him, pulled his pants
down to his knees, then gestured again sufficient to establish lascivious intent); Moore v.
Commonwealth, 222 Va. 72, 77, 278 S.E.2d 822, 825 (1981) (evidence sufficient to show
defendant’s lascivious intent in touching his penis to the victim’s buttocks). But see Hughes v.
Commonwealth, 16 Va. App. 576, 431 S.E.2d 906 (1993) (evidence that defendant
commented about “nice looking women” at a party, that he talked to the victim and offered to
take her and two small boys to the bathroom, and scientific evidence that the child was not
wearing her coat when in car with defendant insufficient to prove intent to defile).
3. Conduct
a. Force
22
Rape (GROOT at 425–427). Psychological coercion may satisfy the element of
intimidation in a rape case. Sutton v. Commonwealth, 228 Va. 654, 324 S.E.2d 665
(1985). In Sutton, the victim’s uncle repeatedly attempted to rape the victim; the aunt
told the victim each time that she should have submitted to him; the defendants threatened
to send the victim back to her father who had a history of beating her; and the victim had
a hearing disability for which she wore a hearing aid. The court held that defendants’
conduct constituted intimidation under §18.2-61. Intimidation need not include overt
threats–it may be caused by imposition of psychological pressure on one who, under the
circumstances, is vulnerable and susceptible to such pressure. Id. at 661, 324 S.E.2d at
670. Id. See also Bailey v. Commonwealth, 82 Va. 107 (1886) (consent of 14-year-old
stepdaughter induced by fear of bodily harm is not consent); Myers v. Commonwealth, 11
Va. App. 634, 400 S.E.2d 803 (1991) (37-year-old defendant’s behavior in driving a 15-
year-old victim to a remote area and telling her she would have to walk back if she did not
“do something for him” constituted intimidation). In Commonwealth v. Bower, 264 Va.
41, 563 S.E.2d 736 (2002), the Virginia Supreme Court overturned the decision of the
Court of Appeals reversing defendant’s conviction of animate object sexual penetration
of his thirteen-year-old daughter (36 Va. App. 382, 551 S.E.2d 1 (2001)), as the parentchild
relationship itself is relevant to the possibility of intimidation and the harm inherent
in a sexual assault itself is sufficient to constitute fear of bodily harm to support the

conviction. The Court of Appeals itself concluded in Benyo v. Commonwealth, 38 Va. App.
650, 568 S.E.2d 371 (2002), that the evidence was sufficient to convict defendant of
raping his stepdaughter beginning when she was fifteen years old because of his
intimidation through the use of psychological and emotional pressure.
Aggravated Sexual Battery (GROOT at 430-431). Fondling alone does not constitute
aggravated sexual battery when there is no showing of serious injury or use of a weapon.
Johnson v. Commonwealth, 5 Va. App. 529, 365 S.E.2d 237 (1988). In Johnson, the
defendant lay down on a bed where the 15-year-old male victim was sleeping and touched
the victim’s buttocks and penis. The victim left the room as soon as he awoke. The court
held that non-consensual touching alone does not constitute force within the meaning of
the statute; to constitute aggravated sexual battery, there must be a showing of serious
injury or use of a weapon. Because neither of these factors was demonstrated, the court
reversed the defendant’s conviction.
b. Penetration (GROOT at 424).
The element of penetration must be proven to support a forcible sodomy conviction, and
such proof may be based solely on circumstantial evidence. Martin v. Commonwealth, 4
Va. App. 438, 358 S.E.2d 415 (1987) (victim’s statements and testimony of medical
expert sufficient to prove penetration). Proof of penetration of the victim’s outer vaginal
lips (labia majora) is sufficient. Love v. Commonwealth, 18 Va. App. 84, 441 S.E.2d 709,
711 (1994). Proof of penetration of the vaginal opening is not required. Id. But in Moore
v. Commonwealth, 254 Va. 184, 491 S.E.2d 739 (1997), the Supreme Court of Virginia
ruled that a young girl’s testimony that defendant had placed his penis “on” her vagina
was insufficient to prove penetration for the purpose of a prosecution for rape of a child
under thirteen. Id. at 189, 491 S.E.2d at 741. Likewise, the Court of Appeals reversed
the conviction of a defendant on multiple sex offenses with a ten-year-old girl in Carter v.
Commonwealth, No. 2506-01-3 (Va. App. Oct. 29, 2002) (unpublished), where the
testimony referred to defendant’s tongue being placed “on” the girl’s “private” because
there was insufficient evidence to establish the penetration necessary to sustain the
sodomy conviction. In a similar case, Breeden v. Commonwealth, No. 0404-02-3 (Va. App.
Jan. 28, 2003) (unpublished), defendant was convicted of forcible sodomy and object
sexual penetration of a nine-year-old victim by a jury. Although the victim’s testimony
about defendant’s tongue licking her was not sufficient to establish the penetration
sufficient to establish the offense of forcible sodomy, the medical evidence was sufficient
to sustain the object sexual penetration conviction. Virginia courts also require proof of
penetration in order to sustain a conviction for crimes against nature. Ashby v.
Commonwealth, 208 Va. 443, 444, 158 S.E.2d 657, 658 (1968), cert. den., 393 U.S.
1111 (1969) (evidence that a boy’s mouth was placed on defendant’s penis insufficient
to show penetration). However, penetration is an issue for the finder of fact to determine.
Ryan v. Commonwealth, 219 Va. 439, 444-45, 247 S.E.2d 698, 702 (1978) (jury finding
that defendant’s mouth penetrated victim’s vagina not error).
23

c. Abduction (GROOT at 1–9).
The Commonwealth is not required to prove any carrying (“asportation”) of the victim to
sustain a conviction for abduction; physical detention is sufficient. Scott v. Commonwealth,
228 Va. 519, 323 S.E.2d 572 (1984). See Simms v. Commonwealth, 2 Va. App. 614,
346 S.E.2d 734 (1986) (defendant properly convicted of abduction with intent to defile
when he pulled a 16-year-old victim to the side of her house, told her to take her pants
off, and threatened to kill her if she was not quiet). But see Johnson v. Commonwealth,
221 Va. 872, 275 S.E.2d 592 (1981) (defendant who seized a woman, made sexual
advances and held her for 10 to 15 seconds did not abduct with intent to defile because
the evidence was consistent with his intent to persuade her to engage in consensual
intercourse). For other issues that have arisen in abduction with intent to defile cases, see
Fitzgerald v. Commonwealth, 223 Va. 615, 292 S.E.2d 798 (1982), cert. den., 459 U.S.
1228, reh’g den., 460 U.S. 1105 (1983) (upholding jury instruction that used the words
“sexually molest” rather than “defile”); Hughes v. Commonwealth, 16 Va. App. 576, 431
S.E.2d 906 (1993) (evidence that defendant commented about “nice looking women” at
a party, that he talked to the victim and offered to take her and two small boys to the
bathroom, and scientific evidence that the child was not wearing her coat when in car
with defendant insufficient to prove intent to defile); Coram v. Commonwealth, 3 Va. App.
623, 352 S.E.2d 532 (1987) (holding that convictions for attempted rape and abduction
with intent to defile arising from one incident did not amount to double jeopardy).
d. Carnal Knowledge.
A defendant was properly convicted of carnal knowledge in Shull v. Commonwealth, 247
Va. 161, 440 S.E.2d 133 (1994), aff’g 16 Va. App. 667, 431 S.E.2d 924 (1993), for
committing oral sodomy by placing her mouth on the penis of a fifteen-year-old boy.
e. Custody or Supervision of Child.
24
In Krampen v. Commonwealth, 28 Va. App. 163, 510 S.E.2d 276 (1999), the Court of
Appeals concluded that the defendant could be convicted of taking indecent liberties with
a child in violation of Section 18.2-370.1 of the Code (indecent liberties by a person in a
custodial or supervisory relationship) because the mother’s entrustment of the victim to
him for transporting her to and from church placed him in “a custodial or supervisory
relationship.” Such status does not require any formal legal custodial relationship.
Similarly, a therapist also was acting in such a capacity when he took sexually explicit
photographs of a girl he was counseling during the time she was entrusted to his care.
DeAmicis v. Commonwealth, 29 Va. App. 751, 514 S.E.2d 788 (1999). In Woodson v.
Commonwealth, Record No. 140-98-2 (Va. App. Mar. 2, 1999) (unpublished), the court
ruled that defendant was a “person responsible” for the victim’s care under Va. Code Ann.
§18.2-371.1 where he lived in the same house and exercised authority over him and he
thus could be convicted of neglecting the boy. However, in Kisling v. Commonwealth, Record
No. 0169-98-3 (Va. App. Dec. 22, 1998) (unpublished), the court found insufficient proof

of a “custodial or supervisory relationship” where the seventeen-year-old victim was living
as a guest in Kisling’s home without him having any legal or actual authority over the
girl. Although the conviction was reversed on other grounds, the Court of Appeals ruled
in Quinones v. Commonwealth, 35 Va. App. 634, 547 S.E.2d 524 (2001), that a stepgrandfather
could be tried as a “custodian.”
B. Physical Abuse (Cruelty to Children, Va. Code Ann. § 40.1–103, and Abuse and Neglect of
Children, Va. Code Ann. §18.2–371.1) (GROOT at 230-231).
For issues related to physical offenses against children, see Christian v. Commonwealth, 221 Va.
1078, 277 S.E.2d 205 (1981) (Commonwealth must prove beyond a reasonable doubt that the
defendant was the only person who could have injured the child); Lovisi v. Commonwealth, 212
Va. 848, 188 S.E.2d 206 (1972), cert. denied, 407 U.S. 922 (1972) (Va. Code Ann. §40.1–103
applies to those standing in loco parentis at the time of the offense and is not limited to those
having legal custody over a child); Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d 1
(1991) (bruises on three-year-old sufficient evidence to show requisite intent under malicious
wounding statute); Diehl v. Commonwealth, 9 Va. App. 191, 385 S.E.2d 228 (1989) (felony
abduction, Va. Code Ann. § 18.2–47, may be used against a non-custodial parent as the underlying
felony in a felony murder prosecution). See also part V., supra. In Snow v. Commonwealth, 33 Va.
App. 754, 537 S.E.2d 6 (2000), the court ruled that defendant could be convicted of child cruelty
as a “person responsible for the care of a child” in engaging in a high speed attempt to evade the
police with several children under eighteen in the automobile. He voluntarily took control of the
car and drove away from the police knowing that the children were in the vehicle. However, in
Commonwealth v. Carter, 21 Va. App. 150, 462 S.E.2d 582 (1995), the Court of Appeals ruled
that a defendant could not be prosecuted under Va. Code Ann. §40–103 for placing children “in
a situation that their life, health, or morals may be endangered” through driving under the
influence of alcohol because a clause of the statute was unconstitutionally vague. Id. at 155, 462
S.E.2d at 585. In another case decided a year later, Mosby v. Commonwealth, 23 Va. App. 53, 473
S.E.2d 782 (1996), the court upheld the constitutionality of a different, but similar, clause in
the same statute in a case where a child was injured in an automobile accident where his mother
had been driving while drinking, although the conviction was overturned because the jury was
instructed on simple negligence.
The Court of Appeals ruled in Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453 (1999),
that a mother could not be convicted of criminal neglect where she left her two young children
alone napping in an apartment to visit a friend for thirty minutes in another apartment and the
girls were injured in a fire because the mother left the gas stove on. There was no proof of the
requisite criminal intent to support the convictions. However, in Roberts v. Commonwealth, Record
No. 1594-98-3 (Va. App. June 8, 1999) (unpublished), the court found that the evidence of felony
child neglect was sufficient where the mother neglected to get necessary medical treatment for
her four-year-old child when he had serious physical injuries, in spite of her claim that she lacked
criminal intent because she feared her boyfriend. On the other hand, the Court of Appeals reversed
a similar conviction where a mother failed to take her son to get medical attention when she saw
25

injuries suffered while with a babysitter. McBeth v. Commonwealth, Record No. 1096-98-2 (Va.
App. June 29, 1999) (unpublished).
C. Pornography Offenses (Va. Code Ann. §§18.2–374.1 and -374.1:1) (GROOT at 384-386).
1. Constitutionality
The Virginia Supreme Court has upheld the constitutionality of Va. Code Ann. §18.2–374.1
(1979 version). Freeman v. Commonwealth, 223 Va. 301, 309–13, 288 S.E.2d 461, 465–
67 (1982). In Freeman, the court held that the statute was not overbroad because its incidental
effect on speech was minor relative to the need to control behavior that harms children. Id. at
309, 288 S.E.2d at 465. The court also held that the statute’s prohibition of “obscene”
material was not unconstitutionally vague. Id. at 312, 288 S.E.2d at 466-67. See also Foster
v. Commonwealth, 6 Va. App. 313, 369 S.E.2d 688 (1988) (the language “obscene for
children” in the 1979 version of Va. Code Ann. §18.2–374.1 was severable from the
definition of “sexually explicit material” and therefore any constitutional infirmities in the
“obscene for children” language would not affect the conviction).
2. Elements.
Intent. A person charged with enticing a person to be a subject of sexually explicit material
under §18.2–374.1(B) (1) must have the intent to cause the victim to be the subject of sexually
explicit material. Actual publication of materials is not necessary for a conviction; because
the crime covers soliciting or encouraging children to appear in sexually explicit material, a
person may be convicted if the evidence shows defendant’s intent is to produce sexually explicit
material even though nothing is actually produced. Frantz v. Commonwealth, 9 Va. App. 348,
354, 388 S.E.2d 273, 276-77 (1990).
The Court of Appeals provided a thorough discussion of intent in Foster v. Commonwealth, 6
Va. App. 313, 369 S.E.2d 688 (1988). In Foster, a defendant charged with four counts under
§18.2-374.1(B) (1) argued that the evidence failed to prove his intent. In the first count, the
court upheld the conviction because there was evidence that the defendant showed the victim
pictures of genitalia of other children, told the victim not to tell anyone, asked the victim to
model as if she were dead, and asked the victim to accompany him as he took pictures of dead
children. Id. at 327, 369 S.E.2d at 696–97. However, in the remaining counts, the evidence
was insufficient because it failed to show an intent to cause the children to be the subjects of
sexually explicit material. The evidence demonstrated the following acts by the defendant: i)
he showed one victim how to massage the arm of a dead person in order to be able to move it
into different positions. He also took pictures of the victim in a bathing suit and showed her
pictures he had taken of nude children. However, he did not ask the victim to model and the
pictures he took were not sexually explicit. Id. at 328, 369 S.E.2d at 697; ii) he asked another
victim to model clothing for dead people and wrote in his records that he intended to take
close-up pictures of her exposed nipples. The court said that pictures of nipples were not “lewd”
within the meaning of the statute. Id. at 329, 369 S.E.2d at 697–98; and iii) the defendant
26

had a victim lie on a bed pretending to be dead, he took her measurements for burial clothes,
and he showed her photographs of models dressed in see-through nightgowns, telling her
that was what she would be doing. The court found this to be insufficient evidence to prove
an intent to cause her to be the subject of sexually explicit photographs. Id. at 329–30, 369
S.E.2d at 698.
Sexually Explicit Visual Material. In prosecuting a case under §§18.2–374.1 or 374.1:1, the
Commonwealth must prove that visual representations of children are “sexually explicit.”
The Court of Appeals defined what constitutes sexually explicit material in Frantz v.
Commonwealth, 9 Va. App. 348, 388 S.E.2d 273 (1990). In Frantz, the defendant took pictures
of teenage boys standing in the nude; on one occasion he removed all his clothes while taking
the pictures and on another occasion he masturbated while taking pictures of a nude boy. The
court held that the defendant’s sexual arousal was irrelevant to determining whether the
pictures were sexually explicit, and because there was no evidence that “the boys assumed
erotic or provocative poses,” the photographs were not sexually explicit. Id. at 353-54, 388
S.E.2d at 276.
Section 18.2-374.3 is a far more important section of the Code now because of the greater
use of electronic means, including computers, computer networks, and computer bulletin
boards, to promote activities forbidden by Va. Code Ann. §18.2–374.1.
D. Attempts (GROOT at 44-51).
While punishment for attempts are codified in Va. Code Ann. §§18.2–25 to 18.2–29, the
definition of an attempt is guided by case law. Johnson v. Commonwealth, 209 Va. 291, 163 S.E.2d
570 (1968). Two elements must be shown in the prosecution of any attempted offense: i) specific
intent to commit the crime; and ii) an overt act made toward the commission of the crime. Thacker
v. Commonwealth, 134 Va. 767, 114 S.E. 504 (1922); Hicks v. Commonwealth, 86 Va. 223, 9
S.E. 1024 (1889).
1. Specific Intent
Specific intent may be inferred from “conduct consistent with preparation for [the crime].”
Fortune v. Commonwealth, 14 Va. App. 225, 229, 416 S.E.2d 25, 27 (1992). In Fortune, for
example, the court cited as conduct consistent with the crime of rape: “shoving a victim onto
a bed, telling a victim to lie down, removing or attempting to remove a victim’s outer clothing
or underclothing, often while the defendant is removing or loosening his own clothing.” Id.
Likewise, in Tharrington v. Commonwealth, 2 Va. App. 491, 346 S.E.2d 337 (1986),
defendant’s acts demonstrated his intent to sexually abuse the victim. In this case, defendant
had an 11-year-old friend of his daughter try on some pants. Once she had the pants on, the
defendant locked her in a room with him, telling the victim he wanted her to see how the
clothes fit. He asked her to pull the pants down to her thighs while he felt the waistband of
the pants. The defendant told her he liked her underpants. Next, the defendant had the victim
unbutton her shirt while he felt the inside of the shirt. Finally, the defendant sat in front of
27

the victim, asked her repeatedly if he could touch her, and offered her money to let him. The
court held that these acts demonstrated an intent to touch the victim’s intimate parts or the
clothing covering her intimate parts. In Penley v. Commonwealth, Record No. 188-97-2 (Va.
App. Sept. 8, 1998) (unpublished), the Court of Appeals concluded that the evidence was
sufficient to establish Penley’s guilt of attempted taking of indecent liberties with children
where he asked two girls awaiting their school bus if they had “ever seen a dick before” and if
they “would like to see one.” See also Green v. Commonwealth, 223 Va. 706, 292 S.E.2d 605
(1982) (specific intent found); Chittum v. Commonwealth, 211 Va. 12, 174 S.E.2d 779 (1970)
(specific intent found); Ingram v. Commonwealth, 192 Va. 794, 66 S.E.2d 846 (1951) (specific
intent found); Granberry v. Commonwealth, 184 Va. 674, 36 S.E.2d 547 (1946) (specific
intent found).
2. Overt Act
An overt act toward the commission of the offense must go beyond mere preparation. Fortune,
supra, 14 Va. App. at 230, 416 S.E.2d at 28. However, “where intent has been shown, any
slight act done in furtherance of this intent will constitute an attempt.” Id. In Fortune, the
defendant’s acts of taking off his pants, forcibly keeping the victim in a room, and touching
her breast went beyond mere preparation. Id. See also Tharrington v. Commonwealth, 2 Va.
App. 491, 496, 346 S.E.2d 337, 340 (1986) (overt acts found when defendant took victim
into a locked room, asked her to undress herself, and repeatedly asked her if he could touch
her). But see Previtire v. Commonwealth, 16 Va. App. 809 , 433 S.E.2d 515 (1993) (defendant’s
persistence, the circumstances of time, place and relative age, and defendant’s personal
relationship with victim did not show an overt act).
E. Principals and Accessories (Va. Code Ann. §§18.2-18 to 18.2-21) (GROOT at 390-396).
Principal in the Second Degree. A person must satisfy three elements to be a principal in the
second degree: i) the offense must be committed by a principal in the first degree; ii) the defendant
must have been actually or constructively present when the offense was committed; and iii) the
defendant must have “procured, encouraged, countenanced, or approved” the commission of
the crime. Sutton v. Commonwealth, 228 Va. 654, 324 S.E.2d 665 (1985). In Sutton, the court
held that a woman who repeatedly pressured a victim to have intercourse with a man could be
convicted of rape as a principal in the second degree. First, the fact that the defendant could not
have committed the offense did not “absolve her of criminal liability for aiding and abetting”
her husband. Id. at 665, 324 S.E.2d at 671. Second, the defendant was in another room in the
house when the intercourse occurred, where her “malevolent, intimidating influence on her
niece was present and continued unabated.” This conduct amounted to constructive presence.
Id. at 666, 324 S.E.2d at 672. Third, the defendant assisted in the entire scheme of coercing
the victim into having intercourse with her husband. Thus, the conviction was proper.
Innocent Agent. Under an earlier version of section 18.2-61, the Virginia Supreme Court held
that rape could not be committed through an innocent agent. Dusenbery v. Commonwealth, 220
28

Va. 770, 263 S.E.2d 392 (1980) (defendant forced a 16-year-old boy to have intercourse with a
16-year-old girl by grabbing the boy’s penis and attempting to force the boy to penetrate the girl).
However, the General Assembly amended the statute following the Dusenbery case to include
activity that “causes a complaining witness” to engage in the activity. Va. Code Ann. §18.2–61.
II. The Charging Documents (BACIGAL at 13–1 through 13–8).
A. Specificity
An indictment does not have to specify the exact date of the offense when time is not of the essence.
Va. Code Ann. §19.2–226(6). Time is not of the essence in rape cases unless the age of the child at
the time of the offense is an issue. Clinebell v. Commonwealth, 3 Va. App. 362, 349 S.E.2d 676
(1986), rev’d on other grounds, 235 Va. 319, 368 S.E.2d 263 (1988) (sufficient to specify a 13-
month period within which a crime occurred); see Waitt v. Commonwealth, 207 Va. 230, 148
S.E.2d 805 (1966) (indictment stating that offense occurred within 16 months prior to indictment
sufficient); Marlowe v. Commonwealth, 2 Va. App. 619, 347 S.E.2d 167 (1986) (failure to specify
date when defendant asserted an alibi defense did not violate due process).
B. Number of Counts
Supreme Court Rule 3A:6(b) states:
Two or more offenses, any of which may be a felony or misdemeanor, may be charged in separate
counts of an indictment or information if the offenses are based on the same act or transaction, or on
two or more acts or transactions that are connected or constitute parts of a common scheme or plan.
The Court of Appeals analyzed this rule in the child abuse context in Foster v. Commonwealth, 6 Va.
App. 313, 369 S.E.2d 688 (1988). In Foster, the defendant asked several children to pose nude in
various situations, most of which involved acting like they were dead. The court held that the counts
were misjoined because: i) a three year gap between some of the incidents indicated they were not
part of a “common scheme or plan;” and ii) the conduct in one count involved activity that did not
occur in any of the other counts (binding and photographing a victim). Id. at 322-23, 369 S.E.2d at
694. The court then analyzed four separate counts and found harmless error in joining these counts
related to defendant’s attempts to entice young girls to be photographed in casket. Because all of
these acts would have been admissible in separate trials as prior crimes, it was not reversible error to
join all four counts in one trial. Id. at 323-24, 369 S.E.2d at 695.
III. Time Considerations.
A. Statutes of Limitation (Va. Code Ann. §19.2–8) (BACIGAL at 14–9).
With the exception of marital rape, Va. Code Ann. §18.2–61 and marital sexual assault, Va. Code Ann.
§18.2–67.2:1, there is no statute of limitations on felony charges in Virginia. Further, Va. Code Ann.
§19.2–8 places a one year limitation on the prosecution of most misdemeanor charges; misdemeanors
related to child abuse fall under this limitation.
29

B. Speedy Trial and Due Process (Va. Code Ann. §19.2-243) (BACIGAL at 14-10 through 14-12).
Virginia’s speedy trial requirements, Va. Code Ann. §19.2-243, are listed in Appendix B. None
of the issues raised in the statute are necessarily unique to child abuse cases. However, one issue
that does arise frequently, given the length of delay in some reports of child abuse, is whether a
delay of several years violates constitutional speedy trial or due process requirements. Speedy
trial guarantees apply only after a defendant is charged or indicted. United States v. Marion, 404
U.S. 307 (1971). Therefore, a delay caused by the victim’s failure to report does not trigger a
speedy trial analysis. However, such a delay conceivably can affect the defendant’s right to a fair
trial, thus implicating due process concerns. The Virginia Supreme Court has addressed the issue
and established a two-step analysis. In order for a pre-indictment delay to violate due process,
there must be a showing of intentional delay by the prosecutor and actual prejudice to the
defendant. Hall v. Commonwealth, 8 Va. App. 526, 383 S.E.2d 18 (1989) (a 13-year preindictment
delay in first degree murder case did not deny the defendant due process).
The Court of Appeals has held in a child abuse context that a lengthy pre-indictment delay did
not violate due process. Johnson v. Commonwealth, 9 Va. App. 176, 385 S.E.2d 223 (1989). In
Johnson, the defendant was indicted in 1986 for sexual contact with minors that occurred from
1973 to 1982. Law enforcement officials first received information about the incidents in 1986
and an indictment was returned about six months later. The defendant argued that once he
established prejudice, the burden shifted to the Commonwealth to prove that unfair tactics were
not used. Id. The court did not reach this argument because it found the defendant’s claim that
his memory had faded, did not by itself demonstrate actual prejudice. Therefore, the preindictment
delay did not warrant dismissal of the charges. In Ashby v. Commonwealth, 33 Va.
App. 540, 535 S.E.2d 182 (2000), the Court of Appeals ruled that when an indictment is “nol
prossed” and a new indictment issued, the speedy trial period begins anew.
IV. Lesser Included Offenses
An indictment can be considered to be charging a lesser offense within the one charged if all of the
elements of the lesser offense are included in the greater. Ashby v. Commonwealth, 208 Va. 443,
444-45, 158 S.E.2d 657, 658 (1968), cert. denied, 393 U.S. 1111 (1969). “An offense is not lesserincluded
within another . . . if it contains at least one necessary element not required to prove the
other.” Howard v. Commonwealth, 221 Va. 904, 275 S.E.2d 602 (1981). Stated differently, the rule
is: “[I]n order for one crime to be a lesser included offense of another crime, every commission of the
greater offense must also be a commission of the lesser offense.” Kauffmann v. Commonwealth, 8 Va.
App. 400, 409, 382 S.E.2d 279, 283 (1989). The following child abuse-related offenses have been
held not to be included within a greater offense:
• Carnal knowledge is not a lesser included offense of rape. Ragsdale v. Commonwealth, 38 Va.
App. 421, 565 S.E.2d 331 (2002).
• Indecent liberties with a child, contributing to the delinquency of a minor, and sexual battery
are not lesser included offenses of aggravated sexual battery. Kauffmann, supra, 8 Va. App. at
30

409–10, 382 S.E.2d at 283–84. In Kauffmann, the court stated that the difference between
aggravated sexual battery and sexual battery was the age of the victim. “Since the evidence would
not support a finding that [the victim] was not between thirteen and fifteen years of age, it being
uncontradicted that she was fourteen, a sexual battery instruction would have been inappropriate
in this case.” Id. Cf. Walker v. Commonwealth, 12 Va. App. 438, 404 S.E.2d 394 (1991) (an
indictment was broadly enough drawn that a conviction for sexual battery was “substantially
charged” and therefore proper even though it is not a lesser included offense of aggravated sexual
battery, which was the crime charged).
• Contributing to the delinquency of a minor is not a lesser included offense of statutory rape.
Commonwealth v. Brew, 43 Va. Cir. 611 (Richmond County 1996).
• Fondling or feeling a child’s breast with lascivious intent is not a lesser included offense of
attempted sodomy. Howard v. Commonwealth, 221 Va. 904, 275 S.E.2d 602 (1981).
• Attempted rape is not a lesser included offense of abduction with intent to defile. Simms v.
Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986); Coram v. Commonwealth, 3 Va. App.
623, 352 S.E.2d 532 (1987).
• Indecent exposure is not a lesser included offense of sodomy. Ashby v. Commonwealth, 208 Va.
443, 158 S.E.2d 667 (1968), cert. denied, 393 U.S. 1111 (1969).
The following case has found a lesser included offense:
• Simple abduction is a lesser included offense of abduction with intent to defile. Hawks v.
Commonwealth, 228 Va. 244, 321 S.E.2d 650 (1984).
V. Use of Circumstantial Evidence in Child Physical Abuse and Homicide Cases
A. Generally (GROOT at 271–274).
First Degree Murder. (Va. Code Ann. §18.2–32). Virginia courts look primarily to five factors in
determining whether circumstantial evidence is sufficient to support a finding of a premeditated
intent to kill. Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982). The factors are:
the brutality of the attack, the disparity in size and strength between the defendant and the victim,
the concealment of the victim’s body, the defendant’s lack of remorse and efforts to avoid detection,
and motive. Id. at 232, 294 S.E.2d at 892-93. These factors were applied to a child abuse context
in Rhodes v. Commonwealth, 238 Va. 480, 384 S.E.2d 95 (1989). In Rhodes, a three-month-old
infant died of what an expert identified as head injuries caused by “moderate to severe force”
from a blunt instrument. The infant also had one old bruise behind her ear and a leg fracture that
was at least two weeks old. In analyzing whether the circumstantial evidence demonstrated a
premeditated intent to kill, the court determined that three of the Epperly factors had not been
met: i) the defendant did not attempt to conceal the crime, ii) she showed remorse, and iii) she had
no motive. The court stated it was not using the Epperly factors as a litmus test, stating that
circumstantial evidence may indicate intent “whenever [the court] can say that the reasonable
import of [the] evidence, considered as a whole, is sufficient to show beyond a reasonable doubt
31

that the accused was the criminal agent and he acted with a premeditated intent to kill.” Id. at
487, 384 S.E.2d at 99. See also Biddle v. Commonwealth, 206 Va. 14, 141 S.E.2d 710 (1965)
(first degree murder conviction reversed because evidence did not show a willful or malicious act
by mother who failed to feed her three month old baby during times when she and her husband
were not getting along); Vaughan v. Commonwealth, 7 Va. App. 665, 376 S.E.2d 801 (1989)
(evidence insufficient to support first degree murder conviction of 16-year-old mother who kept
her pregnancy a secret, failed to take steps toward placing the baby for adoption, disposed of the
baby’s body, and did not suffer from a mental illness).
The Court of Appeals upheld a first degree murder conviction for the death of a child in Archie v.
Commonwealth, 14 Va. App. 684, 689, 420 S.E.2d 718, 721 (1992), in which four of the five
Epperly elements were shown. First, an expert testified that the victim died from substantial and
repeated blows to the head by a flat object. Second, the defendant was a grown woman and the
victim was a three-year-old child. Third, several witnesses testified as to the defendant’s lack of
remorse after the incident. Fourth, there was evidence that the defendant was angry with the
victim and with the victim’s mother, which provided a motive. The only element that did not
exist was an effort to conceal the body. However, the existence of four of the five factors was
sufficient to demonstrate the defendant’s premeditated intent to kill. Id. at 689-91, 420 S.E.2d
at 722. See Charles A. Phipps, “Proving Criminal Intent in Cases of Child Homicide,” 11 Update,
No. 1 (1998).
Second Degree Murder. (Va. Code Ann. §18.2-32). The Virginia Supreme Court held circumstantial
evidence sufficient to prove malice in Pugh v. Commonwealth, 223 Va. 663, 292 S.E.2d 339
(1982). The child was malnourished, had been repeatedly beaten, and died after the defendant
poured black pepper down the child’s throat to the point that it suffocated her. The court stated
that the acts of abuse by the defendant were “wholly unreasonable, and beyond all proportion to
any ordinary response to the conduct of a recalcitrant three-year-old.” Id. See also Evans v.
Commonwealth, 215 Va. 609, 212 S.E.2d 268 (1975) (evidence of victim’s bruises, defendant’s
statement that he had no love for the child, and an expert’s testimony that the child’s injuries
were caused by blunt trauma constituted sufficient evidence to support a conviction for second
degree murder). In Smith v. Commonwealth, No. 2284-01-1 (Va. App. Nov.5, 2002) (unpublished),
the evidence was sufficient to find Smith guilty of second-degree murder and child neglect in the
death of her newborn infant by blunt force head injuries where she had gone to the hospital
complaining of vaginal bleeding, stated that she had thought she had a fibroid tumor but had
discovered a few days prior that she was pregnant, and that she had given birth but did not want
her mother to know. The infant was found in her backyard, wrapped in some clothing near the
trash cans and he died a few days later from the head injuries and abandonment. Likewise, in
Corrales v. Commonwealth, No. 2737-01-2 (Va. App. Nov. 19, 2002) (unpublished), defendant
was convicted of the second degree murder of her newborn baby where the baby was found in a
closet in a double-tied plastic bag dead from asphyxiation. In Pavlick v. Commonwealth, 27 Va.
App. 219, 497 S.E.2d 920 (1998) reversing 25 Va. App. 538, 489 S.E.2d 72 (1997), a child
died at two months old of head injuries as a result of the “shaken baby syndrome,” and the father
32

was convicted of the second degree murder of the infant. The en banc Court of Appeals decided the
trial court did not err in admitting evidence of rib fractures between two to four weeks old and a
separate head injury that occurred about four to eight days before the death. The prior injuries
occurred during a time when either Pavlick had sole physical custody of the infant or when the
paternal grandmother was present, and she testified without contradiction that she had never
shaken the infant. The evidence of the prior injuries was relevant and the jury was entitled to
consider the evidence in determining the credibility of the witnesses. Similarly, in Webber v.
Commonwealth, 26 Va. App. 549, 496 S.E.2d 83 (1998), the evidence was deemed sufficient to
prove that a father had murdered his twenty-nine-day-old son where the medical symptoms were
consistent with the “shaken baby syndrome” and where that diagnosis was coupled with the
father’s inculpatory admissions.
Involuntary Manslaughter. In Dowden v. Commonwealth, 260 Va. 459, 536 S.E.2d 437 (2000), the
circumstantial evidence that defendant was responsible for the blunt trauma fatal injuries to his
seven-month-old son was sufficient to support his conviction for involuntary manslaughter. The
only other possible explanation for the injuries was the administration of CPR during efforts to
resuscitate the infant but the expert evidence negating that theory was overwhelming. Similarly, in
Collado v. Commonwealth, 33 Va. App. 356, 533 S.E.2d 625 (2000), the evidence to support
defendant’s conviction for child abuse through the “shaken baby syndrome” was sufficient in light
of her sole custody of the child as a daycare provider during the day when the injuries occurred and
the expert testimony regarding the time of the injuries and the symptoms. In Craig v. Commonwealth,
34 Va. App. 155, 538 S.E.2d 355 (2000), defendant was properly convicted of involuntary
manslaughter in a trial for second degree murder for the death of his daughter as the result of “shaken
baby syndrome,” and the Commonwealth, as well as a defendant, may request an instruction on the
lesser-included offense of involuntary manslaughter in such a case.
Child Physical and Sexual Abuse. The Court of Appeals has found circumstantial evidence sufficient
to prove a defendant’s intent to maliciously wound a child under Va. Code Ann. §18.2–51 in
Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d 1 (1991). The court in Campbell stated:
The finder of fact may infer that a person intends the natural and probable consequences
of his acts. . . . Thus, if a person intentionally takes an action, the probable consequence
of which is the permanent disability of another, even if permanent disability does not
result, he or she can be found to have intended to cause a permanent disability. Id. at
484, 405 S.E.2d at 5.
The court held that the trier of fact could infer from the serious nature and location of the blows
to the child’s body that the defendant intended to permanently disfigure the child, even though
permanent disfigurement did not occur. Id. See Christian v. Commonwealth, 221 Va. 1078, 277
S.E.2d 205 (1981) (two–year–old victim’s burns, bruises and fractures supported finding of
criminal intent to injure under Va. Code Ann. §18.2–51). The Court of Appeals ruled in Patrick v.
Commonwealth, 27 Va. App. 655, 500 S.E.2d 839 (1998), that the circumstantial evidence of
penetration was sufficient to support a conviction of statutory rape of an eleven-year-old girl.
33

Since DNA evidence was introduced based on semen found in the girl’s vagina, it was deposited
there when defendant raped the victim, “which required him to penetrate victim’s vagina with
his penis.” Id. at 663, 500 S.E.2d at 843. See also Morrison v. Commonwealth, 10 Va. App. 300,
391 S.E.2d 612 (1990) (although victim never testified that penetration occurred, doctor’s
testimony that some object penetrated her vagina was sufficient).
B. Corpus Delicti (GROOT at 260-265).
In every prosecution for homicide, the Commonwealth must prove corpus delicti. Lane v.
Commonwealth, 219 Va. 509, 514, 248 S.E.2d 781, 783 (1978). The doctrine of corpus delicti
requires first, proving a death occurred and second, proving the death was the result of the criminal act
or agency of another. Opanowich v. Commonwealth, 196 Va. 342, 83 S.E.2d 432 (1954) (evidence
sufficient to support second degree murder conviction when the baby did not die of natural causes, the
defendant was the only person to have contact with the child, and the defendant had stated that she
wanted to get rid of the child). Corpus delicti may be proven by circumstantial evidence. Id. In Griffin v.
Commonwealth, Record No. 0855-99-2 (Va. App. Oct. 17, 2000) (unpublished), the court found that
although Griffin had confessed to sexual offenses against his six-year-old daughter, there was not even
the “slight corroborative evidence” to establish the corpus delicti of the offense and justify the conviction.
In cases involving the death of a newborn, the doctrine of corpus delicti requires the Commonwealth
to prove that the newborn achieved an independent and separate existence apart from its mother
before its death. Lane v. Commonwealth, 219 Va. 509, 514, 248 S.E.2d 781, 783 (1978). In Lane,
the 17-year-old defendant testified she did not know she was pregnant until giving birth to her child
in a toilet. After giving birth, she wrapped the infant in a towel, put the baby into a large plastic
garbage bag, and put the bag off the side of a road. Several doctors testified at the trial that the death
resulted from a severe lack of oxygen, but they could not state the cause of death with any reasonable
degree of medical certainty. The Supreme Court held that evidence showing the child breathed a few
times after birth was not an unqualified opinion that the child had acquired an independent existence
separate from its mother. Id. at 514, 248 S.E.2d at 784. The court further stated it could not be
inferred from the evidence that the death was caused by wrapping the child in a towel or placing it in
the plastic bag. Id. at 515, 248 S.E.2d at 784. Thus, the evidence was insufficient to show beyond
a reasonable doubt that the child’s death was caused by a criminal act of the defendant.
34

CHAPTER THREE
Pre-trial Motions
I. Defense Motions
A. Discovery (Sup. Ct. R. 3A:11) (BACIGAL at §§14–2 through 14–6).
Although there is no constitutional right to discovery in a criminal case, Lowe v. Commonwealth,
218 Va. 670, 239 S.E.2d 112 (1977), cert. den., 435 U.S. 930 (1978), the Virginia Supreme Court
Rules allow the defendant to obtain documents from the prosecution under certain circumstances.
Va. Sup. Ct. R. 3A:11. Prosecutors must be aware that Rule 3A:11 applies only to felony prosecutions
in Circuit Court, and that the defendant also may be able to obtain discovery if there is a preliminary
hearing in juvenile and domestic relations district court, Va. Sup. Ct. R. 8:15, or if the victim has
filed a civil suit. Va. Sup. Ct. R. 4:0–4:14. For cases involving adults charged with a crime in juvenile
and domestic relations district court, see Rules of Gen. Dist. Ct. 7C:5.
1. Psychological/Psychiatric Records.
Supreme Court Rule 3A:11(b) (1) allows the accused to inspect “written reports of a physical
or mental examination of the accused or the alleged victim made in connection with a
particular case . . . that are known by the Commonwealth’s attorney to be within the
possession, custody or control of the Commonwealth.” Further, the physician-patient privilege
is not applicable in “any legal proceeding resulting from the filing of any report or complaint”
related to child abuse or neglect. Va. Code Ann. §63.2–1519. Accordingly, statements made
to a physician are not protected by privilege. Barker v. Commonwealth, 230 Va. 370, 337
S.E.2d 729, 734 (1985) (medical and psychiatric records of victim discoverable if in the
possession and control of the Commonwealth’s Attorney). However, the defendant must make
a specific showing of relevance to obtain psychiatric records of a rape victim. Farish v.
Commonwealth, 2 Va. App. 627, 346 S.E.2d 736 (1986). See also O’Dell v. Commonwealth,
234 Va. 672, 364 S.E.2d 491 (1988) (Commonwealth not required under Sup. Ct. R. 3A:11(b)
to disclose information about its experts to the defendant even though defendant was required
to furnish information about an expert because the Commonwealth was paying the costs due
to defendant’s indigence).
2. Physical Examination.
In Clark v. Commonwealth, 31 Va. App. 96, 521 S.E.2d 313 (1999), the Court of Appeals
agreed with the defense that a trial court has the discretion to require the victim of an alleged
sexual assault to submit to an independent physical examination where the defendant has
made “a threshold showing of a compelling need or reason.” Id. at 109, 521 S.E.2d at 320.
3. Juvenile Records
A defendant’s right to confront witnesses outweighs a juvenile’s embarrassment resulting
from disclosure of juvenile records. Davis v. Alaska, 415 U.S. 308 (1974) (holding that a
defendant’s constitutional right to effective cross-examination of adverse witnesses outweighs
35

the witness’s right to testify without the embarrassment of disclosing juvenile records when
the state could refrain from calling the witness to testify). However, a defendant is not entitled
to examine juvenile court documents of adverse witnesses when the Commonwealth provides
a complete record of the juvenile’s adjudication history and when bias, prejudice or ulterior
motive are not asserted against the witness. Scott v. Commonwealth, 7 Va. App. 252, 262,
372 S.E.2d 771, 777 (1988). See Fulcher v. Commonwealth, 226 Va. 96, 306 S.E.2d 874
(1983) (harmless error in limiting cross-examination of witness’s juvenile record under the
unusual facts of the case); McCain v. Commonwealth, 5 Va. App. 81, 360 S.E.2d 854 (1987)
(harmless error to limit cross-examination of a witness concerning his juvenile record). Juvenile
records cannot be used for impeachment purposes simply as a record of a crime
4. Discovery of Other Documents
Va. Sup. Ct. R. 3A:11(b) (2) provides:
Upon written motion of an accused, a court shall order the Commonwealth’s attorney
to permit the accused to inspect and copy or photograph designated books, papers,
documents, tangible objects, buildings or places, or copies or portions thereof, that
are within the possession, custody, or control of the Commonwealth, upon a showing
that the items sought may be material to the preparation of his defense and that the
request is reasonable. (emphasis added).
Prosecutors should be aware of the following issues:
• The Commonwealth is not required to furnish the names and addresses of witnesses. Lowe v.
Commonwealth,218 Va. 670, 239 S.E.2d 112 (1977), cert. den.,435 U.S. 930 (1978); Watkins
v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), cert. den., 475 U.S. 1099 (1986).
• The defendant is not entitled to records that Child Protective Services has kept on the
investigation. Spencer v. Commonwealth, No. 2207–01–2 (Va. Ct. App. Oct. 8, 2002)
(unpublished) (the trial court did not err in denying the defense pretrial access to the CPS
file, which included an audiotape and transcript of the interview with the victim).
• The defendant may obtain school records if the Commonwealth intends to introduce such
records in its case-in-chief. Sup. Ct. R. 3A:11.
• The defendant may use a subpoena duces tecum to obtain writings or objects that are
material to the proceeding even if they are not admissible. Gibbs v. Commonwealth, 16
Va. App. 697, 432 S.E.2d 514 (1993).
• The defendant may obtain the results of scientific tests, such as DNA tests. Va. Sup. Ct. R.
3A:11(b) (1) (ii).
• The defendant may obtain all relevant statements made by the defendant. Va. Sup. Ct. R.
3A:11(b) (1) (i). See also Naulty v. Commonwealth, 2 Va. App. 523, 346 S.E.2d 540 (1986)
(only relevant statements by the defendant are subject to discovery).
36

Of importance is Rule 3A:12, which requires requested writings to be material to
the proceeding. Prosecutors should move to quash requests for all documents until
there has been a showing of materiality. Prosecutors may wish to request the court
review records in camera, and the prosecutor also should move for copies of all records
relevant to the defense to be provided to the Commonwealth.
5. Exculpatory Evidence
The Commonwealth must turn over all exculpatory evidence known to the
Commonwealth. Bellfield v. Commonwealth, 215 Va. 303, 208 S.E.2d 771 (1974),
cert. denied, 420 U.S. 965 (1975). Such evidence includes: i) statement favorable to
the accused even if the Commonwealth considers the statement not credible, Hughes
v. Commonwealth, 16 Va. App. 576, 431 S.E.2d 906 (1993); Cherricks v.
Commonwealth, 11 Va. App. 96, 396 S.E.2d 397 (1990); ii) scientific and physical
evidence, Robinson v. Commonwealth, 231 Va. 142, 341 S.E.2d 159 (1986) (a
witness’s failure to pass a polygraph test and the fact that the witness possibly had
human blood on his clothes should have been provided by the prosecution in response
to defendant’s motion for exculpatory evidence); and iii) information in the possession
of the police but not known to the prosecutor, Conway v. Commonwealth, 11 Va. App.
103, 397 S.E.2d 227 (1990). See MANUAL, Chapter Four, part II.B.2.d.
B. Other Defense Motions
1. Request for a Bill of Particulars (BACIGAL at §13–8).
One of the most popular defense motions is a request for a bill of particulars, in which
the defendant attempts to force the prosecution into specifying a date for the
occurrence. For discussion of this issue, see supra, Chapter Two, part II.A.
2. Motion for Continuance (Va. Sup. Ct. R. 7A:14) (BACIGAL at §17–3).
It is important that the defendant or the defendant’s attorney consent on the record
to a continuance. Gilchrist v. Commonwealth, 227 Va. 540, 317 S.E.2d 784 (1984).
By consenting, the defendant waives the right to raise Speedy Trial Act questions at a
later date. “[A] statute such as Virginia Code . . . §4926, designed to aid in the
constitutional guarantee of a ‘speedy trial’ for one accused of crime, may be waived
and is waived where the accused consents to a continuance or a postponement.”
Flannery v. Commonwealth, 35 S.E.2d 135, 139 (Va. 1945). For other issues relating
to continuances, see Bennett v. Commonwealth, 236 Va. 448, 374 S.E.2d 303 (1988)
(trial court’s four-day continuance to allow the Commonwealth to respond to a
surprise argument by the defendant not an abuse of discretion because defendant
has no constitutional “right to surprise” the Commonwealth as a defense tactic);
Smith v. Commonwealth, 16 Va. App. 630, 432 S.E.2d 2 (1993) (continuance for
defendant not required when on morning of trial defendant wanted more time to test
37

lood sample submitted five months prior to trial for evidence of sexual activity of fourteenyear-old
victim).
3. Severance Motions (BACIGAL at §§14–19 through 14–20).
The Commonwealth must file a motion to try jointly “persons charged with participating in
contemporaneous and related acts or occurrences or in a series of acts or occurrences
constituting an offense or offenses.” Va. Code Ann. §19.2–262.1. The court may order such
a joint trial for good cause, provided it does not constitute prejudice to a defendant. Id. See
also discussion supra, Chapter 2, part II.B.
4. Motion to Admit Evidence of Victim’s Prior Sexual Conduct
Virginia’s rape shield statute makes evidence of a victim’s prior sexual conduct inadmissible.
Va. Code Ann. §18.2–67.7 (“In prosecutions [of criminal sexual assault cases], general
reputation or opinion evidence of the complaining witness’s unchaste character or prior sexual
conduct shall not be admitted.”). See Hoke v. Commonwealth, 237 Va. 303, 377 S.E.2d 595
(1989) (evidence of victim’s reputation held clearly inadmissible under rape shield statute).
See MANUAL, Chapter Four, part III.D., for further discussion of this issue.
38
The Virginia Supreme Court has determined that prior allegations of sexual abuse by a victim
are admissible to impeach the credibility of the victim or to show that the present offense did
not occur and that such evidence does not fall within the rape shield statute. Clinebell v.
Commonwealth, 235 Va. 319, 325, 368 S.E.2d 263, 266 (1988). In Clinebell, the defendant
was convicted of sexually assaulting his minor daughter. Prior to trial, the Commonwealth
filed a motion in limine to have the trial court prohibit reference to any past sexual contact of
the victim with any person other than the defendant. Specifically, the Commonwealth sought
to prohibit any reference to the following statements allegedly made by the daughter: i) in
1983 she told a classmate she was pregnant; ii) in 1984 she told a classmate both her father
and her uncle had raped her; iii) in 1984 she told a cousin that a boy had gotten her pregnant;
and iv) she had claimed her paternal grandfather had sexually abused her (the grandfather
was tried and acquitted of two charges of abuse). The defendant argued the purpose of the
evidence was to prove the victim falsely claimed to have engaged in sexual conduct and to
attack the victim’s credibility. The Supreme Court held that the allegedly false “statements”
concerning sexual behavior were not “conduct” within the meaning of Virginia’s rape shield
statute and were admissible to impeach the complaining witness’s credibility. Id. at 322–º–
23, 368 S.E.2d at 264–65. Further, the court held that specific acts of prior allegations are
admissible as substantive evidence tending to show that the instant offense did not occur
because “the weight of authority recognizes more liberal rules concerning impeachment of
complaining witnesses” in sex abuse cases. Id. The one limitation on this rule is that the
court must make a threshold determination that a reasonable probability of the falsity of the
prior allegations exists. Id. at 326, 368 S.E.2d at 266. In this case, the court concluded that
in light of her “obviously” false claims of pregnancy, a reasonable probability existed that her
claims of sexual misconduct against her grandfather and uncle also were false. The court

elieved that if the jury had been informed of her prior statements, it properly could have
inferred that the father’s alleged sexual acts with his daughter also were fabrications.
Likewise, in Cairns v. Commonwealth, 40 Va. App. 271, 579 S.E.2d 340 (2003), where a
man was convicted of three counts of forcible sodomy, one count of rape and one count of
producing sexually explicit material, all in connection with activities involving his fourteen–
year–old stepdaughter and his eleven–year–old daughter, the Court of Appeals ruled that the
trial judge erred in refusing to admit into evidence a journal kept by the older girl, because
the journal was admissible as statements for specific impeachment purposes. The rape shield
statute thus did not apply, but the error was harmless since the trial judge reviewed the journals
and said their admission would not have influenced his decision. In a circuit court case, the
judge ruled that there was no exception to the rape shield law that would allow crossexamination
of a child sexual assault victim on her prior sexual experience, especially since
that alleged prior experience was dissimilar to what was alleged in the case. Commonwealth v.
Hagy, 41 Va. Cir. 51 (Roanoke City 1996).
5. Marital Privilege (FRIEND at §7-2; BACIGAL, TATE & GUERNSEY at 270–272).
The common law interspousal confidential communication privilege was not abrogated by
the legislature’s enactment of Va. Code Ann. §§19.2–271.2 and 8.01–398. Church v.
Commonwealth, 230 Va. 208, 335 S.E.2d 823 (1985). At the time of the Church decision,
section 19.2-271.2 stated:
In criminal cases neither [husband nor wife] shall be compelled . . . to be called as a
witness against the other, except in the case of a prosecution for an offense committed
by one against the other or against a minor child of either . . . but if either be called and
examined in any case as a witness in behalf of the other, the one so examined shall be
deemed competent, and, subject to the exception stated in §8.01–398, may be compelled
to testify against the other under the same rules of evidence governing other witnesses.
(Emphasis added; the statute was last amended in 1996, subsequent to this case).
Va. Code Ann. §8.01–398, applicable on its face only to civil proceedings, stated:
[N]either husband nor wife shall, without the consent of the other, be examined in any
actions as to any communications privately made by one to the other while married,
nor shall either be permitted, without such consent, to reveal in testimony after the
marriage relation ceases any such communication made while the marriage subsisted.
The court held that the language “subject to the exception stated in §8.01-398” had the effect
of retaining the repealed interspousal communication privilege within the criminal procedure
statute. Thus, interspousal communications may not be compelled from a spouse under
§19.2–271.2. See Appendix B for a current version of the text of the statute. Section 63.2–
1519 of the Code abrogates the privilege in “any legal proceedings” resulting from a complaint
or report of abuse or neglect.
39

6. Venue (BACIGAL at §14–21).
Change of venue based on extensive media coverage of a case depends on i) whether the media
coverage is “factual and accurate;” and ii) the difficulty in selecting a jury. Mueller v.
Commonwealth, 244 Va. 386, 398–99, 422 S.E.2d 380, 388–89 (1992). In Mueller, there
was no contention that the media coverage was false, and only nine of 47 venirepersons had
to be dismissed because of a predisposition against the defendant. Therefore, a change of venue
was not required. See also Wood v. Commonwealth, 146 Va. 296, 135 S.E. 895 (1926) (need
for change of venue established when defendant shows that a fair trial is impossible due to
conditions existing at the time of trial).
II. Prosecution Motions (See Daniel S. Armagh, “‘Pre-trial Motions in Child Abuse Cases,” 11
Update, No. 3 (1998)).
A. Discovery (BACIGAL at §14–6).
If the defendant files a motion for discovery of prosecution records as provided by Rule 3A:11(b)
(1) (ii) or (b) (2), the court must condition the defendant’s discovery order on his providing to the
prosecution: i) discovery of records or reports of “autopsy examinations, ballistic tests, fingerprint,
blood, urine and breath analysis, and other scientific tests” within the defendant’s control; ii)
information about whether the accused intends to introduce an alibi defense; and iii) information
about whether the defendant will assert an insanity defense. Va. Sup. Ct. R. 3A:11(c). The only
other pre-trial information the Commonwealth may discover about defendant is that obtained
from an HIV test; however, such information is not admissible at trial. Va. Code Ann. §18.2–62.
B. Prosecution Motions Concerning Prior Acts of the Defendant:
Evidence of “other crimes and offenses at other times” is inadmissible to prove the defendant
committed the crime for which he or she is being tried. Kirkpatrick v. Commonwealth, 211 Va.
269, 272, 176 S.E.2d 802, 805 (1970). However, other crime evidence is admissible to show:
• the “conduct and feeling of the accused toward his victim;”
• prior relations;
• any relevant element of the offense charged;
• motive, intent, or knowledge of the accused;
• evidence that “leads up to the offense;” or
• the other crimes are part of a general scheme or plan that includes the crime charged. Id.
See also MANUAL, Chapter Four, part IV.
1. Prior Acts Involving the Same Victim (FRIEND at §§12–14 through 12–16; BACIGAL, TATE
& GUERNSEY at 258–264).
40

a. Sexual Abuse
Evidence of prior incestuous behavior by a defendant is admissible to show his or her
predisposition toward incest. Brown v. Commonwealth, 208 Va. 512, 158 S.E.2d 663
(1968). In Brown, the court quoted the language of 27 AM. JUR., Incest §15, pp. 296–97:
[I]t is well settled that in a prosecution for incest, evidence of acts of incestuous
intercourse between the parties other than those charged in the indictment or
information, whether prior to or subsequent thereto, is, if not too remote in
point of time, admissible for the purpose of throwing light upon the relations
of the parties and the incestuous disposition of the defendant toward the other
party, and to corroborate the proof of the act relied upon for conviction. Id. at
516–17, 158 S.E.2d at 667.
See also Freeman v. Commonwealth, 223 Va. 301, 314, 288 S.E.2d 461, 467–68 (1982)
(evidence that defendant had prior sexual contact with victim in child pornography
prosecution admissible because it tended to prove that the pictures appealed to his prurient
interest, which was an element of the offense); Ryan v. Commonwealth, 219 Va. 439,
247 S.E.2d 698 (1978) (evidence of defendant’s attempted rape of victim three nights
before the incident for which he was convicted admissible in defendant’s trial for breaking
and entering with intent to commit rape); Herron v. Commonwealth, 208 Va. 326, 327–
28, 157 S.E.2d 195, 196–97 (1967) (evidence of prior intercourse between the
defendant and victim of statutory rape admissible but must be limited to corroborating
the victim’s testimony and not as proof of guilt for the prior acts). In Mangum v.
Commonwealth, No. 0761–02–2 (Va. App. Feb. 4, 2003), the Court of Appeals upheld
the admission of prior sexual acts with the child victim for the limited purpose of showing
defendant’s inclination to commit the charged acts and in corroboration of the victim’s
testimony.
Double Jeopardy. Evidence of a prior conviction for rape of the same victim does not
constitute double jeopardy. Marshall v. Commonwealth, 5 Va. App. 248, 361 S.E.2d 634
(1987). In April 1985 the defendant was indicted for rape of a child under the age of 14
years for conduct occurring within five and one-half years of the indictment. In May 1985
the defendant was convicted of rape of a minor under the age of 14 years for conduct
occurring on March 3, 1985. During the trial of the April indictment, the victim’s mother
gave a detailed description of events she witnessed on March 3, for which defendant had
already been convicted. After being convicted of the offenses set forth in the second
indictment, the defendant argued that this conviction placed him in double jeopardy.
The court first noted that evidence of prior acts generally is admissible in cases of incest
or rape for the purpose of showing the defendant was disposed to such conduct. The court
held that this raises double jeopardy problems only if it involves “the identical criminal
act, not the same offense by name.” Id. at 255, 361 S.E.2d at 638. Therefore, because the
defendant was convicted for acts other than those occurring on March 3, 1985, he was
41

not placed in double jeopardy. However, the court stated that once such evidence is
admitted, the trial court must give a clear instruction explaining to the jury the purpose
for which the evidence is to be used. The court stated:
The safeguard to a fair trial for a defendant who is confronted with properly
admitted evidence of offenses for which he is not then being tried is in a clear
and specific instruction . . . explaining the purpose for which the evidence is
admitted and the limited consideration it may be given by the jury. Id. at 255,
361 S.E.2d at 639.
Because the judge’s instruction in this case was inadequate, the court reversed the
conviction.
b. Physical Abuse (FRIEND at §12–14; BACIGAL, TATE & GUERNSEY at 263–264).
Evidence of prior physical abuse of a victim is admissible “where motive, intent or
knowledge of the accused is involved, or where the evidence is connected with or leads up
to the offense for which the accused is on trial.” Evans v. Commonwealth, 215 Va. 609,
614, 212 S.E.2d 268, 272 (1975). In Evans, the Supreme Court admitted evidence in a
prosecution for second degree murder that the defendant previously had struck the victim.
The court stated that the evidence of other beatings was relevant “to establish the intent
to do serious bodily harm to the child, to show defendant’s feelings toward [the victim],
and to indicate a pattern of conduct which led to [the victim’s] death.” Id. at 614, 212
S.E.2d at 272. See also Estelle v. McGuire, 112 S. Ct. 475 (1991) (admission of prior
injury evidence does not violate due process even though prior injuries not linked
specifically to the defendant). Cf. Smarr v. Commonwealth, 219 Va. 168, 246 S.E.2d 892
(1978) (reversible error to admit hospital records of prior injuries of a child in prosecution
for malicious wounding when the Commonwealth failed to show that the defendant
caused the prior injuries).
2. Prior Acts Involving Different Victims (FRIEND at §12–14; BACIGAL, TATE & GUERNSEY
at 263–264).
a. Sexual Abuse
42
Other acts evidence is admissible “if it shows the conduct or attitude of the accused toward
his victim, establishes the relationship between the parties, or negates the possibility of
accident or mistake.” Moore v. Commonwealth, 222 Va. 72, 77, 278 S.E.2d 822, 825
(1981). In Moore, the defendant was convicted of indecent liberties for conduct occurring
with a boy under the age of 14. The court allowed evidence that defendant fondled the
victim and another boy several months after the incident for which the defendant was
convicted. Id. See also Hawks v. Commonwealth, 228 Va. 244, 321 S.E.2d 650 (1984)
(testimony of witnesses tending to show defendant’s attempts to lure women into his
vehicle to abduct and rape them relevant to corroborate testimony of victim and to
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)
(evidence of defendant’s attempts to entice young girls to be photographed admissible to
show his intent). Cf. Day v. Commonwealth, 196 Va. 907, 86 S.E.2d 23 (1955) (evidence
of stalking by defendant of another victim earlier in the evening inadmissible for the
purpose of showing defendant’s state of mind to molest women); White v. Commonwealth,
9 Va. App. 366, 388 S.E.2d 645 (1990) and Overruled on other grounds, Lavender v.
Commonwealth,Va. App. 1003, 407 S.E.2d, 910 (1991) (evidence that rapist used a knife
in an attack of another victim the same night insufficient to show that the act was so
unusual so as to act as a signature of the defendant). For the related issue of prior
convictions, see Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986) (prior
convictions admissible to impeach the defendant’s credibility only if the convictions
demonstrate a lack of truth or veracity of defendant).
b. Physical Abuse (BACIGAL, TATE & GUERNSEY at 258).
Prior acts of abuse must be admitted for a proper purpose and not to show predisposition
of defendant. Hagy v. Commonwealth, 222 Va. 599, 283 S.E.2d 187 (1981). In Hagy, the
court held inadmissible evidence in a child homicide trial that the defendant had twisted
the arm and feet of another child while in the defendant’s care. The court held that the
victim died of injuries completely unrelated to twisting arms or feet and that such evidence
only had the improper purpose of showing that the defendant was disposed toward abusing
children. Id. at 604, 283 S.E.2d at 190.
3. Computer Pornography.
In Blaylock v. Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998), the trial court erred in
admitting into evidence pornographic images from Blaylock’s computer involving children.
This evidence of other and prior “bad acts” would have been relevant to prove intent but intent
was not an issue in the case. Similarly, in Staton v. Commonwealth, No. 1362–01–4 (Va. Ct.
App. Aug.6, 2002) (unpublished), defendant was convicted of ten counts of taking indecent
liberties with a child, two counts of aggravated sexual battery and object sexual penetration,
all with a twelve-year-old girl but the convictions were reversed because of the improper
introduction of evidence that defendant had images of child pornography on his computer.
C. Other Prosecution Motions
Closed Preliminary Hearing. The court may close the courtroom for preliminary hearings on its
own motion or at the request of the prosecutor, the accused, or the complaining witness. Va.
Code Ann. §18.2–67.8. The court may allow a transcript to be made of this proceeding, Va.
Code Ann. §19.2–185, but there is no case law on whether this proceeding can be videotaped
for the purposes of preserving the child’s testimony in case the child is unable to testify at trial.
See discussion infra, Chapter 5, part I.B., related to closed courtroom at trial. See also MANUAL,
Chapter 6, part III.
43

Motion for Admissibility of DNA Evidence. DNA profile evidence is admissible in any criminal
proceeding. Va. Code Ann. §19.2–270.5. See Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d
609 (1990) (finding DNA print identification test scientifically reliable).
Motion to Exclude Witnesses. Minor victims and their parents or guardians “may remain in the
courtroom during the trial” unless they are material witnesses. Va. Code Ann. §19.2–265.01.
Motion to Protect the Identity of the Victim. The Commonwealth’s Attorney, the judge, or the defendant
may move to prohibit testimony as to the address or telephone number of a victim or witness if
the judge determines such information is “not material under the circumstances of the case.” Va.
Code Ann. §19.2–269.2.
Motion to Amend Dates. An indictment may be amended any time before the verdict is handed down
provided the amendment does not change the nature or character of the offense charged. Va. Code
Ann. §19.2–231. No case law addresses whether amending dates constitutes a change in the nature
and character of the indictment. However, Virginia courts have long held that this provision is to be
liberally construed, Chiang v. Commonwealth, 6 Va. App. 13, 365 S.E.2d 778 (1988), and prosecutors
routinely amend dates as necessary. See MANUAL, Chapter Four, part V.B.
Motions Regarding Bail and Pre-trial Release (BACIGAL at §§10–1 through 10–5). For a discussion
of bail and pre-trial release issues in child abuse cases, see MANUAL, Chapter Four, part V.G.
44

CHAPTER FOUR
TRIAL
I. Commonwealth’s Case.
The Commonwealth’s case requires critical legal strategic decisions in areas such as jury selection, opening
statements, and cross-examination techniques. For a thorough discussion of general trial strategy issues,
see MANUAL, Chapter Five. The following discussion is limited in scope to trial issues for which Virginia
has case or statutory authority.
A. Voir Dire (BACIGAL at §§16–4 through 16–6).
In Smith v. Commonwealth, 40 Va. App. 595, 580 S.E.2d 481 (2003), the court reversed Smith’s
convictions in a jury trial of the rape, object sexual penetration and attempted rape of two girls,
one twelve and the other seventeen at the time of the incidents because the trial court erred in
denying his motions for curative instructions to correct improper comments made by the
prosecutor during voir dire and closing arguments. The prosecutor in this case urged that it was
common for children to not report sexual assaults right away, and those comments were made
both in voir dire and during summation. Although the court made a general cautionary instruction
late in the case they did not address the specifics of the prosecutor’s arguments. The Court
concluded that the comments were improper as they amounted to testimony, and on matters that
were not put into evidence at trial. The Court also opined that “voir dire is not an opportunity for
attorneys to testify or argue to the jury, especially regarding facts that will not be put into evidence.”
Id. at 601, 580 S.E.2d at 484. In Skipper v. Commonwealth, 23 Va. App. 420, 477 S.E.2d 754
(1996), the Court of Appeals ruled that the trial court did not violate the rights of a defendant
charged with forcible rape and sodomy of a sixteen-year-old girl when it refused to permit questions
of the jury venire regarding whether any juror had ever caught a child in a lie. See Victor I. Vieth,
Using Voir Dire to Reduce Juror Bias in Child Abuse Cases,” 11 Update, No. 7 (1998).
B. Opening Statement.
See the general discussion in BACIGAL at §17–5.
C. Testimony of the Victim.
1. Competency of Children (Va. Code Ann. §8.01–396.1; BACIGAL at §17–12; FRIEND at §6–
2; BACIGAL, TATE & GUERNSEY at 44; VIRGINIA EVIDENCE at §3.3).
In 1993 the Virginia General Assembly enacted legislation creating a presumption that
children shall not be deemed incompetent to testify solely because of age. Va. Code Ann. §8.01–
396.1. See Appendix B for the text of this provision. See also MANUAL, Chapter 5, part IV.C.
Prior to the enactment of this provision, Virginia case law provided the following rules for
determining competency:
• “There is no fixed age at which a child must have arrived in order to be competent as a
witness.”” Rogers v. Commonwealth, 132 Va. 771, 111 S.E. 231 (1922) (child two months
45

short of sixth birthday competent). See also Mackall v. Commonwealth, 236 Va. 240, 372
S.E.2d 759 (1988), cert. den., 492 U.S. 925 (1989) (six-year-old competent to testify
concerning her mother’s murder); Kiracofe v. Commonwealth, 198 Va. 883, 97 S.E.2d 14
(1957) (six-year-old victim and nine-year-old witness competent to testify); Cross v.
Commonwealth, 195 Va. 62, 64, 77 S.E.2d 447, 448 (1953) (there is no specific age for
determining competency, but six-year-old child in this case incompetent because she did
not demonstrate an independent recollection of the events and merely repeated what her
mother told her to say); Mullins v. Commonwealth, 174 Va. 472, 5 S.E. 2d 499 (1939)
(four and one–half and six and one–half year–olds competent); Davis v. Commonwealth,
161 Va. 1037, 171 S.E. 598 (1933) (eight–year–old competent); Durant v.
Commonwealth, 7 Va. App. 454, 375 S.E.2d 396 (1988) (seven-year-old’s statement that
his mother’s attorney told him what to say went to the child’s credibility and not his
competency); Royal v. Commonwealth, 2 Va. App. 59, 341 S.E.2d 660 (1986), rev’d on
other grounds, 234 Va. 403, 362 S.E.2d 323 (1987) (ten-year-old witness competent in
spite of the child’s inability to remember details of the events).
• “In order to be competent as a witness, the child must have sufficient mental capacity to
observe the data about which it has testified and record it in its mind, and thereafter
understand questions put to it and be able to give intelligent answers.” Rogers, supra,
132 Va. at 773, 111 S.E. at 231; Kiracofe, supra, 198 Va. at 840, 97 S.E.2d at 18–19.
• The child should be able to communicate the observed facts accurately at the trial. Kiracofe,
supra, 198 Va. at 840, 97 S.E.2d at 18. However, limited contradiction of a victim’s
testimony goes to the victim’s credibility and not to her competency. Swanson v.
Commonwealth, 8 Va. App. 376, 378–79, 382 S.E.2d 258, 259 (1989) (ten–year–old
victim competent to testify in indecent liberties trial after being unable to state the dates
of the incidents on cross-examination even though she had testified on direct examination
that the incidents occurred within a specified period of months).
• The child must be able to understand questions. Kiracofe, supra, 198 Va. at 840, 97 S.E.2d at 18–19.
• “There must also be a sense of moral responsibility, at least to the extent of a consciousness of a
duty to speak the truth.” Rogers, supra, 132 Va. at 773, 111 S.E. at 231-32.
• Competency is determined at the time the child testifies rather than at the time the incident
occurred. Cross, supra, 195 Va. at 64, 77 S.E.2d at 448.
• The fact that a child previously has been determined incompetent does not render him or her
incompetent in a later proceeding. Id.
46
• Competency is determined by the judge on a case-by-case basis at the time the child is offered as a
witness. The judge usually conducts a competency hearing prior to the child being offered as a
witness. The trial court’s determination of competency is within the sound discretion of the trial
court and will not often be disturbed on appeal. Carpenter v. Commonwealth, 186 Va. 851, 44
S.E.2d 419 (1947).

See generally Jennifer Massengale, “Facilitating Children’s Testimony,” 14 Update, No. 6 (2001).
2. Uncorroborated Testimony of Victim (FRIEND at §4–16).
The testimony of the victim does not have to be corroborated to support convictions for the
following crimes:
• Rape. Snyder v. Commonwealth, 220 Va. 792, 796, 263 S.E.2d 55, 57 (1980).
• Statutory rape. Lear v. Commonwealth, 195 Va. 187, 193, 77 S.E.2d 424, 427 (1953).
• Attempted rape. Fisher v. Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 203-04
(1984).
• Sodomy. Love v. Commonwealth, 18 Va. App. 84, 89, 441 S.E.2d 709, 713 (1994).
• Aggravated sexual battery. Garland v. Commonwealth, 8 Va. App. 189, 191-92, 379 S.E.2d
146, 147 (1989).
• Object sexual penetration and carnal knowledge. Hebden v. Commonwealth, 26 Va. App.
727, 496 S.E.2d 169 (1998) (en banc; equally divided court), rev’g 25 Va. App. 448,
489 S.E.2d 245 (1997).
See Victor I. Vieth, “When a Child Stands Alone: The Search for Corroborative Evidence,”
11 Update, No. 6 (1999).
D. Hearsay (BACIGAL at §17–19; FRIEND at §§18–1 through 18–55; BACIGAL, TATE & GUERNSEY
at 84–85; VIRGINIA EVIDENTIARY FOUNDATIONS at §§ 9.1 through 9.13).
Virginia has not enacted a statute providing special exceptions to the hearsay rule for criminal
cases involving child sexual abuse. Cf. Va. Code Ann. §63.2-1522 (creating a special hearsay
exception for civil proceedings involving the abuse or neglect of a child). Consequently, child outof-court
statements must either qualify as non-hearsay or fit within one of the standard common
law hearsay exceptions.
1. Non-hearsay (FRIEND at §§18–3 through 18–4; BACIGAL, TATE & GUERNSEY at 85–87).
An out–of–court statement made by a child is not hearsay if it is not offered for its truth. For
example, in Church v. Commonwealth, 230 Va. 208, 335 S.E.2d 823 (1985), a seven–year–
old victim’s mother testified at trial that the victim told her she did not like the mother and
father to have intercourse because sex was “dirty, nasty, and it hurt.” The court held that this
statement was not hearsay because it was offered to show the child’s attitude toward sex and
was not offered to prove the truth of the statement that sex is dirty, nasty and painful.
However, in Kauffmann v. Commonwealth, 8 Va. App. 400, 382 S.E.2d 279 (1989), the court
held that statements by the victim introduced at the father’s trial for aggravated sexual battery
were not used to show her state of mind. During the course of investigating the victim’s suicide,
an investigator was told by friends of the victim that she had mentioned being molested by
47

her father. The investigator also discovered entries in the victim’s diary in which she stated
that her father was an “incestive [sic] molesting jerk.” The trial court admitted these statements
and the Court of Appeals reversed. The court stated:
[T]he statements made by [the victim] to her friends and her entries in the spiral notebook
both recalled past events and described the cause of her emotional distress. There was no
showing, nor, do we believe, could there be, why [the victim’s] state of mind was relevant to
any issue in the case. Id. at 407, 382 S.E.2d at 283.
a. Prompt Complaint (GROOT at 423–424; FRIEND at §18-32; BACIGAL, TATE &
GUERNSEY at 285–286).
In 1993 the General Assembly enacted Va. Code Ann. §19.2–268.2, which states:
Notwithstanding any other provision of law, in any prosecution for criminal sexual
assault under Article 7 (§18.2–61 et. seq.) of Chapter 4 of Title 18.2, a violation
of §§18.2–361, 18.2–366, 18.2–370 or §18.2–370.1, the fact that the person
injured made complaint of the offense recently after commission of the offense is
admissible, not as independent evidence of the offense, but for the purpose of
corroborating the testimony of the complaining witness.
Prior to the enactment of this section, the following rules had been developed, some of
which apparently are not affected by §19.2–268.2, and others of which are changed by
this provision:
• The prior rule that prompt complaints constitute inadmissible hearsay in a trial for
any sexual offense other than rape or attempted rape is explicitly changed. For case
law limiting it to rape and attempted rape, see Leybourne v. Commonwealth, 222 Va.
374, 282 S.E.2d 12 (1981) (prompt complaint inadmissible in contributing to the
delinquency of a minor prosecution); Moore v. Commonwealth, 222 Va. 72, 278 S.E.2d
822 (1981) (prompt complaint inadmissible in sodomy prosecution); Pepoon v.
Commonwealth, 192 Va. 804, 66 S.E.2d 854 (1951) (prompt complaint inadmissible
in sodomy prosecution); Garland v. Commonwealth, 8 Va. App. 189, 379 S.E.2d 146
(1989) (prompt complaint inadmissible in aggravated sexual battery prosecution);
Kauffmann v. Commonwealth, 8 Va. App. 400, 382 S.E.2d 279 (1989) (prompt
complaint inadmissible in aggravated sexual battery prosecution).
• A prompt complaint is admissible to corroborate the victim’s testimony. Pepoon v.
Commonwealth, 192 Va. 804, 66 S.E.2d 854 (1951); Haynes v. Commonwealth, 69
Va. (28 Gratt.) 942 (1877). It is not hearsay because it is not admitted for its truth–
it is admitted to show that a complaint was made (under the rationale that a report of
abuse is less credible if it is not made immediately). However, the complaint is not
admissible as “independent evidence of the offense charged.” Pepoon, supra, 192 Va.
at 810, 66 S.E.2d at 858. See Cartera v. Commonwealth, 219 Va. 516, 248 S.E.2d
784 (1978) (only the fact that the complaint was made is admissible).
48

• A victim’s prompt complaint can be used to corroborate not just the victim’s
testimony, but also “other independent evidence of the offense.” McManus v.
Commonwealth, 16 Va. App. 310, 429 S.E.2d 475 (1993). Evidence of a “fresh
complaint” of sexual abuse is not admissible without the victim’s testimony because
such evidence is admissible only as corroboration. Commonwealth v. Wills, 44 Va.
Cir. 459 (Spotsylvania County 1998).
• A delay in making the complaint goes to the weight and not admissibility of the
complaint. Herron v. Commonwealth, 208 Va. 326, 330, 157 S.E.2d 195, 198 (1967)
(two day delay); Lindsey v. Commonwealth, 22 Va. App. 11, 467 S.E.2d. 824 (1996)
(two months delay). In Woodard v. Commonwealth, 19 Va. App. 24, 446 S.E.2d 328
(1994), a 13-year-old rape victim’s complaints to a school friend and her aunt more
than two months after the assault were held admissible under the recent complaint
rule. However, in Castelow v. Commonwealth, 29 Va. App. 305, 512 S.E.2d 137
(1999), the Court of Appeals ruled that a girl’s complaint of sexual abuse made sixteen
months after it occurred was erroneously admitted into evidence without some
explanation for the extraordinary delay.
• The fact that a complaint is made in response to questioning does not remove it from
the rule. Herron v. Commonwealth, 208 Va. 326, 330, 157 S.E.2d 195, 198 (1967).
In Almond v. Commonwealth, No. 3071–01–2 (Va. App. Dec. 17, 2002) (unpublished),
the defendant was convicted of the sexual battery and forcible sodomy of a seven-yearold
girl, and the court concluded that the trial judge did not err in allowing the child’s
stepmother to testify regarding statements made to her by the girl pursuant to §19.2–
268.2 of the Code. The Court of Appeals determined that although the statute does not
require the court to make express factual findings on the record, it would be the better
practice to do so. A juvenile victim’s complaint of rape made to her mother ten months
after the alleged rape was admissible under the “recent complaint” exception to the
hearsay rule where the delay is explained by circumstances entirely consistent with
both the circumstances and the fact that the assault was on a child victim. Terry v.
Commonwealth, 24 Va. App. 627, 484 S.E.2d 614 (1997). The lack of “recentness” of
the complaint goes to the weight of the evidence rather than its admissibility. Id. at
635, 484 S.E.2d at 618. Similarly, in Mitchell v. Commonwealth, 25 Va. App. 81, 486
S.E.2d 551 (1997), the Court of Appeals ruled that rebuttal testimony by the brother
of a twelve-year-old victim of a sodomy proposal about statements the brother made to
him was admissible as a recent complaint of sexual assault although it could not be
admitted as a prior consistent statement.
b. Prior Consistent Statements (FRIEND at §18–6; BACIGAL, TATE & GUERNSEY at 117–
118; VIRGINIA EVIDENTIARY FOUNDATIONS at §5.10).
49

Prior consistent statements generally are inadmissible as self-serving hearsay. Scott v.
Moon, 143 Va. 425, 434, 130 S.E. 241, 243 (1925). Such statements are admissible
only in the following limited circumstances:
• To rehabilitate a witness who has been impeached with prior inconsistent statements
on cross-examination. Moore v. Commonwealth, 222 Va. 72, 79, 278 S.E.2d 822,
826 (1981). Such statements are admissible only to restore credibility and are not
admissible for their truth. Id. In Moore, the defendant was convicted of indecent
liberties with a 12-year-old boy. During cross-examination, the defense attorney
attacked the victim’s credibility by pointing out four inconsistent statements he had
made. The court held it was proper for the Commonwealth to rehabilitate the boy
with prior consistent statements. See Creasy v. Commonwealth, 9 Va. App. 470, 389
S.E.2d 316 (1990) (prior consistent statement of Commonwealth witness admissible
to rehabilitate witness after impeachment by a prior inconsistent statement even
though the prior inconsistent statement was introduced by the Commonwealth).
• To respond to suggestions by the defense that the child had a motive to falsify his or
her testimony. See Honaker Lumber Co. v. Kiser, 134 Va. 50, 113 S.E. 718 (1922).
The Commonwealth may offer the prior consistent statement to show it was made
before the motive or opportunity to fabricate arose. Scott v. Moon, 143 Va. 425, 130
S.E. 241 (1925).
• To respond to allegations of recent fabrication by the child. Skipper v. Commonwealth,
195 Va. 870, 80 S.E.2d 401 (1954); see also Manetta v. Commonwealth, 231 Va.
123, 340 S.E.2d 828 (1986).
2. Exceptions to the Hearsay Rule (FRIEND at § 18-10 through 18-36; BACIGAL, TATE &
GUERNSEY at 89-102).
a. Excited Utterance (FRIEND at §18-17; BACIGAL, TATE & GUERNSEY at 93-95).
Even though the admissibility of an excited utterance is determined on a case-by-case
basis, Virginia courts have examined several factors affecting spontaneous statements of
children. These factors include:
• The lapse of time between the “startling event” and the statement. In Martin v.
Commonwealth, 4 Va. App. 438, 358 S.E.2d 415 (1987), the court upheld the
admissibility of a statement of a 23-month-old infant that “that boy put his pee-pee
on me” made anywhere from 15 seconds to five minutes after the event. The court
noted that her red face and crying demonstrated she was affected by a startling event.
Further, a medical examination indicated she had suffered an injury to her rectum.
• Whether the statement is made “impulsively on [the declarant’s] own initiative, or
[is] a statement in response to a question.” Id. at 441, 358 S.E.2d at 417. The fact
that a statement is made in response to a question does not in itself make the statement
50

inadmissible so long as the question is framed in a neutral manner, such as the
question: “What happened” Id. at 442, 358 S.E.2d at 418.
• Whether the statement is a self-serving declaration. Doe v. Thomas, 227 Va. 466,
471-72, 318 S.E.2d 382, 385 (1984).
• A child’s inability to fabricate sexual events in detail. “[P]articularly in the case of
statements made by young children, the element of trustworthiness underscoring
the spontaneous and excited utterance exception finds its source primarily in the
child’s lack of capacity to fabricate rather than the lack of time to fabricate.” Martin,
supra, 4 Va. App. at 442, 358 S.E.2d at 418. See also McCann v. Commonwealth, 174
Va. 429, 439, 4 S.E.2d 768, 771 (1939) (a child “could not possibly have fabricated”
a story minutes after an attempted rape).
• In Esser v. Commonwealth, 38 Va. App. 520, 566 S.E.2d 876 (2002), a prosecution
for rape and other sexual offenses committed against a 19-year-old physically and
learning disabled victim, the young woman’s statements to her mother two days after
the assault were admissible as excited utterances at the trial. The statements were
volunteered by the young lady while she was crying hysterically because she thought
her mother was going to place her back into the custody of her uncle, the defendant,
and she was frightened that she would be assaulted again. Thus, the startling event
that triggered the statement was her fear that she was going to be returned to the
control of Esser and that provided the spontaneity for the statement. Similarly, in
Guy v. Commonwealth, No. 2276-01-1 (Va. Ct. App. Aug. 6, 2002) (unpublished), the
statements of an eight-year-old girl who had been sexually victimized to her mother
were admissible under the “excited utterance” exception because of the context of
the statements.
• In Walker v. Commonwealth, 19 Va. App. 768, 454 S.E.2d 737 (1995), the Court of
Appeals concluded that a statement made by a six-year-old girl to her aunt, her legal
guardian, the morning after a sexual assault qualified as an excited utterance in light
of the surrounding circumstances, including that she complained as soon as she was
returned to the aunt’s custody.
b. Statements Made for Purposes of Medical Diagnosis or Treatment (FRIEND at §18–19;
BACIGAL, TATE & GUERNSEY at 98-99; VIRGINIA EVIDENTIARY FOUNDATIONS at §9.9).
A physician may testify as to a patient’s statements of “past pain, suffering and subjective
symptoms” to show “the basis of the physician’s opinion as to the nature of the injuries
or illness.” Cartera v. Commonwealth, 219 Va. 516, 518, 248 S.E.2d 784, 785-86 (1978).
However, statements made by a victim to a doctor detailing the circumstances of a sexual
assault and a description of the assailant do not fall within this exception to the hearsay
rule. Id. In Cartera, the statements introduced went beyond descriptions of “past pain,
suffering and subjective symptoms” and therefore were inadmissible. Id. The Virginia
51

Supreme Court ruled in Jenkins v. Commonwealth, 254 Va. 333, 492 S.E.2d 131 (1997),
that the en banc Court of Appeals (22 Va. App. 58, 471 S.E.2d 785 (1996)) had erred in
concluding that the trial court’s admission of expert testimony regarding the sexual abuse
of a two-year-old child constituted harmless error. Reversible error was committed by
allowing a licensed clinical psychologist to testify that a child “had been sexually abused.”
254 Va. at 336, 492 S.E.2d at 133-34. The court also had erred in permitting the
psychologist to testify that the boy told him that he had been “sexed,” because this hearsay
evidence did not fit within any recognized exception to the hearsay rule.
3. Proof of Age
For more than 100 years, courts in the United States have allowed a witness to testify as to his
or her age even though such testimony is based on hearsay. See John Wigmore, 2 EVIDENCE
IN TRIALS AT COMMON LAW §667 (Chadbourn rev. 1979) (listing jurisdictions adopting
this rule). Professor Myers states:
When a witness testifies to his own age or date of birth, a hearsay objection is
technically possible. After all, one knows her birthday only because someone told
her. The hearsay objection is seldom raised, however, and when it is, courts reject
it. MYERS at §7.41.
Virginia courts are among the few in the country that have not ruled on the issue, but the
long-established principle provides persuasive authority for allowing a victim to state his or
her age.
An alternative method of proving age is to allow the finder of fact to determine the person’s
approximate age. For example, in Jewell v. Commonwealth, 8 Va. App. 353, 382 S.E.2d 259
(1989), the court held that the trial court could have determined as a matter of fact that the
defendant was more than 18 years old. The court stated that “a defendant’s physical appearance
may be considered by a jury in determining his or her age.” The court also quoted Wigmore’s
statement:
Experience teaches us that corporal appearances are approximately an index of the age
of their bearer, particularly for the marked extremes of old age and youth. In every
case such evidence should be accepted and weighted for what it may be worth. Id. at
356, 382 S.E.2d at 261 (quoting 2 Wigmore, Evidence §222 (Chadbourn rev. 1970)).
4. Prosecution Recess to Consult with Victim.
The Court of Appeals decided in Will v. Commonwealth, 31 Va. App. 571, 525 S.E.2d 37
(2000), that the Confrontation Clause of the Constitution was not violated by the trial court
granting a recess to allow the Commonwealth’s Attorney to talk with a testifying child victim.
E. Expert Testimony (FRIEND at §17–14; BACIGAL at §17–13; BACIGAL, TATE & GUERNSEY at
68-78).
52

1. Province of the Jury (FRIEND at §17-14; BACIGAL, TATE & GUERNSEY at 73-74).
Experts may not invade the province of the fact finder by testifying as to the ultimate issue in
the case. Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978) (expert
testimony that a victim was in fact raped inadmissible). See Freeman v. Commonwealth, 223
Va. 301, 314-16, 288 S.E.2d 461, 468-69 (1982) (expert testimony that certain pictures of
nude children appealed to “prurient interests” of children did not invade the jury’s right to
determine whether the pictures were “obscene for children”).
2. Types of Testimony.
In Mohajer v. Commonwealth, 39 Va. App. 21, 569 S.E.2d 738 (2002), aff’d, 40 Va. App.
312, 579 S.E.2d 359 (2003) (en banc)), the Court of Appeals affirmed that a sexual assault
nurse examiner (SANE) could present expert testimony regarding the nature of an 18-yearold
high school student’s injuries and whether they indicated consensual sexual contact during
the victim’s first professional massage where she was allegedly subjected to a sexual assault.
3. Behavioral Evidence.
There are no published opinions in Virginia discussing the admissibility of child sexual abuse
accommodation syndrome, a common area of expert testimony in cases of child sexual abuse.
However, in Davison v. Commonwealth, 18 Va. App. 496, 445 S.E.2d 683 (1994), the Court
of Appeals reversed convictions of a man for sexual assault of his stepdaughters because of
the admission of testimony by an expert describing the recantation phenomenon in child
sexual abuse cases without the use of hypothetical questions. However, in Price v.
Commonwealth, 18 Va. App. 760, 446 S.E.2d 642 (1994), the Court upheld the admission
of expert testimony that the deceased one-and-a-half-year-old daughter of defendant’s girlfriend
was a victim of the battered child syndrome. The prosecutor in Price used a hypothetical
question and the expert did not testify that Price was the criminal agent. Id. at 763, 446
S.E.2d at 644. In Lane v. Commonwealth, No. 2161-98-3, 1999 Va. App. LEXIS (Va. App.
Sept. 28, 1999) (unpublished opinion), the Court of Appeals affirmed the convictions of a
man for the rape and sodomy of his stepdaughter and ruled that the trial court properly
admitted testimony of experts regarding the dynamics of victim recantation and the causes
and effects of post-traumatic stress disorder. For a summary of case law on this topic from
other jurisdictions, consult MYERS or contact the National Center at APRI. See also Mary-
Ann Burkhart, “‘I take it back’: When a Child Recants,” 12 Update, No. 3 (1999).
F. Admissibility of Photographs (FRIEND at §13.12; BACIGAL, TATE & GUERNSEY at 243–249;
VIRGINIA EVIDENTIARY FOUNDATIONS at §4.9).
Photographs are relevant if they “tend to show motive, intent, method, premeditation, malice, or
the degree of atrociousness of the crime.” Gray v. Commonwealth, 233 Va. 313, 342-43, 356
S.E.2d 157, 173, cert. denied, 484 U.S. 873 (1987). The admission of photographs is within the
sound discretion of the trial court. Id. See Campbell v. Commonwealth, 12 Va. App. 476, 405
53

S.E.2d 1 (1991) (court relies heavily on photographs in determining that evidence is sufficient to
show intent in malicious wounding prosecution); Diehl v. Commonwealth, 9 Va. App. 191, 385
S.E.2d 228 (1989) (photographs of a child’s buttocks relevant in felony murder prosecution to
show that punishment exceeded moderation in punishing the child); Commonwealth v. Phillips,
59 Va. Cir. 394 (2002) (Spotsylvania County) (circuit court ruled on a motion in limine that the
probative value of photographs of the “dreadful housekeeping practices” of a mother were
outweighed by their prejudicial effects in a prosecution for felony child neglect). A witness to the
event must verify that the photograph fairly represents what the witness observed. Saunders v.
Commonwealth, 1 Va. App. 396, 339 S.E.2d 550 (1986). The photographer does not have to
testify. Id. Section 63.2-1520 permits photographs of an abused or neglected child to be admitted
into evidence “in any subsequent proceeding” and provides that the court “may impose such
restrictions as to the confidentiality of photographs of any minor as it deems appropriate.” See
Christina Shaw, “Admissibility of Digital Photographic Evidence: Should it be Any Different Than
Traditional Photography,” 15 Update, No. 10 (2002).
Photographs also may be admissible in sentencing. See Poyner v. Commonwealth, 229 Va. 401,
329 S.E.2d 815 (1985) (photographs of the victim at the autopsy admissible); Washington v.
Commonwealth, 228 Va. 535, 323 S.E.2d 577 (1984), cert. den., 471 U.S. 1111 (1985) (color
photograph of the nude body of the victim admissible to show the outrageousness of defendant’s
conduct).
II. The Defense Case
A. Character and Credibility of the Defendant.
1. Character (FRIEND at §5–4; BACIGAL, TATE & GUERNSEY at 42–43; VIRGINIA
EVIDENTIARY FOUNDATIONS at §6.2).
A defendant may always introduce evidence of his or her reputation for “pertinent character
traits.” Weimer v. Commonwealth, 5 Va. App. 47, 52, 360 S.E.2d 381, 383 (1987) (reputation
for veracity and peaceable nature). See also Barlow v. Commonwealth, 224 Va. 338, 297 S.E.2d
645 (1982) (reputation for non-violent behavior). However, once the defendant opens the
door to character evidence, the Commonwealth may cross-examine character witnesses and
introduce testimony showing the defendant’s bad character. Weimer, supra, 5 Va. App. at 52,
297 S.E.2d at 383. Testimony of an impeaching witness must be limited to reputation and
may not include descriptions of specific acts. Id. at 53, 297 S.E.2d at 384. However, the
prosecutor may ask a defense character witness whether the witness has heard of specific acts
in order to determine the grounds of the witness’s knowledge. Id.
2. Impeachment (FRIEND at §§4–1 through 4–11; BACIGAL, TATE & GUERNSEY at 104–118;
VIRGINIA EVIDENTIARY FOUNDATIONS at §§5.1–5.9).
There are a variety of ways in which the defendant’s credibility can be impeached. See
MANUAL, Chapter 5, part IV.F.3.g.v. However, a defendant’s credibility cannot be impeached
with evidence of prior convictions unless the conviction demonstrates lack of truth or veracity
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of the defendant. Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986) (indecent
exposure does not involve deception or moral turpitude for purposes of determining the
defendant’s character for truthfulness). Although evidence of a prior conviction for
contributing to the delinquency of a minor was erroneously admitted for impeachment
purposes in Jarrell v. Commonwealth, No. 0984–01–4 (Va. Ct. App. June 18, 2002)
(unpublished), because it is not a crime involving moral turpitude, it was harmless error
because he had already been impeached with other prior convictions.
B. Admissibility of Defense Expert Testimony (FRIEND at §§17–14 through 17–25).
An expert must be familiar with the facts of the case; misuse of facts may result in exclusion of
the expert’s testimony. In Waitt v. Commonwealth, 207 Va. 230, 148 S.E.2d 805 (1966), the
Virginia Supreme Court held inadmissible an expert’s opinion as to whether the victim’s testimony
was “fact or fantasy.” The court stated: “[A]n opinion given without any examination of, or
acquaintance with, the subject and formed on the basis of incorrect and incomplete information,
is not an opinion on which a jury should rely and it does not constitute admissible testimony.” Id.
at 237, 148 S.E.2d at 810. In addition to the fact that the expert had never interviewed the
victim, the court stated that the hypothetical question posed to the expert omitted many important
details and misrepresented others. Therefore, the expert’s testimony was improper. See James Dean
May, “Good Things Come To Those Who Seek: Ten Tips For Finding Information on Defense
Experts,” 12 Update, No. 7 (1999).
1. Hypnosis of the Defendant (FRIEND at §14–8; BACIGAL, TATE & GUERNSEY at 102–103).
Statements made while under hypnosis are inadmissible. Greenfield v. Commonwealth, 214 Va.
710, 204 S.E.2d 414 (1974). Statements made under the influence of “truth serum” likewise
are inadmissible. Archie v. Commonwealth, 14 Va. App. 684, 420 S.E.2d 718 (1992). In Archie,
the court held inadmissible statements made by the defendant and observations of a psychiatrist
made while the defendant was under the influence of sodium amytal (commonly referred to as
“truth serum”). The court reasoned: i) a defendant taking sodium amytal is highly suggestible;
ii) a defendant who intends to deceive may be able to continue the deception; and iii) a defendant
may tell fantasy rather than fact while under the influence of the drug. Id. at 693, 420 S.E.2d
at 723. Note, however, that the trial court in Archie allowed the expert to give an opinion formed
as a result of this interview, and the Court of Appeals did not reverse this ruling. Id. at 694, 420
S.E.2d at 724.
2. Defendant Profile Evidence
There are no Virginia cases addressing whether an expert may testify that the defendant does
or does not fit the profile of a child abuser. In United States v. Powers, 59 F.3d 1460 (4th Cir.
1995), the United States Court of Appeals for the Fourth Circuit ruled that the district judge
did not abuse his discretion in declining to admit defense expert testimony that defendant
did not exhibit the characteristics of a “fixated pedophile.” Id. at 1470-1473. See James M.
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Peters, “Using the Abel Assessment for Sexual Interest to Infer Lack of Culpability in a Criminal
Case,” 14 Update, No. 12 (2001).
3. Victim Profile Evidence
There are no Virginia cases addressing whether an expert may testify that the victim does or
does not fit the profile of an abused child, other than the Price case above where expert
testimony was accepted about the battered child syndrome. Price v. Commonwealth, 18 Va.
App. 760, 446 S.E.2d 642 (1994). See Brian Holmgren, “Should Expert Testimony on
Children’s Suggestibility Be Admissible,” 10 Update, No. 2 (1997).
III. Common Defenses
The following discussion presents only a partial list of possible defenses in child abuse cases. For a
more detailed discussion of other defenses, such as retaliation, custody issues, and brainwashing, see
MANUAL, Chapter 5, part VIII.C.8. See, e.g., Mary-Ann Burkhart, “Child Abuse Allegations in the
Midst of Divorce and Custody Battles: Convenience, Coincidence or Conspiracy,” 13 Update, No. 10
(2000).
Nothing Happened. Virginia courts have heard and occasionally agreed with defense arguments that:
children were coached by therapists into inventing claims of sexual abuse, Fisher v. Commonwealth,
11 Va. App. 302, 397 S.E.2d 901 (1990) (granting a new trial based on newly discovered evidence of
coaching by a therapist that the court believed would explain why the victim had drawn a sexually
explicit picture implicating the defendant); the victim was mentally ill, Clinebell v. Commonwealth,
235 Va. 319, 368 S.E.2d 263 (1988) (holding that an optometrist should have been allowed to testify
that the victim suffered from “hysterical amblyopia,” a condition in which the person believes she
cannot see but has no physiological problems); and that the victim was exacting revenge against the
defendant, Fisher v. Commonwealth, 228 Va. 296, 321 S.E.2d 202 (1984) (the defendant claimed the
ten-year-old victim made up story to retaliate because the defendant had sold her puppy); Johnson v.
Commonwealth, 9 Va. App. 176, 385 S.E.2d 223 (1989) (the court accepted the claim that the
defendant, a Baptist pastor, should have been allowed to testify that the victim falsely accused him
because he tried to interfere in the victim’s lesbian relationship); Garland v. Commonwealth, 8 Va.
App. 189, 379 S.E.2d 146 (1989) (the defendant should have been allowed to testify that the victim
falsely accused him because she did not like his discipline).
Prosecutors should keep in mind the following strategies when responding to such defense arguments:
• The prosecutor may ask the child to provide sensory details such as sex-related smells, sounds,
tastes and textures. See Waitt v. Commonwealth, 207 Va. 230, 148 S.E.2d 805 (1966) (expert
testimony about whether rape victim’s testimony was based on fantasy found inadmissible).
• The prosecutor may highlight the child’s naivete about sexual practices.
• If the child’s mental health problems are likely to be used by the defense, this issue should be
raised in the Commonwealth’s case-in-chief to explain the child’s emotional problems as a
consequence of the abuse. If the child was taking medication at the time of the assault or the
56

disclosure or is on medication during the trial, expert testimony may be necessary to explain the
effects of the medication on the child’s ability to give accurate testimony.
Misinterpretation of Innocent Touch. Rather than arguing that the incident did not occur, defendants
occasionally argue that the act occurred but was misinterpreted. For example, in Walker v. Commonwealth,
12 Va. App. 438, 404 S.E.2d 394 (1991), the defendant told a seven–year–old victim to take
down her pants while they were in room alone with door shut. The defendant then touched her vagina
to see if she was “wet,” allegedly because the victim and some young boys had been “touching” each
other and the defendant was supposed to be disciplining her. The defendant said he had to “open” her
vagina to see if she was “wet.” Defendant’s sole argument at trial was that any touching was not done
with the requisite intent. The court held there was sufficient evidence to find defendant acted with
the requisite intent.
The following strategies may help overcome this defense:
• Since the defendant admits to physical contact with the child, efforts by the defendant to keep the
touching a secret are evidence of intent.
• Demonstrations by the child showing the touching on a doll or a model to demonstrate it was not
innocent touching.
• Arguments that similar past crimes or uncharged acts by the defendant show lack of accident,
motive or existence of a common design. See discussion supra, Chapter three, part II.B. for cases
on other acts.
Someone Else Did It. Although identity of the defendant is not frequently at issue, defendants sometimes
argue that someone else abused the child. See Bridgeman v. Commonwealth, 3 Va. App. 523,
351 S.E.2d 598 (1986) (defendant and victim in incest case claimed defendant was not the father of
the baby). The following approaches may help counter this defense:
• The prosecutor should try to eliminate other suspects, especially when the child has a sexually
transmitted disease or is pregnant.
• The prosecutor needs to be prepared to counter arguments that the rape shield statute does not apply.
Reasonable Doubt. The defense usually will argue the prosecutor failed to prove the case beyond a
reasonable doubt. See Morrison v. Commonwealth, 10 Va. App. 300, 391 S.E.2d 612 (1990) (court
held that victim’s testimony corroborated by physician’s testimony proved penetration beyond a reasonable
doubt). In responding to this argument, prosecutors should let the jury know they cannot
have it both ways–believe the child but acquit the defendant because of insufficient evidence. The
jury should be urged to use the evidence they heard to make a decision–whether they think the child
is truthful or whether they think she is lying. The testimony of the victim in and of itself is sufficient
for conviction and the jury should be so instructed. See discussion supra, this Chapter, part I.A.2.
concerning uncorroborated testimony of the victim. See also Victor I. Vieth, “Thirteen Tips for Cross
Examining Child Abuse Defendants and Defense Witnesses,” 13 Update, No. 6 (2000).
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IV. Rebuttal Evidence
The following are frequent situations in which rebuttal evidence is necessary in child abuse
prosecutions:
• When the defendant or defense witnesses lie on the stand about a detail central to the case, rebuttal
witnesses may be needed to refute the testimony. See MANUAL, Chapter Five, part VII.E.
• If the Commonwealth did not present expert testimony in its case-in-chief but the defense did, an
appropriate expert may be helpful on rebuttal. See MANUAL, Chapter Five, part VII.E.
• Some defendants assert that they would “never molest a child” or they “love children and would
never harm one.” Such testimony may open the door to admission of prior bad acts with other
child victims or signature acts with adult sex partners. For discussion of prior bad act cases, see
discussion, supra, Chapter Three, part II.B.
• If the defense attorney presents good character witnesses on behalf of the defendant, the
Commonwealth can respond with “bad character” witnesses. See Land v. Commonwealth, 211 Va.
223, 176 S.E.2d 586 (1970). “Bad character” witness testimony needs to be narrow and concise;
such witnesses should testify that the defendant has a bad reputation, but discussion of specific
bad acts on direct examination may result in a mistrial. Weimer v. Commonwealth, 5 Va. App. 47,
360 S.E.2d 381 (1987). If the defense attorney cross-examines a witness about the basis for the
opinion that the defendant has a bad reputation and elicits examples of rumored prior bad acts,
the defense attorney will be stuck with the witness’ answer without grounds to complain later.
• If the defense attorney presents witnesses to testify to the victim’s bad character, the
Commonwealth will need “good character” witnesses lined up for rebuttal. Virginia courts allow
evidence of specific acts of complaining witnesses in sex abuse cases to attack the complainant’s
credibility. Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263 (1988) (victim’s prior
complaints of abuse admissible to show charged act probably did not occur). See discussion supra,
Chapter Three, part I.B.4.
• The Court of Appeals reversed a conviction for sexual molestation of an eleven-year-old girl in
Blaylock v. Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998), because the trial court erred
in excluding the proffered testimony of two former neighbors of the victim that her reputation
for truthfulness was bad in her old neighborhood. The remoteness of the reputation evidence was
a matter of its probative value, rather than its admissibility. The prosecutor may need to be prepared
to rehabilitate the victim in such a situation.
For more examples and discussion of rebuttal evidence, see MANUAL, Chapter Five, part VII.
V. Closing Arguments (BACIGAL at §18-5).
Closing arguments are crucial for summarizing evidence for the jury in a clear manner. However, a
conviction can be reversed if the prosecutor makes improper statements that “certainly” and
“substantially” cause prejudice to the defendant. Jackson v. Commonwealth, 12 Va. App. 798, 799,
406 S.E.2d 415, 416 (1991). The judge may grant a new trial if the prosecutor’s argument would
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cause any reasonable person to conclude that the jurors were prejudiced. Winston v. Commonwealth,
12 Va. App. 363, 368-69, 404 S.E.2d 239, 242 (1991). Recall that in Smith v. Commonwealth, 40
Va. App. 595, 580 S.E.2d 481 (2003), the Court of Appeals reversed defendant’s convictions in a
jury trial of the rape, object sexual penetration and attempted rape of two girls because the trial court
erred in denying his motions for curative instructions to correct improper comments made by the
prosecutor during both voir dire and closing arguments. The prosecutor in this case urged that it was
common for children to not report sexual assaults right away, and those comments were made in voir
dire and during summation. Although the court made a general cautionary instruction late in the
case, they did not address the specifics of the prosecutor’s arguments. The comments were improper
as they amounted to testimony on matters that were not put into evidence at trial. See Suzy Boylan,
“Striking Hard Blows but not Foul Ones: Special Considerations in Closing Arguments in Child Abuse
Trials,” 11 Update, No. 10 (1998).
VI. Sentencing
A. Generally
Victim Impact Statement. Section 19.2–299.1 of the Code spells out what a victim impact
statement must include (e.g. victim’s name, psychological injury suffered, change in victim’s
lifestyle). The prosecutor may request that a victim impact statement be included in the presentence
report if it is not requested by the court.
Mental Evaluation. To assist the court in determining the proper sentence, the Commonwealth’s
Attorney, the court, or the accused may request that a mental evaluation be performed on a
defendant convicted of a crime indicating sexual abnormality. Va. Code Ann. §19.2–300.
Conditions on Sentencing. The prosecutor should urge the court to use its statutory authority to
order any reasonable condition on sentencing that would protect the victim and potential future
victims from the defendant. See Va. Code Ann. §19.2–303 (trial court may suspend sentence in
whole or in part and may place conditions upon the sentence or probation). Trial courts have
broad discretion in order to serve the purpose of rehabilitating criminals. The only restriction
upon the issuance of conditions is that they be “reasonable.” Dyke v. Commonwealth, 193 Va.
478, 484, 69 S.E.2d 483, 486 (1952). See Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d
78 (1966), rev’d on other grounds, 388 U.S. 1 (1967) (determining reasonableness requires looking
at nature of offense, background of offender and surrounding circumstances); Nuckoles v.
Commonwealth, 12 Va. App. 1083, 1085, 407 S.E.2d 355, 356 (1991) (defendant given 20–year
suspended sentence with several conditions for taking indecent liberties with a minor).
Some possible conditions include:
• Ordering the defendant to pay for the cost of the victim’s past and future mental health
counseling, or other forms of restitution. Va. Code Ann. §§19.2–303, 305, 305.1.
• Ordering the defendant to have no contact with the victim or the victim’s family for a specified
period of time.
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• Prohibiting the defendant from being alone with any child under the age of 18 for a certain
length of time.
• Using a suspended sentence to require a defendant to successfully complete mental health
counseling as directed by the probation officer. See Nuckoles v. Commonwealth, 12 Va. App.
1083, 1087, 407 S.E.2d 355, 357 (1991) (Benton, J., dissenting) (noting that one condition
of defendant’s probation was to submit to a mental health clinic for counseling to be approved
by probation officer). The prosecutor should make it clear that the defendant must actively
participate and not merely give “lip service” to the counseling.
See MANUAL, Chapter Three, part IV for further suggestions.
B. Sex Offender Registration
The Virginia General Assembly has enacted a sex offender and crimes against minors registration
statute that mandates that convicted sex offenders register with the Department of State Police.
Va. Code Ann. §§9.1–900 through–918. See Appendix B for the text of this statute.
VII. Post-conviction Issues
A. New Trial Based on Recantation
Before a court will order a new trial based on recantation, the defendant must show by clear and
convincing evidence that the testimony of a witness at the first trial was false. Fout v.
Commonwealth, 199 Va. 184, 98 S.E.2d 817 (1957). Virginia courts have not addressed when
post-trial recantation by a child witness necessitates a new trial.
B. Bond Pending Appeal (Va. Code Ann. §8.01–676.1; Sup. Ct. R. 5:24)
A defendant may request to have a bond set pending any appeal to the Virginia Court of Appeals.
Va. Code Ann. §8.01-676.1; Sup. Ct. R. 5:24. However, the concern post-trial is not whether the
defendant will appear in court, as required, but whether the defendant poses a risk to the
community. The prosecutor should argue for the defendant’s immediate incarceration, given the
danger he poses to the victim and to other children. If this argument is unsuccessful, the prosecutor
should attempt to set conditions on the bond prohibiting the defendant from having any contact
with the victim and the victim’s family, either directly or indirectly.
60

CHAPTER FIVE
SPECIAL COURTROOM PROCEDURES
I. Use of Electronic Equipment.
A. Videotaped Testimony.
A videotaped deposition of a complaining witness may be taken in sexual assault cases provided
the accused consents to the taking of any such deposition. Va. Code Ann. §18.2–67. The deposition
is taken as if it were in open court, with the defendant maintaining a right to cross-examine the
witness. The transcript may then be read to the jury in lieu of the witness’s testimony. Because
the defendant must consent to this procedure, however, this provision is of limited use and is
rarely used.
B. Closed Trial (BACIGAL at §16-2).
The trial court may “exclude from the trial any persons whose presence would impair the conduct
of a fair trial, provided that the right of the accused to a public trial shall not be violated.” Va. Code
Ann. §19.2-266. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Supreme
Court found that the right of the public and press to attend criminal trials is guaranteed by the
first and fourteenth amendments. The Court did not address the validity of Va. Code Ann. §19.2–
266 because the issue had not been sufficiently addressed on appeal. Id. at 562–63 n.4. See also
Waller v. Georgia, 467 U.S. 39 (1984) (“the explicit Sixth Amendment right of the accused is no
less protective of a public trial than the implicit First Amendment right of the press and public”);
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982) (court must articulate its findings for the record prior to closure).
C. Closed Circuit Television Testimony
Two-way closed-circuit television testimony may be used in prosecutions of criminal sexual assault,
kidnapping, and other family offenses (Va. Code Ann. §18.2–362 et seq.) committed against
children 14 years old or younger at the time of the offense and 16 or under at the time of trial. Va.
Code Ann. §18.2–67.9 (applies also to witnesses 14 or younger at the time of trial). Either the
Commonwealth’s Attorney or the defendant may apply for an order authorizing the closed-circuit
television testimony but the application must be made at least seven days before the trial or the
preliminary hearing. See Department of Criminal Justice Services, CHILD WITNESS TESTIMONY
IN COURT: USING CLOSED-CIRCUIT EQUIPMENT (June, 2002).
In Johnson v. Commonwealth, 40 Va. App.605, 580 S.E.2d 486 (2003), the Court of Appeals
upheld the constitutionality of §18.2–67.9, and also its use in the case where a foundation was
laid by evidence that the then seven-year-old child victim of sexual abuse said “she would run out
of court and run away” if put on the witness stand in open court. Id. at 611, 580 S.E.2d at 489.
Likewise, in Parrish v. Commonwealth, 38 Va. App. 607, 567 S.E.2d 576 (2002), defendant was
convicted of the sexual abuse of his six-year-old daughter, and he contested on appeal the ruling of
the trial judge allowing the testimony of the girl by closed-circuit television. The court permitted
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the use of closed-circuit television after a voir dire hearing was held satisfying the requirements
of the statute permitting the use of such testimony, including expert testimony about the young
girl’s fear of court, her short attention span, and the likelihood of emotional trauma based on her
experience while testifying in juvenile court. Also, in Civitello v. Commonwealth, No. 1963–01-2
(Va. Ct. App. Jan. 7, 2003) (unpublished), the defendant was convicted of twenty counts of taking
indecent liberties with a child, seven counts of aggravated sexual battery, three counts of forcible
sodomy, three counts of child pornography, one count of rape and one count of attempted sodomy.
There were six complaining child witnesses and the court permitted two to testify by the use of
closed circuit television, action the appellate court upheld because of sufficient findings by the
trial court to warrant the use of that method of testimony.
As illustrated by Johnson, Parrish, and Civitello, in order for a court to order the use of closed–
circuit television, it must find the child unavailable to testify in open court for at least one of the
following reasons: i) the child persistently refuses to testify despite judicial requests to do so; ii)
the child is substantially unable to communicate about the offense; or iii) there is substantial
likelihood, based upon expert opinion testimony, that the child will suffer severe emotional trauma
from testifying in open court. Va. Code Ann. §18.2–67.9. The court must include in the record or
in written findings the reasons for finding unavailability.
II. Other Special Procedures
The conduct of the trial of a criminal case rests within the sound discretion of the trial judge and will
be reversed on appeal only if the judge abuses that discretion. Justus v. Commonwealth, 22 Va. 667,
676, 283 S.E.2d 905, 910 (1981), cert. den., 455 U.S. 983 (1982). A well-educated and
understanding trial judge can provide a great deal of protection to a child victim while at the same
time preserving all of a defendant’s constitutional rights. Among the possible protective actions are
the following:
• The use of leading questions. (FRIEND at §3.5; BACIGAL, TATE & GUERNSEY at 181). Flint v.
Commonwealth, 114 Va. 820, 76 S.E. 308 (1912) (holding that the trial court has much discretion
to allow leading questions). The prosecutor ought to learn outside the presence of the jury how
much latitude the court is willing to allow.
• The use of anatomically correct dolls. Kehinde v. Commonwealth, 1 Va. App. 342, 338 S.E.2d 356
(1986) (use of anatomical dolls as demonstrative evidence is within the discretion of the trial
court and it is for the jury to determine as a factual matter the exact body part that the victim is
identifying when using the doll). See Lori S. Holmes, “Using Anatomical Dolls in Child Sexual
Abuse Forensic Interviews,” 13 Update, No. 8 (2000).
• The presence of a guardian ad litem or other support person. If a preliminary hearing has been
closed under the provisions of Va. Code Ann. §18.2–67.8, a request that a support person be
allowed nonetheless may be honored by the judge. Similarly, the court may allow an adult support
person chosen by the child to remain in the courtroom during the child’s testimony and may
allow the person to sit with the child as long as the person does not speak to or signal to the child.
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Va. Code Ann. §§16.1–302.1, 19.2–265.01. In addition, §19.2–11.1 of the Code provides for
victim-witness assistance programs. See Susanne Walters, “Effective Strategies for Victim
Advocates in Child Abuse Cases,” 13 Update, No. 12 (2000).
• The court may require that defense counsel not ask compound, leading questions, or use language
that the child cannot understand. In Crump v. Commonwealth, 20 Va. App. 609, 460 S.E.2d 238
(1995), the Court of Appeals ruled that the defendant was not denied his right to confrontation
when the eight-year-old victim refused to answer questions on cross-examination that were
repetitive of her testimony on direct examination. The court also found that the defendant was
given “a full opportunity to conduct an effective cross-examination” and “[w]hen the child failed
to respond, she had been extensively and repetitively questioned by two lawyers and the judge.”
Id. at 616–617, 460 S.E.2d at 241. The court also observed that “the transcript does suggest
that the child was being questioned in a manner that did not reflect a sensitivity for her age.” Id.
• The prosecutor must object to improper questions that confuse or badger the child.
• In Parrish v. Commonwealth, 38 Va. App. 607, 567 S.E.2d 576 (2002), the court did not rule of
the propriety of the child victim coloring in a coloring book during cross-examination since
defendant did not object at trial and there was no showing that a failure to address the issue
would constitute a “miscarriage of justice.”
• The prosecutor may schedule a child’s testimony in a way that gives the child frequent
opportunities to break for a few minutes without inconveniencing the court and also takes in to
account the time of day that is best for the child.
See also MANUAL, Chapter Six, part V, for more ideas.
63

Appendix A
Child Abuse Charging Statutes
Murder VA Code §18.2–32
Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful,
deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, forcible
sodomy, inanimate or animate object sexual penetration, robbery, burglary or abduction, except as provided
in §18.2–31, is murder of the first degree, punishable as a Class 2 felony.
All murder other than capital murder and murder in the first degree is murder of the second degree and is
punishable by confinement in a state correctional facility for not less than five nor more than forty years.
Murder of a pregnant woman VA Code §18.2–32.1
The willful and deliberate killing of a pregnant woman without premeditation by one who knows that the
woman is pregnant and has the intent to cause the involuntary termination of the woman’s pregnancy
without a live birth shall be punished by a term of imprisonment of not less than ten years nor more than
forty years.
Felony murder VA Code §18.2–33
The killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some
felonious act other than those specified in §§18.2–31 and 18.2–32, is murder of the second degree and
is punishable by confinement in a state correctional facility for not less than five years nor more than
forty years.
Abduction with intent to defile VA Code §18.2–48
Abduction (i) with the intent to extort money or pecuniary benefit, (ii) of any person with intent to defile
such person, or (iii) of any child under sixteen years of age for the purpose of concubinage or prostitution,
shall be a Class 2 felony.
Rape VA Code §18.2–61
A. If any person has sexual intercourse with a complaining witness who is not his or her spouse or
causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse
with any other person and such act is accomplished (i) against the complaining witness’s will, by
force, threat or intimidation of or against the complaining witness or another person, or (ii) through
the use of the complaining witness’s mental incapacity or physical helplessness, or (iii) with a
child under age thirteen as the victim, he or she shall be guilty of rape.
B. If any person has sexual intercourse with his or her spouse and such act is accomplished against
the spouse’s will by force, threat or intimidation of or against the spouse or another, he or she
shall be guilty of rape.
Appendix A
C. A violation of this section shall be punishable, in the discretion of the court or jury, by confinement
in a state correctional facility for life or for any term not less than five years. There shall be a
rebuttable presumption that a juvenile over the age of 10 but less than 12, does not possess the
65

physical capacity to commit a violation of this section. In any case deemed appropriate by the
court, all or part of any sentence imposed for a violation of subsection B may be suspended upon
the defendant’s completion of counseling or therapy, if not already provided, in the manner
prescribed under §19.2–218.1 if, after consideration of the views of the complaining witness
and such other evidence as may be relevant, the court finds such action will promote maintenance
of the family unit and will be in the best interest of the complaining witness.
D. Upon a finding of guilt under subsection B in any case tried by the court without a jury, the court,
without entering a judgment of guilt, upon motion of the defendant and with the consent of the
complaining witness and the attorney for the Commonwealth, may defer further proceedings and
place the defendant on probation pending completion of counseling or therapy, if not already
provided, in the manner prescribed under §19.2–218.1. If the defendant fails to so complete such
counseling or therapy, the court may make final disposition of the case and proceed as otherwise
provided. If such counseling is completed as prescribed under §19.2–218.1, the court may discharge
the defendant and dismiss the proceedings against him if, after consideration of the views of the
complaining witness and such other evidence as may be relevant, the court finds such action will
promote maintenance of the family unit and be in the best interest of the complaining witness.
Carnal knowledge of child between 13 and 15 VA Code §18.2–63
If any person carnally knows, without the use of force, a child thirteen years of age or older but under
fifteen years of age, such person shall be guilty of a Class 4 felony.
However, if such child is thirteen years of age or older but under fifteen years of age and consents to sexual
intercourse and the accused is a minor and such consenting child is three years or more the accused’s
junior, the accused shall be guilty of a Class 6 felony. If such consenting child is less than 3 years the
accused’s junior, the accused shall be guilty of a Class 4 misdemeanor.
In calculating whether such child is three years or more a junior of the accused minor, the actual dates of
birth of the child and the accused, respectively, shall be used.
For the purposes of this section, (i) a child under the age of thirteen years shall not be considered a consenting
child and (ii) “carnal knowledge” includes the acts of sexual intercourse, cunnilingus, fellatio, anallingus,
anal intercourse, and animate and inanimate object sexual penetration.
Carnal knowledge of certain minors VA Code §18.2–64.1
If any person providing services, paid or unpaid, to juveniles under the purview of the Juvenile and
Domestic Relations District Court Law, or to juveniles who have been committed to the custody of the
State Department of Youth and Family Services, carnally knows, without the use of force, any minor
fifteen years of age or older, when such minor is confined or detained in jail, is detained in any facility
mentioned in §16.1–249, or has been committed to custody of the Department of Youth and Family
Services pursuant to §16.1–278.8, knowing or having good reason to believe that (i) such minor is in
such confinement or detention status, or (ii) such minor is a ward of the Department of Youth Services,
or (iii) such minor is on probation, furlough, or leave from or has escaped or absconded from such
confinement, detention, or custody; he shall be guilty of a Class 6 felony.
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For the purposes of this section, “carnal knowledge” includes the acts of sexual intercourse, cunnilingus,
fellation, anallingus, anal intercourse, and inanimate object sexual penetration.
Forcible sodomy VA Code §18.2–67.1
A. An accused shall be guilty of forcible sodomy if he or she engages in cunnilingus, fellatio, anallingus,
or anal intercourse with a complaining witness who is not his or her spouse, or causes a complaining
witness, whether or not his or her spouse, to engage in such acts with any other person, and
1. The complaining witness is less than thirteen years of age, or
2. The act is accomplished against the will of the complaining witness, by force, threat or
intimidation of or against the complaining witness or another person, or through the use of
the complaining witness’s mental incapacity or physical helplessness.
B. An accused shall be guilty of forcible sodomy if (i) he or she engages in cunnilingus, fellatio,
anallingus, or anal intercourse with his or her spouse, and (ii) such act is accomplished against
the will of the spouse, by force, threat or intimidation of or against the spouse or another person.
However, no person shall be found guilty under this subsection unless, at the time of the alleged
offense, (i) the spouses were living separate and apart, or (ii) the defendant caused bodily injury to
the spouse by the use of force or violence.
C. Forcible sodomy is a felony punishable by confinement in a state correctional facility for life or
for any term not less than five years. In any case deemed appropriate by the court, all or part of
any sentence imposed for a violation of subsection B may be suspended upon the defendant’s
completion of counseling or therapy, if not already provided, in the manner prescribed under
§19.2–218.1 if, after consideration of the views of the complaining witness and such other
evidence as may be relevant, the court finds such action will promote maintenance of the family
unit and will be in the best interest of the complaining witness.
D. Upon a finding of guilt under subsection B in any case tried by the court without a jury, the court,
without entering a judgment of guilt, upon motion of the defendant and with the consent of the
complaining witness and the attorney for the Commonwealth, may defer further proceedings
and place the defendant on probation pending completion of counseling or therapy, if not already
provided, in the manner prescribed under §19.2–218.1. If the defendant fails to so complete
such counseling or therapy, the court may make final disposition of the case and proceed as
otherwise provided. If such counseling is completed as prescribed under §19.2–218.1, the court
may discharge the defendant and dismiss the proceedings against him if, after consideration of
the views of the complaining witness and such other evidence as may be relevant, the court finds
such action will promote maintenance of the family unit and be in the best interest of the
complaining witness.
Object sexual penetration VA Code §18.2–67.2
Appendix A
A. An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates
the labia majora or anus of a complaining witness who is not his or her spouse with any object,
67

other than for a bona fide medical purpose, or causes such complaining witness to so penetrate
his or her own body with an object or causes a complaining witness, whether or not his or her
spouse, to engage in such acts with any other person or to penetrate, or to be penetrated by, an
animal, and
1. The complaining witness is less than thirteen years of age, or
2. The act is accomplished against the will of the complaining witness, by force, threat or
intimidation of or against the complaining witness or another person, or through the use of
the complaining witness’s mental incapacity or physical helplessness.
[Subsections B, C, and D omitted]
Aggravated sexual battery VA Code §18.2–67.3
A. An accused shall be guilty of aggravated sexual battery if he or she sexually abuses the complaining
witness, and
1. The complaining witness is less than thirteen years of age, or
2. The act is accomplished against the will of the complaining witness, by force, threat or
intimidation, or through the use of the complaining witness’s mental incapacity or physical
helplessness, and
a. The complaining witness is at least thirteen but less than fifteen years of age, or
b. The accused causes serious bodily or mental injury to the complaining witness, or
c. The accused uses or threatens to use a dangerous weapon.
B. Aggravated sexual battery is a felony punishable by confinement in a state correctional facility
for a term of not less than one nor more than twenty years and by a fine of not more than $100,000.
Sexual battery VA Code §18.2–67.4
A. An accused shall be guilty of sexual battery if he or she sexually abuses, as defined in §18.2–
67.10, (i) the complaining witness against the will of the complaining witness, by force, threat,
intimidation or ruse, or through the use of the complaining witness’s mental incapacity or physical
helplessness, or (ii) an inmate who has been committed to jail or convicted and sentenced to
confinement in a state or local correctional facility or regional jail, and the accused is an employee
or contractual employee of, or a volunteer with, the state or local correctional facility or regional
jail; is in a position of authority over the inmate; and knows that the inmate is under the
jurisdiction of the state or local correctional facility or regional jail, or (iii) a probationer, parolee,
or a pretrial or posttrial offender under the jurisdiction of the Department of Corrections, a local
community-based probation program, a pretrial services program, a local or regional jail for the
purposes of imprisonment, a work program or any other parole/probationary or pretrial services
program and the accused is an employee or contractual employee of, or a volunteer with, the
Department of Corrections, a local community-based probation program, a pretrial services
68
Appendix A

program or a local or regional jail; is in a position of authority over an offender; and knows that
the offender is under the jurisdiction of the Department of Corrections, a local community-based
probation program, a pretrial services program or a local or regional jail.
B. Sexual battery is a Class 1 misdemeanor.
Attempts VA Code §18.2–67.5
A. An attempt to commit rape, forcible sodomy, or inanimate or animate object sexual penetration
shall be punishable as a Class 4 felony.
B. An attempt to commit aggravated sexual battery shall be a felony punishable as a Class 6 felony.
C. An attempt to commit sexual battery is a Class 1 misdemeanor.
Definitions VA Code §18.2–67.10
As used in this article:
1. “Complaining witness” means the person alleged to have been subjected to rape, forcible
sodomy, inanimate or animate object sexual penetration, marital sexual assault, aggravated
sexual battery, or sexual battery.
2. “Intimate parts” means the genitalia, anus, groin, breast, or buttocks of any person.
3. “Mental incapacity” means that condition of the complaining witness existing at the time of
an offense under this article which prevents the complaining witness from understanding
the nature or consequences of the sexual act involved in such offense and about which the
accused knew or should have known.
4. “Physical helplessness” means unconsciousness or any other condition existing at the time
of an offense under this article which otherwise rendered the complaining witness physically
unable to communicate an unwillingness to act and about which the accused knew or should
have known.
5. The complaining witness’s “prior sexual conduct” means any sexual conduct on the part of
the complaining witness which took place before the conclusion of the trial, excluding the
conduct involved in the offense alleged under this article.
6. “Sexual abuse” means an act committed with the intent to sexually molest, arouse, or gratify
any person, where:
a. The accused intentionally touches the complaining witness’s intimate parts or material
directly covering such intimate parts;
b. The accused forces the complaining witness to touch the accused’s, the witness’s own, or
another person’s intimate parts or material directly covering such intimate parts; or
Appendix A
c. The accused forces another person to touch the complaining witness’s intimate parts or
material directly covering such intimate parts.
69

Fornication. Virginia Code §18.2–344. Any person, not being married, who voluntarily
shall have sexual intercourse with any other person, shall be guilty of fornication,
punishable as a Class 4 misdemeanor.
Pandering VA Code §18.2–355
Any person who:
A. For purposes of prostitution or unlawful sexual intercourse, takes any person into, or persuades,
encourages or causes any person to enter, a bawdy place, or takes or causes such person to be taken
to any place against his or her will for such purposes; or,
B. Takes or detains a person against his or her will with the intent to compel such person, by force,
threats, persuasions, menace or duress, to marry him or her or to marry any other person, or to be
defiled; or,
C. Being parent, guardian, legal custodian or one standing in loco parentis of a person, consents to such
person being taken or detained by any person for the purpose of prostitution or unlawful sexual
intercourse; is guilty of pandering, and shall be guilty of a Class 4 felony.
Crimes against nature VA Code §18.2–361
A. If any person carnally knows in any manner any brute animal, or carnally knows any male or
female person by the anus or by or with the mouth, or voluntarily submits to such carnal
knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection B.
B. Any person who carnally knows by the anus or by or with the mouth his daughter or granddaughter,
son or grandson, brother or sister, or father or mother shall be guilty of a Class 5 felony. However, if
a parent or grandparent commits any such act with his child or grandchild and such child or
grandchild is at least thirteen but less than eighteen years of age at the time of the offense, such
parent or grandparent shall be guilty of a Class 3 felony.
Incest VA Code §18.2–366
A. Any person who commits adultery or fornication with any person whom he or she is forbidden by
law to marry shall be guilty of a Class 1 misdemeanor, except as provided by subsection B.
B. Any person who commits adultery or fornication with his daughter, or granddaughter, or with
her son or grandson, or her father or his mother, shall be guilty of a Class 5 felony. However, if
a parent or grandparent commits adultery or fornication with his or her child or grandchild,
and such child or grandchild is at least thirteen years of age but less than eighteen years of age
at the time of the offense, such parent or grandparent shall be guilty of a Class 3 felony.
Taking indecent liberties with children VA Code §18.2–370
A. Any person eighteen years of age or over, who, with lascivious intent, shall knowingly and
intentionally commit any of the following acts with any child under the age of fourteen years
shall be guilty of a Class 5 felony:
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Appendix A

1. Expose his or her sexual or genital parts to any child to whom such person is not legally married
or propose that any such child expose his or her sexual or genital parts to such person; or
2. [Repealed.]
3. Propose that any such child feel or fondle the sexual or genital parts of such person or propose
that such person feel or fondle the sexual or genital parts of any such child; or
4. Propose to such child the performance of an act of sexual intercourse or any act constituting
an offense under §18.2–361; or
5. Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place,
for any of the purposes set forth in the preceding subdivisions of this section.
B. Any person eighteen years of age or over who, with lascivious intent, knowingly and intentionally
receives money, property, or any other remuneration for allowing, encouraging, or enticing any
person under the age of eighteen years to perform in or be a subject of sexually explicit visual
material as defined in §18.2–374.1 or who knowingly encourages such person to perform in or
be a subject of sexually explicit material; shall be guilty of a Class 5 felony.
C. Any person who is convicted of a second or subsequent violation of this section shall be guilty of
a Class 4 felony; provided that (i) the offenses were not part of a common act, transaction or scheme,
(ii) the accused was at liberty as defined in §53.1-151 between each conviction, and (iii) it is
admitted, or found by the jury or judge before whom the person is tried, that the accused was
previously convicted of a violation of this section.
Indecent liberties by children; penalty VA Code §18.2–370.01
Any child over the age of thirteen years but under the age of eighteen who, with lascivious intent, knowingly
and intentionally exposes his or her sexual or genital parts to any other child under the age of fourteen
years who, measured by actual dates of birth, is five or more years the accused’s junior, or proposes that
any such child expose his or her sexual or genital parts to such person, shall be guilty of a Class 1
misdemeanor.
Taking indecent liberties with child by person in custodial
or supervisory relationship VA Code §18.2–370.1
A. Any person eighteen years of age or older who maintains a custodial or supervisory relationship
over a child under the age of eighteen, including but not limited to the parent, step-parent,
grandparent, step-grandparent, or who stands in loco parentis with respect to such child and is
not legally married to such child, and who, with lascivious intent, knowingly and intentionally
(i) proposes that any such child feel or fondle the sexual or genital parts of such person or that
such person feel or handle the sexual or genital parts of the child, or (ii) proposes to such child the
performance of an act of sexual intercourse or any act constituting an offense under §18.2–361,
or (iii) exposes his or her sexual or genital parts to such child, or (iv) proposes that any such child
expose his or her sexual or genital parts to such person, or (v) proposes to the child that the child
Appendix A
71

engage in sexual intercourse, sodomy or fondling of sexual or genital parts with another person,
or (vi) sexually abuses the child as defined in §18.2–67.10 (6), shall be guilty of a Class 6 felony.
B. Any person who is convicted of a second or subsequent violation of this section shall be guilty of
a Class 5 felony; provided that (i) the offenses were not part of a common act, transaction or scheme,
(ii) the accused was at liberty as defined in §53.1–151 between each conviction, and (iii) it is
admitted, or found by the jury or judge before whom the person is tried, that the accused was
previously convicted of a violation of this section.
Sex offenses prohibiting proximity to children VA Code §18.2–370.2
A. “Offense prohibiting proximity to children” means a violation or an attempt to commit a violation
of (i) subsection A of §18.2–47, clause (ii) or (iii) of §18.2–48, subsection B of §18.2–361, or
subsection B of §18.2–366, where the victim of one of the foregoing offenses was a minor, or (ii)
subsection A (iii) of §18.2–61, §§18.2–63, 18.2–64.1, subdivision A 1 of §18.2–67.1,
subdivision A 1 of §18.2–67.2, or subdivision A 1 or A 2 (a) of §18.2-67.3, or §§18.2–370,
18.2–370.1, clause (ii) of §18.2–371, §§18.2–374.1, 18.2–374.1:1 or § 18.2–379.
B. Every adult who is convicted of an offense prohibiting proximity to children when the offense
occurred on or after July 1, 2000, shall as part of his sentence be forever prohibited from loitering
within 100 feet of the premises of any place he knows or has reason to know is a primary, secondary
or high school. A violation of this section is punishable as a Class 6 felony.
Causing or encouraging acts rendering children
delinquent, abused, etc.; penalty VA Code §18.2–371
Any person eighteen 18 years of age or older, including the parent of any child, who (i) willfully contributes
to, encourages, or causes any act, omission, or condition which renders a child delinquent, in need of
services, in need of supervision, or abused or neglected as defined in §16.1–228, or (ii) engages in
consensual sexual intercourse with a child 15 or older not his spouse, child, or grandchild, shall be guilty
of a Class 1 misdemeanor. This section shall not be construed as repealing, modifying, or in any way
affecting §§18.2–18, 18.2–19, 18.2–61, 18.2–63, 18.2–66, and 18.2–347.
If the prosecution under this section is based solely on the accused parent having left the child at a hospital
or rescue squad, it shall be an affirmative defense to prosecution of a parent under this section that such
parent safely delivered the child to a hospital that provides 24-hour emergency services or to an attended
rescue squad that employs emergency medical technicians, within the first 14 days of the child’s life.
Abuse and neglect of children; penalty VA Code §18.2–371.1
A. Any parent, guardian, or other person responsible for the care of a child under the age of eighteen
18 who by willful act or omission or refusal to provide any necessary care for the child’s health
causes or permits serious injury to the life or health of such child shall be guilty of a Class 4
felony. For purposes of this subsection, “serious injury” shall include, but not be limited to (i)
disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, (vi)
forced ingestion of dangerous substances, or (vii) life-threatening internal injuries.
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Appendix A

B. 1. Any parent, guardian, or other person responsible for the care of a child under the age of
eighteen 18 whose willful act or omission in the care of such child was so gross, wanton and
culpable as to show a reckless disregard for human life shall be guilty of a Class 6 felony.
2. If a prosecution under this subsection is based solely on the accused parent having left the child
at a hospital or rescue squad, it shall be an affirmative defense to prosecution of a parent under
this subsection that such parent safely delivered the child to a hospital that provides 24-hour
emergency services or to an attended rescue squad that employs emergency medical technicians,
within the first 14 days of the child’s life.
C. Any parent, guardian or other person having care, custody, or control of a minor child who in
good faith is under treatment solely by spiritual means through prayer in accordance with the
tenets and practices of a recognized church or religious denomination shall not, for that reason
alone, be considered in violation of this section.
Production, publication, sale, possession with intent to
distribute financing, etc., of sexually explicit items involving
children; presumption as to age; severability VA Code §18.2–374.1.
A. For the purposes of this article and Article 4 (§18.2–362 et seq.) of this chapter, the term “sexually
explicit visual material” means a picture, photograph, drawing, sculpture, motion picture film,
digital image or similar visual representation which depicts sexual bestiality, a lewd exhibition of
nudity, as nudity is defined in §18.2–390, or sexual excitement, sexual conduct or
sadomasochistic abuse, as also defined in §18.2–390, or a book, magazine or pamphlet which
contains such a visual representation. An undeveloped photograph or similar visual material may
be sexually explicit material notwithstanding that processing or other acts may be required to
make its sexually explicit content apparent.
B. A person shall be guilty of a Class 5 felony who:
1. Accosts, entices or solicits a person less than eighteen years of age with intent to induce or
force such person to perform in or be a subject of sexually explicit visual material; or
2. Produces or makes or attempts or prepares to produce or make sexually explicit visual material
which utilizes or has as a subject a person less than eighteen years of age; or
3. Who knowingly takes part in or participates in the filming, photographing or other reproduction
of sexually explicit visual material by any means, including but not limited to computer-generated
reproduction, which utilizes or has as a subject a person less than eighteen years of age; or
4. Sells, gives away, distributes, electronically transmits, displays with lascivious intent,
purchases, or possesses with intent to sell, give away, distribute, transmit or display with
lascivious intent sexually explicit visual material which utilizes or has as a subject a person
less than eighteen years of age.
5. [Repealed.]
Appendix A
73

B. 1. [Repealed.]
C. A person shall be guilty of a Class 4 felony who knowingly finances or attempts or prepares to
finance sexually explicit visual material which utilizes or has as a subject a person less than
eighteen years of age.
D. For the purposes of this section, a person who is depicted as, or presents the appearance of, being
less than eighteen years of age in sexually explicit visual material is prima facie presumed to be
less than eighteen years of age.
E. The provisions of this section shall be severable and, if any of its provisions shall be held
unconstitutional by a court of competent jurisdiction, then the decision of such court shall not
affect or impair any of the remaining provisions.
Possession of child pornography VA Code §18.2–374.1:1
A. Any person who knowingly possesses any sexually explicit visual material utilizing or having as
a subject a person less than 18 years of age shall be guilty of a Class 6 felony. However, no
prosecution for possession of material prohibited by this section shall lie where the prohibited
material comes into the possession of the person charged from a law-enforcement officer or lawenforcement
agency.
B. The provisions of this section shall not apply to any such material which is possessed for a bona
fide artistic, medical, scientific, educational, religious, governmental, judicial or other proper
purpose by a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide
studies or research, librarian, clergyman, attorney, judge, or other person having a proper interest
in the material.
C. All sexually explicit visual material which utilizes or has as a subject a person less than 18 years
of age shall be subject to lawful seizure and forfeiture pursuant to §18.2–374.2.
D. Any person convicted of a second or subsequent offense under this section shall be guilty of a
Class 5 felony.
Seizure and forfeiture of property used in connection
with production of sexually explicit items involving children. VA Code §18.2–374.2
All audio and visual equipment, electronic equipment, devices and other personal property used
in connection with the production, distribution, publication, sale, possession with intent to
distribute or making of sexually explicit visual material having a person less than eighteen years
of age as a subject shall be subject to lawful seizure by a law-enforcement officer and shall be
subject to forfeiture to the Commonwealth pursuant to Chapter 22 (§19.2–369 et seq.) of Title
19.2 by order of the court in which a conviction under §18.2–374.1 is obtained. Notwithstanding
the provisions of §19.2–381, the court shall dispose of the forfeited property as it deems proper,
including awarding the property to a state agency for lawful purposes. If the property is disposed
of by sale, the court shall provide that the proceeds be paid into the Literary Fund.
74
Appendix A

A forfeiture under this section shall not extinguish the rights of any person without knowledge
of the illegal use of the property who (i) is the lawful owner or (ii) has a valid and perfected lien on
the property.
Use of communications systems to facilitate certain offenses
involving children. VA Code §18.2–374.3
A. It shall be unlawful for any person to use a communications system, including but not limited to
computers or computer networks or bulletin boards, or any other electronic means for the purposes
of procuring or promoting the use of a minor for any activity in violation of §18.2–370 or §18.2–
374.1. A violation of this section shall be punishable as a Class 6 felony.
B. It shall be unlawful for any person over the age of 18 to use a communications system, including
but not limited to computers or computer networks or bulletin boards, or any other electronic
means, for the purposes of soliciting any person he knows or has reason to believe is a minor child
less than 18 years of age for (i) any activity in violation of §§18.2–355, 18.2–358, 18.2–361
or §18.2–370, (ii) any activity in violation of §18.2–374.1, or (iii) a violation of §18.2–374.1:1.
As used in this subsection, “use a communications system” means making personal contact or
direct contact through any agent or agency, any print medium, the United States mail, any common
carrier or communication common carrier, any electronic communications system, or any
telecommunications, wire, computer, or radio communications system. A violation of this section
shall be punishable as a Class 5 felony.
Indecent exposure VA Code §18.2–387
Every person who intentionally makes an obscene display or exposure of his person, or the private parts
thereof, in any public place, or in any place where others are present, or procures another to so expose
himself, shall be guilty of a Class 1 misdemeanor. No person shall be deemed to be in violation of this
section for breastfeeding a child in any public place or any place where others are present.
Definitions VA Code §18.2–390
As used in this article:
A. “Juvenile” means a person less than eighteen years of age.
B. “Nudity” means a state of undress so as to expose the human male or female genitals, pubic area
or buttocks with less than a full opaque covering, or the showing of the female breast with less
than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of
covered or uncovered male genitals in a discernibly turgid state.
C. “Sexual conduct” means actual or explicitly simulated acts of masturbation, homosexuality, sexual
intercourse, or physical contact in an act of apparent sexual stimulation or gratification with a
persons’ clothed or unclothed genitals, pubic area, buttocks or, if such be female, breast.
D. “Sexual excitement” means the condition of human male or female genitals when in a state of
sexual stimulation or arousal.
Appendix A
75

E. “Sadomasochistic abuse” means actual or explicitly simulated flagellation or torture by or upon a
person who is nude or clad in undergarments, a mask or bizarre costume, or the condition of
being fettered, bound or otherwise physically restrained on the part of one so clothed.
F. “Harmful to juveniles” means that quality of any description or representation, in whatever form,
of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (a) predominantly
appeals to the prurient, shameful or morbid interest of juveniles, (b) is patently offensive to
prevailing standards in the adult community as a whole with respect to what is suitable material
for juveniles, and (c) is, when taken as a whole, lacking in serious literary, artistic, political or
scientific value for juveniles.
G. “Knowingly” means having general knowledge of, or reason to know, or a belief or ground for
belief which warrants further inspection or inquiry of both (a) the character and content of any
material described herein which is reasonably susceptible of examination by the defendant, and
(b) the age of the juvenile, provided however, that an honest mistake shall constitute an excuse
from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the
true age of such juvenile.
Child Pornography Images Registry; maintenance; access VA Code §19.2–390.3
A. The Office of the Attorney General, in cooperation with the Department of State Police, shall keep
and maintain a Child Pornography Registry to be located within the State Police, separate and apart
from all other records maintained by either department. The purpose of the Registry shall be to
assist the efforts of law-enforcement agencies statewide to protect their communities from repeat
child pornographers and to protect children from becoming victims of criminal offenders by aiding
in identifying victims and perpetrators. Criminal justice agencies, including law-enforcement
agencies, may request of the State Police a search and comparison of child pornography images
contained within the Registry with those images obtained by criminal justice agencies during the
course of official investigations.
B. The Registry shall include images of sexually explicit visual material in any form including any
picture, photograph, drawing, sculpture, motion picture film, digital image or similar visual
representation, presented as evidence and used in any conviction for any offense enumerated in
§§18.2–374.1 and 18.2–374.1:1.
C. Registry information provided under this section shall be used for the purposes of the
administration of criminal justice or for the protection of the public in general and children in
particular. Use of the information or the images contained therein for purposes not authorized by
this section is prohibited and a willful violation of this section with the intent to harass or
intimidate another shall be punished as a Class 6 felony.
76
D. 1. The Virginia Criminal Information Network and any form or document used by the
Department of State Police to disseminate information from the Registry shall provide notice
that any unauthorized possession, use or dissemination of the information or images is a
crime punishable as a Class 6 felony.
Appendix A

2. That the provisions of this act may result in a net increase in periods of imprisonment or
commitment. Pursuant to §30–19.1:4, the estimated amount of the necessary appropriation
cannot be determined for periods of imprisonment in state adult correctional facilities and is
$0 for periods of commitment to the custody of the Department of Juvenile Justice.
3. The Superintendent of State Police, in consultation with the Office of the Attorney General,
shall promulgate regulations governing the operation and maintenance of the Registry.
4. On or before January 1, 2004, the Office of the Attorney General and the State Police shall
develop and maintain a system for making certain a registry of information and images of
child pornography is established, protected, and, where applicable, encrypted. The system
shall be secure and not capable of being altered except by the State Police. The State Police
shall remove all information that it knows to be inaccurate from the Registry.
Desertion and nonsupport VA Code §20–61
Any spouse who, without cause, deserts or willfully neglects or refuses or fails to provide for the support
and maintenance of his or her spouse, and any parent who deserts or willfully neglects or refuses or fails
to provide for the support and maintenance of his or her child under the age of 18 years of age, or child of
whatever age who is crippled or otherwise incapacitated from earning a living, the spouse child or children
being then and there in necessitous circumstances, shall be guilty of a misdemeanor and upon conviction
shall be punished by a fine of not exceeding $500, or confinement in jail not exceeding 12 months, or
both, or on work release employment as provided in §53.1–131 for a period of not less than 90 days nor
more than 12 months; or in lieu of the fine or confinement being imposed upon conviction by the court
or by verdict of a jury he or she may be required by the court to suffer a forfeiture of an amount not
exceeding the sum of $1,000 and the fine or forfeiture may be directed by the court to be paid in whole or
in part to the spouse, or to the guardian, curator, custodian or trustee of the minor child or children, or to
some discreet person or responsible organization designated by the court to receive it. This section shall
not apply to any parent of any child of whatever age, if the child qualifies for and is totally disabled; or is
an adult and meets the visual requirements for aid to the blind; and for this purpose any state agency shall
use only the financial resources of the child of whatever age in determining eligibility.
Cruelty and injuries to children; penalty VA Code §40.1–103
A. It shall be unlawful for any person employing or having the custody of any child willfully or
negligently to cause or permit the life of such child to be endangered or the health of such child to
be injured, or willfully or negligently to cause or permit such child to be placed in a situation that
its life, health or morals may be endangered, or to cause or permit such child to be overworked,
tortured, tormented, mutilated, beaten or cruelly treated. Any person violating this section shall
be guilty of a Class 6 felony.
Appendix A
B. If a prosecution under this section is based solely on the accused parent having left the child at a
hospital or rescue squad, it shall be an affirmative defense to prosecution of a parent under this
section that such parent safely delivered the child to a hospital that provides 24-hour emergency
services or to an attended rescue squad that employs emergency medical technicians, within the
first 14 days of the child’s life.
77

78 Appendix A

Appendix B
Child Abuse Procedural and Evidentiary Statutes
Immunity of hospital or rescue squad personnel
for the acceptance of certain infants VA Code §8.01–226.5:2
Any personnel of a hospital or rescue squad receiving a child under the circumstances described in
subsection B of §18.2–371, subdivision B 2 of §18.2–371.1 or subsection B of §40.1–103 shall be
immune from civil liability or criminal prosecution for injury or other damage to the child unless such
injury or other damage is the result of gross negligence or willful misconduct by such personnel.
Competency of witness VA Code §8.01–396.1
No child shall be deemed incompetent to testify solely because of age.
Purpose of the Sex Offender and Crimes Against Minors Registry VA Code §9.1–900
The purpose of the Sex Offender and Crimes Against Minors Registry (Registry) shall be to assist the efforts
of law-enforcement agencies and others to protect their communities and families from repeat sex offenders
and to protect children from becoming victims of criminal offenders by helping to prevent such individuals
from being allowed to work directly with children.
Persons for whom registration required VA Code §9.1–901
Every person convicted on or after July 1, 1994, of an offense set forth in §9.1–902 shall register and
reregister as required by this chapter. Every person serving a sentence of confinement on or after July 1,
1994, for a conviction of an offense set forth in §9.1–902 shall register and reregister as required by this
chapter. Every person under community supervision as defined by §53.1–1 or any similar form of
supervision under the laws of the United States or any political subdivision thereof, on or after July 1,
1994, resulting from a conviction of an offense set forth in §9.1-902 shall register and reregister as
required by this chapter.
Offenses requiring registration VA Code §9.1-902
A. For purposes of this chapter “Offense for which registration is required” means:
1. A violation or attempted violation of §§18.2–63, 18.2–64.1, 18.2–67.2:1, 18.2–90 with
the intent to commit rape, §18.2–374.1 or subsection D of §18.2–374.1:1 or a third or
subsequent conviction of §18.2–67.4 or a third or subsequent conviction of subsection C of
§18.2–67.5;
2. Where the victim is a minor or is physically helpless or mentally incapacitated as defined in
§18.2–67.10, a violation or attempted violation of subsection A of §18.2–47, clause (i) or
(iii) of § 18.2–48, § 18.2–67.4, subsection C of §18.2–67.5, §18.2–361 or §18.2–366;
3. A violation of Chapter 117 (18 U.S.C. §2421 et seq.) of Title 18 of the United States Code; or
4. A “sexually violent offense.” “Sexually violent offense” means a violation or attempted
violation of:
Appendix B
79

a. Clause (ii) of §18.2–48, §§18.2–61, 18.2–67.1, 18.2–67.2, 18.2–67.3, subsections
A and B of §18.2–67.5, §18.2–370 or §18.2–370.1; or
b. Sections 18.2–63, 18.2–64.1, 18.2–67.2:1, §18.2–90 with the intent to commit rape
or, where the victim is a minor or is physically helpless or mentally incapacitated as defined
in §18.2–67.10, a violation or attempted violation of subsection A of §18.2–47, §18.2–
67.4, subsection C of §18.2–67.5, clause (i) or (iii) of §18.2–48, §§18.2–361, 18.2–
366, or §18.2–374.1. Conviction of an offense listed under this subdivision shall be
deemed a sexually violent offense only if the person has been convicted of any two or
more such offenses, provided that person had been at liberty between such convictions.
B. “Offense for which registration is required” and “sexually violent offense” shall also include any
similar offense under the laws of the United States or any political subdivision thereof.
Registration procedures VA Code §9.1–903
A. Every person convicted, including juveniles tried and convicted in the circuit courts pursuant to
§16.1–269.1, whether sentenced as an adult or juvenile, of an offense for which registration is
required shall be required upon conviction to register and reregister with the Department of State
Police. The court shall order the person to provide to the local law-enforcement agency of the
county or city all information required by the State Police for inclusion in the Registry. The court
shall remand the person to the custody of the local law-enforcement agency for the purpose of
obtaining the person’s fingerprints and photographs of a type and kind specified by the State
Police for inclusion in the Registry. The local law-enforcement agency shall forward to the State
Police all the necessary registration information within seven days of the date of sentencing.
B. Every person required to register shall register in person within 10 days of his release from
confinement in a state, local or juvenile correctional facility or, if a sentence of confinement is
not imposed, within 10 days of suspension of the sentence or in the case of a juvenile of disposition.
The local law-enforcement agency shall obtain from the person who presents himself for
registration or reregistration two sets of fingerprints, proof of residency and two photographs of
a type and kind specified by the State Police for inclusion in the Registry and advise the person of
his duties regarding reregistration. The local law-enforcement agency shall promptly forward to
the State Police all necessary registration information.
C. To establish proof of residence in Virginia, a person shall present one photo-identification form
issued by a governmental agency of the Commonwealth which contains the person’s complete
name, gender, date of birth and complete address.
D. Any person required to register shall also reregister in person within 10 days with the local lawenforcement
agency following any change of residence, whether within or without the
Commonwealth. If a probation or parole officer becomes aware of a change of residence for any of
his probationers or parolees required to register, the probation or parole officer shall notify the
State Police within 10 days of learning of the change of residence. Whenever a person subject to
80
Appendix B

egistration changes residence to another state, the State Police shall notify the designated lawenforcement
agency of that state.
E. The registration shall be maintained in the Registry and shall include the person’s name, all aliases
that he has used or under which he may have been known, the date and locality of the conviction for
which registration is required, his fingerprints and a photograph of a type and kind specified by the
State Police, his date of birth, social security number, current physical and mailing address and a
description of the offense or offenses for which he was convicted. The registration shall also include
the locality of the conviction and a description of the offense or offenses for previous convictions
for the offenses set forth in §9.1–902.
F. The local law-enforcement agency shall promptly forward to the State Police all necessary
registration or reregistration information received by it. Upon receipt of registration or
reregistration information the State Police shall forthwith notify the chief law-enforcement officer
of the locality listed as the person’s address on the registration and reregistration.
Reregistration VA Code §9.1–904
Every person required to register, other than a person convicted of a sexually violent offense, shall reregister
with the State Police on an annual basis from the date of the initial registration. Every person convicted of
a sexually violent offense shall reregister with the State Police every 90 days from the date of initial
registration. Reregistration means that the person has notified the State Police, confirmed his current
physical and mailing address and provided such other information, including identifying information,
which the State Police may require. Upon registration and as may be necessary thereafter, the State Police
shall provide the person with an address verification form to be used for reregistration. The form shall
contain in bold print a statement indicating that failure to comply with the registration required is
punishable as a Class 1 misdemeanor or a Class 6 felony as provided in §18.2–472.1.
New residents and nonresident offenders; registration required VA Code §9.1–905
A. All persons required to register shall register within 10 days of establishing a residence in the
Commonwealth.
B. Nonresident offenders entering the Commonwealth for employment, to carry on a vocation, or as
a student attending school who are required to register in their state of residence or who would be
required to register if a resident of the Commonwealth shall, within 10 days of accepting
employment or enrolling in school in the Commonwealth, be required to register and reregister
in person with the local law-enforcement agency.
C. To document employment or school attendance in Virginia a person shall present proof of
enrollment as a student or suitable proof of temporary employment in the Commonwealth and
one photo-identification form issued by a governmental agency of the person’s state of residence
which contains the person’s complete name, gender, date of birth and complete address.
D. For purposes of this section: “Employment” and “carry on a vocation” include employment that
is full-time or part-time for a period of time exceeding 14 days or for an aggregate period of time
Appendix B
81

exceeding 30 days during any calendar year, whether financially compensated, volunteered, or
for the purpose of government or educational benefit. “Student” means a person who is enrolled
on a full-time or part-time basis, in any public or private educational institution, including any
secondary school, trade or professional institution, or institution of higher education.
Enrollment or employment at institution of higher learning;
information required VA Code §9.1–906
A. Persons required to register or reregister who are enrolled in or employed at institutions of higher
learning shall, in addition to other registration requirements, indicate on their registration and
reregistration form the name and location of the institution attended by or employing the registrant
whether such institution is within or without the Commonwealth. In addition, persons required
to register or reregister shall notify the local law-enforcement agency in person within 10 days of
any change in their enrollment or employment status with an institution of higher learning. The
local law-enforcement agency shall promptly forward to the State Police all necessary registration
or reregistration information received by it.
B. Upon receipt of a registration or reregistration indicating enrollment or employment with an institute
of higher learning or notification of a change in status, the State Police shall notify the chief lawenforcement
officer of the institution’s law-enforcement agency or, if there is no institutional lawenforcement
agency, the local law-enforcement agency serving that institution, of the registration,
reregistration, or change in status. The law-enforcement agency receiving notification under this section
shall make such information available upon request.
C. For purposes of this section: “Employment” includes full- or part-time, temporary or permanent
or contractual employment at an institution of higher learning either with or without
compensation. “Enrollment” includes both full- and part-time. “Institution of higher learning”
means any post-secondary school, trade or professional institution, or institution of higher
education.
Procedures upon a failure to register or reregister VA Code §9.1–907
Whenever it appears from the records of the State Police that a person has failed to comply with the duty
to register or reregister, the State Police shall promptly investigate and, if there is probable cause to believe
a violation has occurred, obtain a warrant charging a violation of §18.2–472.1 in the jurisdiction in
which the person last registered or reregistered or, if the person failed to comply with the duty to register,
in the jurisdiction in which the person was last convicted of an offense for which registration or
reregistration is required. The State Police shall forward to the jurisdiction, together with the warrant, an
affidavit signed by the custodian of the records that such person failed to comply with the duty to register
or reregister. Such affidavit shall be admitted into evidence as prima facie evidence of the failure to comply
with the duty to register or reregister in any trial for the violation of §18.2–472.1. The State Police shall
also promptly notify the local law-enforcement agency of the jurisdiction of the person’s last known
residence as shown in the records of the State Police.
82
Appendix B

Duration of registration requirement VA Code §9.1–908
Any person required to register or reregister shall be required to register for a period of 10 years from the
date of initial registration, except that any person who has been convicted of (i) any sexually violent offense,
or (ii) §18.2–67.2:1 shall have a continuing duty to reregister for life. Any period of confinement in a
federal, state or local correctional facility, hospital or any other institution or facility during the otherwise
applicable 10-year period shall toll the registration period and the duty to reregister shall be extended.
Persons confined in a federal, state, or local correctional facility shall not be required to reregister until
released from custody.
Relief from registration or reregistration VA Code §9.1–909
A. Upon expiration of three years from the date upon which the duty to register as a sexually
violent offender is imposed, the person required to register may petition the court in which he
was convicted for relief from the requirement to reregister every 90 days. The court shall hold
a hearing on the petition, on notice to the attorney for the Commonwealth, to determine whether
the person suffers from a mental abnormality or a personality disorder that makes the person a
menace to the health and safety of others or significantly impairs his ability to control his
sexual behavior. Prior to the hearing the court shall order a comprehensive assessment of the
applicant by a panel of three certified sex offender treatment providers as defined in §54.1–
3600. A report of the assessment shall be filed with the court prior to the hearing. The costs of
the assessment shall be taxed as costs of the proceeding.
If, after consideration of the report and such other evidence as may be presented at the hearing, the
court finds by clear and convincing evidence that the person does not suffer from a mental
abnormality or a personality disorder that makes the person a menace to the health and safety of
others or significantly impairs his ability to control his sexual behavior, the petition shall be granted
and the duty to reregister every 90 days shall be terminated. The court shall promptly notify the
State Police upon entry of an order granting the petition and the State Police shall remove Registry
information on the offender from the Internet system. The person shall, however, be under a
continuing duty to register annually for life. If the petition is denied, the duty to reregister every 90
days shall continue. An appeal from the denial of a petition shall lie to the Supreme Court.
A petition for relief pursuant to this subsection may not be filed within three years from the date
on which any previous petition for such relief was denied.
B. The duly appointed guardian of a person convicted of an offense requiring registration or
reregistration as either a sex offender or sexually violent offender, who due to a physical condition
is incapable of (i) reoffending and (ii) reregistering, may petition the court in which the person
was convicted for relief from the requirement to reregister.
The court shall hold a hearing on the petition, on notice to the attorney for the Commonwealth,
to determine whether the person suffers from a physical condition that makes the person (i) no
longer a menace to the health and safety of others and (ii) incapable of reregistering. Prior to the
Appendix B
83

hearing the court shall order a comprehensive assessment of the applicant by at least two licensed
physicians other than the person’s primary care physician. A report of the assessment shall be
filed with the court prior to the hearing. The costs of the assessment shall be taxed as costs of the
proceeding.
If, after consideration of the report and such other evidence as may be presented at the hearing,
the court finds by clear and convincing evidence that due to his physical condition the person (i)
no longer poses a menace to the health and safety of others and (ii) is incapable of reregistering,
the petition shall be granted and the duty to reregister shall be terminated. However, for a person
whose duty to reregister was terminated under this subsection, the Department of State Police
shall, annually for sex offenders and quarterly for sexually violent offenders, verify and report to
the attorney for the Commonwealth in the jurisdiction in which the person resides that the person
continues to suffer from the physical condition that resulted in such termination.
The court shall promptly notify the State Police upon entry of an order granting the petition to
terminate the duty to reregister and the State Police shall remove any Registry information on the
offender from the Internet system.
If the petition is denied, the duty to reregister shall continue. An appeal from the denial of a
petition shall be to the Virginia Supreme Court.
A petition for relief pursuant to this subsection may not be filed within three years from the date
on which any previous petition for such relief was denied.
If, at any time, the person’s physical condition changes so that he is capable of reoffending or
reregistering, the attorney for the Commonwealth shall file a petition with the circuit court in
the jurisdiction where the person resides and the court shall hold a hearing on the petition, with
notice to the person and his guardian, to determine whether the person still suffers from a physical
condition that makes the person (i) no longer a menace to the health and safety of others and (ii)
incapable of reregistering. If the petition is granted, the duty to reregister shall commence from
the date of the court’s order. An appeal from the denial or granting of a petition shall be to the
Virginia Supreme Court. Prior to the hearing the court shall order a comprehensive assessment of
the applicant by at least two licensed physicians other than the person’s primary care physician.
A report of the assessment shall be filed with the court prior to the hearing. The costs of the
assessment shall be taxed as costs of the proceeding.
Removal of name and information from Registry VA Code §9.1–910
84
A. Any person required to register, other than a person who has been convicted of any (i) sexually
violent offense, (ii) two or more offenses for which registration is required or (iii) a violation of
§18.2–67.2:1, may petition the circuit court in which he was convicted or the circuit court in
the jurisdiction where he then resides for removal of his name and all identifying information
from the Registry. A petition may not be filed earlier than 10 years after the date of initial
registration. The court shall hold a hearing on the petition at which the applicant and any interested
persons may present witnesses and other evidence. If, after such hearing, the court is satisfied
Appendix B

that such person no longer poses a risk to public safety, the court shall grant the petition. In the
event the petition is not granted, the person shall wait at least 24 months from the date of the
denial to file a new petition for removal from the Registry.
B. The State Police shall remove from the Registry the name of any person and all identifying
information upon receipt of an order granting a petition pursuant to subsection A or at the end of
the period for which the person is required to register under §9.1–908.
Registry maintenance VA Code §9.1–911
The Registry shall include conviction data received from the courts, including the disposition records for
juveniles tried and convicted in the circuit courts pursuant to §16.1–269.1, on convictions for offenses
for which registration is required and registrations and deregistration received from persons required to
do so. The Registry shall also include a separate indication that a person has been convicted of a sexually
violent offense. The State Police shall forthwith transmit the appropriate information as required by the
Federal Bureau of Investigation for inclusion in the National Sex Offender Registry.
Registry access and dissemination; fees VA Code §9.1–912
A. Except as provided in §9.1–913 and subsection B of this section, Registry information shall be
disseminated upon request made directly to the State Police or to the State Police through a local
law-enforcement agency. Such information may be disclosed to any person requesting information
on a specific individual in accordance with subsection B. The State Police shall make Registry
information available, upon request, to criminal justice agencies including local law-enforcement
agencies through the Virginia Criminal Information Network (VCIN). Registry information
provided under this section shall be used for the purposes of the administration of criminal justice,
for the screening of current or prospective employees or volunteers or otherwise for the protection
of the public in general and children in particular. The Superintendent of State Police may, by
regulation, establish a fee not to exceed $15 for responding to requests for information from the
Registry. Any fees collected shall be deposited in a special account to be used to offset the costs of
administering the Registry.
B. Information regarding a specific person shall be disseminated upon receipt of an official request
form that may be submitted directly to the State Police or to the State Police through a local lawenforcement
agency. The official request form shall include a statement of the reason for the
request; the name and address of the person requesting the information; the name, address and, if
known, the social security number of the person about whom information is sought; and such
other information as the State Police may require to ensure reliable identification.
Public dissemination by means of the Internet VA Code §9.1–913
The State Police shall develop and maintain a system for making certain Registry information on violent
sex offenders publicly available by means of the Internet. The information to be made available shall
include the offender’s name; all aliases that he has used or under which he may have been known; the date
and locality of the conviction and a brief description of the offense; his age, current address and photograph;
and such other information as the State Police may from time to time determine is necessary to preserve
Appendix B
85

public safety including but not limited to the fact that an individual is wanted for failing to register or
reregister. The system shall be secure and not capable of being altered except by the State Police. The system
shall be updated each business day with newly received registrations and deregistration. The State Police
shall remove all information that it knows to be inaccurate from the Internet system.
Automatic notification of registration to certain entities VA Code §9.1–914
Any school, day-care service and child-minding service, and any state-regulated or state-licensed child day
center, child day program, children’s residential facility, family day home or foster home as defined in
§63.2–100 may request from the State Police and, upon compliance with the requirements therefore
established by the State Police, shall be eligible to receive from the State Police electronic notice of the
registration or reregistration of any sex offender. Entities that request and are entitled to this notification,
and that do not have the capability of receiving such electronic notice, may register with the State Police
to receive written notification of sex offender registration or reregistration.
Within three business days of receipt by the State Police of registration or reregistration, the State Police
shall electronically or in writing notify an entity that has requested such notification, has complied with
the requirements established by the State Police and is located in the same or a contiguous zip code area as
the address of the offender as shown on the registration.
The State Police shall establish reasonable guidelines governing the automatic dissemination of Registry
information, which may include the payment of a fee, whether a one-time fee or a regular assessment, to
maintain the electronic access. The fee, if any, shall defray the costs of establishing and maintaining the
electronic notification system and notice by mail.
For the purposes of this section, “day-care service” means provision of supplementary care and protection
during a part of the day for the minor child of another; “child-minding service” means provision of
temporary custodial care or supervisory services for the minor child of another; and “school” means any
public, parochial, denominational or private educational institution, including any preschool, elementary
school, secondary school, post-secondary school, trade or professional institution, or institution of higher
education.
Regulations VA Code §9.1–915
The Superintendent of State Police shall promulgate regulations and develop forms to implement and
enforce this chapter; including the operation and maintenance of the Registry and the removal of records
on persons who are deceased, whose convictions have been reversed or who have been pardoned, and
those for whom an order of removal or relief from frequent registration has been entered. Such regulations
and forms shall not be subject to the provisions of Article 2 (§2.2–4006 et seq.) of the Administrative
Process Act.
Limitation on liability VA Code §9.1–916
No liability shall be imposed upon any law-enforcement official who disseminates information or fails to
disseminate information in good faith compliance with the requirements of this chapter, but this provision
shall not be construed to grant immunity for gross negligence or willful misconduct.
86
Appendix B

Misuse of registry information; penalty VA Code §9.1–917
Use of registry information for purposes not authorized by this chapter is prohibited, the unlawful use of
the information contained in or derived from the Registry for purposes of intimidating or harassing another
is prohibited, and a willful violation of this chapter is a Class 1 misdemeanor.
Severability; liberal construction VA Code §9.1–918
The provisions of this chapter are severable, and if any of its provisions shall be declared unconstitutional
or invalid by any court of competent jurisdiction, the decision of such court shall not affect or impair any
of the other provisions of this chapter. This chapter, being necessary for the welfare of the Commonwealth
and its inhabitants, shall be liberally construed to effect the purposes hereof.
Power of circuit court over juvenile offender VA Code §16.1–272
A. In any case in which a juvenile is indicted, the offense for which he is indicted and all ancillary charges
shall be tried in the same manner as provided for in the trial of adults, except as otherwise provided
with regard to sentencing. Upon a finding of guilty of any charge other than capital murder, the court
shall fix the sentence without the intervention of a jury.
1. If a juvenile is convicted of a violent juvenile felony, for that offense and for all ancillary
crimes the court may order that (i) the juvenile serve a portion of the sentence as a serious
juvenile offender under §16.1-285.1 and the remainder of such sentence in the same manner
as provided for adults; (ii) the juvenile serve the entire sentence in the same manner as provided
for adults; or (iii) the portion of the sentence to be served in the same manner as provided for
adults be suspended conditioned upon successful completion of such terms and conditions as
may be imposed in a juvenile court upon disposition of a delinquency case including, but not
limited to, commitment under subdivision 14 of §16.1–278.8 or §16.1–285.1.
2. If the juvenile is convicted of any other felony, the court may sentence or commit the juvenile
offender in accordance with the criminal laws of this Commonwealth or may in its discretion
deal with the juvenile in the manner prescribed in this chapter for the hearing and disposition
of cases in the juvenile court, including, but not limited to, commitment under §16.1–285.1
or may in its discretion impose an adult sentence and suspend the sentence conditioned upon
successful completion of such terms and conditions as may be imposed in a juvenile court
upon disposition of a delinquency case.
3. If the juvenile is not convicted of a felony but is convicted of a misdemeanor, the court shall
deal with the juvenile in the manner prescribed by law for the disposition of a delinquency
case in the juvenile court.
B. If the circuit court decides to deal with the juvenile in the same manner as a case in the juvenile
court and places the juvenile on probation, the juvenile may be supervised by a juvenile probation
officer.
Appendix B
87

C. Whether the court sentences and commits the juvenile as a juvenile under this chapter or under
the criminal law, in cases where the juvenile is convicted of a felony in violation of §§18.2–61,
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–
370.1 or, where the victim is a minor or is physically helpless or mentally incapacitated as defined
in §18.2–67.10, subsection B of §18.2–361 or subsection B of §18.2–366, the clerk shall make
the report required by §19.2–390 to the Sex Offender and Crimes Against Minors Registry
established pursuant to §19.2–390.1 Chapter 9 (§9.1-900 et seq.) of Title 9.1.
Mandatory HIV testing VA Code §18.2–62
A. As soon as practicable following arrest, the attorney for the Commonwealth may request, after
consultation with any victim, that any person charged with any crime involving sexual assault
pursuant to this article or any offenses against children as prohibited by §§18.2–361, 18.2–366,
18.2–370, and 18.2–370.1 be requested to submit to testing for infection with human
immunodeficiency virus. The person so charged shall be counseled about the meaning of the test,
about acquired immunodeficiency syndrome, and about the transmission and prevention of infection
with human immunodeficiency virus.
If the person so charged refuses to submit to the test or the competency of the person to consent to
the test is at issue, the court with jurisdiction of the case shall hold a hearing to determine whether
there is probable cause that the individual has committed the crime with which he is charged. If
the court finds probable cause, the court shall order the accused to undergo testing for infection
with human immunodeficiency virus. The court may enter such an order in the absence of the
defendant if the defendant is represented at the hearing by counsel or a guardian ad litem. The
court’s finding shall be without prejudice to either the Commonwealth or the person charged and
shall not be evidence in any proceeding, civil or criminal.
B. Upon conviction, or adjudication as delinquent in the case of a juvenile, of any crime involving
sexual assault pursuant to this article or any offenses against children as prohibited by §§18.2–
361, 18.2–366, 18.2–370, and 18.2–370.1, the attorney for the Commonwealth may, after
consultation with any victim and, upon the request of any victim shall, request and the court
shall order the defendant to submit to testing for infection with human immunodeficiency virus.
Any test conducted following conviction shall be in addition to such tests as may have been
conducted following arrest pursuant to subsection A.
C. Confirmatory tests shall be conducted before any test result shall be determined to be positive.
The results of the tests for infection with human immunodeficiency virus shall be confidential as
provided in §32.1–36.1; however, the Department of Health shall also disclose the results to any
victim and offer appropriate counseling as provided by subsection B of §32.1–37.2. The
Department shall conduct surveillance and investigation in accordance with §32.1–39.
The results of such tests shall not be admissible as evidence in any criminal proceeding.
88
The cost of such tests shall be paid by the Commonwealth and taxed as part of the cost of such
criminal proceedings.
Appendix B

Use of videotaped testimony VA Code §18.2–67
Before or during the trial for an offense or attempted offense under this article, the judge of the court in
which the case is pending, with the consent of the accused first obtained in open court, by an order of
record, may direct that the deposition of the complaining witness be taken at the time and place designated
in the order, and the judge may adjourn the taking thereof to such other time and places as he may deem
necessary. Such deposition shall be taken before a judge of a circuit court in the county or city in which
the offense was committed or the trial is had, and the judge shall rule upon all questions of evidence, and
otherwise control the taking of the same as though it were taken in open court. At the taking of such
deposition the attorney for the Commonwealth, as well as the accused and his attorneys, shall be present
and they shall have the same rights in regard to the examination of such witness as if he or she were
testifying in open court. No other person shall be present unless expressly permitted by the judge. Such
deposition shall be read to the jury at the time such witness might have testified is such deposition shall
be read to the jury at the time such witness might have testified if such deposition had not been taken, and
shall be considered by them, and shall have the same force and effect as though such testimony had been
given orally in court. The judge may, in like manner, direct other depositions of the complaining witness,
in rebuttal or otherwise, which shall be taken and read in the manner and under the conditions herein
prescribed as to the first deposition. The cost of taking such depositions shall be paid by the Commonwealth.
Admission of evidence (rape shield) VA Code §18.2–67.7
A. In prosecutions under this article, general reputation or opinion evidence of the complaining
witness’s unchaste character or prior sexual conduct shall not be admitted. Unless the complaining
witness voluntarily agrees otherwise, evidence of specific instances of his or her prior sexual
conduct shall be admitted only if it is relevant and is:
1. Evidence offered to provide an alternative explanation for physical evidence of the offense
charged which is introduced by the prosecution, limited to evidence designed to explain the
presence of semen, pregnancy, disease, or physical injury to the complaining witness’s intimate
parts; or
2. Evidence of sexual conduct between the complaining witness and the accused offered to
support a contention that the alleged offense was not accomplished by force, threat or
intimidation or through the use of the complaining witness’s mental incapacity or physical
helplessness, provided that the sexual conduct occurred within a period of time reasonably
proximate to the offense charged under the circumstances of this case; or
3. Evidence offered to rebut evidence of the complaining witness’s prior sexual conduct
introduced by the prosecution.
B. Nothing contained in this section shall prohibit the accused from presenting evidence relevant to
show that the complaining witness had a motive to fabricate the charge against the accused. If
such evidence relates to the past sexual conduct of the complaining witness with a person other
than the accused, it shall not be admitted and may not be referred to at any preliminary hearing or
trial unless the party offering same files a written notice generally describing the evidence prior
Appendix B
89

to the introduction of any evidence, or the opening statement of either counsel, whichever first
occurs, at the preliminary hearing or trial at which the admission of the evidence may be sought.
C. Evidence described in subsection A and B of this section shall not be admitted and may not be
referred to at any preliminary hearing or trial until the court first determines the admissibility of
that evidence at an evidentiary hearing to be held before the evidence is introduced at such
preliminary hearing or trial. The court shall exclude from the evidentiary hearing al persons except
the accused, the complaining witness, other necessary witnesses, and required court personnel. If
the court determines that the evidence meets the requirements of subsections A and B of this
section, it shall be admissible before the judge or jury trying the case in the ordinary course of the
preliminary hearing or trial. If the court initially determines that the evidence is inadmissible,
but new information is discovered during the course of the preliminary hearing or trial which
may make such evidence admissible, the court shall determine in an evidentiary hearing whether
such evidence is admissible.
Closed preliminary hearings VA Code §18.2–67.8
In preliminary hearings for offenses charged under this article or under §§18.2–361, 18.2–366, 18.2–
370 or 18.2–370.1, the court may, on its own motion or at the request of the Commonwealth, the
complaining witness, the accused, or their counsel, exclude from the courtroom all persons except officers
of the court and persons whose presence, in the judgment of the court, would be supportive of the
complaining witness or the accused and would not impair the conduct of a fair hearing.
Use of closed-circuit television testimony VA Code §18.2–67.9
A. The provisions of this section shall apply to an alleged victim who was fourteen years of age or
under at the time of the alleged offense and is sixteen or under at the time of the trial and to a
witness who is fourteen years of age or under at the time of the trial.
In any criminal proceeding, including preliminary hearings, involving an alleged offense against a
child, relating to a violation of the laws pertaining to kidnapping (§18.2–47 et seq.), criminal sexual
assault (§18.2–61 et seq.) or family offenses pursuant to Article 4 (§18.2–362 et seq.) of Chapter
8 of Title 18.2, or involving an alleged murder of a person of any age, the attorney for the
Commonwealth or the defendant may apply for an order from the court that the testimony of the
alleged victim or a child witness be taken in a room outside the courtroom and be televised by twoway
closed-circuit television. The party seeking such order shall apply for the order at least seven
days before the trial date or at least seven days before such other preliminary proceeding to which
the order is to apply.
B. The court may order that the testimony of the child be taken by closed-circuit television as provided
in subsection A if it finds that the child is unavailable to testify in open court in the presence of
the defendant, the jury, the judge, and the public, for any of the following reasons:
1. The child’s persistent refusal to testify despite judicial requests to do so;
2. The child’s substantial inability to communicate about the offense; or
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Appendix B

3. The substantial likelihood, based upon expert opinion testimony, that the child will suffer
severe emotional trauma from so testifying.
Any ruling on the child’s unavailability under this subsection shall be supported by the court
with findings on the record or with written findings in a court not of record.
C. In any proceeding in which closed-circuit television is used to receive testimony, the attorney for the
Commonwealth and the defendant’s attorney shall be present in the room with the child, and the
child shall be subject to direct and cross-examination. The only other persons allowed to be present
in the room with the child during his testimony shall be those persons necessary to operate the
closed-circuit equipment, and any other person whose presence is determined by the court to be
necessary to the welfare and well-being of the child.
D. The child’s testimony shall be transmitted by closed-circuit television into the courtroom for the
defendant, jury, judge and public to view. The defendant shall be provided with a means of private,
contemporaneous communication with his attorney during the testimony.
E. Notwithstanding any other provision of law, none of the cost of the two-way closed-circuit
television shall be assessed against the defendant.
Venue where any person transported for criminal sexual assault,
attempted criminal sexual assault, or purposes of unlawful
sexual intercourse, crimes against nature, and indecent
liberties with children VA Code §18.2–359
A. Any person transporting or attempting to transport through or across this Commonwealth, any
person for the purposes of unlawful sexual intercourse or prostitution, or for the purpose of
committing any crime specified in §18.2- 361 or §18.2-370, may be presented, indicted, tried,
and convicted in any county or city in which any part of such transportation occurred.
B. Venue for the trial of any person charged with committing or attempting to commit criminal
sexual assault under Article 7 (§18.2-61 et seq.) of Chapter 4 of this title may be had in the
county or city in which such crime is alleged to have occurred or in any county or city through
which the victim was transported by the defendant prior to the commission of such offense.
Providing false information or failing to provide
registration information; penalty; prima facie evidence VA Code §18.2–472.1
Any person subject to §19.2–298.1 Chapter 9 (§ 9.1–900 et seq.) of Title 9.1, other than a person
convicted of a sexually violent offender offense, who knowingly fails to register or reregister, or who
knowingly provides materially false information to the Sex Offender and Crimes Against Minors Registry
shall be is guilty of a Class 1 misdemeanor. However, any person convicted of a sexually violent offense, as
defined in §19.2–298.1 9.1–902, who knowingly fails to register or reregister, or who knowingly provides
materially false information to the Sex Offender and Crimes Against Minors Registry established pursuant
to §19.2–390.1 shall be is guilty of a Class 6 felony.
Appendix B
91

A prosecution pursuant to this section shall be brought in the city or county where the registrant offender
can be found or where the offender last registered or reregistered or, if the offender failed to comply with
the duty to register, where the offender was last convicted of an offense for which registration or
reregistration is required.
At any trial pursuant to this section, an affidavit from the State Police issued as required in subsection H
of §19.2–298.1 §9.1–907 shall be admitted into evidence as prima facie evidence of the failure to comply
with the duty to register or reregister and a copy of such affidavit shall be provided to the registrant or his
counsel seven days prior to hearing or trial by the attorney for the Commonwealth.
Crime victim and witness rights VA Code §19.2–11.01
A. In recognition of the Commonwealth’s concern for the victims and witnesses of crime, it is the
purpose of this chapter to ensure that the full impact of crime is brought to the attention of the
courts of the Commonwealth; that crime victims and witnesses are treated with dignity, respect
and sensitivity; and that their privacy is protected to the extent permissible under law.
It is the further purpose of this chapter to ensure that victims and witnesses are informed of the
rights provided to them under the laws of the Commonwealth; that they receive authorized services
as appropriate; and that they have the opportunity to be heard by law-enforcement agencies,
attorneys for the Commonwealth, corrections agencies and the judiciary at all critical stages of
the criminal justice process to the extent permissible under law. Unless otherwise stated and subject
to the provisions of §19.2–11.1, it shall be the responsibility of a locality’s crime victim and
witness assistance program to provide the information and assistance required by this chapter,
including verification that the standardized form listing the specific rights afforded to crime
victims has been received by the victim.
Following a crime, law-enforcement personnel shall provide the victim with a standardized form
listing the specific rights afforded to crime victims. The form shall include a telephone number
by which the victim can receive further information and assistance in securing the rights afforded
crime victims.
1. Victim and witness protection.
a. In order that victims and witnesses receive protection from harm and threats of harm
arising out of their cooperation with law-enforcement, or prosecution efforts, they shall
be provided with information as to the level of protection which may be available pursuant
to §52-35 or to any other federal, state or local program providing protection, and shall
be assisted in obtaining this protection from the appropriate authorities.
b. Victims and witnesses shall be provided, where available, a separate waiting area during
court proceedings that affords them privacy and protection from intimidation.
2. Financial assistance.
92
a. Victims shall be informed of financial assistance and social services available to them as
victims of a crime, including information on their possible right to file a claim for
Appendix B

compensation from the Crime Victims’ Compensation Fund pursuant to Chapter 21.1
(§19.2–368.1 et seq.) of this title and on other available assistance and services.
b. Victims shall be assisted in having any property held by law-enforcement agencies for
evidentiary purposes returned promptly in accordance with §§19.2–270.1 and 19.2–
270.2.
c. Victims shall be advised that restitution is available for damages or loss resulting from an
offense and shall be assisted in seeking restitution in accordance with §§19.2–305, 19.2–
305.1, Chapter 21.1 (§19.2–368.1 et seq.) of this title, Article 21 (§58.1–520 et seq.)
of Chapter 3 of Title 58.1, and other applicable laws of the Commonwealth.
3. Notices.
a. Victims and witnesses shall be (i) provided with appropriate employer intercession services to
ensure that employers of victims and witnesses will cooperate with the criminal justice process
in order to minimize an employee’s loss of pay and other benefits resulting from court
appearances and (ii) advised that pursuant to §18.2–465.1 it is unlawful for an employer to
penalize an employee for appearing in court pursuant to a summons or subpoena.
b. Victims shall receive advance notification when practicable from the attorney for the
Commonwealth of judicial proceedings relating to their case and shall be notified when
practicable of any change in court dates in accordance with §19.2–265.01 if they have
provided their names, current addresses and telephone numbers.
c. Victims shall receive notification, if requested, subject to such reasonable procedures as
the Attorney General may require pursuant to §2.2–511, from the Attorney General of
the filing and disposition of any appeal or habeas corpus proceeding involving their case.
d. Victims shall be notified by the Department of Corrections or a sheriff or jail
superintendent in whose custody an escape, change of name, transfer, release or discharge
of a prisoner occurs pursuant to the provisions of §§53.1–133.02 and 53.1–160 if they
have provided their names, current addresses and telephone numbers in writing.
e. Victims shall be advised that, in order to protect their right to receive notices and offer
input, all agencies and persons having such duties must have current victim addresses
and telephone numbers given by the victims. Victims shall also be advised that any such
information given shall be confidential as provided by §19.2–11.2.
4. Victim input.
a. Victims shall be given the opportunity, pursuant to §19.2–299.1, to prepare a written
victim impact statement prior to sentencing of a defendant and may provide information
to any individual or agency charged with investigating the social history of a person or
preparing a victim impact statement under the provisions of §§16.1–273 and 53.1–
155 or any other applicable law.
Appendix B
93

. Victims shall have the right to remain in the courtroom during a criminal trial or
proceeding pursuant to the provisions of §19.2–265.01.
c. On motion of the attorney for the Commonwealth, victims shall be given the opportunity,
pursuant to §§19.2–264.4 and 19.2–295.3, to testify prior to sentencing of a defendant
regarding the impact of the offense.
d. In a felony case, the attorney for the Commonwealth, upon the victim’s written request,
shall consult with the victim either verbally or in writing (i) to inform the victim of the
contents of a proposed plea agreement and (ii) to obtain the victim’s views concerning
plea negotiations. However, nothing in this section shall limit the ability of the attorney
for the Commonwealth to exercise his discretion on behalf of the citizens of the
Commonwealth in the disposition of any criminal case. The court shall not accept the
plea agreement unless it finds that, except for good cause shown, the Commonwealth has
complied with clauses (i) and (ii). Good cause shown shall include, but not be limited to,
the unavailability of the victim due to incarceration, hospitalization, failure to appear at
trial when subpoenaed, or change of address without notice.
Upon the victim’s written request, the victim shall be notified in accordance with
subdivision A 3 b of any proceeding in which the plea agreement will be tendered to the
court.
The responsibility to consult with the victim under this subdivision shall not confer upon
the defendant any substantive or procedural rights and shall not affect the validity of any
plea entered by the defendant.
5. Courtroom assistance.
a. Victims and witnesses shall be informed that their addresses and telephone numbers may
not be disclosed, pursuant to the provisions of §§19.2–11.2 and 19.2–269.2, except
when necessary for the conduct of the criminal proceeding.
b. Victims and witnesses shall be advised that they have the right to the services of an
interpreter in accordance with §§19.2–164 and 19.2–164.1.
c. Victims and witnesses of certain sexual offenses shall be advised that there may be a closed
preliminary hearing in accordance with §18.2–67.8 and, if a victim was fourteen years
of age or younger on the date of the offense and is sixteen or under at the time of the trial,
or a witness to the offense is fourteen years of age or younger at the time of the trial, that
two-way closed-circuit television may be used in the taking of testimony in accordance
with §18.2–67.9.
B. For purposes of this chapter, “victim” means (i) a person who has suffered physical, psychological
or economic harm as a direct result of the commission of a felony or of assault and battery in
violation of §18.2–57 or §18.2–57.2, stalking in violation of §18.2–60.3, sexual battery in
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Appendix B

violation of §18.2–67.4, attempted sexual battery in violation of §18.2–67.5, maiming or
driving while intoxicated in violation of §18.2–51.4 or §18.2–266, (ii) a spouse or child of
such a person, (iii) a parent or legal guardian of such a person who is a minor, or (iv) a spouse,
parent, sibling or legal guardian of such a person who is physically or mentally incapacitated or
was the victim of a homicide; however, “victim” does not mean a parent, child, spouse, sibling or
legal guardian who commits a felony or other enumerated criminal offense against a victim as
defined in clause (i).
C. Officials and employees of the judiciary, including court services units, law-enforcement agencies,
the Department of Corrections, attorneys for the Commonwealth and public defenders, shall be
provided with copies of this chapter by the Department of Criminal Justice Services or a crime
victim and witness assistance program. Each agency, officer or employee who has a responsibility
or responsibilities to victims under this chapter or other applicable law shall make reasonable
efforts to become informed about these responsibilities and to ensure that victims and witnesses
receive such information and services to which they may be entitled under applicable law, provided
that no liability or cause of action shall arise from the failure to make such efforts or from the
failure of such victims or witnesses to receive any such information or services.
Victim-witness assistance programs VA Code §19.2–11.1
Any local governmental body which establishes, operates and maintains a crime victim and witness
assistance program, whose funding is provided in whole or part by grants administered by the
Department of Criminal Justice Services pursuant to §9.1–104, shall operate the program in accordance
with guidelines which shall be established by the Department to implement the provisions of this chapter
and other applicable laws establishing victims’ rights.
Crime victim’s right to nondisclosure of certain information;
exceptions; testimonial privilege VA Code §19.2–11.2
Upon request of any crime victim, neither a law-enforcement agency, the attorney for the
Commonwealth, a court nor the Department of Corrections, nor any employee of any of them, may
disclose, except among themselves, the residential address, telephone number, or place of employment
of the victim or a member of the victim’s family, except to the extent that disclosure is (i) of the site of
the crime, (ii) required by law or Rules of the Supreme Court, (iii) necessary for law-enforcement purposes,
or (iv) permitted by the court for good cause.
Except with the written consent of the victim, a law-enforcement agency may not disclose to the public
information which directly or indirectly identifies the victim of a crime involving any sexual assault,
sexual abuse or family abuse, except to the extent that disclosure is (i) of the site of the crime, (ii) required
by law, (iii) necessary for law-enforcement purposes, or (iv) permitted by the court for good cause.
Nothing herein shall limit the right to examine witnesses in a court of law or otherwise affect the
conduct of any criminal proceeding.
Appendix B
95

Establishment of victim-offender reconciliation program VA Code §19.2–11.4
A. Any Crime Victim and Witness Assistance Program may establish a victim-offender reconciliation
program to provide an opportunity after conviction for a victim, at his request and upon the
subsequent agreement of the offender, to:
1. Meet with the offender in a safe, controlled environment;
2. Give to the offender, either orally or in writing, a summary of the financial, emotional, and
physical effects of the offense on the victim or the victim’s family; and
3. Discuss a proposed restitution agreement which may be submitted for consideration by the
sentencing court for damages incurred by the victim as a result of the offense.
B. If the victim chooses to participate in a victim-offender reconciliation program under this section,
the victim shall execute a waiver releasing the Crime Victim and Witness Assistance Program,
attorney for the offender and the attorney for the Commonwealth from civil and criminal liability
for actions taken by the victim or offender as a result of participation by the victim or the offender
in a victim-offender reconciliation program.
C. A victim shall not be required to participate in a victim-offender reconciliation program under
this section.
D. The failure of any person to participate in a reconciliation program pursuant to this section shall
not be used directly or indirectly at sentencing.
Arrest without a warrant in cases of assault and battery
against a household member VA Code §19.2–81.3
A. Any law-enforcement officer, as defined in §19.2–81, may arrest without a warrant for an alleged
violation of §§18.2–57.2, 18.2–60.4 or §16.1–253.2 regardless of whether such violation
was committed in his presence, if such arrest is based on probable cause or upon personal
observations or the reasonable complaint of a person who observed the alleged offense or upon
personal investigation.
B. A law-enforcement officer having probable cause to believe that a violation of §18.2–57.2 or
§16.1-253.2 has occurred shall arrest and take into custody the person he has probable cause to
believe, based on the totality of the circumstances, was the primary physical aggressor unless
there are special circumstances which would dictate a course of action other than an arrest.
C. Regardless of whether an arrest is made, the officer shall file a written report with his department,
which shall state whether any arrests were made, and if so, the number of arrests, specifically
including any incident in which he has probable cause to believe family abuse has occurred, and,
where required, including a complete statement in writing that there are special circumstances that
would dictate a course of action other than an arrest. The officer shall provide the allegedly abused
person, both orally and in writing, information regarding the legal and community resources available
to the allegedly abused person.
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Appendix B

Upon request of the allegedly abused person, the department shall make a summary of the report
available to the allegedly abused person.
D. In every case in which a law-enforcement officer makes an arrest under this section, he shall
petition for an emergency protective order as authorized in §16.1–253.4 when the person arrested
and taken into custody is brought before the magistrate, except if the person arrested is a minor, a
petition for an emergency protective order shall not be required. Regardless of whether an arrest
is made, if the officer has probable cause to believe that a danger of acts of family abuse exists, the
law-enforcement officer shall seek an emergency protective order under §16.1–253.4, except if
the suspected abuser is a minor, a petition for an emergency protective order shall not be required.
E. A law-enforcement officer investigating any complaint of family abuse, including but not limited
to assault and battery against a family or household member shall, upon request, transport, or
arrange for the transportation of an abused person to a hospital, safe shelter, or magistrate. Any
local law-enforcement agency may adopt a policy requiring an officer to transport or arrange for
transportation of an abused person as provided in this subsection.
F. The definition of “family or household member” in §16.1–228 applies to this section.
G. As used in this section, a “law-enforcement officer” means (i) any full-time or part-time employee
of a police department or sheriff’s office which is part of or administered by the Commonwealth
or any political subdivision thereof and who is responsible for the prevention and detection of
crime and the enforcement of the penal, traffic or highway laws of this Commonwealth and (ii)
any member of an auxiliary police force established pursuant to subsection B of §15.2–1731.
Part-time employees are compensated officers who are not full-time employees as defined by the
employing police department or sheriff’s office.
Speedy trial VA Code §19.2–243
Where a general district court has found that there is probable cause to believe that the accused has
committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged
from prosecution for such offense if no trial is commenced in the circuit court within five months from
the date such probable cause was found by the district court; and if the accused is not held in custody but
has been recognized for his appearance in the circuit court to answer for such offense, he shall be forever
discharged from prosecution therefore if no trial is commenced in the circuit court within nine months
from the date such probable cause was found.
If there was no preliminary hearing in the district court, or if such preliminary hearing was waived by the
accused, the commencement of the running of the five and nine months periods, respectively, set forth in
this section, shall be from the date an indictment or presentment is found against the accused.
If an indictment or presentment is found against the accused but he has not been arrested for the offense
charged therein, the five and nine months periods, respectively, shall commence to run from the date of
his arrest thereon.
Appendix B
97

Where a case is before a circuit court on appeal from a conviction of a misdemeanor or traffic infraction in
a district court, the accused shall be forever discharged from prosecution for such offense if the trial de
novo in the circuit court is not commenced (i) within five months from the date of the conviction if the
accused has been held continuously in custody or (ii) within nine months of the date of the conviction if
the accused has been recognized for his appearance in the circuit court.
The provisions of this section shall not apply to such period of time as the failure to try the accused was
caused:
A. By his insanity or by reason of his confinement in a hospital for care and observation;
B. By the witnesses for the Commonwealth being enticed or kept away, or prevented from attending
by sickness or accident;
C. By the granting of a separate trial at the request of a person indicted jointly with others for a
felony;
D. By continuance granted on the motion of the accused or his counsel, or by concurrence of the
accused or his counsel in such a motion by the attorney for the Commonwealth, or by the failure
of the accused or his counsel to make a timely objection to such a motion by the attorney for the
Commonwealth, or by reason of his escaping from jail or failing to appear according to his
recognizance; or
E. By the inability of the jury to agree in their verdict.
But the time during the pendency of any appeal in any appellate court shall not be included as
applying to the provisions of this section.
For the purposes of this section, a trial is deemed commenced at the point when jeopardy would
attach or when a plea of guilty or nolo contendere is tendered by the defendant.
Joinder of defendants VA Code §19.2–262.1
On motion of the Commonwealth, for good cause shown, the court shall order persons charged with
participating in contemporaneous and related acts or occurrences or in a series of acts or occurrences
constituting an offense or offenses, to be tried jointly unless such joint trial would constitute prejudice to
a defendant. If the court finds that a joint trial would constitute prejudice to a defendant, the court shall
order severance as to that defendant or provide such other relief justice requires.
Excluding witnesses VA Code §19.2–265.01
During the trial of every criminal case and in all court proceedings attendant to trial, whether before,
during or after trial, including any proceedings occurring after an appeal by the defendant or the
Commonwealth, at which attendance by the defendant is permitted, whether in a circuit or district court,
any victim as defined in §19.2–11.01 may remain in the courtroom and shall not be excluded unless the
court determines, in its discretion, the presence of the victim would impair the conduct of a fair trial. In
any case involving a minor victim, the court may permit an adult chosen by the minor to be present in the
courtroom during any proceedings in addition to or in lieu of the minor’s parent or guardian.
98
Appendix B

The attorney for the Commonwealth shall give prior notice when practicable of such trial and attendant
proceedings and changes in the scheduling thereof to any known victim and to any known adult chosen in
accordance with this section by a minor victim, at the address or telephone number, or both, provided in
writing by such person.
Provisions applicable to witnesses in criminal as well as
civil cases; obligation to attend; summons VA Code §19.2–267
Sections 8.01–396.1, 8.01–402, 8.01–405 and 8.01–407 to 8.01–410, inclusive, shall apply to a
criminal as well as a civil case in all respects, except that a witness in a criminal case shall be obliged to
attend, and may be proceeded against for failing to do so, although there may not previously have been
any payment, or tender to him of anything for attendance, mileage, or tolls. In a criminal case a summons
for a witness may be issued by the attorney for the Commonwealth or other attorney charged with the
responsibility for the prosecution of a violation of any ordinance; however, any attorney who issues such
a summons shall, at the time of the issuance, file with the clerk of the court the names and addresses of
such witnesses.
Prompt complaint VA Code §19.2–268.2
Notwithstanding any other provision of law, in any prosecution for criminal sexual assault under Article
7 (§18.2–61 et. seq.) of Chapter 4 of Title 18.2, a violation of §§18.2–361, 18.2–366, 18.2–370 or
§18.2–370.1, the fact that the person injured made complaint of the offense recently after commission
of the offense is admissible, not as independent evidence of the offense, but for the purpose of corroborating
the testimony of the complaining witness.
Protecting the identity of witnesses VA Code §19.2–269.2
During any criminal proceeding, upon motion of the defendant or the attorney for the Commonwealth, a judge
may prohibit testimony as to the current address or telephone number of a victim or witness if the judge
determines that this information is not material under the circumstances of the case.
Admissibility of DNA evidence VA Code §19.2–270.5
In any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific
technique and the evidence of a DNA profile comparison may be admitted to prove or disprove the identity
of any person. This section shall not otherwise limit the introduction of any relevant evidence bearing
upon any question at issue before the court, including the accuracy and reliability of the procedures
employed in the collection and analysis of a particular DNA sample. The court shall, regardless of the
results of the DNA analysis, if any, consider such other relevant evidence of the identity of the accused as
shall be admissible in evidence.
Appendix B
At least twenty-one days prior to commencement of the proceeding in which the results of a DNA analysis
will be offered as evidence, the party intending to offer the evidence shall notify the opposing party, in
writing, of the intent to offer the analysis and shall provide or make available copies of the profiles and
the report or statement to be introduced. In the event that such notice is not given, and the person proffers
such evidence, then the court may in its discretion either allow the opposing party a continuance or, under
appropriate circumstances, bar the person from presenting such evidence. The period of any such
99

continuance shall not be counted for speedy trial purposes under §19.2–243. If the opposing party intends
to object to the admissibility of such evidence he shall give written notice of that fact and the basis for his
objections at least ten days prior to commencement of the proceedings.
Evidence of abuse VA Code §19.2–270.6
In any criminal prosecution alleging personal injury or death, or the attempt to cause personal injury or
death, relevant evidence of repeated physical and psychological abuse of the accused by the victim shall be
admissible, subject to the general rules of evidence.
Marital privilege VA Code §19.2–271.2
In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other
witnesses and subject to the exception stated in §8.01–398, may be compelled to testify in behalf of each
other, but neither shall be compelled to be called as a witness against the other, except (i) in the case of a
prosecution for an offense committed by one against the other or against a minor child of either, (ii) in any
case where either is charged with forgery of the name of the other or uttering or attempting to utter a
writing bearing the allegedly forged signature of the other or (iii) in any proceeding relating to a violation
of the laws pertaining to criminal sexual assault (§§18.2–61 through 18.2–67.10), crimes against nature
(§18.2–361) involving a minor as a victim and provided the defendant and the victim are not married to
each other, incest (§ 18.2–366), or abuse of children (§§18.2–370 through 18.2–371). The failure of
either husband or wife to testify, however, shall create no presumption against the accused, nor be the
subject of any comment before the court or jury by any attorney.
In the prosecution for a criminal offense as set forth in (i), (ii) or (iii) above, each shall be a competent
witness except as to privileged communications.
Victim Impact Statement VA Code §19.2–299
A. [Subsection A omitted]
B. As a part of any presentence investigation conducted pursuant to subsection A when the offense
for which the defendant was convicted was a felony, the court probation officer shall advise any
victim of such offense in writing that he may submit to the Virginia Parole Board a written request
(i) to be given the opportunity to submit to the Board a written statement in advance of any parole
hearing describing the impact of the offense upon him and his opinion regarding the defendant’s
release and (ii) to receive copies of such other notifications pertaining to the defendant as the
Board may provide pursuant to subsection B of §53.1–155.
C. D. [Subsections C and D omitted]
Victim Impact Statement VA Code §19.2–299.1
The presentence report prepared pursuant to §19.2–299 shall, with the consent of the victim, as defined
in §19.2–11.01, in all cases involving offenses other than capital murder, include a Victim Impact
Statement. Victim Impact Statements in all cases involving capital murder shall be prepared and submitted
in accordance with the provisions of §19.2–264.5.
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A Victim Impact Statement shall be kept confidential and shall be sealed upon entry of the sentencing order. If
prepared by someone other than the victim, it shall (i) identify the victim, (ii) itemize any economic loss suffered
by the victim as a result of the offense, (iii) identify the nature and extent of any physical or psychological injury
suffered by the victim as a result of the offense, (iv) detail any change in the victim’s personal welfare, lifestyle
or familial relationships as a result of the offense, (v) identify any request for psychological or medical services
initiated by the victim or the victim’s family as a result of the offense, and (vi) provide such other information
as the court may require related to the impact of the offense upon the victim.
If the court does not order a presentence investigation and report, the attorney for the Commonwealth shall, at the
request of the victim, submit a Victim Impact Statement. In any event, a victim shall be advised by the local crime
victim and witness assistance program that he may submit in his own words a written Victim Impact Statement
prepared by the victim or someone the victim designates in writing.
The Victim Impact Statement may be considered by the court in determining the appropriate sentence. A
copy of the statement prepared pursuant to this section shall be made available to the defendant or counsel
for the defendant without court order at least five days prior to the sentencing hearing. The statement shall
not be admissible in any civil proceeding for damages arising out of the acts upon which the conviction was
based. The statement, however, may be utilized by the Virginia Workers’ Compensation Commission in its
determinations on claims by victims of crimes pursuant to Chapter 21.1 (§19.2–368.1 et seq.) of this title.
Mental evaluation of defendant VA Code §19.2–300
In the case of the conviction in any circuit court of any person for any criminal offense which indicates
sexual abnormality, the trial judge may on his own initiative, or shall upon application of the attorney for
the Commonwealth, the defendant, or counsel for defendant or other person acting for the defendant,
defer sentence until the report of a mental examination conducted as provided in §19.2–301 of the
defendant can be secured to guide the judge in determining what disposition shall be made of the defendant.
Reports to be made by local law-enforcement officers, conservators of the peace, clerks of court, Secretary
of the Commonwealth and Corrections officials to State Police; material submitted by other agencies. VA
Code §19.2–390.
A. 1. Every state official or agency having the power to arrest, the sheriffs of counties, the police
officials of cities and towns, and any other local law-enforcement officer or conservator of the
peace having the power to arrest for a felony shall make a report to the Central Criminal
Records Exchange, on forms provided by it, of any arrest, including those arrests involving
the taking into custody of, or service of process upon, any person on charges resulting from
an indictment, presentment or information, the arrest on capias or warrant for failure to
appear, and the service of a warrant for another jurisdiction, on any of the following charges:
a. Treason;
b. Any felony;
c. Any offense punishable as a misdemeanor under Title 54.1; or
Appendix B
d. Any misdemeanor punishable by confinement in jail under Title 18.2 or 19.2, except an
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arrest for a violation of §18.2–119, Article 2 (§18.2–266 et seq.) of Chapter 7 of Title
18.2, Article 2 (§18.2–415 et seq.) of Chapter 9 of Title 18.2, or any similar ordinance
of any county, city or town.
The reports shall contain such information as is required by the Exchange and shall be
accompanied by fingerprints of the individual arrested. Fingerprint cards prepared by a
law-enforcement agency for inclusion in a national criminal justice file shall be forwarded
to the Exchange for transmittal to the appropriate bureau.
2. For persons arrested and released on summonses in accordance with §19.2–74, such report
shall not be required until (i) a conviction is entered and no appeal is noted or if an appeal is
noted, the conviction is upheld upon appeal or the person convicted withdraws his appeal; (ii)
the court dismisses the proceeding pursuant to §18.2–251; or (iii) an acquittal by reason of
insanity pursuant to §19.2–182.2 is entered. Upon such conviction or acquittal, the court
shall remand the individual to the custody of the office of the chief law-enforcement officer
of the county or city. It shall be the duty of the chief law-enforcement officer, or his designee
who may be the arresting officer, to ensure that such report is completed after a determination
of guilt or acquittal by reason of insanity. The court shall require the officer to complete the
report immediately following the person’s conviction or acquittal, and the individual shall
be discharged from custody forthwith, unless the court has imposed a jail sentence to be served
by him or ordered him committed to the custody of the Commissioner of the Department of
Mental Health, Mental Retardation and Substance Abuse Services.
B. Within seventy-two 72 hours following the receipt of (i) a warrant or capias for the arrest of any
person on a charge of a felony or (ii) a Governor’s warrant of arrest of a person issued pursuant to
§19.2–92, the law-enforcement agency which received the warrant shall enter the person’s name
and other appropriate information required by the Department of State Police into the
“information systems” known as the Virginia Criminal Information Network (VCIN), established
and maintained by the Department pursuant to Chapter 2 (§52–12 et seq.) of Title 52 and the
National Crime Information Center (NCIC), maintained by the Federal Bureau of Investigation.
The report shall include the person’s name, date of birth, social security number and such other
known information which the State Police or Federal Bureau of Investigation may require. Where
feasible and practical, the magistrate or court issuing the warrant or capias may transfer
information electronically into VCIN. When the information is electronically transferred to VCIN,
the court or magistrate shall forthwith forward the warrant or capias to the local police department
or sheriff’s office. When criminal process has been ordered destroyed pursuant to §19.2–76.1,
the law-enforcement agency destroying such process shall ensure the removal of any information
relating to the destroyed criminal process from the VCIN and NCIC systems.
C. The clerk of each circuit court and district court shall make a report to the Central Criminal Records
Exchange of (i) any dismissal, indefinite postponement or continuance, charge still pending due
to mental incompetency or incapacity, nolle prosequi, acquittal, or conviction of, including any
sentence imposed, or failure of a grand jury to return a true bill as to, any person charged with an
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offense listed in subsection A, including any action which may have resulted from an indictment,
presentment or information, and (ii) any adjudication of delinquency based upon an act which, if
committed by an adult, would require fingerprints to be filed pursuant to subsection A. In the
case of offenses not required to be reported to the Exchange by subsection A, the reports of any of
the foregoing dispositions shall be filed by the law-enforcement agency making the arrest with
the arrest record required to be maintained by §15.2–1722. Upon conviction of any person,
including juveniles tried and convicted in the circuit courts pursuant to §16.1–269.1, whether
sentenced as adults or juveniles, for an offense for which registration is required as defined in
§19.2–298.1 9.1–902, the clerk shall within seven days of sentencing submit a report to the
Sex Offender and Crimes Against Minors Registry. The report to the Registry shall include the
name of the person convicted and all aliases which he is known to have used, the date and locality
of the conviction for which registration is required, his date of birth, social security number, last
known address, and specific reference to the offense for which he was convicted. No report of
conviction or adjudication in a district court shall be filed unless the period allowed for an appeal
has elapsed and no appeal has been perfected. In the event that the records in the office of any clerk
show that any conviction or adjudication has been nullified in any manner, he shall also make a
report of that fact to the Exchange and, if appropriate, to the Registry. In addition, each clerk of a
circuit court, upon receipt of certification thereof from the Supreme Court, shall report to the
Exchange or the Registry, or to the law-enforcement agency making the arrest in the case of offenses
not required to be reported to the Exchange, on forms provided by the Exchange or Registry, as the
case may be, any reversal or other amendment to a prior sentence or disposition previously reported.
When criminal process is ordered destroyed pursuant to §19.2–76.1, the clerk shall report such
action to the law-enforcement agency that entered the warrant or capias into the VCIN system.
D. In addition to those offenses enumerated in subsection A of this section, the Central Criminal
Records Exchange may receive, classify and file any other fingerprints and records of arrest or
confinement submitted to it by any law-enforcement agency or any correctional institution.
E. Corrections officials, sheriffs, and jail superintendents of regional jails, responsible for
maintaining correctional status information, as required by the regulations of the Department
of Criminal Justice Services, with respect to individuals about whom reports have been made
under the provisions of this chapter shall make reports of changes in correctional status
information to the Central Criminal Records Exchange. The reports to the Exchange shall include
any commitment to or release or escape from a state or local correctional facility, including
commitment to or release from a parole or probation agency.
F. Any pardon, reprieve or executive commutation of sentence by the Governor shall be reported to
the Exchange by the office of the Secretary of the Commonwealth.
G. Officials responsible for reporting disposition of charges, and correctional changes of status of
individuals under this section, including those reports made to the Registry, shall adopt procedures
reasonably designed at a minimum (i) to ensure that such reports are accurately made as soon as
feasible by the most expeditious means and in no instance later than thirty 30 days after occurrence
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of the disposition or correctional change of status; and (ii) to report promptly any correction,
deletion, or revision of the information.
H. Upon receiving a correction, deletion, or revision of information, the Central Criminal Records
Exchange shall notify all criminal justice agencies known to have previously received the
information.
As used in this section, the term “chief law-enforcement officer” means the chief of police of
cities and towns and sheriffs of counties, unless a political subdivision has otherwise designated
its chief law-enforcement officer by appropriate resolution or ordinance, in which case the local
designation shall be controlling.
Sex Offender and Crimes Against Minors Registry;
maintenance; access VA Code §19.2–390.1
The Department of State Police shall keep and maintain a Sex Offender and Crimes Against Minors Registry,
separate and apart from all other records maintained by it.
Application for driver’s license; proof of completion
of driver education program; penalty VA Code §46.2–323
A. Every application for a driver’s license, temporary driver’s permit, learner’s permit, or motorcycle
learner’s permit shall be made on a form prescribed by the Department and the applicant shall
write his usual signature in ink in the space provided on the form. The form shall include notice
to the applicant of the duty to register with the Department of State Police as provided in §19.2–
298.1 Chapter 9 (§9.1–900 et seq.) of Title 9.1, if the applicant has been convicted of an offense
for which registration with the Sex Offender and Crimes Against Minors Registry is required.
B. Every application shall state the name, year, month and date of birth, social security number, sex,
and residence address of the applicant; whether or not the applicant has previously been licensed
as a driver and, if so, when and by what state, and whether or not his license has ever been suspended
or revoked and, if so, the date of and reason for such suspension or revocation. The Department, as
a condition for the issuance of any driver’s license, temporary driver’s permit, learner’s permit,
or motorcycle learner’s permit may require the surrender of any driver’s license or, in the case of
a motorcycle learner’s permit, a motorcycle license issued by another state and held by the
applicant. The applicant shall also answer any questions on the application form or otherwise
propounded by the Department incidental to the examination. The applicant may also be required
to present to the person conducting the examination a birth certificate or other evidence, reasonably
acceptable to the Department, of his name and date of birth.
The applicant shall also certify that he is a resident of the Commonwealth by signing a certification
statement, on a form prescribed by the Commissioner, and by providing satisfactory proof that he
is a resident of the Commonwealth. The Commissioner may adopt regulations to determine the
process by which applicants prove that they are residents of the Commonwealth.
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If the applicant either (i) fails or refuses to sign the certification statement or (ii) fails to follow the
process determined by the Commissioner for proving residency, the Department shall not issue
the applicant a driver’s license, temporary driver’s permit, learner’s permit or motorcycle learner’s
permit.
Any applicant who knowingly makes a false certification of Virginia residency or supplies false or
fictitious evidence of Virginia residency shall be punished as provided in §46.2–348.
The Commissioner may, on a case-by-case basis, waive any provision of such regulations for good
cause shown.
C. Every application for a driver’s license shall include a color photograph of the applicant supplied
under arrangements made by the Department. The photograph shall be processed by the
Department so that the photograph can be made part of the issued license.
D. Notwithstanding the provisions of §46.2–334, every applicant for a driver’s license who is under
nineteen 19 years of age shall furnish the Department with satisfactory proof of his successful
completion of a driver education program approved by the State Department of Education.
Jailer to give notice of release of certain prisoners VA Code §53.1–116.1
Prior to the release or discharge of any prisoner serving a sentence upon a conviction of for an offense for
which registration with the Sex Offender and Crimes Against Minors Registry is required as defined in
§19.2-298.1 pursuant to Chapter 9 (§9.1-900 et seq.) of Title 9.1, the sheriff, jail superintendent or
other jail administrator shall give notice to the prisoner of his duty to register with the State Police in
accordance with §19.2-298.1. The sheriff, jail superintendent or other jail administrator shall also obtain
from that person all necessary registration information, including fingerprints and photographs of a type
and kind approved by the Department of State Police; inform the person of his duties regarding
reregistration and change of address; and inform the person of his duty to register under this section. The
sheriff, jail superintendent or other jail administrator shall forward the registration information to the
Department of State Police within seven days of receipt.
Department to give notice of release of certain prisoners VA Code §53.1–160.1
Prior to the release or discharge of any prisoner serving a sentence upon a conviction of for an offense for
which registration with the Sex Offender and Crimes Against Minors Registry is required as defined in §19.2–
298.1 pursuant to Chapter 9 (§9.1–900 et seq.) of Title 9.1, the Department shall give notice to the prisoner
of his duty to register with the State Police in accordance with §19.2–298.1. The Department shall also
obtain from that person all necessary registration information, including fingerprints and photographs of a
type and kind approved by the Department of State Police, inform the person of his duties regarding
reregistration and change of address, and inform the person of his duty to register under this section. The
Department shall forward the registration information to the Department of State Police within seven days
of receipt.
Appendix B
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106

Appendix C
Civil Child Abuse Statutes
Autopsies VA Code §32.1–285
[I]n all cases of death suspected to be attributable to Sudden Infant Death Syndrome (SIDS), an autopsy
shall be advisable and in the public interest and shall be performed as required by §32.1–285.1.
Deaths of infants under 18 months of age VA Code §32.1–285.1
An autopsy shall be performed in the case of any infant death which is suspected to be attributable to
Sudden Infant Death Syndrome (SIDS).
For the purposes of this section, “Sudden Infant Death Syndrome” (SIDS), a diagnosis of exclusion, means
the sudden and unexpected death of an infant less than eighteen months of age whose death remains
unexplained after a thorough postmortem examination which includes an autopsy.
Definitions VA Code §63.2–100
As used in this title, unless the context requires a different meaning: “Abused or neglected child” means
any child less than eighteen years of age:
A. Whose parents or other person responsible for his care creates or inflicts, threatens to create or
inflict, or allows to be created or inflicted upon such child a physical or mental injury by other
than accidental means, or creates a substantial risk of death, disfigurement, or impairment of
bodily or mental functions;
B. Whose parents or other person responsible for his care neglects or refuses to provide care necessary
for his health.
However, no child who in good faith is under treatment solely by spiritual means through prayer
in accordance with the tenets and practices of a recognized church or religious denomination
shall for that reason alone be considered to be an abused or neglected child;
C. Whose parents or other person responsible for his care abandons such child;
D. Whose parents or other person responsible for his care commits or allows to be committed any
act of sexual exploitation or any sexual act upon a child in violation of the law; or
E. Who is without parental care or guardianship caused by the unreasonable absence or the mental
or physical incapacity of the child’s parent, guardian, legal custodian or other person standing in
loco parentis.
“Board” means the State Board of Social Services.
“Child” means any natural person under eighteen years of age.
“Child-protective services” means the identification, receipt and immediate response to complaints and
reports of alleged child abuse or neglect for children under eighteen years of age. It also includes assessment,
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and arranging for and providing necessary protective and rehabilitative services for a child and his family
when the child has been found to have been abused or neglected or is at risk of being abused or neglected.
“Commissioner” means the Commissioner of the Department, his designee or authorized representative.
“Department” means the State Department of Social Services.
“Foster care placement” means placement of a child through (i) an agreement between the parents or
guardians and the local board or the public agency designated by the community policy and management
team where legal custody remains with the parents or guardians or (ii) an entrustment or commitment of
the child to the local board or licensed child-placing agency.
“Foster home” means the place of residence of any natural person in which any child, other than a child by
birth or adoption of such person, resides as a member of the household.
“Independent foster home” means a private family home in which any child, other than a child by birth or
adoption of such person, resides as a member of the household and has been placed therein independently
of a child-placing agency except (i) a home in which are received only children related by birth or adoption
of the person who maintains such home and children of personal friends of such person and (ii) a home in
which is received a child or children committed under the provisions of subdivision A 4 of §16.1–278.2,
subdivision 6 of §16.1–278.4, or subdivision A 13 of §16.1–278.8.
Acceptance of children by local departments of social services VA Code §63.2–910.1
A local department of social services has the authority to take custody of abandoned children, to arrange
appropriate placements for abandoned children, including foster care, and to institute proceedings for the
termination of parental rights of abandoned children as provided in this title and Title 16.1.
Definitions VA Code §63.2–1501
As used in this chapter unless the context requires a different meaning:
“Court” means the juvenile and domestic relations district court of the county or city.
“Prevention” means efforts that (i) promote health and competence in people and (ii) create, promote and
strengthen environments that nurture people in their development.
Establishment of Child-Protective Services Unit; duties VA Code §63.2–1502
There is created a Child-Protective Services Unit in the Department that shall have the following powers
and duties:
A. To evaluate and strengthen all local, regional and state programs dealing with child abuse and
neglect.
B. To assume primary responsibility for directing the planning and funding of child-protective
services. This shall include reviewing and approving the annual proposed plans and budgets for
protective services submitted by the local departments.
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Appendix C

C. To assist in developing programs aimed at discovering and preventing the many factors causing
child abuse and neglect.
D. To prepare and disseminate, including the presentation of, educational programs and materials
on child abuse and neglect.
E. To provide educational programs for professionals required by law to make reports under this
chapter.
F. To establish standards of training and provide educational programs to qualify workers in the
field of child-protective services.
G. To establish standards of training and educational programs to qualify workers to determine
whether complaints of abuse or neglect of a child in a private or state-operated hospital, institution
or other facility, or public school, are founded.
H. To maintain staff qualified pursuant to Board regulations to assist local department personnel in
determining whether an employee of a private or state-operated hospital, institution or other
facility or an employee of a school board, abused or neglected a child in such hospital, institution,
or other facility, or public school.
I. To monitor the processing and determination of cases where an employee of a private or stateoperated
hospital, institution or other facility, or an employee of a school board, is suspected of
abusing or neglecting a child in such hospital, institution, or other facility, or public school.
J. To help coordinate child-protective services at the state, regional, and local levels with the efforts
of other state and voluntary social, medical and legal agencies.
K. To maintain a child abuse and neglect information system that includes all cases of child abuse
and neglect within the Commonwealth.
L. To provide for methods to preserve the confidentiality of all records in order to protect the rights
of the child, and his parents or guardians.
Duties of child protective services VA Code §63.2–1503
Appendix C
A. Each local department shall establish child-protective services under a departmental coordinator
within such department or with one or more adjacent local departments that shall be staffed with
qualified personnel pursuant to regulations adopted by the Board. The local department shall be
the public agency responsible for receiving and responding to complaints and reports, except that
(i) in cases where the reports or complaints are to be made to the court and the judge determines that
no local department within a reasonable geographic distance can impartially respond to the report,
the court shall assign the report to the court services unit for evaluation; and (ii) in cases where an
employee at a private or state-operated hospital, institution or other facility, or an employee of a
school board is suspected of abusing or neglecting a child in such hospital, institution or other facility,
or public school, the local department shall request the Department and the relevant private or stateoperated
hospital, institution or other facility, or school board to assist in conducting a joint
109

investigation in accordance with regulations adopted by the Board, in consultation with the
Departments of Education, Health, Medical Assistance Services, Mental Health, Mental Retardation
and Substance Abuse Services, Juvenile Justice and Corrections.
B. The local department shall ensure, through its own personnel or through cooperative arrangements
with other local agencies, the capability of receiving reports or complaints and responding to them
promptly on a twenty-four-hours-a-day, seven-days-per-week basis.
C. The local department shall widely publicize a telephone number for receiving complaints and
reports.
D. The local department shall upon receipt of a complaint, report immediately to the attorney for
the Commonwealth and the local law-enforcement agency and make available to them the records
of the local department when abuse or neglect is suspected in any case involving (i) death of a
child; (ii) injury or threatened injury to the child in which a felony or Class 1 misdemeanor is also
suspected; (iii) any sexual abuse, suspected sexual abuse or other sexual offense involving a child,
including but not limited to the use or display of the child in sexually explicit visual material, as
defined in §18.2–374.1; (iv) any abduction of a child; (v) any felony or Class 1 misdemeanor
drug offense involving a child; or (vi) contributing to the delinquency of a minor in violation of
§18.2–371, and provide the attorney for the Commonwealth and the local law-enforcement
agency with records of any complaints of abuse or neglect involving the victim or the alleged
perpetrator. The local department shall not allow reports of the death of the victim from other
local agencies to substitute for direct reports to the attorney for the Commonwealth and the local
law-enforcement agency.
E. When abuse or neglect is suspected in any case involving the death of a child, the local department
shall report the case immediately to the regional medical examiner and the local law-enforcement
agency.
F. The local department shall use reasonable diligence to locate (i) any child for whom a report of
suspected abuse or neglect has been received and is under investigation, receiving family
assessment, or for whom a founded determination of abuse and neglect has been made and a childprotective
services case opened and (ii) persons who are the subject of a report that is under
investigation or receiving family assessment, if the whereabouts of the child or such persons are
unknown to the local department.
G. When an abused or neglected child and the persons who are the subject of an open child-protective
services case have relocated out of the jurisdiction of the local department, the local department
shall notify the child-protective services agency in the jurisdiction to which such persons have
relocated, whether inside or outside of the Commonwealth, and forward to such agency relevant
portions of the case record. The receiving local department shall arrange protective and
rehabilitative services as required by this section.
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H. When a child for whom a report of suspected abuse or neglect has been received and is under
investigation or receiving family assessment and the child and the child’s parents or other persons
responsible for the child’s care who are the subject of the report that is under investigation or
family assessment have relocated out of the jurisdiction of the local department, the local
department shall notify the child-protective services agency in the jurisdiction to which the child
and such persons have relocated, whether inside or outside of the Commonwealth, and complete
such investigation or family assessment by requesting such agency’s assistance in completing the
investigation or family assessment. The local department that completes the investigation or family
assessment shall forward to the receiving agency relevant portions of the case record in order for
the receiving agency to arrange protective and rehabilitative services as required by this section.
I. Upon receipt of a report of child abuse or neglect, the local department shall determine the validity
of such report and shall make a determination to conduct an investigation pursuant to §63.2–
1505 or, if designated as a child-protective services differential response agency by the Department
according to §63.2–1504, a family assessment pursuant to §63.2–1506.
J. The local department shall foster, when practicable, the creation, maintenance and coordination
of hospital and community-based multi-disciplinary teams that shall include where possible, but
not be limited to, members of the medical, mental health, social work, nursing, education, legal
and law-enforcement professions. Such teams shall assist the local departments in identifying
abused and neglected children; coordinating medical, social, and legal services for the children
and their families; developing innovative programs for detection and prevention of child abuse;
promoting community concern and action in the area of child abuse and neglect; and disseminating
information to the general public with respect to the problem of child abuse and neglect and the
facilities and prevention and treatment methods available to combat child abuse and neglect. These
teams may be the family assessment and planning teams established pursuant to §2.2–5207.
Multi-disciplinary teams may develop agreements regarding the exchange of information among
the parties for the purposes of the investigation and disposition of complaints of child abuse and
neglect, delivery of services, and child protection. Any information exchanged in accordance with
the agreement shall not be considered to be a violation of the provisions of §§63.2–102, 63.2–
104 or §63.2–105.
The local department shall also coordinate its efforts in the provision of these services for abused
and neglected children with the judge and staff of the court.
K. The local department shall develop, where practical, memoranda of understanding for responding
to reports of child abuse and neglect with local law enforcement and the attorney for the
Commonwealth.
L. The local department shall report annually on its activities concerning abused and neglected
children to the court and to the Child-Protective Services Unit in the Department on forms provided
by the Department.
Appendix C
111

M. Statements, or any evidence derived there from, made to local department child-protective services
personnel, or to any person performing the duties of such personnel, by any person accused of the
abuse, injury, neglect or death of a child after the arrest of such person, shall not be used in evidence
in the case-in-chief against such person in the criminal proceeding on the question of guilt or
innocence over the objection of the accused, unless the statement was made after such person was
fully advised (i) of his right to remain silent, (ii) that anything he says may be used against him in
a court of law, (iii) that he has a right to the presence of an attorney during any interviews, and (iv)
that if he cannot afford an attorney, one will be appointed for him prior to any questioning.
N. Notwithstanding any other provision of law, the local department, in accordance with Board
regulations, shall transmit information regarding founded complaints or family assessments and
may transmit other information regarding reports, complaints, family assessments and
investigations involving active duty military personnel or members of their household to family
advocacy representatives of the United States Armed Forces.
Child-protective services differential response system VA Code §63.2–1504
The Department shall implement a child-protective services differential response system in all local
departments. The differential response system allows local departments to respond to valid reports or
complaints of child abuse or neglect by conducting either an investigation or a family assessment. The
Department shall publish a plan to implement the child-protective services differential response system in
local departments by July 1, 2000, and complete implementation in all local departments by July 1, 2003.
The Department shall develop a training program for all staff persons involved in the differential response
system, and all such staff shall receive this training.
Investigations by local departments VA Code §63.2–1505
A. An investigation requires the collection of information necessary to determine:
1. The immediate safety needs of the child;
2. The protective and rehabilitative services needs of the child and family that will deter abuse
or neglect;
3. Risk of future harm to the child;
4. Alternative plans for the child’s safety if protective and rehabilitative services are indicated
and the family is unable or unwilling to participate in services;
5. Whether abuse or neglect has occurred;
6. If abuse or neglect has occurred, who abused or neglected the child; and
7. A finding of either founded or unfounded based on the facts collected during the investigation.
B. If the local department responds to the report or complaint by conducting an investigation, the
local department shall:
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Appendix C

1. Make immediate investigation and, if the report or complaint was based upon one of the factors
specified in subsection B of §63.2–1509, the local department may file a petition pursuant
to §16.1–241.3;
2. Complete a report and transmit it forthwith to the Department, except that no such report
shall be transmitted in cases in which the cause to suspect abuse or neglect is one of the factors
specified in subsection B of §63.2–1509 and the mother sought substance abuse counseling
or treatment prior to the child’s birth;
3. Consult with the family to arrange for necessary protective and rehabilitative services to be
provided to the child and his family;
4. Petition the court for services deemed necessary including, but not limited to, removal of the
child or his siblings from their home;
5. Determine within forty-five days if a report of abuse or neglect is founded or unfounded and
transmit a report to such effect to the Department and to the person who is the subject of the
investigation. However, upon written justification by the local department, such
determination may be extended, not to exceed a total of sixty days. If through the exercise of
reasonable diligence the local department is unable to find the child who is the subject of the
report, the time the child cannot be found shall not be computed as part of the forty-five-day
or sixty-day period and documentation of such reasonable diligence shall be placed in the
record; and
6. If a report of abuse or neglect is unfounded, transmit a report to such effect to the complainant
and parent or guardian and the person responsible for the care of the child in those cases
where such person was suspected of abuse or neglect.
Family assessments by local departments VA Code §63.2–1506
A. A family assessment requires the collection of information necessary to determine:
1. The immediate safety needs of the child;
2. The protective and rehabilitative services needs of the child and family that will deter abuse
or neglect;
3. Risk of future harm to the child; and
4. Alternative plans for the child’s safety if protective and rehabilitative services are indicated
and the family is unable or unwilling to participate in services.
B. When a local department has been designated as a child-protective services differential response
system participant by the Department pursuant to §63.2–1504 and responds to the report or
complaint by conducting a family assessment, the local department shall:
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1. Conduct an immediate family assessment and, if the report or complaint was based upon one
of the factors specified in subsection B of §63.2–1509, the local department may file a petition
pursuant to §16.1–241.3;
2. Immediately contact the subject of the report and the family of the child alleged to have been
abused or neglected and give each a written and an oral explanation of the family assessment
procedure. The family assessment shall be in writing and shall be completed in accordance
with Board regulation;
3. Complete the family assessment within forty-five days and transmit a report to such effect to
the Department and to the person who is the subject of the family assessment. However, upon
written justification by the local department, the family assessment may be extended, not to
exceed a total of sixty days;
4. Consult with the family to arrange for necessary protective and rehabilitative services to be
provided to the child and his family. Families have the option of declining the services offered
as a result of the family assessment. If the family declines the services, the case shall be closed
unless the local department determines that sufficient cause exists to redetermine the case as
one that needs to be investigated. In no instance shall a case be redetermined as an investigation
solely because the family declines services;
5. Petition the court for services deemed necessary;
6. Make no disposition of founded or unfounded for reports in which a family assessment is
completed. Reports in which a family assessment is completed shall not be entered into the
central registry contained in §63.2–1515; and
7. Commence an immediate investigation, if at any time during the completion of the family
assessment, the local department determines that an investigation is required.
C. When a local department has been designated as a child-protective services differential response
agency by the Department, the local department may investigate any report of child abuse or
neglect, but the following valid reports of child abuse or neglect shall be investigated: (i) sexual
abuse, (ii) child fatality, (iii) abuse or neglect resulting in serious injury as defined in §18.2–
371.1, (iv) child has been taken into the custody of the local department, or (v) cases involving a
caretaker at a state-licensed child day center, religiously exempt child day center, licensed, registered
or approved family day home, private or public school, hospital or any institution.
Multi-disciplinary cooperation VA Code §63.2–1507
All law enforcement departments and other state and local departments, agencies, authorities and
institutions shall cooperate with each Child Protective Services Coordinator of a local department and
any multi-discipline teams in the detection and prevention of child abuse.
Valid report or complaint. VA Code §63.2–1508. A valid report or complaint means the local department
has evaluated the information and allegations of the report or complaint and determined that the local
department shall conduct an investigation or family assessment because the following elements are present:
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A. The alleged victim child or children are under the age of eighteen at the time of the complaint or
report;
B. The alleged abuser is the alleged victim child’s parent or other caretaker;
C. The local department receiving the complaint or report has jurisdiction; and
D. The circumstances described allege suspected child abuse or neglect.
Nothing in this section shall relieve any person specified in §63.2-1509 from making a report
required by that section, regardless of the identity of the person suspected to have caused such
abuse or neglect.
Physicians, nurses, teachers, etc., to report certain injuries
to children; penalty for failure to report VA Code §63.2–1509
A. The following persons who, in their professional or official capacity, have reason to suspect that a
child is an abused or neglected child, shall report the matter immediately to the local department
of the county or city wherein the child resides or wherein the abuse or neglect is believed to have
occurred or to the Department’s toll-free child abuse and neglect hotline:
1. Any person licensed to practice medicine or any of the healing arts;
2. Any hospital resident or intern, and any person employed in the nursing profession;
3. Any person employed as a social worker;
4. Any probation officer;
5. Any teacher or other person employed in a public or private school, kindergarten or nursery
school;
6. Any person providing full-time or part-time child care for pay on a regularly planned basis;
7. Any duly accredited Christian Science practitioner;
8. Any mental health professional;
9. Any law-enforcement officer;
10. Any mediator eligible to receive court referrals pursuant to §8.01–576.8;
11. Any professional staff person, not previously enumerated, employed by a private or stateoperated
hospital, institution or facility to which children have been committed or where
children have been placed for care and treatment;
12. Any person associated with or employed by any private organization responsible for the care,
custody or control of children; and
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13. Any person who is designated a court-appointed special advocate pursuant to Article 5 (§9.1–
151 et seq.) of Chapter 1 of Title 9.1.
If neither the locality in which the child resides nor where the abuse or neglect is believed to
have occurred is known, then such report shall be made to the local department of the county
or city where the abuse or neglect was discovered or to the Department’s toll-free child abuse
and neglect hotline.
If an employee of the local department is suspected of abusing or neglecting a child, the report
shall be made to the court of the county or city where the abuse or neglect was discovered.
Upon receipt of such a report by the court, the judge shall assign the report to a local department
that is not the employer of the suspected employee for investigation or family assessment.
The judge may consult with the Department in selecting a local department to respond to the
report or the complaint.
If the information is received by a teacher, staff member, resident, intern or nurse in the course
of professional services in a hospital, school or similar institution, such person may, in place
of said report, immediately notify the person in charge of the institution or department, or
his designee, who shall make such report forthwith.
The initial report may be an oral report but such report shall be reduced to writing by the
child abuse coordinator of the local department on a form prescribed by the Board. Any person
required to make the report pursuant to this subsection shall disclose all information that is
the basis for his suspicion of abuse or neglect of the child and, upon request, shall make
available to the child-protective services coordinator and the local department, which is the
agency of jurisdiction, any information, records or reports that document the basis for the
report. All persons required by this subsection to report suspected abuse or neglect who
maintain a record of a child who is the subject of such a report shall cooperate with the
investigating agency and shall make related information, records and reports available to the
investigating agency unless such disclosure violates the federal Family Educational Rights
and Privacy Act (20 U.S.C. §1232(g)). Provision of such information, records and reports by
a health care provider shall not be prohibited by §8.01–399. Criminal investigative reports
received from law-enforcement agencies shall not be further disseminated by the investigating
agency nor shall they be subject to public disclosure.
B. For purposes of subsection A, “reason to suspect that a child is abused or neglected” shall include
(i) a finding made by an attending physician within seven days of a child’s birth that the results of
a blood or urine test conducted within forty-eight hours of the birth of the child indicate the
presence of a controlled substance not prescribed for the mother by a physician; (ii) a finding by
an attending physician made within forty-eight hours of a child’s birth that the child was born
dependent on a controlled substance which was not prescribed by a physician for the mother and
has demonstrated withdrawal symptoms; (iii) a diagnosis by an attending physician made within
seven days of a child’s birth that the child has an illness, disease or condition which, to a reasonable
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degree of medical certainty, is attributable to in utero exposure to a controlled substance which
was not prescribed by a physician for the mother or the child; or (iv) a diagnosis by an attending
physician made within seven days of a child’s birth that the child has fetal alcohol syndrome
attributable to in utero exposure to alcohol. When “reason to suspect” is based upon this
subsection, such fact shall be included in the report along with the facts relied upon by the person
making the report.
C. Any person who makes a report or provides records or information pursuant to subsection A or
who testifies in any judicial proceeding arising from such report, records or information shall be
immune from any civil or criminal liability or administrative penalty or sanction on account of
such report, records, information or testimony, unless such person acted in bad faith or with
malicious purpose.
D. Any person required to file a report pursuant to this section who fails to do so within seventy-two
hours of his first suspicion of child abuse or neglect shall be fined not more than $500 for the
first failure and for any subsequent failures not less than $100 nor more than $1,000.
Complaints by others of certain injuries to children VA Code §63.2–1510
Any person who suspects that a child is an abused or neglected child may make a complaint concerning
such child, except as hereinafter provided, to the local department of the county or city wherein the child
resides or wherein the abuse or neglect is believed to have occurred or to the Department’s toll-free child
abuse and neglect hotline. If an employee of the local department is suspected of abusing or neglecting a
child, the complaint shall be made to the court of the county or city where the abuse or neglect was
discovered. Upon receipt of such a report by the court, the judge shall assign the report to a local department
that is not the employer of the suspected employee for investigation or family assessment; or, if the judge
believes that no local department in a reasonable geographic distance can be impartial in responding to
the reported case, the judge shall assign the report to the court service unit of his court for evaluation. The
judge may consult with the Department in selecting a local department to respond to the report or
complaint. Such a complaint may be oral or in writing and shall disclose all information which is the
basis for the suspicion of abuse or neglect of the child.
Complaints of abuse and neglect against school personnel VA Code §63.2–1511
Appendix C
A. If a teacher, principal or other person employed by a local school board or employed in a school
operated by the Commonwealth is suspected of abusing or neglecting a child in the course of his
educational employment, the complaint shall be investigated in accordance with §§63.2–1503
and, 63.2–1505 and 63.2–1516.1. Pursuant to §22.1–279.1, no teacher, principal or other
person employed by a school board or employed in a school operated by the Commonwealth shall
subject a student to corporal punishment. However, this prohibition of corporal punishment shall
not be deemed to prevent (i) the use of incidental, minor or reasonable physical contact or other
actions designed to maintain order and control; (ii) the use of reasonable and necessary force to
quell a disturbance or remove a student from the scene of a disturbance that threatens physical
injury to persons or damage to property; (iii) the use of reasonable and necessary force to prevent
a student from inflicting physical harm on himself; (iv) the use of reasonable and necessary force
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for self-defense or the defense of others; or (v) the use of reasonable and necessary force to obtain
possession of weapons or other dangerous objects or controlled substances or paraphernalia that
are upon the person of the student or within his control. In determining whether the actions of a
teacher, principal or other person employed by a school board or employed in a school operated by
the Commonwealth are within the exceptions provided in this section, the local department shall
examine whether the actions at the time of the event that were made by such person were
reasonable.
B. For purposes of this section, “corporal punishment” or “abused or neglected child” shall not include
physical pain, injury or discomfort caused by the use of incidental, minor or reasonable physical
contact or other actions designed to maintain order and control as permitted in clause (i) of
subsection A or the use of reasonable and necessary force as permitted by clauses (ii), (iii), (iv), and
(v) of subsection A, or by participation in practice or competition in an interscholastic sport, or
participation in physical education or an extracurricular activity.
C. Each local department of social services and local school division shall adopt a written interagency
agreement as a protocol for investigating child abuse and neglect reports against school personnel.
The interagency agreement shall be based on recommended procedures for conducting
investigations developed by the Departments of Education and Social Services.
Immunity of person making report, etc., from liability VA Code §63.2–1512
Any person making a report pursuant to §63.2–1509, a complaint pursuant to §63.2–1510, or who
takes a child into custody pursuant to §63.2–1517, or who participates in a judicial proceeding resulting
there from shall be immune from any civil or criminal liability in connection therewith, unless it is proven
that such person acted in bad faith or with malicious intent.
Knowingly making false reports; penalties VA Code §63.2–1513
A. Any person fourteen years of age or older who makes or causes to be made a report of child abuse
or neglect pursuant to this chapter that he knows to be false shall be guilty of a Class 1
misdemeanor. Any person fourteen years of age or older who has been previously convicted under
this subsection and who is subsequently convicted under this subsection shall be guilty of a Class
6 felony.
B. The child-protective services records regarding the person who was alleged to have committed abuse
or neglect that result from a report for which a conviction is obtained under this section shall be
purged immediately by any custodian of such records upon presentation to the custodian of a certified
copy of such conviction. After purging the records, the custodian shall notify the person in writing
that such records have been purged.
Retention of records in all reports; procedures regarding unfounded
reports alleged to be made in bad faith or with malicious intent VA Code §63.2–1514
A. The local department shall retain the records of all reports or complaints made pursuant to this
chapter, in accordance with regulations adopted by the Board.
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B. The Department shall maintain a child abuse and neglect information system that includes a
central registry of founded complaints, pursuant to §63.2–1515. The Department shall maintain
all (i) unfounded investigations, (ii) family assessments, and (iii) reports or complaints determined
to be not valid in a record which is separate from the central registry and accessible only to the
Department and to local departments for child-protective services. The purpose of retaining these
complaints or reports is to provide local departments with information regarding prior complaints
or reports. In no event shall the mere existence of a prior complaint or report be used to determine
that a subsequent complaint or report is founded. The subject of the complaint or report is the
person who is alleged to have committed abuse or neglect. The subject of the complaint or report
shall have access to his own record. The record of unfounded investigations and complaints and
reports determined to be not valid shall be purged one year after the date of the complaint or
report if there are no subsequent complaints or reports regarding the same child or the person
who is the subject of the complaint or report in that one year. The local department shall retain
such records for an additional period of up to two years if requested in writing by the person who
is the subject of such complaint or report. The record of family assessments shall be purged three
years after the date of the complaint or report if there are no subsequent complaints or reports
regarding the same child or the person who is the subject of the report in that three-year period.
The child-protective services records regarding the petitioner which result from such complaint
or report shall be purged immediately by any custodian of such records upon presentation to the
custodian of a certified copy of a court order that there has been a civil action that determined
that the complaint or report was made in bad faith or with malicious intent. After purging the
records, the custodian shall notify the petitioner in writing that the records have been purged.
C. At the time the local department notifies a person who is the subject of a complaint or report
made pursuant to this chapter that such complaint or report is either an unfounded investigation
or a completed family assessment, it shall notify him how long the record will be retained and of
the availability of the procedures set out in this section regarding reports or complaints alleged to
be made in bad faith or with malicious intent.
D. Any person who is the subject of an unfounded report or complaint made pursuant to this chapter
who believes that such report or complaint was made in bad faith or with malicious intent may
petition the circuit court in the jurisdiction in which the report or complaint was made for the
release to such person of the records of the investigation or family assessment. Such petition shall
specifically set forth the reasons such person believes that such report or complaint was made in
bad faith or with malicious intent. Upon the filing of such petition, the circuit court shall request
and the local department shall provide to the circuit court its records of the investigation or family
assessment for the circuit court’s in camera review. The petitioner shall be entitled to present
evidence to support his petition. If the circuit court determines that there is a reasonable question
of fact as to whether the report or complaint was made in bad faith or with malicious intent and
that disclosure of the identity of the complainant would not be likely to endanger the life or safety
of the complainant, it shall provide to the petitioner a copy of the records of the investigation or
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family assessment. The original records shall be subject to discovery in any subsequent civil action
regarding the making of a complaint or report in bad faith or with malicious intent.
Central registry; disclosure of information VA Code §63.2–1515
The central registry shall contain such information as shall be prescribed by Board regulation; however,
when the founded case of abuse or neglect does not name the parents or guardians of the child as the
abuser or neglector, and the abuse or neglect occurred in a licensed or unlicensed child day center, a licensed,
registered or approved family day home, a private or public school, or a children’s residential facility, the
child’s name shall not be entered on the registry without consultation with and permission of the parents
or guardians. If a child’s name currently appears on the registry without consultation with and permission
of the parents or guardians for a founded case of abuse and neglect that does not name the parents or
guardians of the child as the abuser or neglector, such parents or guardians may have the child’s name
removed by written request to the Department. The information contained in the central registry shall
not be open to inspection by the public. However, appropriate disclosure may be made in accordance with
Board regulations.
The Department shall respond to requests for a search of the central registry made by (i) local departments
and (ii) local school boards regarding applicants for employment, pursuant to §§22.1–296.4, in cases
where there is no match within the central registry within ten business days of receipt of such requests. In
cases where there is a match within the central registry regarding applicants for employment, the
Department shall respond to requests made by local departments and local school boards within thirty
business days of receipt of such requests. The response may be by first-class mail or facsimile transmission.
Any central registry check of a person who has applied to be a volunteer with a (a) Virginia affiliate of Big
Brothers/Big Sisters of America, (b) Virginia affiliate of Compeer, (c) volunteer fire company or volunteer
rescue squad, or (d) with a court-appointed special advocate program pursuant to §9.1–153 shall be
conducted at no charge.
Tape recording child abuse investigations VA Code §63.2-1516
Any person who is suspected of abuse or neglect of a child and who is the subject of an investigation or
family assessment pursuant to this chapter may tape record any communications between him and childprotective
services personnel that take place during the course of such investigation or family assessment,
provided all parties to the conversation are aware the conversation is to be recorded. The parties’ knowledge
of the recording shall be demonstrated by a declaration at the beginning of the recorded portion of the
conversation that the recording is to be made. If a person who is suspected of abuse or neglect of a child and
who is the subject of an investigation or family assessment pursuant to this chapter elects to make a tape
recording as provided in this section, the child-protective services personnel may also make such a recording.
Investigation procedures when school employee is subject of the
complaint or report; release of information in joint investigations VA Code §63.2–1516.1
A. Except as provided in subsection B of this section, in cases where a child is alleged to have been
abused or neglected by a teacher, principal or other person employed by a local school board or
employed in a school operated by the Commonwealth, in the course of such employment in a
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nonresidential setting, the local department conducting the investigation shall comply with the
following provisions in conducting its investigation:
1. The local department shall conduct a face-to-face interview with the person who is the subject
of the complaint or report.
2. At the onset of the initial interview with the alleged abuser or neglector, the local department
shall notify him in writing of the general nature of the complaint and the identity of the
alleged child victim regarding the purpose of the contacts.
3. The written notification shall include the information that the alleged abuser or neglector
has the right to have an attorney or other representative of his choice present during his
interviews. However, the failure by a representative of the Department of Social Services to so
advise the subject of the complaint shall not cause an otherwise voluntary statement to be
inadmissible in a criminal proceeding.
4. Written notification of the findings shall be submitted to the alleged abuser or neglector. The
notification shall include a summary of the investigation and an explanation of how the
information gathered supports the disposition.
5. The written notification of the findings shall inform the alleged abuser or neglector of his
right to appeal.
6. The written notification of the findings shall inform the alleged abuser or neglector of his
right to review information about himself in the record with the following exceptions:
a. The identity of the person making the report.
b. Information provided by any law-enforcement official.
c. Information that may endanger the well-being of the child.
d. The identity of a witness or any other person if such release may endanger the life or
safety of such witness or person.
B. In all cases in which an alleged act of child abuse or neglect is also being criminally investigated
by a law-enforcement agency, and the local department is conducting a joint investigation with a
law-enforcement officer in regard to such an alleged act, no information in the possession of the
local department from such joint investigation shall be released by the local department except as
authorized by the investigating law-enforcement officer or his supervisor or the local attorney for
the Commonwealth.
C. Failure to comply with investigation procedures does not preclude a finding of abuse or neglect if
such a finding is warranted by the facts.
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Authority to take child into custody VA Code §63.2–1517
A. A physician or child-protective services worker of a local department or law-enforcement official
investigating a report or complaint of abuse and neglect may take a child into custody for up to
seventy-two hours without prior approval of parents or guardians provided:
1. The circumstances of the child are such that continuing in his place of residence or in the care
or custody of the parent, guardian, custodian or other person responsible for the child’s care,
presents an imminent danger to the child’s life or health to the extent that severe or
irremediable injury would be likely to result or if evidence of abuse is perishable or subject to
deterioration before a hearing can be held;
2. A court order is not immediately obtainable;
3. The court has set up procedures for placing such children;
4. Following taking the child into custody, the parents or guardians are notified as soon as
practicable that he is in custody;
5. A report is made to the local department; and
6. The court is notified and the person or agency taking custody of such child obtains, as soon as
possible, but in no event later than seventy-two hours, an emergency removal order pursuant
to §16.1–251; however, if a preliminary removal order is issued after a hearing held in
accordance with §16.1–252 within seventy-two hours of the removal of the child, an
emergency removal order shall not be necessary.
B. If the seventy-two-hour period for holding a child in custody and for obtaining a preliminary or
emergency removal order expires on a Saturday, Sunday, or legal holiday or day on which the
court is lawfully closed, the seventy-two hours shall be extended to the next day that is not a
Saturday, Sunday, or legal holiday or day on which the court is lawfully closed.
Authority to talk to child or sibling VA Code §63.2–1518
Any person required to make a report or conduct an investigation or family assessment, pursuant to this
chapter may talk to any child suspected of being abused or neglected or to any of his siblings without
consent of and outside the presence of his parent, guardian, legal custodian, or other person standing in
loco parentis, or school personnel.
Physician-patient and husband-wife privileges inapplicable VA Code §63.2–1519
In any legal proceeding resulting from the filing of any report or complaint pursuant to this chapter, the
physician-patient and husband-wife privileges shall not apply.
Photographs and X-rays of child; use as evidence VA Code §63.2–1520
In any case of suspected child abuse, photographs and X-rays of the child may be taken without the consent
of the parent or other person responsible for such child as a part of the medical evaluation. Photographs of
the child may also be taken without the consent of the parent or other person responsible for such child as
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a part of the investigation or family assessment of the case by the local department or the court; however,
such photographs shall not be used in lieu of medical evaluation. Such photographs and X-rays may be
introduced into evidence in any subsequent proceeding.
The court receiving such evidence may impose such restrictions as to the confidentiality of photographs
of any minor as it deems appropriate.
Testimony by child using two-way closed-circuit television VA Code §63.2–1521
A. In any civil proceeding involving alleged abuse or neglect of a child pursuant to this chapter or
pursuant to §§16.1–241, 16.1–251, 16.1–252, 16.1–253, 16.1–283 or §20–107.2, the
child’s attorney or guardian ad litem or, if the child has been committed to the custody of a local
department, the attorney for the local department may apply for an order from the court that the
testimony of the alleged victim or of a child witness be taken in a room outside the courtroom and
be televised by two-way closed-circuit television. The person seeking such order shall apply for
the order at least seven days before the trial date.
B. The provisions of this section shall apply to the following:
1. An alleged victim who was fourteen years of age or under on the date of the alleged offense
and is sixteen or under at the time of the trial; and
2. Any child witness who is fourteen years of age or under at the time of the trial.
C. The court may order that the testimony of the child be taken by closed-circuit television as provided
in subsections A and B if it finds that the child is unavailable to testify in open court in the presence
of the defendant, the jury, the judge, and the public, for any of the following reasons:
1. The child’s persistent refusal to testify despite judicial requests to do so;
2. The child’s substantial inability to communicate about the offense; or
3. The substantial likelihood, based upon expert opinion testimony, that the child will suffer
severe emotional trauma from so testifying.
Any ruling on the child’s unavailability under this subsection shall be supported by the court
with findings on the record or with written findings in a court not of record.
D. In any proceeding in which closed-circuit television is used to receive testimony, the attorney for
the child and the defendant’s attorney and, if the child has been committed to the custody of a
local board, the attorney for the local board shall be present in the room with the child, and the
child shall be subject to direct and cross examination. The only other persons allowed to be present
in the room with the child during his testimony shall be the guardian ad litem, those persons
necessary to operate the closed-circuit equipment, and any other person whose presence is
determined by the court to be necessary to the welfare and well-being of the child.
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E. The child’s testimony shall be transmitted by closed-circuit television into the courtroom for the
defendant, jury, judge and public to view. The defendant shall be provided with a means of private,
contemporaneous communication with his attorney during the testimony.
Admission of evidence of sexual acts with children VA Code §63.2–1522
A. In any civil proceeding involving alleged abuse or neglect of a child pursuant to this chapter or
pursuant to §§16.1–241, 16.1–251, 16.1–252, 16.1–253, 16.1–283 or §20–107.2, an outof-court
statement made by a child the age of twelve or under at the time the statement is offered
into evidence, describing any act of a sexual nature performed with or on the child by another, not
otherwise admissible by statute or rule, may be admissible in evidence if the requirements of
subsection B are met.
B. An out-of-court statement may be admitted into evidence as provided in subsection A if:
1. The child testifies at the proceeding, or testifies by means of a videotaped deposition or closedcircuit
television, and at the time of such testimony is subject to cross examination concerning
the out-of-court statement or the child is found by the court to be unavailable to testify on any
of these grounds:
a. The child’s death;
b. The child’s absence from the jurisdiction, provided such absence is not for the purpose of
preventing the availability of the child to testify;
c. The child’s total failure of memory;
d. The child’s physical or mental disability;
e. The existence of a privilege involving the child;
f. The child’s incompetency, including the child’s inability to communicate about the offense
because of fear or a similar reason; and
g. The substantial likelihood, based upon expert opinion testimony, that the child would
suffer severe emotional trauma from testifying at the proceeding or by means of a
videotaped deposition or closed-circuit television.
2. The child’s out-of-court statement is shown to possess particularized guarantees of
trustworthiness and reliability.
C. A statement may not be admitted under this section unless the proponent of the statement notifies
the adverse party of his intention to offer the statement and the substance of the statement
sufficiently in advance of the proceedings to provide the adverse party with a reasonable
opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses.
D. In determining whether a statement possesses particularized guarantees of trustworthiness and
reliability under subdivision B 2, the court shall consider, but is not limited to, the following
factors:
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1. The child’s personal knowledge of the event;
2. The age and maturity of the child;
3. Certainty that the statement was made, including the credibility of the person testifying about
the statement and any apparent motive such person may have to falsify or distort the event
including bias, corruption or coercion;
4. Any apparent motive the child may have to falsify or distort the event, including bias,
corruption, or coercion;
5. The timing of the child’s statement;
6. Whether more than one person heard the statement;
7. Whether the child was suffering pain or distress when making the statement;
8. Whether the child’s age makes it unlikely that the child fabricated a statement that represents
a graphic, detailed account beyond the child’s knowledge and experience;
9. Whether the statement has internal consistency or coherence, and uses terminology
appropriate to the child’s age;
10. Whether the statement is spontaneous or directly responsive to questions;
11. Whether the statement is responsive to suggestive or leading questions; and
12. Whether extrinsic evidence exists to show the defendant’s opportunity to commit the act
complained of in the child’s statement.
E. The court shall support with findings on the record, or with written findings in a court not of
record, any rulings pertaining to the child’s unavailability and the trustworthiness and reliability
of the out-of-court statement.
Use of videotaped statements of complaining witnesses as evidence VA Code §63.2–1523
A. In any civil proceeding involving alleged abuse or neglect of a child pursuant to this chapter or
pursuant to §§16.1–241, 16.1–251, 16.1–252, 16.1–253, 16.1–283 or §20–107.2, a
recording of a statement of the alleged victim of the offense, made prior to the proceeding, may be
admissible as evidence if the requirements of subsection B are met and the court determines that:
1. The alleged victim is the age of twelve or under at the time the statement is offered into
evidence;
2. The recording is both visual and oral, and every person appearing in, and every voice recorded
on, the tape is identified;
3. The recording is on videotape or was recorded by other electronic means capable of making an
accurate recording;
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4. The recording has not been altered;
5. No attorney for any party to the proceeding was present when the statement was made;
6. The person conducting the interview of the alleged victim was authorized to do so by the
child-protective services coordinator of the local department;
7. All persons present at the time the statement was taken, including the alleged victim, are
present and available to testify or be cross examined at the proceeding when the recording is
offered; and
8. The parties or their attorneys were provided with a list of all persons present at the recording
and were afforded an opportunity to view the recording at least ten days prior to the scheduled
proceedings.
B. A recorded statement may be admitted into evidence as provided in subsection A if:
1. The child testifies at the proceeding, or testifies by means of closed-circuit television, and at
the time of such testimony is subject to cross examination concerning the recorded statement
or the child is found by the court to be unavailable to testify on any of these grounds:
a. The child’s death;
b. The child’s absence from the jurisdiction, provided such absence is not for the purpose of
preventing the availability of the child to testify;
c. The child’s total failure of memory;
d. The child’s physical or mental disability;
e. The existence of a privilege involving the child;
f. The child’s incompetency, including the child’s inability to communicate about the offense
because of fear or a similar reason;
g. The substantial likelihood, based upon expert opinion testimony, that the child would
suffer severe emotional trauma from testifying at the proceeding or by means of closedcircuit
television; and
2. The child’s recorded statement is shown to possess particularized guarantees of
trustworthiness and reliability.
C. A recorded statement may not be admitted under this section unless the proponent of the statement
notifies the adverse party of his intention to offer the statement and the substance of the statement
sufficiently in advance of the proceedings to provide the adverse party with a reasonable
opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses.
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D. In determining whether a recorded statement possesses particularized guarantees of
trustworthiness and reliability under subdivision B 2, the court shall consider, but is not limited
to, the following factors:
1. The child’s personal knowledge of the event;
2. The age and maturity of the child;
3. Any apparent motive the child may have to falsify or distort the event, including bias,
corruption, or coercion;
4. The timing of the child’s statement;
5. Whether the child was suffering pain or distress when making the statement;
6. Whether the child’s age makes it unlikely that the child fabricated a statement that represents
a graphic, detailed account beyond the child’s knowledge and experience;
7. Whether the statement has a “ring of verity,” has internal consistency or coherence, and uses
terminology appropriate to the child’s age;
8. Whether the statement is spontaneous or directly responsive to questions;
9. Whether the statement is responsive to suggestive or leading questions; and
10. Whether extrinsic evidence exists to show the defendant’s opportunity to commit the act
complained of in the child’s statement.
E. The court shall support with findings on the record, or with written findings in a court not of
record, any rulings pertaining to the child’s unavailability and the trustworthiness and reliability
of the recorded statement
Court may order certain examinations VA Code §63.2–1524
The court may order psychological, psychiatric and physical examinations of the child alleged to be abused
or neglected and of the parents, guardians, caretakers or siblings of a child suspected of being neglected or
abused.
Prima facie evidence for removal of child custody VA Code §63.2–1525
In the case of a petition in the court for removal of custody of a child alleged to have been abused or
neglected, competent evidence by a physician that a child is abused or neglected shall constitute prima
facie evidence to support such petition.
Appeals of certain actions of local departments VA Code §63.2–1526
A. A person who is suspected of or is found to have committed abuse or neglect may, within thirty
days of being notified of that determination, request the local department rendering such
determination to amend the determination and the local department’s related records. Upon
written request, the local department shall provide the appellant all information used in making
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its determination. Disclosure of the reporter’s name or information which may endanger the wellbeing
of a child shall not be released. The identity of a collateral witness or any other person shall
not be released if disclosure may endanger his life or safety. Information prohibited from being
disclosed by state or federal law or regulation shall not be released. The local department shall
hold an informal conference or consultation where such person, who may be represented by
counsel, shall be entitled to informally present testimony of witnesses, documents, factual data,
arguments or other submissions of proof to the local department. With the exception of the local
director, no person whose regular duties include substantial involvement with child abuse and
neglect cases shall preside over the informal conference. If the local department refuses the request
for amendment or fails to act within forty-five days after receiving such request, the person may,
within thirty days thereafter, petition the Commissioner, who shall grant a hearing to determine
whether it appears, by a preponderance of the evidence, that the determination or record contains
information which is irrelevant or inaccurate regarding the commission of abuse or neglect by
the person who is the subject of the determination or record and therefore shall be amended. A
person who is the subject of a report who requests an amendment to the record, as provided above,
has the right to obtain an extension for an additional specified period of up to sixty days by
requesting in writing that the forty-five days in which the local department must act be extended.
The extension period, which may be up to sixty days, shall begin at the end of the forty-five days
in which the local department must act. When there is an extension period, the thirty-day period
to request an administrative hearing shall begin on the termination of the extension period.
B. The Commissioner shall designate and authorize one or more members of his staff to conduct
such hearings. The decision of any staff member so designated and authorized shall have the same
force and effect as if the Commissioner had made the decision. The hearing officer shall have the
authority to issue subpoenas for the production of documents and the appearance of witnesses.
The hearing officer is authorized to determine the number of depositions that will be allowed and
to administer oaths or affirmations to all parties and witnesses who plan to testify at the hearing.
The Board shall adopt regulations necessary for the conduct of such hearings. Such regulations
shall include provisions stating that the person who is the subject of the report has the right (i) to
submit oral or written testimony or documents in support of himself and (ii) to be informed of the
procedure by which information will be made available or withheld from him. In case of any
information withheld, such person shall be advised of the general nature of such information and
the reasons, for reasons of privacy or otherwise, that it is being withheld. Upon giving reasonable
notice, either party at his own expense may depose a nonparty and submit such deposition at the
hearing pursuant to Board regulation. Upon good cause shown, after a party’s written motion,
the hearing officer may issue subpoenas for the production of documents or to compel the
attendance of witnesses at the hearing, except that alleged child victims of the person and their
siblings shall not be subpoenaed, deposed or required to testify. The person who is the subject of
the report may be represented by counsel at the hearing. Upon petition, the court shall have the
power to enforce any subpoena that is not complied with or to review any refusal to issue a
subpoena. Such decisions may not be further appealed except as part of a final decision that is
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subject to judicial review. Such hearing officers are empowered to order the amendment of such
determination or records as is required to make them accurate and consistent with the requirements
of this chapter or the regulations adopted hereunder. If, after hearing the facts of the case, the
hearing officer determines that the person who is the subject of the report has presented
information that was not available to the local department at the time of the local conference and
which if available may have resulted in a different determination by the local department, he may
remand the case to the local department for reconsideration. The local department shall have
fourteen days in which to reconsider the case. If, at the expiration of fourteen days, the local
department fails to act or fails to amend the record to the satisfaction of the appellant, the case
shall be returned to the hearing officer for a determination. If aggrieved by the decision of the
hearing officer, such person may obtain further review of the decision in accordance with Article
5 (§2.2–4025 et seq.) of the Administrative Process Act (§2.2–4000 et seq.).
C. Whenever an appeal of the local department’s finding is made and a criminal charge is also filed
against the appellant for the same conduct involving the same victim as investigated by the local
department, the appeal process shall automatically be stayed until the criminal prosecution in
circuit court is completed. During such stay, the appellant’s right of access to the records of the
local department regarding the matter being appealed shall also be stayed. Once the criminal
prosecution in circuit court has been completed, the local department shall advise the appellant
in writing of his right to resume his appeal within the time frames provided by law and regulation.
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Appendix D
Virginia Supreme Court Rules
Joining offenses
Sup. Ct. R. 3A:6(b)
Two or more offenses, any of which may be a felony or misdemeanor, may be charged in separate counts of an
indictment or information if the offenses are based on the same act or transaction, or on two or more acts or
transactions that are connected or constitute parts of a common scheme or plan.
Trial together of more than one offense
Sup. Ct. R. 3A:10(c)
The court may direct that an accused be tried at one time for all offenses then pending against him, if
justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6(b) or (ii) the
accused and the Commonwealth’s attorney consent thereto.
Discovery and Inspection Sup. Ct. R. 3A:11
A. Application of Rule. This Rule applies only to prosecution for a felony in a circuit court.
B. Discovery by the Accused.
1. Upon written motion of an accused a court shall order the Commonwealth’s attorney to permit
the accused to inspect and copy or photograph any relevant (i) written or recorded statements
or confessions made by the accused, or copies thereof, or the substance of any oral statements
or confessions made by the accused to any law enforcement officer, the existence of which is
known to the attorney for the Commonwealth, and (ii) written reports of autopsies, ballistic
tests, fingerprint analyses, handwriting analyses, blood, urine and breath tests, other scientific
reports, and written reports of a physical or mental examination of the accused or the alleged
victim made in connection with the particular case, or copies thereof, that are known by the
Commonwealth’s attorney to be within the possession, custody or control of the
Commonwealth.
2. Upon written motion of an accused a court shall order the Commonwealth’s attorney to permit
the accused to inspect and copy or photograph designated books, papers, documents, tangible
objects, buildings or places, or copies or portions thereof, that are within the possession,
custody, or control of the Commonwealth, upon a showing that the items sought may be
material to the preparation of his defense and that the request is reasonable. This subparagraph
does not authorize the discovery or inspection of statements made by Commonwealth
witnesses or prospective Commonwealth witnesses to agents of the Commonwealth or of
reports, memoranda or other internal Commonwealth documents made by agents in
connection with the investigation or prosecution of the case, except as provided in clause (ii)
of subparagraph (b) (1) of this Rule.
C. Discovery by the Commonwealth. If the court grants relief sought by the accused under clause (ii)
of subparagraph (b) (1) or under subparagraph (b) (2) of this Rule, it shall, upon motion of the
Commonwealth, condition its order by requiring that:
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1. The accused shall permit the Commonwealth within a reasonable time but not less than ten
(10) days before trial or sentencing, as the case may be, to inspect, copy or photograph any
written reports of autopsy examinations, ballistic tests, fingerprint, blood, urine and breath
analyses, and other scientific tests that may be within the accused’s possession, custody or
control and which the defense intends to proffer or introduce into evidence at trial or
sentencing.
2. The accused disclose whether he intends to introduce evidence to establish an alibi and, if so,
that the accused disclose the place at which he claims to have been at the time of the
commission of the alleged offense.
3. If the accused intends to rely upon the defense of insanity or feeble-mindedness, the accused
shall permit the Commonwealth to inspect, copy or photograph any written reports of physical
or mental examination of the accused made in connection with the particular case, provided,
however, that no statement made by the accused in the course of an examination provided for
by this Rule shall be used by the Commonwealth in its case-in-chief, whether the examination
shall be with or without the consent of the accused.
D. Time of Motion. A motion by the accused under this Rule must be made at least 10 days before
the day fixed for trial. The motion shall include all relief sought under this Rule. A subsequent
motion may be made only upon a showing of cause why such motion would be in the interest of
justice.
E. Time, Place and Manner of Discovery and Inspection. An order granting relief under this Rule
shall specify the time, place and manner of making the discovery and inspection permitted and
may prescribe such terms and conditions as are just.
F. Protective Order. Upon a sufficient showing the court may at any time order that the discovery or
inspection be denied, restricted or deferred, or make such other order as is appropriate. Upon
motion by the Commonwealth the court may permit the Commonwealth to make such showing,
in whole or in part, in the form of a written statement to be inspected by the court in camera. If
the court denies discovery or inspection following a showing in camera, the entire text of the
Commonwealth’s statement shall be sealed and preserved in the records of the court to be made
available to the appellate court in the event of an appeal by the accused.
G. Continuing Duty to Disclose; Failure to Comply. If, after disposition of a motion filed under this
Rule, and before or during trial, counsel or a party discovers additional material previously
requested or falling within the scope of an order previously entered, that is subject to discovery or
inspection under this Rule, he shall promptly notify the other party or his counsel or the court of
the existence of the additional material. If at any time during the course of the proceedings, it is
brought to the attention of the court that a party has failed to comply with this Rule or with an
order issued pursuant to this Rule, the court shall order such party to permit the discovery or
inspection of materials not previously disclosed, and may grant such other relief as it may deem
appropriate.
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Discovery Sup. Ct. R. 7C:5
A. Application of Rule. This Rule applies only to the prosecution for a misdemeanor which may be
punished by confinement in jail and to a preliminary hearing for a felony.
B. Definitions. For purposes of discovery under this Rule 1) the prosecuting attorney is the attorney for
the Commonwealth or the city attorney, county attorney, or town attorney, who is responsible for
prosecuting the case; 2) if no prosecuting attorney prosecutes the case, the representative of the
Commonwealth shall be the law enforcement officer, or, if none, such person who appears on behalf of
the Commonwealth, county, city or town in the case.
C. Discovery by the Accused. Upon motion of an accused, the court shall order the prosecuting
attorney or representative of the Commonwealth to permit the accused to hear, inspect and copy
or photograph the following information or material when the existence of such is known or
becomes known to the prosecuting attorney or representative of the Commonwealth and such
material or information is to be offered in evidence against the accused in a General District Court:
1. Any relevant written or recorded statements or confessions made by the accused, or copies
thereof and the substance of any oral statements and confessions made by the accused to any
law enforcement officer; and
2. Any criminal record of the accused.
D. Time of Motion. A motion by the accused under this Rule shall be made in writing and filed with
the Court and a copy thereof mailed, faxed, or otherwise delivered to the prosecuting attorney
and, if applicable, to the representative of the Commonwealth at least 10 days before the day
fixed for trial or preliminary hearing. The motion shall include the specific information or material
sought under this Rule.
E. Time, Place and Manner of Discovery and Inspection. An order granting relief under this Rule
shall specify the time, place and manner of making the discovery and inspection permitted and
may prescribe such terms and conditions as are just.
F. Failure to Comply. If at any time during the course of the proceedings, it is brought to the attention
of the court that the prosecuting attorney or representative of the Commonwealth has failed to
comply with this Rule or with an order issued pursuant to this Rule, the court shall order the
prosecuting attorney or representative of the Commonwealth to permit the discovery or inspection
of the material not previously disclosed, and may grant such continuance to the accused as it
deems appropriate.
Discovery Sup. Ct. R. 8:15
A. Adult Criminal Case. In any cases involving adults charged with crime, the provisions of Rule
7C:5 shall govern discovery.
B. Juvenile Delinquency Cases. In juvenile delinquency cases, when the juvenile is charged with an
act that would be a felony if committed by an adult, or in a transfer hearing or a preliminary
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hearing to certify charges pursuant to §16.1–269.1, the court shall, upon motion timely made
by the juvenile or the Commonwealth’s Attorney, and for good cause, enter such orders in aid of
discovery and inspection of evidence as provided under Rule 3A:11.
In juvenile delinquency cases when the juvenile is charged with an act that would be a
misdemeanor if committed by an adult, the court shall, upon motion timely made and for good
cause, enter such orders for discovery as provided under Rule 7C:5.
C. Other Cases. In all other proceedings, the court may, upon motion timely made and for good cause,
enter such orders in aid of discovery and inspection of evidence as permitted under Part Four of
the Rules, except that no depositions may be taken.
D. In proceedings concerning civil support, the judge may require parties to file a statement of gross
income together with documentation in support of the statement.
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