Sunday, February 7, 2016

These 3 Virginia Bills Need a "Specific Effective Date" Added or They Could Violate Ex Post Facto and Due Process


1- HB177-Albo now includes the text from HB604-Bell and HB672-Peace and a start date of July 1, 2016. 

It turns out HB177 (Albo’s portion) is to make Bestiality a Registrable offense in Virginia based on this Fairfax VA detectives opinion 

During last evenings Sub-Committee hearing Delegate Gilbert asked the VCSC contact to search the last 15-20 years of Virginia Bestially convictions to see if there is a correlation with future people sex crimes or not. Delegate Gilbert said if there isn’t a direct correlation then they won’t precede with that portion of HB177 but the bill is on tomorrow’s Full Committee docket. So I have little faith that any substantial data will be provided and that the Full Committee will just leave it in the Bill no matter what. By mandating public registration for abusing an animal we just are further diluting the Virginia Sex Offender Registry by just making it a name-and-shame roll call .  

2- HB1317-Cline was amended it is no longer elevating § 18.2-67.4:2 Sexual Abuse of a 13 or 14 year old, a Misdemeanor to a Felony. Now it addresses § 18.2-67.3 Aggravated Sexual Battery of a 13 or 14 year old by removing the need to prove force, threat or intimidation, this is already a Class 6 Felony and does not need a start date.

Original Post:

I just emailed the below message to every House Courts of Justice Committee member. 

If anyone would like to send the same or a similar message please feel free, all their email addresses are posted here:

Dear Virginia House Courts of Justice Committee Members, 

Tomorrow three Bills will be heard in Courts Criminal-Sub Committee that all need a start date of July 1, 2016 added to them, they are:
HB 1317 Cline: Sexual abuse of certain children; penalty  Companion Bill- SB86 Garrett a start date was added in Senate Committee
HB 177 –   Albo: Sex Offender and Crimes Against Minors Registry Act; crimes against nature, penalty
HB 604Rob Bell: Sex Offender and Crimes Against Minors Registry; receiving money from earnings of a prostitute 

If a start or “specific effective date” of this July is NOT added then the Virginia State Police (VSP) will apply them retroactively. 

For HB 1317 the retroactive application will be applied to those who are currently (and possibly formerly) listed on the VSP Sex Offender Registry. Anyone previously convicted under this statute through this coming June is/will be a Non-Violent Sex Offender but if HB1317 passes as-is after July they’ll be retroactively re-classified/elevated to Violent, without cause AND without due process.  

This “re-classification policy” was confirmed in a meeting I had back on September 23, 2015 with VSP Lt. Col. Kemmler (now retired), Captain Turner, Lieutenant Powers and Deputy Secretary of Public Safety Chapman. The VSP has previously done this both in 2006 and 2008 when similar changes were made by the Virginia Legislature to sex crime statutes. 

These newly categorized Violent Sex Offenders would become “Lifers” requiring the State Police to monitor and manage them until the day they die, instead of their current requirement of 15 years. This would also increase the Offenders re-registration requirements including costly certified-letters from once a year to 4 times a year.  

It’s quite likely that there are some Non-Violent Offenders who successfully petitioned for removal after they completed their required 15 years AND without a start date the Virginia State Police will mandate they are returned to our Registry (this happened in 2008) even though the court determined they had met their obligation and were relieved of their duty to register.  

For HB 177 and HB 604 anyone previously convicted of these crimes would now be mandated to register as public Sex Offender years after their conviction, without any due process. 

All the additional costs that come with retroactive application by the VSP for HB 1317, HB 177 and HB 604 are NOT being captured in ANY of the Fiscal Impact Statements.  

Similar retroactive mandates to register and to increase classification have been ruled Unconstitutional in other States for numerous reasons including individual risk was not taken into account, a violation of ex post facto AND a denial of due process. 

My final point here is that I believe homosexuals used to be convicted under Virginia’s Crimes Against Nature statute. If a start date is NOT added to HB 1317 I believe that would result in old convictions for gay relationships which is no longer a crime in 2016 would be forced to register publicly as a Sex Offender anyway and such retroactive mandates for convictions that are no longer a crime have also been ruled as unconstitutional in other states. 

For all these reasons I ask that ALL three of these Bills be given a start date of July 1, 2016 BEFORE they move out of the Courts of Justice Full Committee to avoid sweeping up former-offenders who were convicted of these crimes 5, 10, 15 and 20 years ago. Especially for HB 1317 because it was a misdemeanor when these Virginians were convicted, not a Felony. 

I would prefer not to have to stand up and request a start date for any of these Bills in Criminal-Sub Committee and I hope the Patrons will see that adding a start date will avoid numerous unnecessary and unintended consequences. 


Mary Davye Devoy