Virginia AG Mark Herring Invalidates General Assembly, Protects Statutory Rapists

Barb Wire

By Steve Albertson BarbWire guest contributor

Virginia’s Attorney General issued a formal advisory opinion on September 12, 2014 that countermands legislative protection of sexually abused minors by removing the requirement that social workers, nurses, and others must report instances of sexual abuse. Now, according to Herring, they must report the rape of a young teenage girl only when it was the girl’s father or guardian who perpetrated it.

The AG opinion, which in many important regards carries the force of law in Virginia, was issued by Herring in response to an inquiry from State Health Commissioner Marissa Levine. Levine inquired about the extent of certain obligations of nurses and others in positions of public responsibility (such as teachers, social workers, probation officers, and the like) to report evidence of child abuse or neglect. Virginia law requires that such people “who, in their professional or official capacity, have reason to suspect that a child is an abused or neglected child,” to “report the matter immediately” to the relevant social services office.

Specifically, Levine inquired about whether, “upon reviewing the medical record of a fourteen-year-old girl who was pregnant and received services, such as prenatal or abortion services,” a state health department nurse would be obligated to report it, particularly given that it is a crime in Virginia to have sex with 13- or 14-year-old girl.

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Herring ruled that reporting in this instance is not required unless the girl’s father or some other adult in charge of caring for her is known to be the statutory rapist.  In other words, if an uncle, brother, cousin, neighbor, teacher, police officer, pastor, mail man or anybody else had raped the girl, it is now apparently not the duty of those people in positions of public trust who have knowledge of that crime to report it, no matter how young the pregnant girl might be.

Two major questions emerge when one reads this disgusting opinion. How can he say this, and why would he want to?

First, the “how.” According to Herring’s opinion, a previous Attorney General in 1989 ruled on this question, and concluded that no such reporting was required. The reasoning has to do with the statute’s definition of “abused or neglected child” when it comes to sexual predation. The definition (contained here) says that an abused or neglected child is one:

[w]hose parents or other person responsible for his care commits or allows to be committed any act of sexual exploitation or any sexual act upon a child in violation of the law

Hence, distasteful as it may be, the 1989 opinion just gave an interpretation that the law did not classify as “child abuse” acts committed by those not responsible for the child. However, recognizing this weakness and wishing to correct the law, the General Assembly passed an amendment to the same title, reading as follows:

Nothing in this section shall relieve any person specified in § 63.2-1509 from making a report required by that section, regardless of the identity of the person suspected to have caused such abuse or neglect.  (Emphasis added.)

The General Assembly, then, clearly wanted required reporters to continue reporting sexual abuse of a child, recognizing that it can still be child abuse when someone other than the child’s parents or guardians is responsible. Attorney General Herring disagrees, and instead has substituted his opinion of legislative intent for that of the General Assembly’s, when he writes that the two provisions cannot both be enforced. This essentially invalidates the clarifying amendment passed by the General Assembly to modify the reach of the reporting requirement. In other words, the Attorney General has just made up the law on his own.

Second, the “why” behind Herring’s actions is clear: it’s all about abortion.

Allow me to hypothesize about how this might have come up. A nurse in the employ of the Virginia Department of Health is conducting a routine inspection of a hospital’s records. She comes across the record of a 14-year-old girl who came to the hospital for abortion services after having been abused by someone who wasn’t her father (setting aside for now whether it was “consensual”). Maybe it was her mother’s boyfriend, maybe someone else. The nurse, who has been trained on her reporting requirement under the law, knows that there is something wrong with this picture, but doesn’t want to interfere with the provision of the “services,” because, you know, what if the young lady’s mother found out?

So, the nurse asks her superiors. Her superiors then contact the office of Mark Herring, a man who needs to burnish his pro-abortion credentials ahead of a gubernatorial run in 2017, and presto: a ruling that (a) essentially invalidates an Act of the General Assembly; (b) endangers girls who are often too young, too terrified or too powerless to extract themselves from a bad situation; but (c) clears the path for unimpeded delivery of abortions. This is without regard for the fact that a crime involving a child has necessarily been committed, or whether a parent or guardian is covering for the perpetrator, or whether the parent or guardian is even aware of how their little girl has been victimized.

Now, to be clear, I don’t have any evidence suggesting the above hypothetical is true, but it certainly fits a pattern of this administration (this Attorney General in particular) of bending the law to suit narrow political goals.

This is not just trying to not criminalize sex between minors, as some Herring defenders are bound to say.  If it were (e.g., if the girl and her mother were at the hospital for some sort of prenatal care after the girl got pregnant by her boyfriend), it seems far fetched to believe that the Virginia Department of Health would have taken notice of this as an instance of child abuse, much less gone to the Attorney General about it. No, this is about finding an excuse to not report certain instances of real abuse in order to not discourage delivery of more “services” to victimized children.

What’s more disturbing about this—and more revealing of the Attorney General’s motivations—is that it’s not limited to questions of whether Virginia’s statutory rape law has been violated.  Where the General Assembly had previously clearly required reporting of evidence of child abuse, not only does this Attorney General take pains to carefully parse what constitutes child abuse under the statute, he goes the extra mile to make sure it is understood that in the absence of that provision, no other crime against a minor must be reported either:

There is no law that requires a VDH licensing inspector to report a crime discovered during the inspection of a hospital.

This should come as unwelcome news to the General Assembly, and I sincerely hope that a bipartisan majority can address this injustice when the session reconvenes. One doesn’t have to be pro-life to recognize how this ruling potentially endangers the welfare of those kids who have been victimized once already, and who would be victimized again by people in a position of public trust refusing to take steps to report actual child abuse when they see it.

Steve Albertson is a lucky husband and proud father residing in Stafford, Virginia. A longtime Republican activist, he has served on the Republican Party of Virginia’s State Central Committee since 2012. The opinions expressed here are his own, and do not necessarily reflect the views of the Virginia GOP.

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