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2005 SESSION


CHAPTER 631
An Act to amend and reenact 9.1-902, 9.1-908, 9.1-910, 16.1-69.48:1, 17.1-275.1, 17.1-275.2, 17.1-275.7, 17.1-805, 18.2-61, 18.2-67.1, 18.2-67.2, 19.2-218.1, 19.2-218.2, 19.2-299, 19.2-303.4, 19.2-335 and 19.2-336 of the Code of Virginia and to repeal 18.2-67.2:1 of the Code of Virginia, relating to sex crimes against spouses; penalty.
[H 2248]
Approved March 23, 2005
 

Be it enacted by the General Assembly of Virginia:

1. That 9.1-902, 9.1-908, 9.1-910, 16.1-69.48:1, 17.1-275.1, 17.1-275.2, 17.1-275.7, 17.1-805, 18.2-61, 18.2-67.1, 18.2-67.2, 19.2-218.1, 19.2-218.2, 19.2-299, 19.2-303.4, 19.2-335 and 19.2-336 of the Code of Virginia are amended and reenacted as follows:

9.1-902. Offenses requiring registration.

A. For purposes of this chapter:

"Offense for which registration is required" means:

1. A violation or attempted violation of 18.2-63, 18.2-64.1, former 18.2-67.2:1, 18.2-90 with the intent to commit rape, 18.2-374.1 or subsection D of 18.2-374.1:1; or a third or subsequent conviction of (i) 18.2-67.4, (ii) subsection C of 18.2-67.5 or (iii) 18.2-386.1;

2. Where the victim is a minor or is physically helpless or mentally incapacitated as defined in 18.2-67.10, a violation or attempted violation of subsection A of 18.2-47, clause (i) or (iii) of 18.2-48, 18.2-67.4, subsection C of 18.2-67.5, 18.2-361, 18.2-366, or clause (iv) of subsection B of 18.2-374.3;

3. A violation of Chapter 117 (18 U.S.C. 2421 et seq.) of Title 18 of the United States Code; or

4. A "sexually violent offense."

"Sexually violent offense" means a violation or attempted violation of:

1 a. Clause (ii) of 18.2-48, 18.2-61, 18.2-67.1, 18.2-67.2, 18.2-67.3, subsections A and B of 18.2-67.5, 18.2-370 or 18.2-370.1; or

2 b. Sections 18.2-63, 18.2-64.1, former 18.2-67.2:1, 18.2-90 with the intent to commit rape or, where the victim is a minor or is physically helpless or mentally incapacitated as defined in 18.2-67.10, a violation or attempted violation of subsection A of 18.2-47, 18.2-67.4, subsection C of 18.2-67.5, clause (i) or (iii) of 18.2-48, 18.2-361, 18.2-366, or 18.2-374.1. Conviction of an offense listed under this subdivision shall be deemed a sexually violent offense only if the person has been convicted of any two or more such offenses, provided that person had been at liberty between such convictions.

B. "Offense for which registration is required" and "sexually violent offense" shall also include any similar offense under the laws of the United States or any political subdivision thereof.

9.1-908. Duration of registration requirement.

Any person required to register or reregister shall be required to register for a period of 10 years from the date of initial registration, except that any person who has been convicted of (i) any sexually violent offense, or (ii) former 18.2-67.2:1 shall have a continuing duty to reregister for life.

Any period of confinement in a federal, state or local correctional facility, hospital or any other institution or facility during the otherwise applicable 10-year period shall toll the registration period and the duty to reregister shall be extended. Persons confined in a federal, state, or local correctional facility shall not be required to reregister until released from custody.

9.1-910. Removal of name and information from Registry.

A. Any person required to register, other than a person who has been convicted of any (i) sexually violent offense, (ii) two or more offenses for which registration is required or (iii) a violation of former 18.2-67.2:1, may petition the circuit court in which he was convicted or the circuit court in the jurisdiction where he then resides for removal of his name and all identifying information from the Registry. A petition may not be filed earlier than 10 years after the date of initial registration. The court shall hold a hearing on the petition at which the applicant and any interested persons may present witnesses and other evidence. If, after such hearing, the court is satisfied that such person no longer poses a risk to public safety, the court shall grant the petition. In the event the petition is not granted, the person shall wait at least 24 months from the date of the denial to file a new petition for removal from the Registry.

B. The State Police shall remove from the Registry the name of any person and all identifying information upon receipt of an order granting a petition pursuant to subsection A or at the end of the period for which the person is required to register under 9.1-908.

16.1-69.48:1. Fixed fee for misdemeanors, traffic infractions and other violations in district court; additional fees to be added.

A. Assessment of the fees provided for in this section shall be based on: (i) an appearance for court hearing in which there has been a finding of guilty; (ii) a written appearance with waiver of court hearing and entry of guilty plea; (iii) for a defendant failing to appear, a trial in his or her absence resulting in a finding of guilty; (iv) an appearance for court hearing in which the court requires that the defendant successfully complete traffic school or a driver improvement clinic, in lieu of a finding of guilty; or (v) a deferral of proceedings pursuant to 4.1-305, 16.1-278.8, 16.1-278.9, 18.2-57.3, 18.2-67.2:1, 18.2-251 or 19.2-303.2.

In addition to any other fee prescribed by this section, a fee of $20 shall be taxed as costs whenever a defendant fails to appear, unless, after a hearing requested by such person, good cause is shown for such failure to appear. No defendant with multiple charges arising from a single incident shall be taxed the applicable fixed fee provided in subsection B, C, or D of this section more than once for a single appearance or trial in absence related to that incident. However, when a defendant who has multiple charges arising from the same incident and who has been assessed a fixed fee for one of those charges is later convicted of another charge that arises from that same incident and that has a higher fixed fee, he shall be assessed the difference between the fixed fee earlier assessed and the higher fixed fee.

A defendant with charges which arise from separate incidents shall be taxed a fee for each incident even if the charges from the multiple incidents are disposed of in a single appearance or trial in absence.

In addition to the fixed fees assessed pursuant to this section, in the appropriate cases, the clerk shall also assess any costs otherwise specifically provided by statute.

B. In misdemeanors tried in district court, except for those proceedings provided for in subsection C, there shall be assessed as court costs a fixed fee of $61. The amount collected, in whole or in part, for the fixed fee shall be apportioned, as provided by law, to the following funds in the fractional amounts designated:

1. Processing fee (General Fund) (.573770);

2. Virginia Crime Victim-Witness Fund (.049180);

3. Regional Criminal Justice Training Academies Fund (.016393);

4. Courthouse Construction/Maintenance Fund (.032787);

5. Criminal Injuries Compensation Fund (.098361);

6. Intensified Drug Enforcement Jurisdiction Fund (.065574);

7. Sentencing/supervision fee (General Fund) (.131148); and

8. Virginia Domestic Violence Victim Fund (.032787).

C. In criminal actions and proceedings in district court for a violation of any provision of Article 1 ( 18.2-247 et seq.) of Chapter 7 of Title 18.2, there shall be assessed as court costs a fixed fee of $136. The amount collected, in whole or in part, for the fixed fee shall be apportioned, as provided by law, to the following funds in the fractional amounts designated:

1. Processing fee (General Fund) (.257353);

2. Virginia Crime Victim-Witness Fund (.022059);

3. Regional Criminal Justice Training Academies Fund (.007353);

4. Courthouse Construction/Maintenance Fund (.014706);

5. Criminal Injuries Compensation Fund (.044118);

6. Intensified Drug Enforcement Jurisdiction Fund (.029412);

7. Drug Offender Assessment and Treatment Fund (.551471);

8. Forensic laboratory fee and sentencing/supervision fee (General Fund) (.058824); and

9. Virginia Domestic Violence Victim Fund (.014706).

D. In traffic infractions tried in district court, there shall be assessed as court costs a fixed fee of $51. The amount collected, in whole or in part, for the fixed fee shall be apportioned, as provided by law, to the following funds in the fractional amounts designated:

1. Processing fee (General Fund) (.764706);

2. Virginia Crime Victim-Witness Fund (.058824);

3. Regional Criminal Justice Training Academies Fund (.019608);

4. Courthouse Construction/Maintenance Fund (.039216);

5. Intensified Drug Enforcement Jurisdiction Fund (.078431); and

6. Virginia Domestic Violence Victim Fund (.039216).

17.1-275.1. Fixed felony fee.

Upon conviction of any and each felony charge or upon a deferred disposition of proceedings in circuit court in the case of any and each felony disposition deferred pursuant to the terms and conditions of 16.1-278.8, 16.1-278.9, 18.2-61, 18.2-67.1, 18.2-67.2:1, or 18.2-251, there shall be assessed as court costs a fee of $350, to be known as the fixed felony fee.

The amount collected, in whole or in part, for the fixed felony fee shall be apportioned, as provided by law, to the following funds in the fractional amounts designated:

1. Sentencing/supervision fee (General Fund) (.5041143);

2. Forensic science fund (.1107143);

3. Court reporter fund (.0950571);

4. Witness expenses/expert witness fund (.0057143);

5. Virginia Crime Victim-Witness Fund (.0085714);

6. Intensified Drug Enforcement Jurisdiction Fund (.0114286);

7. Criminal Injuries Compensation Fund (.0857143);

8. Commonwealth's attorney fund (state share) (.0214286);

9. Commonwealth's attorney fund (local share) (.0214286);

10. Regional Criminal Justice Academy Training Fund (.0028571);

11. Warrant fee (.0342857);

12. Courthouse construction/maintenance fund (.0057143); and

13. Clerk of the circuit court (.0929714).

17.1-275.2. Fixed fee for felony reduced to misdemeanor.

In circuit court, upon the conviction of a person of any and each misdemeanor reduced from a felony charge, or upon a deferred disposition of proceedings in the case of any and each misdemeanor reduced from a felony charge and deferred pursuant to the terms and conditions of 4.1-305, 16.1-278.8, 16.1-278.9, 18.2-57.3, 18.2-67.2:1, or 19.2-303.2, there shall be assessed as court costs a fee of $202, to be known as the fixed fee for felony reduced to misdemeanor. However, this section shall not apply to those proceedings provided for in 17.1-275.8.

The amount collected, in whole or in part, for the fixed fee for felony reduced to misdemeanor shall be apportioned to the following funds in the fractional amounts designated:

1. Sentencing/supervision fee (General Fund) (.1904950);

2. Forensic science fund (.1918317);

3. Court reporter fund (.1647030);

4. Witness expenses/expert witness fund (.0099010);

5. Virginia Crime Victim-Witness Fund (.0148515);

6. Intensified Drug Enforcement Jurisdiction Fund (.0198020);

7. Criminal Injuries Compensation Fund (.0990099);

8. Commonwealth's attorney fund (state share) (.0371287);

9. Commonwealth's attorney fund (local share) (.0371287);

10. Regional Criminal Justice Academy Training Fund (.0049505);

11. Warrant fee (.0594059);

12. Courthouse construction/maintenance fund (.0099010); and

13. Clerk of the circuit court (.1608911).

17.1-275.7. Fixed misdemeanor fee.

In circuit court, upon (i) conviction of any and each misdemeanor, not originally charged as a felony,; (ii) a deferred disposition of proceedings in the case of any and each misdemeanor not originally charged as a felony and deferred pursuant to the terms and conditions of 4.1-305, 16.1-278.8, 16.1-278.9, 18.2-57.3, 18.2-67.2:1, or 19.2-303.2,; or (iii) any and each conviction of a traffic infraction or referral to a driver improvement clinic or traffic school in lieu of a finding of guilt for a traffic infraction, there shall be assessed as court costs a fee of $70, to be known as the fixed misdemeanor fee. However, this section shall not apply to those proceedings provided for in 17.1-275.8. This fee shall be in addition to any fee assessed in the district court.

The amount collected, in whole or in part, for the fixed misdemeanor fee shall be apportioned, as provided by law, to the following funds in the fractional amounts designated:

1. Sentencing/supervision fee (General Fund) (.0142857);

2. Witness expenses/expert witness fee (General Fund) (.0285714);

3. Virginia Crime Victim-Witness Fund (.0428571);

4. Intensified Drug Enforcement Jurisdiction Fund (.0571429);

5. Criminal Injuries Compensation Fund (.2857143);

6. Commonwealth's Attorney Fund (state share) (.0357143);

7. Commonwealth's Attorney Fund (local share) (.0357143);

8. Regional Criminal Justice Academy Training Fund (.0142857);

9. Warrant fee, as prescribed by 17.1-272 (.1714286);

10. Courthouse Construction/Maintenance Fund (.0285714); and

11. Clerk of the circuit court (.2857143).

17.1-805. Adoption of initial discretionary sentencing guideline midpoints.

A. The Commission shall adopt an initial set of discretionary felony sentencing guidelines which shall become effective on January 1, 1995. The initial recommended sentencing range for each felony offense shall be determined first, by computing the actual time-served distribution for similarly situated offenders, in terms of their conviction offense and prior criminal history, released from incarceration during the base period of calendar years 1988 through 1992, increased by 13.4 percent, and second, by eliminating from this range the upper and lower quartiles. The midpoint of each initial recommended sentencing range shall be the median time served for the middle two quartiles and subject to the following additional enhancements:

1. The midpoint of the initial recommended sentencing range for first degree murder, second degree murder, rape in violation of 18.2-61, forcible sodomy, object sexual penetration, and aggravated sexual battery, shall be further increased by (i) 125 percent in cases in which the defendant has no previous conviction of a violent felony offense,; (ii) 300 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of less than 40 years,; or (iii) 500 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of 40 years or more, except that the recommended sentence for a defendant convicted of first degree murder who has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more shall be imprisonment for life;

2. The midpoint of the initial recommended sentencing range for voluntary manslaughter, robbery, aggravated malicious wounding, malicious wounding, and any burglary of a dwelling house or statutory burglary of a dwelling house or any burglary committed while armed with a deadly weapon or any statutory burglary committed while armed with a deadly weapon shall be further increased by (i) 100 percent in cases in which the defendant has no previous conviction of a violent felony offense, (ii) 300 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of less than 40 years, or (iii) 500 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more;

3. The midpoint of the initial recommended sentencing range for manufacturing, selling, giving or distributing, or possessing with the intent to manufacture, sell, give or distribute a Schedule I or II controlled substance shall be increased by (i) 200 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of less than 40 years or (ii) 400 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more; and

4. The midpoint of the initial recommended sentencing range for felony offenses not specified in subdivision 1, 2 or 3 shall be increased by 100 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of less than 40 years, and by 300 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more.

B. For purposes of this chapter, previous convictions shall include prior adult convictions and juvenile convictions and adjudications of delinquency based on an offense which would have been at the time of conviction a felony if committed by an adult under the laws of any state, the District of Columbia, the United States or its territories.

C. For purposes of this chapter, violent felony offenses shall include solicitation to commit murder under 18.2-29; any violation of 18.2-31, 18.2-32, 18.2-32.1, 18.2-33, or 18.2-35; any violation of subsection B of 18.2-36.1; any violation of 18.2-40, 18.2-41, 18.2-46.5, 18.2-46.6, or 18.2-46.7; any Class 5 felony violation of 18.2-47; any felony violation of 18.2-48, 18.2-48.1 or 18.2-49; any violation of 18.2-51, 18.2-51.1, 18.2-51.2, 18.2-51.3, 18.2-51.4, 18.2-52, 18.2-52.1, 18.2-53, 18.2-53.1, 18.2-54.1, 18.2-54.2 or 18.2-55; any felony violation of 18.2-57.2; any violation of 18.2-58 or 18.2-58.1; any felony violation of 18.2-60.1 or 18.2-60.3; any violation of 18.2-61, 18.2-64.1, 18.2-67.1, 18.2-67.2, former 18.2-67.2:1, 18.2-67.3, 18.2-67.5, or 18.2-67.5:1 involving a third conviction of either sexual battery in violation of 18.2-67.4 or attempted sexual battery in violation of subsection C of 18.2-67.5; any Class 4 felony violation of 18.2-63; any violation of subsection A of 18.2-77; any Class 3 felony violation of 18.2-79; any Class 3 felony violation of 18.2-80; any violation of 18.2-89, 18.2-90, 18.2-91, 18.2-92 or 18.2-93; any felony violation of 18.2-152.7; any Class 4 felony violation of 18.2-153; any Class 4 felony violation of 18.2-154; any Class 4 felony violation of 18.2-155; any felony violation of 18.2-162; any violation of 18.2-279 involving an occupied dwelling; any violation of subsection B of 18.2-280; any violation of 18.2-281, 18.2-286.1, 18.2-289 or 18.2-290; any felony violation of subsection A of 18.2-282; any violation of subsection A of 18.2-300; any felony violation of 18.2-308.1 and 18.2-308.2; any violation of 18.2-308.2:1, or subsection M or N of 18.2-308.2:2; any violation of 18.2-308.3 or 18.2-312; any violation of subdivision (2) or (3) of 18.2-355; any violation of former 18.2-358; any violation of subsection B of 18.2-361; any violation of subsection B of 18.2-366; any violation of 18.2-368, 18.2-370 or 18.2-370.1; any violation of subsection A of 18.2-371.1; any felony violation of 18.2-369 resulting in serious bodily injury or disease; any violation of 18.2-374.1; any felony violation of 18.2-374.1:1; any violation of 18.2-374.3; any second or subsequent offense under 18.2-379 and 18.2-381; any felony violation of 18.2-405 or 18.2-406; any violation of 18.2-408, 18.2-413, 18.2-414 or 18.2-433.2; any felony violation of 18.2-460, 18.2-474.1 or 18.2-477.1; any violation of 18.2-477, 18.2-478, 18.2-480 or 18.2-485; any violation of 53.1-203; or any conspiracy or attempt to commit any offense specified in this subsection, and any substantially similar offense under the laws of any state, the District of Columbia, the United States or its territories.

18.2-61. Rape.

A. If any person has sexual intercourse with a complaining witness who is not, 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 thirteen 13 as the victim, he or she shall be guilty of rape.

B. If any person has sexual intercourse with his or her spouse and such act is accomplished against the spouse's will by force, threat or intimidation of or against the spouse or another, he or she shall be guilty of rape.

C. 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. 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 of subsection B  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.

D C. Upon a finding of guilt under subsection B  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, anallingus anilingus, or anal intercourse with a complaining witness who is 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 thirteen 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. An accused shall be guilty of forcible sodomy if (i) he or she engages in cunnilingus, fellatio, anallingus, or anal intercourse with his or her spouse, and (ii) such act is accomplished against the will of the spouse, by force, threat or intimidation of or against the spouse or another person.

However, no person shall be found guilty under this subsection unless, at the time of the alleged offense, (i) the spouses were living separate and apart, or (ii) the defendant caused bodily injury to the spouse by the use of force or violence.

C. Forcible sodomy is a felony punishable by confinement in a state correctional facility for life or for any term not less than five years. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation of subsection B  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.

D. C. Upon a finding of guilt under subsection B  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 who is not, whether or not his or her spouse with any object, 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 thirteen 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. An accused shall be guilty of inanimate or animate object sexual penetration if (i) he or she penetrates the labia majora or anus of his or her spouse with any object other than for a bona fide medical purpose, or causes such spouse to so penetrate his or her own body with an object and (ii) such act is accomplished against the spouse's will by force, threat or intimidation of or against the spouse or another person.

However, no person shall be found guilty under this subsection unless, at the time of the alleged offense, (i) the spouses were living separate and apart or (ii) the defendant caused bodily injury to the spouse by the use of force or violence.

C. 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. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation of subsection B  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.

D. C. Upon a finding of guilt under subsection B  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.

19.2-218.1. Preliminary hearings involving certain  sexual crimes against spouses.

A. In any preliminary hearing of a charge against a person for a violation under subsection B of 18.2-61, subsection B of 18.2-67.1, subsection B of or 18.2-67.2 or 18.2-67.2:1 where the complaining witness is the spouse of the accused, upon a finding of probable cause the court may request that its court services unit, in consultation with any appropriate social services organization, local board of mental health and mental retardation, or other community mental health services organization, prepare a report analyzing the feasibility of providing counseling or other forms of therapy for the accused and the probability such treatment will be successful. Based upon this report and any other relevant evidence, the court may, (i) with the consent of the accused, the complaining witness and the attorney for the Commonwealth in any case involving a violation of subsection B of 18.2-61, subsection B of 18.2-67.1 or subsection B of 18.2-67.2 or (ii) with the consent of the accused and after consideration of the views of the complaining witness in any case involving a violation of 18.2-67.2:1, authorize the accused to submit to and complete a designated course of counseling or therapy. In such case, the hearing shall be adjourned until such time as counseling or therapy is completed or terminated. Upon the completion of counseling or therapy by the accused and after consideration of a final evaluation to be furnished to the court by the person responsible for conducting such counseling or therapy and such further report of the court services unit as the court may require, and after consideration of the views of the complaining witness, the court, in its discretion, may discharge the accused if the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.

B. No statement or disclosure by the accused concerning the alleged offense made during counseling or any other form of therapy ordered pursuant to this section or 18.2-61, 18.2-67.1, 18.2-67.2, 18.2-67.2:1 or 19.2-218.2 may be used against the accused in any trial as evidence, nor shall any evidence against the accused be admitted which was discovered through such statement or disclosure.

19.2-218.2. Hearing before juvenile and domestic relations district court required for persons accused of certain violations against their spouses.

A. In any case involving a violation of subsection B of 18.2-61, subsection B of 18.2-67.1, subsection B of or 18.2-67.2 or 18.2-67.2:1 where the complaining witness is the spouse of the accused, where a preliminary hearing pursuant to 19.2-218.1 has not been held prior to indictment or trial, the court shall refer the case to the appropriate juvenile and domestic relations district court for a hearing to determine whether counseling or therapy is appropriate prior to further disposition unless the hearing is waived in writing by the accused. The court conducting this hearing may order counseling or therapy for the accused in compliance with the guidelines set forth in 19.2-218.1.

B. After such hearing pursuant to which the accused has completed counseling or therapy and upon the recommendation of the juvenile and domestic relations district court judge conducting the hearing, the judge of the circuit court may dismiss the charge with the consent of the attorney for the Commonwealth and if the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.

19.2-299. Investigations and reports by probation officers in certain cases.

A. Unless waived by the court and the defendant and the attorney for the Commonwealth, when a person is tried in a circuit court (i) upon a charge of assault and battery in violation of 18.2-57 or 18.2-57.2, stalking in violation of 18.2-60.3, sexual battery in violation of 18.2-67.4, attempted sexual battery in violation of 18.2-67.5, or driving while intoxicated in violation of 18.2-266, and is adjudged guilty of such charge, the court may, or on motion of the defendant shall,; or (ii) upon a felony charge not set forth in subdivision (iii) below, the court may when there is a plea agreement between the defendant and the Commonwealth and shall when the defendant pleads guilty without a plea agreement or is found guilty by the court after a plea of not guilty,; or (iii) the court shall when a person is charged and adjudged guilty of a felony violation, or conspiracy to commit or attempt to commit a felony violation, of 18.2-46.2, 18.2-46.3, 18.2-61, 18.2-63, 18.2-64.1, 18.2-64.2, 18.2-67.1, 18.2-67.2, 18.2-67.2:1, 18.2-67.3, 18.2-67.4:1, 18.2-67.5:1, 18.2-355, 18.2-356, 18.2-357, 18.2-361, 18.2-362, 18.2-366, 18.2-368, 18.2-370, 18.2-370.1, or 18.2-370.2, or any attempt to commit or conspiracy to commit any felony violation of 18.2-67.5, 18.2-67.5:2, or 18.2-67.5:3, direct a probation officer of such court to thoroughly investigate and report upon the history of the accused, including a report of the accused's criminal record as an adult and available juvenile court records, any information regarding the accused's participation or membership in a criminal street gang as defined in 18.2-46.1, and all other relevant facts, to fully advise the court so the court may determine the appropriate sentence to be imposed. The probation officer, after having furnished a copy of this report at least five days prior to sentencing to counsel for the accused and the attorney for the Commonwealth for their permanent use, shall submit his report in advance of the sentencing hearing to the judge in chambers, who shall keep such report confidential. The probation officer shall be available to testify from this report in open court in the presence of the accused, who shall have been advised of its contents and be given the right to cross-examine the investigating officer as to any matter contained therein and to present any additional facts bearing upon the matter. The report of the investigating officer shall at all times be kept confidential by each recipient, and shall be filed as a part of the record in the case. Any report so filed shall be made available only by court order and shall be sealed upon final order by the court, except that such reports or copies thereof shall be available at any time to any criminal justice agency, as defined in 9.1-101, of this or any other state or of the United States; to any agency where the accused is referred for treatment by the court or by probation and parole services; and to counsel for any person who has been indicted jointly for the same felony as the person subject to the report. Any report prepared pursuant to the provisions hereof shall without court order be made available to counsel for the person who is the subject of the report if that person is charged with a felony subsequent to the time of the preparation of the report. The presentence report shall be in a form prescribed by the Department of Corrections. In all cases where such report is not ordered, a simplified report shall be prepared on a form prescribed by the Department of Corrections. For the purposes of this subsection, information regarding the accused's participation or membership in a criminal street gang may include the characteristics, specific rivalries, common practices, social customs and behavior, terminology, and types of crimes that are likely to be committed by that criminal street gang.

B. As a part of any presentence investigation conducted pursuant to subsection A when the offense for which the defendant was convicted was a felony, the court probation officer shall advise any victim of such offense in writing that he may submit to the Virginia Parole Board a written request (i) to be given the opportunity to submit to the Board a written statement in advance of any parole hearing describing the impact of the offense upon him and his opinion regarding the defendant's release and (ii) to receive copies of such other notifications pertaining to the defendant as the Board may provide pursuant to subsection B of 53.1-155.

C. As part of any presentence investigation conducted pursuant to subsection A when the offense for which the defendant was convicted was a felony drug offense set forth in Article 1 ( 18.2-247 et seq.) of Chapter 7 of Title 18.2, the presentence report shall include any known association of the defendant with illicit drug operations or markets.

D. As a part of any presentence investigation conducted pursuant to subsection A, when the offense for which the defendant was convicted was a felony, not a capital offense, committed on or after January 1, 2000, the defendant shall be required to undergo a substance abuse screening pursuant to 18.2-251.01.

19.2-303.4. Payment of costs when proceedings deferred and defendant placed on probation.

A circuit or district court, which has deferred further proceedings, without entering a judgment of guilt, and placed a defendant on probation subject to terms and conditions pursuant to 4.1-305, 16.1-278.8, 16.1-278.9, 18.2-57.3, 18.2-61, 18.2-67.1, 18.2-67.2, 18.2-67.2:1, 18.2-251 or 19.2-303.2, shall impose upon the defendant costs.

19.2-335. Judge of district court to certify to clerk of circuit court costs of proceedings in criminal cases before him.

A judge of a district court before whom there is any proceeding in a criminal case, including any proceeding which has been deferred upon probation of the defendant pursuant to 16.1-278.8, 16.1-278.9, 18.2-61, 18.2-67.1, 18.2-67.2, 18.2-67.2:1, 18.2-251 or 19.2-303.2, shall certify to the clerk of the circuit court of his county or city, and a judge or court before whom there is, in a criminal case, any proceeding preliminary to conviction in another court, upon receiving information of the conviction from the clerk of the court wherein it is, shall certify to such clerk, all the expenses incident to such proceedings which are payable out of the state treasury.

19.2-336. Clerk to make up statement of whole cost, and issue execution therefor.

In every criminal case the clerk of the circuit court in which the accused is found guilty or is placed on probation during deferral of the proceedings pursuant to 16.1-278.8, 16.1-278.9, 18.2-61, 18.2-67.1, 18.2-67.2, 18.2-67.2:1, 18.2-251 or 19.2-303.2, or, if the conviction is in a district court, the clerk to which the judge thereof certifies as aforesaid, shall, as soon as may be, make up a statement of all the expenses incident to the prosecution, including such as are certified under 19.2-335, and execution for the amount of such expenses shall be issued and proceeded with. Chapter 21 ( 19.2-339 et seq.) of this title shall apply thereto in like manner as if, on the day of completing the statement, there was a judgment in such court in favor of the Commonwealth against the accused for such amount as a fine. However, in any case in which an accused waives trial by jury, at least ten 10 days before trial, but the Commonwealth or the court trying the case refuses to so waive, then the cost of the jury shall not be included in such statement or judgment.

2.  That 18.2-67.2:1 of the Code of Virginia is repealed.

3.  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 $43,177 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.