Sexual abuse of certain children; penalty. (SB1138)

Introduced By

Sen. Tom Garrett (R-Lynchburg)


Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law


Sexual abuse of certain children; penalty. Raises the penalty for sexual abuse (a defined term) of a child 13 or 14 years old from a Class 1 misdemeanor to a Class 6 felony. Read the Bill »


Bill Has Failed


01/13/2015Prefiled and ordered printed; offered 01/14/15 15102530D
01/13/2015Referred to Committee for Courts of Justice
01/16/2015Impact statement from VCSC (SB1138)
01/21/2015Reported from Courts of Justice with amendment (14-Y 0-N) (see vote tally)
01/21/2015Rereferred to Finance
02/11/2015Left in Finance


Mary Devoy writes:

Senator Tom Garrett’s 2015 SB1138 is identical to his 2014 SB442 which was left to “die” in the Senate Finance Committee for very good reason.
Sounds reasonable, right? Wrong!
SB1138 does NOT have a start date of July 1, 2014; this means as currently written this proposal to increase the penalty for sexual abuse of a 13 or 14 year old from a Class 1 misdemeanor to a Class 6 felony would be applied retroactive, not beginning for those convicted on or after July 1, 2014. So anyone convicted in 2014, 2010, 2005, 2000, 1997 or even earlier would be retroactively reclassified from a Non-Violent Sex Offender to a Violent Sex Offender, without ANY due process. These newly categorized Violent Sex Offenders would now become “lifers” on the Virginia Registry, requiring Virginia State Police (VSP) monitoring and management until they die.
By not adding a start date to SB 1138 per § 9.1-901. Section C, Senator Garrett and any Virginia lawmaker who votes for SB1138 is denying Virginians due process and violating ex post facto.
How do I know this? Because the Virginia State Police has previously applied Legislative changes exactly like SB1138 retroactively to RSO’s on the VSP Registry for old convictions. Also during the 2014 debate of SB442 when I pointed this out to the Senate Courts of Justice Committee and to the patron….. the VSP Legislative Liaison approached the podium and agreed with me, that they would in fact apply it retroactively if a start date wasn’t added to the bill.
After the 2014 debate Senator Garrett told me he would add a start date to his 2014 bill (as I noted in a January 27, 2014 post), he didn’t! He told me what I wanted to hear thinking it would shut me up, it didn’t!

The 2015 fiscal impact statement is not yet available but we have the 2014 fiscal impact statement of $960,821 for just imprisonment. But what about all the current Non-Violent Sex Offenders who will be retroactively affected if a start date is not added to the bill? They would be mandated to re-register every 90 days instead of once a year (4 certified letters per year) and their 2 in-person residential visits by the VSP would now be until they die, that could be another 30, 40, 50 or even 60 years. This adds a huge amount of cost to the VSP monitoring and managing but none is capturing it anywhere.

The 2014 fiscal impact statement showed FY2012-2103 there were 45 people convicted under this statute. But then the “forecast” over the next six years out estimated 10 to 32 people being convicted by the statute, seems to be a disconnect in real cases and future estimates. So the next question is do we estimate the known 45 from FY2012 times the previous 20 years for an estimate of 900 current Non-Violent Offenders being reclassified to Violent because there is no start date?

I do not oppose raising the penalty from a misdemeanor to a felony beginning in 2015.

What I do oppose is the blatant denial to add a start date and that by not doing so no one will be retroactively affected when we all know they will, which makes the true fiscal impact of this change in code a complete unknown.

Lawmakers need to own their bills, if you propose it either say "yep I know it's unconstitutional so what" or fix it from being unconstitutional when evidence is presented proving it has issues but don't try and claim citizens are clueless and pass a flawed bill it anyway!

Mary Devoy writes:

Start date of 2015, not 2014. A typo I apologize.

Safer Virginia writes:

Based on the impact statement, the cost of implementation exceeds $1,000,000. The legislation continues the excessive criminalization in the Commonwealth. Rather than seeking to restore families affected by sexual abuse, the bill creates more harm by requiring longer periods of incarceration. This increased penalty directly affects families since, according to myriad research, over 90% of child sexual abuse is committed by family members, friends and acquaintances, not strangers.

The public disclosure to which sex offenders are exposed is unprecedented, and therefore SORN is unique in the degree to which invisible sanctions are inadvertently imposed upon and experienced by loved ones of offenders. As such, SORN creates impacts that are broad, and as illustrated in this study, deep and lasting. Family members, even those who do not live with RSOs, experience harassment, threats, violence, economic hardships, difficulties with housing, and psychological stresses simply because they are related to a sex offender. Whether intended or not, the criminal justice system, via SORN policies, extends punishments to a wide swath of
society beyond sex offenders.
Levenson, Jill S., and Richard Tewksbury. "Collateral Damage: Family Members of Registered Sex Offenders." Collateral Damage: Family Members of Registered Sex Offenders 34.1-2 (2009): 54-68. Springer Link. American Journal of Criminal Justice, 1 June 2009. Web. 11 Nov. 2013.