Introduced in House Passed House Introduced in Senate Passed Senate Became Law
01/06/2020     01/06/2020  

Cruelty to children; increases penalty to a Class 4 felony.

Increases the penalty from a Class 6 felony to a Class 4 felony for any person employing or having custody of a child who willfully causes or permits such child to be tortured physically or psychologically, tormented, mutilated, beaten, or cruelly treated. The bill includes such offense in the definition of "violent felony" for purposes of determining felony sentencing guidelines. The bill also includes willful and negligent acts of cruelty and injuries to children in offenses prohibiting a person from operating or residing in a family day home and, if such offense is in conjunction with a homicide, requiring registration under the Sex Offender and Crimes Against Minors Registry Act. The bill moves the provisions criminalizing cruelty and injuries to children from Title 40.1 (Labor and Employment) to Title 18.2 (Crimes and Offenses Generally).

Date Version PDF TXT
02/07/2020 House: Committee substitute printed 20107948D-H1 Open
01/06/2020 House: Prefiled and ordered printed; offered 01/08/20 20101936D Open

            

2020 SESSION

    20107948D
    HOUSE BILL NO. 673
    AMENDMENT IN THE NATURE OF A SUBSTITUTE
    (Proposed by the House Committee for Courts of Justice
    on February 7, 2020)
    (Patron Prior to Substitute--Delegate Mullin)
    A BILL to amend and reenact �� 8.01-226.5:2, 17.1-805, 19.2-392.02, 40.1-103, and 63.2-1727 of the Code of Virginia, relating to cruelty to children; penalty.

    Be it enacted by the General Assembly of Virginia:

    1. That �� 8.01-226.5:2, 17.1-805, 19.2-392.02, 40.1-103, and 63.2-1727 of the Code of Virginia are amended and reenacted as follows:

    8.01-226.5:2. Immunity of hospital and emergency medical services agency personnel for the acceptance of certain infants.

    Any personnel of a hospital or emergency medical services agency receiving a child under the circumstances described in the second paragraph of � 18.2-371, subdivision B 2 of � 18.2-371.1, or subsection B D 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.

    17.1-805. Adoption of initial discretionary sentencing guideline midpoints.

    A. The Commission shall adopt an initial set of discretionary felony sentencing guidelines which shall become effective on January 1, 1995. The initial recommended sentencing range for each felony offense shall be determined first, by computing the actual time-served distribution for similarly situated offenders, in terms of their conviction offense and prior criminal history, released from incarceration during the base period of calendar years 1988 through 1992, increased by 13.4 percent, and second, by eliminating from this range the upper and lower quartiles. The midpoint of each initial recommended sentencing range shall be the median time served for the middle two quartiles and subject to the following additional enhancements:

    1. The midpoint of the initial recommended sentencing range for first degree murder, second degree murder, rape in violation of � 18.2-61, forcible sodomy, object sexual penetration, and aggravated sexual battery shall be further increased by (i) 125 percent in cases in which the defendant has no previous conviction of a violent felony offense; (ii) 300 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of less than 40 years; or (iii) 500 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of 40 years or more, except that the recommended sentence for a defendant convicted of first degree murder who has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more shall be imprisonment for life;

    2. The midpoint of the initial recommended sentencing range for voluntary manslaughter, robbery, aggravated malicious wounding, malicious wounding, and any burglary of a dwelling house or statutory burglary of a dwelling house or any burglary committed while armed with a deadly weapon or any statutory burglary committed while armed with a deadly weapon shall be further increased by (i) 100 percent in cases in which the defendant has no previous conviction of a violent felony offense, (ii) 300 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of less than 40 years, or (iii) 500 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more;

    3. The midpoint of the initial recommended sentencing range for manufacturing, selling, giving, or distributing, or possessing with the intent to manufacture, sell, give, or distribute a Schedule I or II controlled substance, shall be increased by (i) 200 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of less than 40 years or (ii) 400 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more; and

    4. The midpoint of the initial recommended sentencing range for felony offenses not specified in subdivision 1, 2, or 3 shall be increased by 100 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of less than 40 years and by 300 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more.

    B. For purposes of this chapter, previous convictions shall include prior adult convictions and juvenile convictions and adjudications of delinquency based on an offense which would have been at the time of conviction a felony if committed by an adult under the laws of any state, the District of Columbia, or the United States or its territories.

    C. For purposes of this chapter, violent felony offenses shall include any felony violation of � 16.1-253.2; solicitation to commit murder under � 18.2-29; any violation of � 18.2-31, 18.2-32, 18.2-32.1, 18.2-32.2, 18.2-33, or 18.2-35; any violation of subsection B of � 18.2-36.1; any violation of � 18.2-40 or 18.2-41; any violation of clause (c) (i) or (ii) of subsection B of � 18.2-46.3; any violation of � 18.2-46.5, 18.2-46.6, or 18.2-46.7; any Class 5 felony violation of � 18.2-47; any felony violation of � 18.2-48, 18.2-48.1, or 18.2-49; any violation of � 18.2-51, 18.2-51.1, 18.2-51.2, 18.2-51.3, 18.2-51.4, 18.2-51.6, 18.2-52, 18.2-52.1, 18.2-53, 18.2-53.1, 18.2-54.1, 18.2-54.2, or 18.2-55; any violation of subsection B of � 18.2-57; any felony violation of � 18.2-57.2; any violation of � 18.2-58 or 18.2-58.1; any felony violation of � 18.2-60.1, 18.2-60.3, or 18.2-60.4; any violation of � 18.2-61, 18.2-64.1, 18.2-67.1, 18.2-67.2, former � 18.2-67.2:1, 18.2-67.3, 18.2-67.5, or 18.2-67.5:1 involving a third conviction of either sexual battery in violation of � 18.2-67.4 or attempted sexual battery in violation of subsection C of � 18.2-67.5; any Class 4 felony violation of � 18.2-63; any violation of subsection A of � 18.2-67.4:1; any violation of subsection A of � 18.2-77; any Class 3 felony violation of � 18.2-79; any Class 3 felony violation of � 18.2-80; any violation of � 18.2-85, 18.2-89, 18.2-90, 18.2-91, 18.2-92, or 18.2-93; any felony violation of � 18.2-152.7; any Class 4 felony violation of � 18.2-153; any Class 4 felony violation of � 18.2-154; any Class 4 felony violation of � 18.2-155; any felony violation of � 18.2-162; any violation of � 18.2-279 involving an occupied dwelling; any felony violation of subsection A or B of � 18.2-280; any violation of � 18.2-281; any felony violation of subsection A of � 18.2-282; any felony violation of � 18.2-282.1; any violation of � 18.2-286.1, 18.2-287.2, 18.2-289, or 18.2-290; any violation of subsection A of � 18.2-300; any felony violation of subsection C of � 18.2-308.1 or � 18.2-308.2; any violation of � 18.2-308.2:1 or subsection M or N of � 18.2-308.2:2; any violation of � 18.2-308.3 or 18.2-312; any felony violation of � 18.2-346, 18.2-348, or 18.2-349; any violation of � 18.2-355, 18.2-356, 18.2-357, or 18.2-357.1; any violation of former � 18.2-358; any violation of subsection B of � 18.2-361; any violation of subsection B of � 18.2-366; any violation of � 18.2-368, 18.2-370, or 18.2-370.1; any violation of subsection A of � 18.2-371.1; any violation of subsection C of � 40.1-103; any felony violation of � 18.2-369 resulting in serious bodily injury or disease; any violation of � 18.2-374.1; any felony violation of � 18.2-374.1:1; any violation of � 18.2-374.3 or 18.2-374.4; any second or subsequent offense under �� 18.2-379 and 18.2-381; any felony violation of � 18.2-405 or 18.2-406; any violation of � 18.2-408, 18.2-413, 18.2-414, 18.2-423, 18.2-423.01, 18.2-423.1, 18.2-423.2, or 18.2-433.2; any felony violation of � 18.2-460, 18.2-474.1, or 18.2-477.1; any violation of � 18.2-477, 18.2-478, 18.2-480, 18.2-481, or 18.2-485; any violation of � 37.2-917; any violation of � 52-48; any violation of � 53.1-203; any conspiracy or attempt to commit any offense specified in this subsection, or any substantially similar offense under the laws of any state, the District of Columbia, or the United States or its territories.

    19.2-392.02. National criminal background checks by businesses and organizations regarding employees or volunteers providing care to children or the elderly or disabled.

    A. For purposes of this section:

    "Barrier crime" means (i) a felony violation of � 16.1-253.2; any violation of � 18.2-31, 18.2-32, 18.2-32.1, 18.2-32.2, 18.2-33, 18.2-35, 18.2-36, 18.2-36.1, 18.2-36.2, 18.2-41, or 18.2-42; any felony violation of � 18.2-46.2, 18.2-46.3, 18.2-46.3:1, or 18.2-46.3:3; any violation of � 18.2-46.5, 18.2-46.6, or 18.2-46.7; any violation of subsection A or B of � 18.2-47; any violation of � 18.2-48, 18.2-49, or 18.2-50.3; any violation of � 18.2-51, 18.2-51.1, 18.2-51.2, 18.2-51.3, 18.2-51.4, 18.2-51.5, 18.2-51.6, 18.2-52, 18.2-52.1, 18.2-53, 18.2-53.1, 18.2-54.1, 18.2-54.2, 18.2-55, 18.2-55.1, 18.2-56, 18.2-56.1, 18.2-56.2, 18.2-57, 18.2-57.01, 18.2-57.02, 18.2-57.2, 18.2-58, 18.2-58.1, 18.2-59, 18.2-60, or 18.2-60.1; any felony violation of � 18.2-60.3 or 18.2-60.4; any violation of � 18.2-61, 18.2-63, 18.2-64.1, 18.2-64.2, 18.2-67.1, 18.2-67.2, 18.2-67.3, 18.2-67.4, 18.2-67.4:1, 18.2-67.4:2, 18.2-67.5, 18.2-67.5:1, 18.2-67.5:2, 18.2-67.5:3, 18.2-77, 18.2-79, 18.2-80, 18.2-81, 18.2-82, 18.2-83, 18.2-84, 18.2-85, 18.2-86, 18.2-87, 18.2-87.1, or 18.2-88; any felony violation of � 18.2-279, 18.2-280, 18.2-281, 18.2-282, 18.2-282.1, 18.2-286.1, or 18.2-287.2; any violation of � 18.2-289, 18.2-290, 18.2-300, 18.2-308.4, or 18.2-314; any felony violation of � 18.2-346, 18.2-348, or 18.2-349; any violation of � 18.2-355, 18.2-356, 18.2-357, or 18.2-357.1; any violation of subsection B of � 18.2-361; any violation of � 18.2-366, 18.2-369, 18.2-370, 18.2-370.1, 18.2-370.2, 18.2-370.3, 18.2-370.4, 18.2-370.5, 18.2-370.6, 18.2-371.1, 18.2-374.1, 18.2-374.1:1, 18.2-374.3, 18.2-374.4, 18.2-379, 18.2-386.1, or 18.2-386.2; any felony violation of � 18.2-405 or 18.2-406; any violation of � 18.2-408, 18.2-413, 18.2-414, 18.2-423, 18.2-423.01, 18.2-423.1, 18.2-423.2, 18.2-433.2, 18.2-472.1, 18.2-474.1, 18.2-477, 18.2-477.1, 18.2-477.2, 18.2-478, 18.2-479, 18.2-480, 18.2-481, 18.2-484, 18.2-485, 37.2-917, 40.1-103, or 53.1-203; or any substantially similar offense under the laws of another jurisdiction; (ii) any violation of � 18.2-89, 18.2-90, 18.2-91, 18.2-92, 18.2-93, or 18.2-94 or any substantially similar offense under the laws of another jurisdiction; (iii) any felony violation of � 18.2-248, 18.2-248.01, 18.2-248.02, 18.2-248.03, 18.2-248.1, 18.2-248.5, 18.2-251.2, 18.2-251.3, 18.2-255, 18.2-255.2, 18.2-258, 18.2-258.02, 18.2-258.1, or 18.2-258.2 or any substantially similar offense under the laws of another jurisdiction; (iv) any felony violation of � 18.2-250 or any substantially similar offense under the laws of another jurisdiction; (v) any offense set forth in � 9.1-902 that results in the persons requirement to register with the Sex Offender and Crimes Against Minors Registry pursuant to � 9.1-901, including any finding that a person is not guilty by reason of insanity in accordance with Chapter 11.1 (� 19.2-182.2 et seq.) of Title 19.2 of an offense set forth in � 9.1-902 that results in the persons requirement to register with the Sex Offender and Crimes Against Minors Registry pursuant to � 9.1-901; any substantially similar offense under the laws of another jurisdiction; or any offense for which registration in a sex offender and crimes against minors registry is required under the laws of the jurisdiction where the offender was convicted; or (vi) any other felony not included in clause (i), (ii), (iii), (iv), or (v) unless five years have elapsed from the date of the conviction.

    "Barrier crime information" means the following facts concerning a person who has been arrested for, or has been convicted of, a barrier crime, regardless of whether the person was a juvenile or adult at the time of the arrest or conviction: full name, race, sex, date of birth, height, weight, fingerprints, a brief description of the barrier crime or offenses for which the person has been arrested or has been convicted, the disposition of the charge, and any other information that may be useful in identifying persons arrested for or convicted of a barrier crime.

    "Care" means the provision of care, treatment, education, training, instruction, supervision, or recreation to children or the elderly or disabled.

    "Department" means the Department of State Police.

    "Employed by" means any person who is employed by, volunteers for, seeks to be employed by, or seeks to volunteer for a qualified entity.

    "Identification document" means a document made or issued by or under the authority of the United States government, a state, a political subdivision of a state, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization that, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.

    "Provider" means a person who (i) is employed by a qualified entity and has, seeks to have, or may have unsupervised access to a child or to an elderly or disabled person to whom the qualified entity provides care; (ii) is a volunteer of a qualified entity and has, seeks to have, or may have unsupervised access to a child to whom the qualified entity provides care; or (iii) owns, operates, or seeks to own or operate a qualified entity.

    "Qualified entity" means a business or organization that provides care to children or the elderly or disabled, whether governmental, private, for profit, nonprofit, or voluntary, except organizations exempt pursuant to subdivision A 7 of � 63.2-1715.

    B. A qualified entity may request the Department of State Police to conduct a national criminal background check on any provider who is employed by such entity. No qualified entity may request a national criminal background check on a provider until such provider has:

    1. Been fingerprinted; and

    2. Completed and signed a statement, furnished by the entity, that includes (i) his name, address, and date of birth as it appears on a valid identification document; (ii) a disclosure of whether or not the provider has ever been convicted of or is the subject of pending charges for a criminal offense within or outside the Commonwealth, and if the provider has been convicted of a crime, a description of the crime and the particulars of the conviction; (iii) a notice to the provider that the entity may request a background check; (iv) a notice to the provider that he is entitled to obtain a copy of any background check report, to challenge the accuracy and completeness of any information contained in any such report, and to obtain a prompt determination as to the validity of such challenge before a final determination is made by the Department; and (v) a notice to the provider that prior to the completion of the background check the qualified entity may choose to deny the provider unsupervised access to children or the elderly or disabled for whom the qualified entity provides care.

    C. Upon receipt of (i) a qualified entitys written request to conduct a background check on a provider, (ii) the providers fingerprints, and (iii) a completed, signed statement as described in subsection B, the Department shall make a determination whether the provider has been convicted of or is the subject of charges of a barrier crime. To conduct its determination regarding the providers barrier crime information, the Department shall access the national criminal history background check system, which is maintained by the Federal Bureau of Investigation and is based on fingerprints and other methods of identification, and shall access the Central Criminal Records Exchange maintained by the Department. If the Department receives a background report lacking disposition data, the Department shall conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data. The Department shall make reasonable efforts to respond to a qualified entitys inquiry within 15 business days.

    D. Any background check conducted pursuant to this section for a provider employed by a private entity shall be screened by the Department of State Police. If the provider has been convicted of or is under indictment for a barrier crime, the qualified entity shall be notified that the provider is not qualified to work or volunteer in a position that involves unsupervised access to children or the elderly or disabled.

    E. Any background check conducted pursuant to this section for a provider employed by a governmental entity shall be provided to that entity.

    F. In the case of a provider who desires to volunteer at a qualified entity and who is subject to a national criminal background check, the Department and the Federal Bureau of Investigation may each charge the provider the lesser of $18 or the actual cost to the entity of the background check conducted with the fingerprints.

    G. The failure to request a criminal background check pursuant to subsection B shall not be considered negligence per se in any civil action.

    H. (Expires July 1, 2020) Notwithstanding any provisions in this section to the contrary, a spouse of a birth parent or parent by adoption who is not the birth parent of a child and has filed a petition for adoption of such child in circuit court may request the Department of State Police to conduct a national criminal background check on such prospective adoptive parent at his cost for purposes of � 63.2-1242. Such background checks shall otherwise be conducted in accordance with the provisions of this section.

    40.1-103. Cruelty and injuries to children; penalty; abandoned infant.

    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,. Any person violating this subsection is guilty of a Class 6 felony.

    B. It shall be unlawful for any person employing or having the custody of any child to negligently cause or permit such child to be tortured physically or psychologically, tormented, mutilated, beaten, or cruelly treated. Any person violating this section subsection is guilty of a Class 6 felony.

    C. It shall be unlawful for any person employing or having the custody of any child to willfully cause or permit such child to be tortured physically or psychologically, tormented, mutilated, beaten, or cruelly treated. Any person violating this subsection is guilty of a Class 4 felony.

    B. D. If a prosecution under this section is based solely on the accused parent having left the child at a hospital or emergency medical services agency, 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 emergency medical services agency that employs emergency medical services personnel, within the first 14 days of the childs life. In order for the affirmative defense to apply, the child shall be delivered in a manner reasonably calculated to ensure the childs safety.

    63.2-1727. Sex offender or child abuser prohibited from operating or residing in family day home; penalty.

    It shall be unlawful for any person to operate a family day home if he, or if he knows that any other person who resides in, is employed by, or volunteers in the home, has been convicted of a felony in violation of � 18.2-48, 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, 18.2-355, 18.2-361, 18.2-366, 18.2-369, 18.2-370, 18.2-370.1, 18.2-371.1, or 18.2-374.1, or 40.1-103, has been convicted of any offense that requires registration on the Sex Offender and Crimes Against Minors Registry pursuant to � 9.1-902, or is the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth. A violation of this section is punishable as a Class 1 misdemeanor.

    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 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to � 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.

    Picture Name From Date Type
    Michael P. Mullin D-Richmond Sponsor
    Date Branch Action
    01/06/2020 House House: Prefiled and ordered printed; offered 01/08/20 20101936D
    01/06/2020 House House: Referred to Committee for Courts of Justice
    Summary
    Congress - Bill Number Major Title
    Branch Vote Date Yes No Not Voting
    Wiki




    Start Description.
    Increases the penalty from a Class 6 felony to a Class 4 felony for any person employing or having custody of a child who willfully causes or permits such child to be tortured physically or psychologically, tormented, mutilated, beaten, or cruelly treated. The bill includes such offense in the definition of "violent felony" for purposes of determining felony sentencing guidelines. The bill also includes willful and negligent acts of cruelty and injuries to children in offenses proh
    End Description.

    Bill TEXT Points.
    This Bill has been listed with the following Subjects from Texts:
    Labor and Employment


    Labor


    Minors
    1-902 that results in the persons requirement to register with the Sex Offender and Crimes Against Minors Registry pursuant to � 9

    Sex
    "Sexually violent offense" means a violation of, attempted violation of, or conspiracy to violate: 1


    End Bill TEXT Points.
    Date Bill Major Title
    Committee Name
    Subject Type