by James C. Sherlock
Virginia has a law that, having been amended piecemeal over the years, is inconsistent, inflexible and may not provide the protections that lawmakers or potential victims intended.
The law is Code of Virginia § 18.2-57. Assault and battery; penalty.
A member of the Fairfax County bar has reported that progressive Commonwealth’s Attorney Steve Descano in Fairfax County did not prosecute assault and battery misdemeanors. (Mr. Kassabian has since my initial link to his web page taken down the information about nol pros categories in Fairfax County.)
My primary issue with the current law is that, as written, a policy like Mr. Descano’s will leave healthcare professionals and school personnel unprotected by the laws put in place to do just that. Police officers must prosecute if the CA will not.
Currently law says any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor. It is a Class 6 felony if either:
- a hate crime “because” the victim is a member of a recently expanded number of protected classes; or
- battery against a law enforcement official (long list) or a fire and rescue team member.
In my reading of the law:
- It is a Class 6 felony with a mandatory minimum term of confinement of six months to physically attack an EMS technician, but a misdemeanor to attack a physician;
- It is a Class 6 felony with a mandatory minimum term of confinement of six months to strike a school resource officer, but a misdemeanor if the victim is an assistant principal or teacher;
- In the cases of the physician and teacher in performance of their duties, battery can be charged as a Class 6 felony only if the victim is a member of a protected class and the attack can be credibly be blamed on that fact; and
- in every case commonwealth attorneys, some of whom publicly disagree with the penalties, have discretion as to whether to prosecute misdemeanors.
Today teachers and health professionals and are in increased danger. We need to better protect them.
In the 2015-16 school year, 5.8 percent of the nation’s 3.8 million teachers were physically attacked by a student. Almost 10 percent were threatened with injury, according to federal education data.
See also Environmental Violence and Physical Assault Against Teachers. The finding there was:
Teachers were at increased risk for physical assault in environments where they witnessed students and others engaging in violent behaviors.
Environments like post-COVID schools.
According to the American Nurses Association, 1 out of 4 nurses is assaulted on the job.
What to do. First, the Governor and General Assembly should seriously consider providing an option in charging battery against a law enforcement officer, a fireman, a teacher or a health professional engaged in his or her duties, or member of a protected class.
Make the offense chargeable as either a Class 6 felony or a Class 1 misdemeanor based upon the degree of severity and whether or not the criminal is a repeat offender. Define the criteria for felony severity and repeat offenses.
Second, battery against all of these special classes of victims, if a misdemeanor, must be prosecuted if the evidence warrants. Those acts should not be ignored because a particular commonwealth attorney disagrees with the penalty.
Require the commonwealth attorney to submit a nol pros decision on these specific misdemeanors to a judge for approval. And require the judge to consult with the victim before deciding.
I think this strikes the proper balances.
Law enforcement, fire and rescue, and protected classes will lose no functional legal protections under these changes. They will recognize that current mandatory felony penalties may prevent charges or convictions in cases of low severity. A change in the law can offer the option of misdemeanor charges in those cases and simultaneously prevent a CA from nol pros of these particular misdemeanors.
The same changes will offer medical and school personnel the additional safety they deserve.