DIVISION OF LEGISLATIVE SERVICES
VIRGINIA LEGISLATIVE ISSUE BRIEF
Number 26 December 2001

2002 SESSION: General Assembly Issues

Business - Campaigns/Elections - Constitutional Amendments - Courts -
Education - Finance/Taxation - Health - Local Government -
Mental Health - Natural Resources - Transportation - Virginians with Disabilities

Courts

Abandoned Babies

During the 2001 General Assembly Session, seven "abandoned baby" bills were introduced but did not pass. The basic premise of the bills is that a parent may anonymously abandon his/her infant at a designated infant receiving facility and not be criminally prosecuted for such abandonment. Parental rights would be terminated and the child would be placed for adoption. Although there was agreement that it is preferable for a baby to be anonymously delivered alive to an infant receiving facility rather than abandoned elsewhere, many questions were raised on how to accomplish this legally and in a manner that protects the best interests of all parties. The concept differs substantially from Virginia's existing procedures for taking custody of abandoned children and terminating parental rights. The bills were discussed intensively and emotionally and rewritten numerous times. The fiscal impact was estimated at $300,000.

In the summer of 2001 an abandoned baby study group, not mandated or coordinated by any governmental body, was convened. There were numerous participants representing a variety of interests. The study group, which met on six separate occasions, found the issues to be very complex and the solutions difficult. The report examines existing data on abandoned babies, resources, other states' laws, existing Virginia laws, father's rights, mother's rights, reunification, criminal prosecution, constitutional issues, termination of parental rights, voluntary entrustment and petitions for relief of care and custody of the child. There was no consensus as to what legislation might be appropriate. However, the group made some recommendations, and there was support for several legislative alternatives. The legislative alternative receiving the most support gives immunity for leaving an infant five days of age or younger with hospital staff personnel within the premises of an emergency room.

The study group made the following recommendations:

Enact legislation that would require all hospitals in Virginia to report child abandonment data to the Virginia Health Institute for a trial period.
The Virginia Department of Health should examine the possibility of utilizing risk data that is currently supplied voluntarily on birth certificates to determine whether these may indicate a way to assist parents at risk of abandoning their child.
A university should study members of the public who are of child-bearing age to assess the following: their perception of gaps in services, their knowledge of relevant resources, their knowledge of existing laws, and their perception of where and whether they are welcome to obtain services.
Improve outreach to the community about existing resources.
Make community services available to all persons of child-bearing age.
Raise awareness among the agencies that see the (assumed) highest-risk groups about this issue and the resources available to assist them as agencies.
Make it easier for the public to find resources; maximize the use and effectiveness of existing resources; avoid competition and duplication.
Virginia should take advantage of all opportunities available through Title XIX (State Children's Health Insurance Program) to provide health insurance to pregnant women up to the highest income level permissible under federal law (will require an appropriation).

Jescey D. French

Cross Burning

Three defendants were convicted under § 18.2-423 for burning a cross. The Court of Appeals of Virginia affirmed the convictions and held the statute constitutional. Upon appeal to the Supreme Court of Virginia, the Court held the statute unconstitutional on several grounds, reversed the Court of Appeals, and dismissed the case against the defendants.

The statute prohibited burning a cross with the intent of intimidating a person. The Court found this to be an infringement on constitutionally protected speech. The constitution allows for reasonable prohibition of time, place and manner of speech, as long as the regulation of speech is content-neutral in application. However, a statute cannot regulate speech based upon the underlying message contained in the speech. The Virginia statute applied only to the content of the speech. "It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross. . . . Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

Because the statute specifically regulated the content of the speech, and not the time, place or manner of the speech, it was held to be a violation of the First Amendment to the United States Constitution. Additionally, the statute reached both protected and unprotected speech, and the Court held that the statute was unconstitutionally over-broad.

Carey M. Friedman

Terrorism

Following the September 11 attack, the U.S. government has passed the USA Act of 2001, based on the perceived need to reinforce the legal system against terrorism. Many of the changes in the law are changes in criminal procedure (e.g., roving wiretaps).

Virginia may find itself in a position of similar necessity. Virginia's bail laws, wiretap laws, and bioterrorism laws (e.g., anthrax possession), among others, do not take into consideration the dangers presented by terrorists of the type involved in the September 11 attack. And under current law it is not clear how the delivery of an envelope containing a white powder would be charged.

While the Commonwealth's emergency preparedness, as authorized by statute, appears adequate, there may exist some cracks in the criminal procedural armor. In some cases, the criminal penalties associated with the crimes committed in the attack may be considered worthy of increase; however, almost every apparent criminal act would already be a crime under Virginia law.

D. Robie Ingram

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