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2021 SESSION

21102512D
SENATE BILL NO. 1203
Offered January 13, 2021
Prefiled January 11, 2021
A BILL to amend and reenact 8.01-42.1, 8.01-49.1, 18.2-51, 18.2-57, 18.2-121, and 52-8.5 of the Code of Virginia, relating to hate crimes; associational relationships; penalty.
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Patrons-- Hashmi; Delegate: Carr
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Referred to Committee on the Judiciary
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Be it enacted by the General Assembly of Virginia:

1. That 8.01-42.1, 8.01-49.1, 18.2-51, 18.2-57, 18.2-121, and 52-8.5 of the Code of Virginia are amended and reenacted as follows:

8.01-42.1. Civil action for racial, religious, or ethnic harassment, violence, or vandalism.

A. An action for injunctive relief or civil damages, or both, shall lie for any person who is subjected to acts of (i) intimidation or harassment, (ii) violence directed against his person, or (iii) vandalism directed against his real or personal property, where such acts are motivated by, in whole or in part, racial, religious, gender, disability, gender identity, sexual orientation, or ethnic animosity toward such person's actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation or because of such person's actual or perceived association with another person or group of a certain actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation.

B. Any aggrieved party who initiates and prevails in an action authorized by this section shall be entitled to damages, including punitive damages, and in the discretion of the court to an award of the cost of the litigation and reasonable attorney fees in an amount to be fixed by the court.

C. The provisions of this section shall not apply to any actions between an employee and his employer, or between or among employees of the same employer, for damages arising out of incidents occurring in the workplace or arising out of the employee-employer relationship.

D. As used in this section:

"Disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities.

8.01-49.1. Liability for defamatory material on the Internet.

A. No provider or user of an interactive computer service on the Internet shall be treated as the publisher or speaker of any information provided to it by another information content provider. No provider or user of an interactive computer service shall be liable for (i) any action voluntarily taken by it in good faith to restrict access to, or availability of, material that the provider or user considers to be obscene, lewd, lascivious, excessively violent, harassing, or intended to incite hatred on the basis of race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin a person's actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation or a person's actual or perceived association with another person or group of a certain actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation, whether or not such material is constitutionally protected, or (ii) any action taken to enable, or make available to information content providers or others, the technical means to restrict access to information provided by another information content provider.

B. As used in this section:

"Disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities.

"Information content provider" means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

"Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

"Internet" means the international computer network of interoperable packet-switched data networks.

18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.

A. If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall is, except where it is otherwise provided, be guilty of a Class 3 felony.

B. If such act be is done unlawfully but not maliciously, with the intent aforesaid, the offender shall be is guilty of a Class 6 felony.

C. Any person who commits a violation of subsection A and intentionally selects the person against whom the malicious wounding is committed because of such person's actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation or because of such person's actual or perceived association with another person or group of a certain actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation, he shall, except where it is otherwise provided, be punished by a term of imprisonment of not less than five years, nor more than 40 years.

18.2-57. Assault and battery; penalty.

A. Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his such person's actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation, color, or national origin or because of such person's actual or perceived association with another person or group of a certain actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation, the penalty upon conviction shall include a term of confinement of at least six months.

B. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his such person's actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation, color, or national origin or because of such person's actual or perceived association with another person or group of a certain actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation, the person is guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months.

C. In addition, if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a judge, a magistrate, a law-enforcement officer as defined in subsection F, a correctional officer as defined in 53.1-1, a person directly involved in the care, treatment, or supervision of inmates in the custody of the Department of Corrections or an employee of a local or regional correctional facility directly involved in the care, treatment, or supervision of inmates in the custody of the facility, a person directly involved in the care, treatment, or supervision of persons in the custody of or under the supervision of the Department of Juvenile Justice, an employee or other individual who provides control, care, or treatment of sexually violent predators committed to the custody of the Department of Behavioral Health and Developmental Services, a firefighter as defined in 65.2-102, or a volunteer firefighter or any emergency medical services personnel member who is employed by or is a volunteer of an emergency medical services agency or as a member of a bona fide volunteer fire department or volunteer emergency medical services agency, regardless of whether a resolution has been adopted by the governing body of a political subdivision recognizing such firefighters or emergency medical services personnel as employees, engaged in the performance of his public duties anywhere in the Commonwealth, such person is guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of six months.

Nothing in this subsection shall be construed to affect the right of any person charged with a violation of this section from asserting and presenting evidence in support of any defenses to the charge that may be available under common law.

D. In addition, if any person commits a battery against another knowing or having reason to know that such other person is a full-time or part-time employee of any public or private elementary or secondary school and is engaged in the performance of his duties as such, he is guilty of a Class 1 misdemeanor and the sentence of such person upon conviction shall include a sentence of 15 days in jail, two days of which shall be a mandatory minimum term of confinement. However, if the offense is committed by use of a firearm or other weapon prohibited on school property pursuant to 18.2-308.1, the person shall serve a mandatory minimum sentence of confinement of six months.

E. In addition, any person who commits a battery against another knowing or having reason to know that such individual is a health care provider as defined in 8.01-581.1 who is engaged in the performance of his duties in a hospital or in an emergency room on the premises of any clinic or other facility rendering emergency medical care is guilty of a Class 1 misdemeanor. The sentence of such person, upon conviction, shall include a term of confinement of 15 days in jail, two days of which shall be a mandatory minimum term of confinement.

F. As used in this section:

"Disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities.

"Hospital" means a public or private institution licensed pursuant to Chapter 5 ( 32.1-123 et seq.) of Title 32.1 or Article 2 ( 37.2-403 et seq.) of Chapter 4 of Title 37.2.

"Judge" means any justice or judge of a court of record of the Commonwealth including a judge designated under 17.1-105, a judge under temporary recall under 17.1-106, or a judge pro tempore under 17.1-109, any member of the State Corporation Commission, or of the Virginia Workers' Compensation Commission, and any judge of a district court of the Commonwealth or any substitute judge of such district court.

"Law-enforcement officer" means any full-time or part-time employee of a police department or sheriff's office that is part of or administered by the Commonwealth or any political subdivision thereof who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth, any conservation officer of the Department of Conservation and Recreation commissioned pursuant to 10.1-115, any special agent of the Virginia Alcoholic Beverage Control Authority, conservation police officers appointed pursuant to 29.1-200, full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to 46.2-217, and any employee with internal investigations authority designated by the Department of Corrections pursuant to subdivision 11 of 53.1-10, and such officer also includes jail officers in local and regional correctional facilities, all deputy sheriffs, whether assigned to law-enforcement duties, court services or local jail responsibilities, auxiliary police officers appointed or provided for pursuant to 15.2-1731 and 15.2-1733, auxiliary deputy sheriffs appointed pursuant to 15.2-1603, police officers of the Metropolitan Washington Airports Authority pursuant to 5.1-158, and fire marshals appointed pursuant to 27-30 when such fire marshals have police powers as set out in 27-34.2 and 27-34.2:1.

"School security officer" means the same as that term is defined in 9.1-101.

G. "Simple assault" or "assault and battery" shall not be construed to include the use of, by any school security officer or full-time or part-time employee of any public or private elementary or secondary school while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) reasonable and necessary force for self-defense or the defense of others; or (v) reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or associated paraphernalia that are upon the person of the student or within his control.

In determining whether a person was acting within the exceptions provided in this subsection, due deference shall be given to reasonable judgments that were made by a school security officer or full-time or part-time employee of any public or private elementary or secondary school at the time of the event.

18.2-121. Entering property of another for purpose of damaging it, etc.

A. As used in this section, "disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities.

B. It is unlawful for any person to enter the land, dwelling, outhouse, or any other building of another for the purpose of damaging such property or any of the contents thereof or in any manner to interfere with the rights of the owner, user, or occupant thereof to use such property free from interference.

Any person violating the provisions of this section is guilty of a Class 1 misdemeanor. However, if a person intentionally selects the property entered because of the race, religious conviction, color, gender, disability, gender identity, sexual orientation, or national origin actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation of the owner, user, or occupant of the property, or because of the actual or perceived association of the owner, user, or occupant of the property with another person or group of a certain actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation, the person is guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months.

52-8.5. Reporting hate crimes.

A. The Superintendent shall establish and maintain within the Department of State Police a central repository for the collection and analysis of information regarding hate crimes and groups and individuals carrying out such acts.

B. State, county, and municipal law-enforcement agencies shall report to the Department all hate crimes occurring in their jurisdictions in a form, time, and manner prescribed by the Superintendent. Such reports shall not be open to public inspection except insofar as the Superintendent shall permit.

C. As used in this section:

"Disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities.

"Hate crime" means (i) a criminal act committed against a person or his property with the specific intent of instilling fear or intimidation in the individual against whom the act is perpetrated because of race, religion, gender, disability, gender identity, sexual orientation, or ethnic or national origin such person's actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation or because of such person's actual or perceived association with another person or group of a certain actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation or that is committed for the purpose of restraining that person from exercising his rights under the Constitution or laws of the Commonwealth or of the United States; (ii) any illegal act directed against any persons or their property because of those persons' race, religion, gender, disability, gender identity, sexual orientation, or ethnic or national origin actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation; and (iii) all other incidents, as determined by law-enforcement authorities, intended to intimidate or harass any individual or group because of race, religion, gender, disability, gender identity, sexual orientation, or ethnic or national origin actual or perceived race, color, ethnicity, religious conviction, national origin, gender, sex, disability, gender identity, gender expression, or sexual orientation.

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 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.