Wednesday, January 6, 2016

4.5 Months Later Still Waiting on One Virginia Attorney General Opinion, While Another Was Declined in 9 Days Called a “Hypothetical” by AG Herring’s Office, it’s NOT a Hypothetical!

The 4.5 Month Old Pending AG Request 

For the last 7 years I have asked numerous Virginia Delegates who are also attorneys “Can a Registered Sex Offender legally attend worship services or other activities on church property if there is a daycare or school also on the property"?  

Not one of them has been willing to give a straight ‘yes’ or ‘no’ answer.  

Some have told me "it depends" or "the code could be interpreted either way". Some have said, "Only if the daycare or school is operating" and others have said "Even if the school or daycare is closed they could be committing a felony" which would mean a 100% ban for RSO’s worshipping in the Commonwealth. 

The Virginia State Police have also been of no assistance on getting a clear answer to this very simple but VERY IMPORTANT question. 

The two Virginia statutes in question in this matter are:
§ 18.2-370.5. - Sex offenses prohibiting entry onto school or other property
§ 18.2-370.2. - Sex offenses prohibiting proximity to children on School and Daycare Property 

Back in late-2011 my Delegate Chris Peace -R offered to submit an A.G. Opinion on the matter, he never did. 

So on July 2, 2015 I reminded him (in an email) of his 2011 offer and asked him to please submit a request to the A.G., two weeks went by and I heard nothing. So I stopped by his local law office and made my request in-person. He did not out-and-out deny my request but he suggested he wanted the verbiage to be narrowly worded like for Violent Offenders, but not Non-Violent Offenders or only during daycare operating hours. At the end of the impromptu meeting I had a feeling he wouldn’t be submitting the A.G. Opinion. 

Per law § 2.2-505 , citizens can not submit requests for an A.G. Opinion but Virginia Legislators can so can the Governor, a constitutional officer, or the head of a state agency. 

A few weeks passed and I heard nothing from my Delegate so I then reached out to another Delegate and a Senator who both agreed we need to know if RSO’s Freedom to Worship by being on church property where a daycare and/or school resides is a crime or not in Virginia. They both offered to do a submission and on August 18, 2015 an official A.G. Opinion request was submitted by the Senator. I am NOT posting the submission letter or stating who the Senator was, once a decision has been made that would become public information. 

I have been checking the A.G Opinion page  daily for 4.5 months waiting for this decision to be posted. Why? 

Because if Virginia Attorney General Mark Herring did claim that it is in fact a Felony for our RSO’s to attend church Virginia's Code would be needed to be revised as soon as possible, which would be the upcoming General Assembly session in January 2016. If Virginia code remained as-is with no action from the Legislature then a Constitutional challenge would be inevitable. 

I have a feeling the AG’s Office is trying to avoid making a decision on the August 18, 2015 request. 

Can they decline an Opinion request? Yes, it turns out they can I just learned that a few days ago.

The 9 Day Declination

As readers remember from an earlier post back on September 23, 2015  I was asked to attend  a meeting at the VSP Headquarters (arranged and attended by Deputy Secretary Tonya Chapman) with (now retired) Lt. Col Kemmler. 

In that meeting Lt. Col. Kemmler advised me that the VSP interprets § 9.1-903. to mean every user-name to every website an RSO visits/uses even if they all link back to an email address that has already been registered which according to Lt. Col. Kemmler  would include but is not limited to:
  • All Charge card accounts 
-        American Express, Discover, Chase, Citibank, Wells Fargo, BOA, etc
  • All Bank accounts                       
-        Bank of America, Wachovia, Suntrust, Wells Fargo, USAA, PayPal, Google Wallet, Visa Checkout, etc
  • All Investment accounts              
-        401K, Edward Jones, eTrade, Scott Trade, Social Security, Payroll, Employer's Human Resources, etc
  • All Medical Records                       
-        Health Insurance Company, Bon Secours, Sentara, Virginia Urology, etc
  • All Utility/Service accounts        
-        Dominion Power, Virginia Natural Gas, Verizon, Richmond Water, HRUBS, State Farm, Geico, etc
  • All Benefits accounts                     
-        Virginia Employment Benefits, SNAP, Medicare, Medicaid, etc
  • All Websites                                      
-        eBay,, Craigslist, Google+, Linkein,,, Twitter, Instagram, You Tube, Netflix,, Home, Macy',, The Washington Post, NY Times, etc

Virginia’s RSO’s are completely unaware of this VSP interpretation/requirement. 

Virginia’s RSO’s are NOT being asked by the VSP for every user-name to every website they visit or intend to visit. 

I believe Lt. Col Kemmler’s interpretation actually exceeds the original intent of § 9.1-903.  and if Lt. Col. Kemmler’s interpretation is correct the VSP needs to better articulate this requirement to Virginia’s’ RSO immediately as most are not currently in compliance and could be facing a felony due to poor communication on the VSP and local authorities part. 

I asked Deputy Secretary Chapman to look into this with an AG Opinion in September, she never did. 

So then throughout November I contacted my State Delegate (Peace-R) and Senator (McDougle-R) multiple times via email and phone messages asking them to submit an AG Opinion on this matter, neither of them EVER responded to my request. 

Then a few days/weeks later at the Governors Parole Commission meeting someone who could submit the request offered to do so and I almost took them up on their kind offer but I really wanted a Republican to submit the request. 

Then I found a Delegate who has a constituent who had the exact same inquiry as I did and that Delegate was gracious enough to submit the AG Opinion request since the three people who had the ability, two of which represent me in Hanover County wouldn’t. 

On December 5, 2015 the AG Opinion request was submitted and on December 14th the AG’s Office declined to looked into it, I was notified of the declination on Christmas Eve. I am NOT posting either letter or stating who the Delegate was because they are almost as frustrated as I am about this matter AND I don't want anyone from their party condemning them for submitting it

The AG’s Office called the request “a hypothetical” in their response letter to the Delegate as the reason not to proceed. 

The request is NOT a hypothetical; it is real life and possibly an unconstitutional act based on court-rulings in other states for similar mandates and that is why we need a determination on the statute and how it’s being applied by the VSP. 

In my 8 years as a volunteer advocate I have encountered unprofessional, juvenile, prejudicial and cruel comments and actions by our elected officials. I have endured indifference, willful ignorance, hypocrisy, flat-out false statements/statistics and even one Delegate who made a blatantly false claim to a reporter about my advocacy in 2012 that could have seriously put my safety and my family member’s who resided in the Commonwealth safety at risk. 

These road-blocks/barriers are intended (I believe) to get me to quit advocating, to shut me up, to stop me from asking questions and pointing out legislation isn’t based on any factual evidence but instead on myth, hate and fear. 

The Virginians who are listed on the VSP Registry have countless legal hoops and hurdles that change every year and any slip up is a felony. Either the State wants them to abide by the rules or the State wants to trip them up........ with this recent AG declination I believe it’s the latter. 

I am a Virginian, born and raised. I am a taxpayer and a voter but yet I am not permitted to submit an AG Opinion to determine if the Virginia State Police is correctly interpreting Virginia law that affects 22,000+ citizens. 

So where does that leave a citizen of our State who advocates for thousands of other Virginians who are just trying to abide by the law and everyone who has the ability and the knowledge to answer the question, won’t. 

I’ll keep working to get some answers for all of you because you need to know what your legal obligations in the Commonwealth are. This is not a game, it’s your life hanging in the balance...... and it’s mine too. 

Mary Davye Devoy