Virginia

 
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The Laws That Should Protect Our Children

Current Civil SOL in a nutshell

SOL vs. perp: +20 years from accrual
SOL vs. employer: +20 years from accrual, which occurs at majority = Age 38

Majority Tolling: √ Age 18
Discovery Tolling: √ Liberal (vs. perp only)

SOL: +20 years from accrual. Accrual at liberal discovery vs natural persons, Accrual at majority vs. institutions.

  1. Va. Code Ann. § 8.01-243(D) “ Every action for injury to the person, whatever the theory of recovery, resulting from sexual abuse occurring during the infancy or incapacity of the person as set forth in subdivision 6 of § 8.01-249 shall be brought within 20 years after the cause of action accrues.”

  2. SOL was extended to 20 years in 2011, The 2011 amendments by cc. 617 and 641 are identical, and added subsection D. (Va. Code Ann. § 8.01-243)

TOLLING

  1. Majority, yes.

a. Va. Code Ann. § 8.01-229 (“If an infant becomes entitled to bring such action, the time during which he is within the age of Majority shall not be counted as any part of the period within which the action must be brought except as to any such period during which the infant has been judicially declared emancipated”)

  1. Discovery, YES, injury + causation

a. BUT only available versus PERSONS only (not institutions)!!!

b. Va. Code Ann. § 8.01-249 (6) (“In actions for injury to the person, whatever the theory of recovery, resulting from sexual abuse occurring during the infancy or incapacity of the person, upon the later of the removal of the disability of infancy or incapacity as provided in § 8.01-229 or when the fact of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician, psychologist, or clinical psychologist. As used in this subdivision, “sexual abuse” means sexual abuse as defined in subdivision 6 of § 18.2-67.10 and acts constituting rape, sodomy, object sexual penetration or sexual battery as defined in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2”)

c. Kopalchick v. Catholic Diocese of Richmond, 645 S.E.2d 439, 442 (Va. 2007) (“Statutory amendment to accrual of personal injury actions arising from sexual abuse occurring during infancy, which provided that action accrued when plaintiff was informed by health care professional that injuries were caused by sexual abuse, applied only to actions against natural persons, pursuant to constitutional enabling provision under which it was adopted, and diocese was not natural person.”)

d. McConville v. Rhoads, 67 Va. Cir. 392, 394-395 (Va. Cir. Ct. 2005) (“Virginia follows the rule that “the words of a constitution are to be understood in the sense in which they are popularly employed,” and “every word employed in the Constitution is to be expounded in its plain, obvious, and common sense meaning, unless the context furnishes some ground to control, qualify, or enlarge it.” Quesinberry v. Hull, 159 Va. 270, 274-75, 165 S.E. 382, 383 (1932). A “natural person” is defined as “a person produced by nature — a human being.” Armstrong v. NEWVA Enterprises, 23 Va. Cir. 352, 355 (1991) (involving Virginia Residential Landlord and Tenant Act). According to this definition, the Diocese and Convent of Sisters are not natural persons. (“Even though Virginia Code § 8.01-249(6) does not include the phrase natural person, the statute should be construed in light of the enabling constitutional amendment, Article IV, § 14, paragraph 4. “No act of the legislature . . . should be so construed as to bring it into conflict with constitutional provisions.” Dean v. Paolicelli, 194 Va. 219, 227, 72 S.E.2d 506, 511 (1952). The reasonable interpretation of the language in the statute based on the enabling amendment is that it only pertains to individuals. In addition, statues in derogation of the common law are to be narrowly construed. Hyman v. Glover, 232 Va. 140, 143, 348 S.E.2d 269, 271, 3 Va. Law Rep. 607 (1986). A narrow construction of the statute is that it only applies to natural persons.”)

Current Criminal SOL in a nutshell

Taylor v. Commonwealth, No. 2213-13-3, 2015 Va. App. LEXIS 20, 2015 WL 324627, at *4 n.5 (Va. Ct. App. Jan. 27, 2015) (“We note that, ‘[c]onsistent with the common law, Virginia has no general statute of limitation on felonies.’ Anderson v. Commonwealth, 48 Va. App. 704, 711, 634 S.E.2d 372, 375 (2006); see also Foster v. Commonwealth, 44 Va. App. 574, 576, 606 S.E.2d 518, 519 (2004), aff’d, 271 Va. 235, 623 S.E.2d 902 (2006)”).

Age of Majority: 18. See, Va. Code Ann. § 1-204.
Age of Consent: 18. See, Va. Code Ann. § 18.2-371.

Age of Marriage with Parental Consent: 16 if emancipated.
Age of Marriage without Parental Consent: 18.
See, Va. Code Ann. §§ 20-45.1, 20-48.


Medical Neglect Statute

CIVIL MEDICAL NEGLECT STATUTE

[N]o 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 denomi¬na¬tion shall for that reason alone be considered to be an abused or neglected child. . . . Virginia Code §16.1-228(2)

[N]o 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 denomi¬na¬tion shall for that reason alone be considered to be a child in need of services. . . . Virginia Code §16.1-228

[N]o 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 denomina¬tion shall for that reason alone be considered to be an abused or neglected child. . . .

CRIMINAL MEDICAL NEGLECT STATUTE

VIRGINIA defense to criminal child abuse and neglect, manslaughter, and failing to secure medical attention for an injured child

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 denomi¬na¬tion shall not, for that reason alone, be considered to have criminally abused or neglected the child. Virginia Code §18.2-371.1(C)

Any parent or other person having custody of a minor child which child shows evi-dence of need for medical attention as the result of physical injury inflicted by an act of any member of the household, whether the injury was intentional or unintentional, who knowingly fails or refuses to secure prompt and adequate medical attention, or who conspires to prevent the securing of such attention, for such minor child, shall be guilty of a Class 1 misdemeanor; provided, however, that any parent or other person having custody of a minor child that is being furnished Christian Science treatment by a duly accredited Christian Science practitioner shall not, for that reason alone, be considered in violation of this section. Virginia Code §18.2-314

Note: Virginia has in effect a religious defense to manslaughter as well because man¬slaughter in Virginia case law requires that the prosecutor prove a misdemeanor has been committed and the only misdemeanors applicable to medical neglect (above) have religious defenses.


Religous Liberty Statute

Religious liberty statute that could put children at risk

Enacted Virginia Religious Freedom Law

VA. CODE ANN. § 57-1 TO -2.02 (2007) Enacted: April 4, 2007

§ 57-1. Act for religious freedom recited.

The General Assembly, on January 16, 1786, passed an act in the following words:

“Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishment, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who, being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, have established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical, and even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards which, proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors, for the instruction of mankind; that our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right; that it tends only to corrupt the principles of that religion it is meant to encourage, by bribing, with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though, indeed, those are criminal who do not withstand such temptation, yet, neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he, being of course judge of that tendency, will make his opinions the rules of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere, when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail, if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them:

Read More “Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burthened, in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.

“And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies constituted with powers equal to our own, and that, therefore, to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind; and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right.”

(Code 1919, § 34; 1985, c. 73.)

§ 57-2. Rights asserted therein reaffirmed.

The General Assembly doth now again declare that the rights asserted in the said act are of the natural rights of mankind.

(Code 1919, § 35.)

§ 57-2.02. Religious freedom preserved; definitions; applicability; construction; remedies.

A. As used in this section:

“Demonstrates” means meets the burdens of going forward with the evidence and of persuasion under the standard of clear and convincing evidence.

“Exercise of religion” means the exercise of religion under Article I, Section 16 of the Constitution of Virginia, the Virginia Act for Religious Freedom (§ 57-1 et seq.), and the First Amendment to the United States Constitution.

“Government entity” means any branch, department, agency, or instrumentality of state government, or any official or other person acting under color of state law, or any political subdivision of the Commonwealth and does not include the Department of Corrections, the Department of Juvenile Justice, and any facility of the Department of Behavioral Health and Developmental Services that treats civilly committed sexually violent predators, or any local, regional or federal correctional facility.

“Prevails” means to obtain “prevailing party” status as defined by courts construing the federal Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988.

“Substantially burden” means to inhibit or curtail religiously motivated practice.

B. No government entity shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability unless it demonstrates that application of the burden to the person is (i) essential to further a compelling governmental interest and (ii) the least restrictive means of furthering that compelling governmental interest.

C. Nothing in this section shall be construed to (i) authorize any government entity to burden any religious belief or (ii) affect, interpret or in any way address those portions of Article 1, Section 16 of the Constitution of Virginia, the Virginia Act for Religious Freedom (§ 57-1 et seq.), and the First Amendment to the United States Constitution that prohibit laws respecting the establishment of religion. Granting government funds, benefits or exemptions, to the extent permissible under clause (ii) of this subsection, shall not constitute a violation of this section. As used in this subsection, “granting” used with respect to government funding, benefits, or exemptions shall not include the denial of government funding, benefits, or exemptions.

D. A person whose religious exercise has been burdened by government in violation of this section may assert that violation as a claim or defense in any judicial or administrative proceeding and may obtain declaratory and injunctive relief from a circuit court, but shall not obtain monetary damages. A person who prevails in any proceeding to enforce this section against a government entity may recover his reasonable costs and attorney fees. The provisions of this subsection relating to attorney fees shall not apply to criminal prosecutions.

E. Nothing in this section shall prevent any governmental institution or facility from maintaining health, safety, security or discipline.

F. The decision of the circuit court to grant or deny declaratory and injunctive relief may be appealed by petition to the Court of Appeals of Virginia.

(2007, c. 889; 2009, cc. 813, 840.)

§ 57-2.01. Religious Freedom Week and Day.

On the 200th Anniversary of the enactment of the Virginia Act for Religious Freedom, the 1986 Virginia General Assembly commends their eighteenth century predecessors for their wisdom and foresight and declares that from this date forth, the second full week of every January is designated as Religious Freedom Week in the Commonwealth of Virginia.

In addition, the date of the passage of the Virginia Act for Religious Freedom merits special commemoration and celebration in the Commonwealth and nation. For this purpose, the sixteenth day of January of each year shall be designated “Religious Freedom Day.”

(1986, c. 352; 1997, c. 388.)

§ 57-2.02. Religious freedom preserved; definitions; applicability; construction; remedies.

A. As used in this section:

“Demonstrates” means meets the burdens of going forward with the evidence and of persuasion under the standard of clear and convincing evidence.

“Exercise of religion” means the exercise of religion under Article I, Section 16 of the Constitution of Virginia, the Virginia Act for Religious Freedom (§ 57-1 et seq.), and the First Amendment to the United States Constitution.

“Government entity” means any branch, department, agency, or instrumentality of state government, or any official or other person acting under color of state law, or any political subdivision of the Commonwealth and does not include the Department of Corrections, the Department of Juvenile Justice, and any facility of the Department of Behavioral Health and Developmental Services that treats civilly committed sexually violent predators, or any local, regional or federal correctional facility.

“Prevails” means to obtain “prevailing party” status as defined by courts construing the federal Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988.

“Substantially burden” means to inhibit or curtail religiously motivated practice.

B. No government entity shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability unless it demonstrates that application of the burden to the person is (i) essential to further a compelling governmental interest and (ii) the least restrictive means of furthering that compelling governmental interest.

C. Nothing in this section shall be construed to (i) authorize any government entity to burden any religious belief or (ii) affect, interpret or in any way address those portions of Article 1, Section 16 of the Constitution of Virginia, the Virginia Act for Religious Freedom (§ 57-1 et seq.), and the First Amendment to the United States Constitution that prohibit laws respecting the establishment of religion. Granting government funds, benefits or exemptions, to the extent permissible under clause (ii) of this subsection, shall not constitute a violation of this section. As used in this subsection, “granting” used with respect to government funding, benefits, or exemptions shall not include the denial of government funding, benefits, or exemptions.

D. A person whose religious exercise has been burdened by government in violation of this section may assert that violation as a claim or defense in any judicial or administrative proceeding and may obtain declaratory and injunctive relief from a circuit court, but shall not obtain monetary damages. A person who prevails in any proceeding to enforce this section against a government entity may recover his reasonable costs and attorney fees. The provisions of this subsection relating to attorney fees shall not apply to criminal prosecutions.

E. Nothing in this section shall prevent any governmental institution or facility from maintaining health, safety, security or discipline.

F. The decision of the circuit court to grant or deny declaratory and injunctive relief may be appealed by petition to the Court of Appeals of Virginia.

(2007, c. 889; 2009, cc. 813, 840.)

§ 57-2.1. Advertising by hotels, etc., that persons find objectionable because of religion.

(1) Definitions. – Except where the context clearly requires a different meaning, the following terms shall have the meaning respectively ascribed to them:

“Person” means any individual, partnership, association, corporation, or organized group of persons whether incorporated or not.

“Establishment” means any building or part thereof, including without being limited to public inns and hotels, any structure, enclosure, tract of land, and all improvements, appurtenances, and additions, bodies of water whether natural or artificial, and any other place of whatsoever nature to which the general public is or will be admitted, allowed or invited on payment of a fee, free of charge or otherwise.

(2) Methods of advertising; solicitation to violate section. – No person, directly or indirectly, for himself or for another, shall publish in any newspaper or magazine, post on any sign, or broadcast by radio or television any commercial advertisement that any person not otherwise prohibited by law from using an establishment is not welcome, or is objectionable, or is not acceptable because of his religion. No person shall cause or solicit another person to violate this section.

(3) Exemptions from section. – This section shall not apply (1) to any establishment which is private or restricted to membership only; (2) to any college, school, educational institution, or camp, admission to which is based on religious belief or affiliation; (3) to any gathering, meeting or assembly held under the auspices of any religious group or sect.

(4) Public nuisance; abatement by injunction. – Any commercial advertisement as set forth herein is declared a public nuisance and shall be subject to abatement by injunctive relief; any aggrieved individual or group of individuals may proceed to obtain an injunction enjoining and restraining the person from continuing such commercial advertisement.

(1954, c. 701.)

2015 Pending RFRA Legislation

HB 1414 – Amends State Constitution; Provides that a person shall not be required to perform, assist, consent to, or participate in any action or refrain from performing, assisting, consenting to, or participating in any action as a condition of obtaining or renewing a government-issued license, registration, or certificate where such condition would violate the religious or moral convictions of such person with respect to same-sex marriage or homosexual behavior.