This week, the General Assembly is convening for a special session in which legislation pertaining to both COVID-19 relief and criminal justice reform will be contemplated.
Many lay people assume any crime can be charged as a hate crime if the victim of the crime was selected because of their race, ethnicity, gender or sexual orientation. This is not the case. In Virginia, only two offenses carry explicit hate crime enhancements: assault and battery and trespassing with the intent to cause damage. The hate crime enhancements for these offenses elevates the applicable penalty from a misdemeanor to a class 6 felony.
Assault and battery is defined as the rude, angry or vengeful touching of another person against the victim’s will and consent. Trespassing with the intent to cause damage requires proof that the accused entered the “land, dwelling, outhouse or any other building of another” for the specific purpose of “damaging such property … (or to) in any manner interfere with the rights of the owner … or occupant thereof to use such property free from interference.”
As of July 1, 2020, the hate crimes enhancement covers offenses in which the victim was selected because of their “race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin.” The term disability is defined as a “physical or mental impairment that substantially limits one or more of a person’s major life activities.”
While only assault and battery and trespassing carry explicit, codified hate crimes enhancements, there are other code sections that prohibit hate-based activities. Burning a cross with the intent to intimidate is a felony, as is the placing of a swastika with the intent to intimidate on a church, synagogue or a school or community center owned or operated by a church or religious body. The display of a noose with the intent to intimidate is likewise a class 6 felony.
During the special session, the assembly will consider creating a new code section making it a hate crime to make a false 911 call based on race. Several sister states have adopted similar laws in response to several incidents, such as one in New York from earlier this year in which a woman called police and falsely reported that a Black man was threatening her.
The assembly is also contemplating changes to the system by which law enforcement officers who have been convicted of a criminal offense or who have been fired due to credibility or excessive force claims are tracked and decertified. The Senate’s proposed omnibus reform bill would, among other things, require the state’s Department of Criminal Justice Services to adopt mandatory professional standards of conduct applicable to all certified law enforcement officers and to maintain a database of decertified officers.
The bill would authorize DCJS to initiate decertification proceedings against a law-enforcement officer who has “engaged in serious misconduct” as that term is defined in the DCJS mandatory standards of conduct.
The bill also attempts to address a situation in which an officer is terminated for misconduct from one agency and then applies to be an officer in a different department. Under the proposed legislation, a police chief or sheriff of the terminating agency would be expected to provide records relating to disciplinary proceedings to any agency considering hiring a former employee.
The omnibus bill also would require training in de-escalation techniques for law enforcement officers and would prohibit officers from using chokeholds or from firing into a moving vehicle. The bill would codify a duty to intervene for law enforcement officers who observe another officer engaged in an unlawful use of force.
This is just some of the criminal justice legislation the assembly will consider this week. By next month, I should be able to provide readers with a list of bills that were passed during the special session.
The writer is Commonwealth’s Attorney for Alexandria.
