Virginia Penalties for Battery Against School and Healthcare Personnel are a Problem

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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:

  1. 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;
  2. 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;
  3. 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
  4. 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.

Schools. See When Students Assault Teachers, Effects Can Be Lasting

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.

Healthcare. See Nurses say assaults against healthcare workers are a silent epidemic.

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.

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29 responses to “Virginia Penalties for Battery Against School and Healthcare Personnel are a Problem”

  1. In a country that allegedly requires equal protection under the law it is fundamentally wrong for laws to prescribe different levels of punishment for the same crime based on the victim’s job.

    1. James C. Sherlock Avatar
      James C. Sherlock

      I believe that professions that put themselves in harms way for the public good deserve these additional protections.

      1. Okay. Which professions/jobs do you think should be protected and under what circumstances?

        Should extra punishment be meted out to the person who punches a meter reader in the face while he is performing his duties?

        Should it apply if a police officer is punched in the face in a bar while he is off-duty?

        What if a fire-fighter is punched in the face by one of his neighbors during an argument about football at a backyard barbecue on is day off?

        Pretty much anyone can be attacked while doing their job, and not all attacks on people who put themselves in harms way for the good of the public are related to that person’s job.

        1. James C. Sherlock Avatar
          James C. Sherlock

          I get it, you don’t believe some people should receive protections in their jobs. We disagree. BTW, the current law applies when people in selected professions are attacked while in the performance of their duties.

          1. Not exactly. I believe EVERYBODY should receive protections in their jobs – and in their lives.

        2. Nancy Naive Avatar
          Nancy Naive

          Nor, when acting in the the public’s good.

        3. Nancy Naive Avatar
          Nancy Naive

          Any and all, but only one additional protection or charge — obstructing.

          Assault is assault, but obstruction adds.

          1. I could go with that – an obstruction charge if the person is attacked during the performance of their job.

    2. Nancy Naive Avatar
      Nancy Naive

      Qualified immunity too?

      1. Okay. With the caveat that law enforcement officers should not be charged criminally for honest mistakes, even tragic honest mistakes.

        1. Nancy Naive Avatar
          Nancy Naive

          Are no-knock warrants a mistake?

          1. how_it_works Avatar

            No, if they put more effort into making sure they are going to the correct address than the average USPS employee…

          2. Do you mean raiding the wrong address? I do not consider that to be a legitimate mistake in this day of GPS and GIS. Somebody has to be responsible for verifying they are kicking in the correct door, and if they are not 100% certain they are at the right place, they should not execute the warrant.

            Other honest mistakes made by officers while serving legally issued no-knock warrants should be treated as such.

            However, I do think the use of no-knock warrants should be severely restricted, and should only be permitted in genuinely dangerous situations, like taking down a known gang headquarters…

            …or raiding an American Bankers Association convention…

  2. The code defines a ‘hate’ crime [having such a descriptor implies there are other types]. Does it also define a ‘love’ crime?

  3. DJRippert Avatar

    The whole idea of hate crimes is inconsistent with American justice. How can any judge or jury know what a person was thinking at the time a crime is committed? Equal protection under the law needs to be equal.

    1. James C. Sherlock Avatar
      James C. Sherlock

      I of course agree with you, but I want a bill passed to protect teachers and healthcare workers. If the same bill tries to pull protections from “hate” crimes, it will not pass.

  4. VaNavVet Avatar

    So where do the threats being made against school board members and district superintendents fall? Do they have to rise to the level of a loaded gun to see action taken against the raft of stirred up parents lodging such threats both in person and online? Does the apple not fall far from the tree?

    1. No matter how hysterically you word it, threats are not the same thing as actual physical attacks.

    2. Your comment doesn’t relate to the post. Somehow, I rather doubt the students assaulting staff are the children of protesting parents. Words, even inappropriate ones, are not physical assaults.

      1. VaNavVet Avatar

        So you can’t see where hearing their parents threatening the teachers and schools at home would not lead to some children being disruptive or even confrontational in school? Words about bringing a loaded gun to school will get you charged with a crime.

  5. James Wyatt Whitehead Avatar
    James Wyatt Whitehead

    It would be a great benefit to teachers to have such protections. I always had lunch duty. So breaking up fights was part of the deal. Never fun but absolutely necessary. You had to come down hard on the 9th grade boys for making the biggest mess in the cafe. Those boys had long memories.

    1. VaNavVet Avatar

      With regard to school discipline, JAB is quick to blame single parents, mothers doing the best that they can, and to say that rhetoric is more dangerous than criminality. Maybe it is time that parents were held accountable in situations other than school shooters that were given access to the weapon.

      1. James Wyatt Whitehead Avatar
        James Wyatt Whitehead

        I can recall numerous times when the school resource deputy asked if I wished to press charges in various encounters with students. I never did. It seemed to be more trouble than it was worth.

  6. Nancy Naive Avatar
    Nancy Naive

    Three RPV bills discriminatory to LBGTQ+ go down in smoke.

  7. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Most of the flexibility you recommend is actually available. When a statute defines several levels of an offense, the prosecutor has the option of which one to charge under. For example, if the defendant is charged with spitting on and pushing a police officer, he could be charged with a Class 6 felony, with possible sentence of up 12 months in jail or up to 5 years in prison. If the prosecutor feels that the actual circumstances do not warrant a felony charge, but some action needs to be taken, he could choose to prosecute under para. A. of the statute–a misdemeanor assault charge–and recommend some jail time.

    I assume that the General Assembly chose to made assaults against EMS personnel prosecutable as a felony because those individuals are often called to the scene soon after violent crimes have been committed and are vulnerable to attack. On the other hand, physicians and doctors treat patients in more controlled environments and when there are not a lot angry folks around.

    The statute does accord a little bit of extra sanctions for assaults against school employees and health care workers, as well as school personnel–a minimum of sentence of 15 days in jail, with mandatory minimum of 2 days. However, that does not mean that a judge could not impose a longer sentence. For instance, if a parent seriously assaulted an assistant principal, a judge could sentence the defendant up to 12 months in jail.

    As for students assaulting teachers or other school personnel, they would be charged under juvenile law and appear in the juvenile and domestic relations district court, which is an entirely different world.

    If it can be shown that the defendant deliberately set out to assault the victim, the defendant could be charged with a Class 6 felony, without regard to the status of the victim. If the act is malicious, it could be a Class 3 felony. If the assault resulted in severe injury to the victim, it would be a Class 2 felony, which carries a sentence of 20 years to life.

    Thus, the current law covers assaults ranging from spitting on or shoving a cop, to an argument escalating into a punches being thrown, to deliberately setting out to hurt someone, and to severely injuring someone in as assault. These statutes have been thoroughly debated in the General Assembly over the years.

    1. James C. Sherlock Avatar
      James C. Sherlock

      Two things:
      1. I have offered the modifications as a measure to prevent woke prosecutors from nol pros on the misdemeanor.
      2. The E.R. probably does not qualify as a controlled environment. Even when a cop is present.

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        In summary, you would remove the discretion of the CA to appear in general district court for assault cases, no matter how trivial. At least, you have narrowed your focus. Earlier, you were expressing great ire about certain CA’s not appearing in court for any misdemeanor cases.

        Your recommendation is interesting. You would require the CA to submit the nolle prosequi decision to the judge for approval. That is already done. Only a judge can officialy issue a nolle presqui decision. And you would require the judge to consult with the victim before doing so. Wouldn’t doing so, in effect, constitute conducting a trial?

        By the way, it is not only “woke” prosecutors who choose not to appear in district court on misdemeanors. Here is a passage from the website of the CA for Halifax County (certainly not a “woke” CA): “Due to the large volume of
        misdemeanor warrants received, it is not possible for the Commonwealth’s
        Attorney’s Office to be involved in every misdemeanor case. The Deputy Commonwealth’s Attorney makes the decision as to whether or not our office will be involved in the case, based on the warrant and any available information.”

        You are just mad that some CA’s, whose philosophy don’t agree with, have decided to exercise their statutory discretion not to appear in general district court for misdemeanor cases. Instead micromanaging the conduct of CA offices through the Code, it would be better to leave those decision up to the voters in the jurisdiction. If they are dissatisfied with how the CA is doing or not doing her job, they can vote her out of the office at the next election.

        1. James C. Sherlock Avatar
          James C. Sherlock

          How about the teachers and medical personnel of the jurisdiction, Dick? That is my primary point. Should teachers in Wise County get better protection than those in Fairfax?

          1. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            It is not necessarily unequal protection. Anyone charged with assaulting a teacher or health care worker in Fairfax will be tried in district court. An assistant CA will not be there, but the police officer will there to present the evidence. By the way, as I pointed out earlier, the Wise Co. CA at one time also opted not to appear in district court.

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