SB436: Sex crimes; penalties.
Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-61, 18.2-67.1, and 18.2-67.2 of the Code of Virginia are amended and reenacted as follows:
§ 18.2-61. Rape.
A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.
B. A violation of this section shall be punishable, in the
discretion of the court or jury, by confinement in a state correctional
facility for life or for any term not less than five years; the penalty for
a violation of subdivision A (iii), where the offender; and in
addition:
1. For a violation of clause (iii) of subsection A where the offender is more than three years older than the victim, if done in the commission of, or as part of the same course of conduct as, or as part of a common scheme or plan as a violation of (i) subsection A of § 18.2-47 or § 18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91, or (iii) § 18.2-51.2, the punishment shall include a mandatory minimum term of confinement of 25 years; or
2. For a violation of clause (iii) of subsection A where it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense, the punishment shall include a mandatory minimum term of confinement for life.
If the term of confinement imposed for any violation of
subdivision A clause (iii) of subsection A, where the
offender is more than three years older than the victim, is for a term less
than life imprisonment, the judge shall impose, in addition to any active
sentence, a suspended sentence of no less than 40 years. This suspended
sentence shall be suspended for the remainder of the defendant's life, subject
to revocation by the court.
There shall be a rebuttable presumption that a juvenile over the age of 10 but less than 12, does not possess the physical capacity to commit a violation of this section. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.1. Forcible sodomy.
A. An accused shall be guilty of forcible sodomy if he or she engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person, and
1. The complaining witness is less than 13 years of age,;
or
2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
B. Forcible sodomy is a felony punishable by confinement in a
state correctional facility for life or for any term not less than five years.
The penalty for; and in addition:
1. For a violation of subdivision A 1, where the offender is more than three years older than the victim, if done in the commission of, or as part of the same course of conduct as, or as part of a common scheme or plan as a violation of (i) subsection A of § 18.2-47 or 18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91, or (iii) § 18.2-51.2, the punishment shall include a mandatory minimum term of confinement of 25 years; or
2. For a violation of subdivision A 1 where it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense, the punishment shall include a mandatory minimum term of confinement for life.
If the term of confinement imposed for any violation of subdivision A 1, where the offender is more than three years older than the victim, is for a term less than life imprisonment, the judge shall impose, in addition to any active sentence, a suspended sentence of no less than 40 years. This suspended sentence shall be suspended for the remainder of the defendant's life, subject to revocation by the court.
In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.2. Object sexual penetration; penalty.
A. An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora or anus of a complaining witness, whether or not his or her spouse, other than for a bona fide medical purpose, or causes such complaining witness to so penetrate his or her own body with an object or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person or to penetrate, or to be penetrated by, an animal, and
1. The complaining witness is less than 13 years of age,;
or
2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
B. Inanimate or animate object sexual penetration is a felony
punishable by confinement in the state correctional facility for life or for
any term not less than five years. The penalty for; and in addition:
1. For a violation of subdivision A 1, where the offender is more than three years older than the victim, if done in the commission of, or as part of the same course of conduct as, or as part of a common scheme or plan as a violation of (i) subsection A of § 18.2-47 or 18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91, or (iii) § 18.2-51.2, the punishment shall include a mandatory minimum term of confinement of 25 years; or
2. For a violation of subdivision A 1 where it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense, the punishment shall include a mandatory minimum term of confinement for life.
If the term of confinement imposed for any violation of subdivision A 1, where the offender is more than three years older than the victim, is for a term less than life imprisonment, the judge shall impose, in addition to any active sentence, a suspended sentence of no less than 40 years. This suspended sentence shall be suspended for the remainder of the defendant's life, subject to revocation by the court.
In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
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, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 890 of the Acts of Assembly of 2011 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice.
Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-61, 18.2-67.1, 18.2-67.2, and 18.2-67.5:3 of the Code of Virginia are amended and reenacted as follows:
§ 18.2-61. Rape.
A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.
B. A violation of this section shall be punishable, in the
discretion of the court or jury, by confinement in a state correctional
facility for life or for any term not less than five years; the penalty for.
For a violation of subdivision clause (iii) of subsection A
(iii), where it is alleged in the indictment that the offender is
was 18 years of age or older at the time of the offense, the punishment shall
include a mandatory minimum term of confinement for life. For an offender who
was convicted of a violation of clause (iii) of subsection A, where it is
alleged in the indictment that the offender was younger than 18 years of age at
the time of the offense and more than three years older than the victim,
if done in the commission of, or as part of the same course of conduct as, or
as part of a common scheme or plan as a violation of (i) subsection A of §
18.2-47 or § 18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91, or (iii) § 18.2-51.2,
the penalty shall include a mandatory minimum term of confinement of 25
years. If the term of confinement imposed for any violation of subdivision A
(iii), where the offender is more than three years older than the victim, is
for a term less than life imprisonment, and the judge shall impose,
in addition to any the active sentence, a suspended sentence of
no less than 40 years. This suspended sentence shall be suspended for the
remainder of the defendant's life, subject to revocation by the court.
There shall be a rebuttable presumption that a juvenile over the age of 10 but less than 12, does not possess the physical capacity to commit a violation of this section. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.1. Forcible sodomy.
A. An accused shall be guilty of forcible sodomy if he or she engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person, and
1. The complaining witness is less than 13 years of age,;
or
2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
B. Forcible sodomy is a felony punishable by confinement in a
state correctional facility for life or for any term not less than five years.
The penalty for a violation of subdivision A 1, where it is alleged in the
indictment that the offender is was 18 years of age or older at
the time of the offense, shall include a mandatory minimum term of confinement
for life. The penalty for an offender who was convicted of a violation of
subdivision A 1, where it is alleged in the indictment that the offender was
younger than 18 years of age at the time of the offense and more than three
years older than the victim, if done in the commission of, or as part of the
same course of conduct as, or as part of a common scheme or plan as a violation
of (i) subsection A of § 18.2-47 or 18.2-48, (ii) § 18.2-89, 18.2-90 or
18.2-91, or (iii) § 18.2-51.2, shall include a mandatory minimum term of
confinement of 25 years. If the term of confinement imposed for any
violation of subdivision A 1, where the offender is more than three years older
than the victim, is for a term less than life imprisonment, and the
judge shall impose, in addition to any the active sentence, a
suspended sentence of no less than 40 years. This suspended sentence shall be
suspended for the remainder of the defendant's life, subject to revocation by
the court.
In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.2. Object sexual penetration; penalty.
A. An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora or anus of a complaining witness, whether or not his or her spouse, other than for a bona fide medical purpose, or causes such complaining witness to so penetrate his or her own body with an object or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person or to penetrate, or to be penetrated by, an animal, and
1. The complaining witness is less than 13 years of age,;
or
2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
B. Inanimate or animate object sexual penetration is a felony
punishable by confinement in the state correctional facility for life or for
any term not less than five years. The penalty for a violation of subdivision A
1, where it is alleged in the indictment that the offender is
was 18 years of age or older at the time of the offense, shall include a
mandatory minimum term of confinement for life. The penalty for an offender who
was convicted of a violation of subdivision A 1, where it is alleged in the
indictment that the offender was younger than 18 years of age at the time of
the offense and more than three years older than the victim, if done in
the commission of, or as part of the same course of conduct as, or as part of a
common scheme or plan as a violation of (i) subsection A of § 18.2-47 or
18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91, or (iii) § 18.2-51.2, shall
include a mandatory minimum term of confinement of 25 years. If the term of
confinement imposed for any violation of subdivision A 1, where the offender is
more than three years older than the victim, is for a term less than life
imprisonment, and the judge shall impose, in addition to any
the active sentence, a suspended sentence of no less than 40 years. This
suspended sentence shall be suspended for the remainder of the defendant's
life, subject to revocation by the court.
In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.5:3. Punishment upon conviction of certain subsequent violent felony sexual assault.
A. Any person convicted of more than one an
offense specified in subsection B B1, and convicted of an
offense in subsection B, when such offenses were not part of a common act,
transaction, or scheme, and who has been at liberty as defined in §
53.1-151 between each conviction, shall, upon conviction of the
second or subsequent such the offense listed in subsection B1,
be sentenced to life imprisonment and shall not have all or any portion of the
sentence suspended, provided it is admitted, or found by the jury or judge
before whom he is tried, that he has been previously convicted of at least one
of the specified offenses listed in subsection B.
B. The provisions of offenses included in this subsection
A shall apply to convictions for are as follows:
1. Rape in violation of § 18.2-61;
2. Forcible sodomy in violation of § 18.2-67.1;
3. Object sexual penetration in violation of § 18.2-67.2;
4. Abduction with intent to defile in violation of § 18.2-48; or
5. Conspiracy to commit any offense listed in subdivisions 1 through 4 pursuant to § 18.2-22.
B1. The offenses included in this subsection are as follows:
1. Rape in violation of clause (i) or (ii) of subsection A of § 18.2-61;
2. Forcible sodomy in violation of subdivision A 2 of § 18.2-67.1;
3. Object sexual penetration in violation of subdivision A 2 of § 18.2-67.2;
4. Abduction with intent to defile in violation of § 18.2-48; or
5. Conspiracy to commit any offense listed in subdivisions B 1 through 4 pursuant to § 18.2-22.
C. For purposes of this section, prior convictions
listed in subsection B shall include (i) adult convictions for felonies
under the laws of any state or the United States that are substantially similar
to those listed in subsection B and (ii) findings of not innocent,
adjudications or convictions in the case of a juvenile if the juvenile offense
is substantially similar to those listed in subsection B, the offense would be
a felony if committed by an adult in the Commonwealth and the offense was
committed less than twenty 20 years before the second offense.
The Commonwealth shall notify the defendant in the indictment,
information, or warrant, at least thirty 30 days prior to trial,
of its intention to seek punishment pursuant to this section.
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, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 890 of the Acts of Assembly of 2011 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice.
Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-61, 18.2-67.1, 18.2-67.2, 18.2-67.5:3, 19.2-303 of the Code of Virginia are amended and reenacted as follows:
§ 18.2-61. Rape.
A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.
B. A violation of this section shall be punishable, in the
discretion of the court or jury, by confinement in a state correctional
facility for life or for any term not less than five years; the penalty for.
For a violation of subdivision clause (iii) of subsection A
(iii), where it is alleged in the indictment that the offender is
more than three years older than the victim, if done in the commission of, or
as part of the same course of conduct as, or as part of a common scheme or plan
as a violation of (i) subsection A of § 18.2-47 or § 18.2-48, (ii) § 18.2-89,
18.2-90 or 18.2-91, or (iii) § 18.2-51.2, shall include a mandatory minimum
term of confinement of 25 years. If the term of confinement imposed for any
violation of subdivision A (iii), where the offender is more than three years older
than the victim, is for a term less than life imprisonment, the judge shall
impose, in addition to any active sentence, a suspended sentence of no less
than 40 years. This suspended sentence shall be suspended for the remainder of
the defendant's life, subject to revocation by the court was 18 years of
age or older at the time of the offense, the punishment shall include a
mandatory minimum term of confinement of life.
There shall be a rebuttable presumption that a juvenile over the age of 10 but less than 12, does not possess the physical capacity to commit a violation of this section. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.1. Forcible sodomy.
A. An accused shall be guilty of forcible sodomy if he or she engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person, and
1. The complaining witness is less than 13 years of age,;
or
2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
B. Forcible sodomy is a felony punishable by confinement in a
state correctional facility for life or for any term not less than five years.
The penalty for a violation of subdivision A 1, where it is alleged in the
indictment that the offender is more than three years older than the
victim, if done in the commission of, or as part of the same course of conduct
as, or as part of a common scheme or plan as a violation of (i) subsection A of
§ 18.2-47 or 18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91, or (iii) § 18.2-51.2,
shall include a mandatory minimum term of confinement of 25 years. If the term
of confinement imposed for any violation of subdivision A 1, where the offender
is more than three years older than the victim, is for a term less than life
imprisonment, the judge shall impose, in addition to any active sentence, a
suspended sentence of no less than 40 years. This suspended sentence shall be
suspended for the remainder of the defendant's life, subject to revocation by
the court was 18 years of age or older at the time of the offense, the
punishment shall include a mandatory minimum term of confinement of life.
In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.2. Object sexual penetration; penalty.
A. An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora or anus of a complaining witness, whether or not his or her spouse, other than for a bona fide medical purpose, or causes such complaining witness to so penetrate his or her own body with an object or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person or to penetrate, or to be penetrated by, an animal, and
1. The complaining witness is less than 13 years of age,;
or
2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
B. Inanimate or animate object sexual penetration is a felony
punishable by confinement in the state correctional facility for life or for
any term not less than five years. The penalty for a violation of subdivision A
1, where it is alleged in the indictment that the offender is
more than three years older than the victim, if done in the commission of, or
as part of the same course of conduct as, or as part of a common scheme or plan
as a violation of (i) subsection A of § 18.2-47 or 18.2-48, (ii) § 18.2-89,
18.2-90 or 18.2-91, or (iii) § 18.2-51.2, shall include a mandatory minimum
term of confinement of 25 years. If the term of confinement imposed for any
violation of subdivision A 1, where the offender is more than three years older
than the victim, is for a term less than life imprisonment, the judge shall
impose, in addition to any active sentence, a suspended sentence of no less
than 40 years. This suspended sentence shall be suspended for the remainder of
the defendant's life, subject to revocation by the court was 18 years of
age or older at the time of the offense, the punishment shall include a mandatory
minimum term of confinement of life.
In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.5:3. Punishment upon conviction of certain subsequent violent felony sexual assault.
A. Any person convicted of more than one an
offense specified in subsection B B1, and convicted of an
offense in subsection B, when such offenses were not part of a common act,
transaction, or scheme, and who has been at liberty as defined in §
53.1-151 between each conviction, shall, upon conviction of the
second or subsequent such the offense listed in subsection B1,
be sentenced to life imprisonment and shall not have all or any portion of the
sentence suspended, provided it is admitted, or found by the jury or judge
before whom he is tried, that he has been previously convicted of at least one
of the specified offenses listed in subsection B.
B. The provisions of offenses included in this subsection
A shall apply to convictions for are as follows:
1. Rape in violation of § 18.2-61;
2. Forcible sodomy in violation of § 18.2-67.1;
3. Object sexual penetration in violation of § 18.2-67.2;
4. Abduction with intent to defile in violation of § 18.2-48; or
5. Conspiracy to commit any offense listed in subdivisions 1 through 4 pursuant to § 18.2-22.
B1. The offenses included in this subsection are as follows:
1. Rape in violation of clause (i) or (ii) of subsection A of § 18.2-61;
2. Forcible sodomy in violation of subdivision A 2 of § 18.2-67.1;
3. Object sexual penetration in violation of subdivision A 2 of § 18.2-67.2;
4. Abduction with intent to defile in violation of § 18.2-48; or
5. Conspiracy to commit any offense listed in subdivisions B 1 through 4 pursuant to § 18.2-22.
C. For purposes of this section, prior convictions
listed in subsection B shall include (i) adult convictions for felonies
under the laws of any state or the United States that are substantially similar
to those listed in subsection B and (ii) findings of not innocent,
adjudications or convictions in the case of a juvenile if the juvenile offense
is substantially similar to those listed in subsection B, the offense would be
a felony if committed by an adult in the Commonwealth and the offense was
committed less than twenty 20 years before the second offense.
The Commonwealth shall notify the defendant in the indictment,
information, or warrant, at least thirty 30 days prior to trial,
of its intention to seek punishment pursuant to this section.
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, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 890 of the Acts of Assembly of 2011 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice.
Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-61, 18.2-67.1, 18.2-67.2, and 18.2-67.5:3 of the Code of Virginia are amended and reenacted as follows:
§ 18.2-61. Rape.
A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.
B. A violation of this section shall be punishable, in the
discretion of the court or jury, by confinement in a state correctional
facility for life or for any term not less than five years; the. The penalty
for a violation of subdivision A (iii), where the offender is 18 years of
age or older at the time of the offense shall include a mandatory minimum term
of confinement of life. The penalty for an offender who was convicted of a
violation of subdivision A (iii) who was younger than 18 years of age at
the time of the offense and more than three years older than the victim,
if done in the commission of, or as part of the same course of conduct as, or
as part of a common scheme or plan as a violation of (i) subsection A of §
18.2-47 or § 18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91, or (iii) § 18.2-51.2,
shall include a mandatory minimum term of confinement of 25 years. If the
term of confinement imposed for any violation of subdivision A (iii), where the
offender is more than three years older than the victim, is for a term less
than life imprisonment, and the judge shall impose, in addition to
any the active sentence, a suspended sentence of no less than 40
years. This suspended sentence shall be suspended for the remainder of the
defendant's life, subject to revocation by the court.
There shall be a rebuttable presumption that a juvenile over the age of 10 but less than 12, does not possess the physical capacity to commit a violation of this section. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.1. Forcible sodomy.
A. An accused shall be guilty of forcible sodomy if he or she engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person, and
1. The complaining witness is less than 13 years of age,;
or
2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
B. Forcible sodomy is a felony punishable by confinement in a
state correctional facility for life or for any term not less than five years.
The penalty for a violation of subdivision A 1, where the offender is
18 years of age or older at the time of the offense shall include a mandatory
minimum term of confinement of life. The penalty for an offender who was
convicted of a violation of subdivision A 1 who was younger than 18 years of
age at the time of the offense and more than three years older than the
victim, if done in the commission of, or as part of the same course of
conduct as, or as part of a common scheme or plan as a violation of (i)
subsection A of § 18.2-47 or 18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91, or
(iii) § 18.2-51.2, shall include a mandatory minimum term of confinement of
25 years. If the term of confinement imposed for any violation of
subdivision A 1, where the offender is more than three years older than the
victim, is for a term less than life imprisonment, and the judge
shall impose, in addition to any the active sentence, a suspended
sentence of no less than 40 years. This suspended sentence shall be suspended
for the remainder of the defendant's life, subject to revocation by the court.
In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.2. Object sexual penetration; penalty.
A. An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora or anus of a complaining witness, whether or not his or her spouse, other than for a bona fide medical purpose, or causes such complaining witness to so penetrate his or her own body with an object or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person or to penetrate, or to be penetrated by, an animal, and
1. The complaining witness is less than 13 years of age,;
or
2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
B. Inanimate or animate object sexual penetration is a felony
punishable by confinement in the state correctional facility for life or for
any term not less than five years. The penalty for a violation of subdivision A
1 where the offender is 18 years of age or older at the time of the offense
shall include a mandatory minimum term of confinement of life. The penalty for
an offender who was convicted of a violation of subdivision A 1 who was younger
than 18 years of age at the time of the offense and more than three years
older than the victim, if done in the commission of, or as part of the same
course of conduct as, or as part of a common scheme or plan as a violation of
(i) subsection A of § 18.2-47 or 18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91,
or (iii) § 18.2-51.2, shall include a mandatory minimum term of confinement
of 25 years. If the term of confinement imposed for any violation of
subdivision A 1, where the offender is more than three years older than the
victim, is for a term less than life imprisonment, and the judge
shall impose, in addition to any the active sentence, a suspended
sentence of no less than 40 years. This suspended sentence shall be suspended
for the remainder of the defendant's life, subject to revocation by the court.
In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.5:3. Punishment upon conviction of certain subsequent violent felony sexual assault.
A. Any person convicted of more than one an
offense specified in subsection B1, and convicted of an offense in
subsection B, when such offenses were not part of a common act, transaction
or scheme, and who has been at liberty as defined in § 53.1-151 between each
conviction shall, upon conviction of the second or subsequent such
the offense listed in subsection B1, be sentenced to life
imprisonment and shall not have all or any portion of the sentence suspended,
provided it is admitted, or found by the jury or judge before whom he is tried,
that he has been previously convicted of at least one of the specified offenses
listed in subsection B.
B. The provisions of offenses included in this subsection
A shall apply to convictions for are as follows:
1. Rape in violation of § 18.2-61;
2. Forcible sodomy in violation of § 18.2-67.1;
3. Object sexual penetration in violation of § 18.2-67.2;
4. Abduction with intent to defile in violation of § 18.2-48; or
5. Conspiracy to commit any offense listed in subdivisions 1 through 4 pursuant to § 18.2-22.
B1. The offenses included in this subsection are as follows:
1. Rape in violation of subdivision A (i) or A (ii) of § 18.2-61;
2. Forcible sodomy in violation of subdivision A 2 of § 18.2-67.1;
3. Object sexual penetration in violation of subdivision A 2 of § 18.2-67.2;
4. Abduction with intent to defile in violation of § 18.2-48; or
5. Conspiracy to commit any offense listed in subdivisions B 1 through 4 pursuant to § 18.2-22.
C. For purposes of this section, prior convictions
listed in subsection B shall include (i) adult convictions for felonies
under the laws of any state or the United States that are substantially similar
to those listed in subsection B and (ii) findings of not innocent, adjudications
or convictions in the case of a juvenile if the juvenile offense is
substantially similar to those listed in subsection B, the offense would be a
felony if committed by an adult in the Commonwealth and the offense was
committed less than twenty 20 years before the second offense.
The Commonwealth shall notify the defendant in the indictment,
information, or warrant, at least thirty 30 days prior to trial,
of its intention to seek punishment pursuant to this section.
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, the estimated amount of the necessary appropriation is at least $1,709,625 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice.
Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-61, 18.2-67.1, 18.2-67.2, 18.2-67.5:3, and 19.2-303 of the Code of Virginia are amended and reenacted as follows:
§ 18.2-61. Rape.
A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.
B. A violation of this section shall be punishable, in the
discretion of the court or jury, by confinement in a state correctional
facility for life or for any term not less than five years; the penalty for a
violation of subdivision A (iii), where
the offender is more than three years older than the victim, if done in the
commission of, or as part of the same course of conduct as, or as part of a
common scheme or plan as a violation of (i) subsection A of § 18.2-47 or §
18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91, or (iii) § 18.2-51.2, shall
include a mandatory minimum term of confinement of 25
years life.
If the term of confinement imposed for any
violation of subdivision A (iii), where the offender is more than three years
older than the victim, is for a term less than life imprisonment, the judge
shall impose, in addition to any active sentence, a suspended sentence of no
less than 40 years. This suspended sentence shall be suspended for the
remainder of the defendant's life, subject to revocation by the court.
There shall be a rebuttable presumption that a juvenile over the age of 10 but less than 12, does not possess the physical capacity to commit a violation of this section. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.1. Forcible sodomy.
A. An accused shall be guilty of forcible sodomy if he or she engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person, and
1. The complaining witness is less than 13 years of age, or
2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
B. Forcible sodomy is a felony punishable by confinement in a
state correctional facility for life or for any term not less than five years.
The penalty for a violation of subdivision A 1,
where the offender is more than three years older than the victim, if done in
the commission of, or as part of the same course of conduct as, or as part of a
common scheme or plan as a violation of (i) subsection A of § 18.2-47 or
18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91, or (iii) § 18.2-51.2,
shall include a mandatory minimum term of confinement of 25
years life.
If the term of confinement imposed for any violation
of subdivision A 1, where the offender is more than three years older than the
victim, is for a term less than life imprisonment, the judge shall impose, in
addition to any active sentence, a suspended sentence of no less than 40 years.
This suspended sentence shall be suspended for the remainder of the defendant's
life, subject to revocation by the court.
In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.2. Object sexual penetration; penalty.
A. An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora or anus of a complaining witness, whether or not his or her spouse, other than for a bona fide medical purpose, or causes such complaining witness to so penetrate his or her own body with an object or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person or to penetrate, or to be penetrated by, an animal, and
1. The complaining witness is less than 13 years of age, or
2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
B. Inanimate or animate object sexual penetration is a felony
punishable by confinement in the state correctional facility for life or for
any term not less than five years. The penalty for a violation of subdivision A
1 where the offender is more than three years older
than the victim, if done in the commission of, or as part of the same course of
conduct as, or as part of a common scheme or plan as a violation of (i)
subsection A of § 18.2-47 or 18.2-48, (ii) § 18.2-89, 18.2-90 or 18.2-91, or
(iii) § 18.2-51.2, shall include a mandatory minimum term
of confinement of 25
years life.
If the term of confinement imposed for any
violation of subdivision A 1, where the offender is more than three years older
than the victim, is for a term less than life imprisonment, the judge shall
impose, in addition to any active sentence, a suspended sentence of no less
than 40 years. This suspended sentence shall be suspended for the remainder of
the defendant's life, subject to revocation by the court.
In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.
§ 18.2-67.5:3. Punishment upon conviction of certain subsequent violent felony sexual assault.
A. Any person convicted of more
than one an offense
specified in subsection B 1,
and convicted of an offense in subsection B, when
such offenses were not part of a common act, transaction or scheme, and who has
been at liberty as defined in § 53.1-151 between each conviction shall, upon
conviction of the second or
subsequent such the offense listed in subsection B1, be sentenced to life imprisonment
and shall not have all or any portion of the sentence suspended, provided it is
admitted, or found by the jury or judge before whom he is tried, that he has
been previously convicted of at least one of the specified
offenses listed in subsection
B.
B. The provisions of offenses included in this subsection
A shall apply to convictions for are as follows:
1. Rape in violation of § 18.2-61;
2. Forcible sodomy in violation of § 18.2-67.1;
3. Object sexual penetration in violation of § 18.2-67.2;
4. Abduction with intent to defile in violation of § 18.2-48; or
5. Conspiracy to commit any offense listed in subdivisions 1 through 4 pursuant to § 18.2-22.
B.1. The offenses included in this subsection are as follows:
1. Rape in violation of subdivision A (i) or A (ii) of § 18.2-61;
2. Forcible sodomy in violation of subdivision A 2 of §18.2-67.1
3. Object sexual penetration in violation of subdivision A 2 of §18.2-67.2
4. Abduction with intent to defile in violation of § 18.2-48; or
5. Conspiracy to commit any offense listed in subdivisions 1 through 4 of subsection B pursuant to § 18.2-22.
C. For purposes of this section, prior
convictions listed in subsection
B shall include (i) adult convictions for felonies under
the laws of any state or the United States that are substantially similar to
those listed in subsection B and (ii) findings of not innocent, adjudications
or convictions in the case of a juvenile if the juvenile offense is
substantially similar to those listed in subsection B, the offense would be a
felony if committed by an adult in the Commonwealth and the offense was
committed less than twenty years before the second offense.
The Commonwealth shall notify the defendant in the indictment, information, or warrant, at least thirty days prior to trial, of its intention to seek punishment pursuant to this section.
§ 19.2-303. Suspension or modification of sentence; probation; taking of fingerprints and blood, saliva, or tissue sample as condition of probation.
After conviction, whether with or without jury, the court may suspend imposition of sentence or suspend the sentence in whole or part and in addition may place the defendant on probation under such conditions as the court shall determine, including monitoring by a GPS (Global Positioning System) tracking device, or other similar device, or may, as a condition of a suspended sentence, require the defendant to make at least partial restitution to the aggrieved party or parties for damages or loss caused by the offense for which convicted, or to perform community service, or both, under terms and conditions which shall be entered in writing by the court. The defendant may be ordered by the court to pay the cost of the GPS tracking device or other similar device. If, however, the court suspends or modifies any sentence fixed by a jury pursuant to § 19.2-295, the court shall file a statement of the reasons for the suspension or modification in the same manner as the statement required pursuant to subsection B of § 19.2-298.01. The judge, after convicting the defendant of a felony, shall determine whether a copy of the defendant's fingerprints are on file at the Central Criminal Records Exchange. In any case where fingerprints are not on file, the judge shall require that fingerprints be taken as a condition of probation. Such fingerprints shall be submitted to the Central Criminal Records Exchange under the provisions of subsection D of § 19.2-390.
In those courts having electronic access to the Local Inmate Data System (LIDS) within the courtroom, prior to or upon sentencing, the clerk of court shall also determine by reviewing LIDS whether a blood, saliva, or tissue sample has been taken for DNA analysis and submitted to the DNA data bank maintained by the Department of Forensic Science pursuant to Article 1.1 (§ 19.2-310.2 et seq.) of Chapter 18 of this title. In any case in which the clerk has determined that a DNA sample or analysis is not stored in the DNA data bank, or in any case in which electronic access to LIDS is not available in the courtroom, the court shall order that the defendant appear within 30 days before the sheriff or probation officer and allow the sheriff or probation officer to take the required sample. The order shall also require that, if the defendant has not appeared and allowed the sheriff or probation officer to take the required sample by the date stated in the order, then the sheriff or probation officer shall report to the court the defendant's failure to appear and provide the required sample.
After conviction and upon sentencing of an active participant or member of a criminal street gang, the court may, as a condition for suspending the imposition of the sentence in whole or in part or for placing the accused on probation, place reasonable restrictions on those persons with whom the accused may have contact. Such restrictions may include prohibiting the accused from having contact with anyone whom he knows to be a member of a criminal street gang, except that contact with a family or household member, as defined in § 16.1-228, shall be permitted unless expressly prohibited by the court.
In any case where a defendant is convicted of a violation of §
18.2-48, 18.2-61, 18.2-63, 18.2-67.1, 18.2-67.2, 18.2-67.3, 18.2-370, or
18.2-370.1, committed on or after July 1, 2006, and some portion of the
sentence is suspended, the judge shall order that the period of suspension shall
be for a length of time at least equal to the statutory maximum period for
which the defendant might originally have been sentenced to be imprisoned, and
the defendant shall be placed on probation for that period of suspension
subject to revocation by the court. The conditions of probation may include
such conditions as the court shall determine, including active supervision. Where the conviction
is for a violation of clause (iii) of subsection A of § 18.2-61, subdivision A
1 of § 18.2-67.1, or subdivision A 1 of § 18.2-67.2, the court shall order that
at least three years of the probation include active supervision of the
defendant under a postrelease supervision program operated by the Department of
Corrections, and for at least three years of such active supervision, the
defendant shall be subject to electronic monitoring by means of a GPS (Global
Positioning System) tracking device, or other similar device.
If a person is sentenced to jail upon conviction of a misdemeanor or a felony, the court may, at any time before the sentence has been completely served, suspend the unserved portion of any such sentence, place the person on probation for such time as the court shall determine, or otherwise modify the sentence imposed.
If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.
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, the estimated amount of the necessary appropriation is $1,711,348 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice.