A Virginia Law Devastates Families

A Virginia law devastates families of loved ones with intellectual and developmental disabilities, serious mental illness, and neurocognitive disorders. And the Governor of Virginia refuses to provide respite from felony prosecution and mandatory minimum sentences despite the Virginia General Assembly passing bills to provide protections for this vulnerable population.

“I can never call the police for aid when my 30-year-old son is in crisis,“ Teresa Champion says. Champion’s son is autistic, and has a spitting tic he cannot control. Like many caregivers of loved ones with intellectual and developmental disabilities (I/DD), mental illness, and neurocognitive disorders, Champion knows a Virginia statute criminalizes behaviors common to her loved one’s diagnosis. Something as minor as brushing past a police officer or other protected person, moving their hand away, tossing a crumpled up paper at them, tapping their shoulder, or even no touching at all can be charged as an assault on a protected person. The charge carries a felony and a mandatory minimum six-month sentence—meaning it must be served day for day no matter how minor the conduct, the defendant’s mental health, lack of a record, or whether the protected person was completely uninjured—and as much as five years in prison. “When he is in a fight or flight panic attack, those episodes are intense and, in his mind, he is being attacked by anyone around him. A law enforcement officer can be completely calm and my son could misinterpret words or movements and see them as threatening and then he responds defensively,” Champion explains further.  

“In any other circumstance outside of the protected person status, the behavior we’re talking about here would be, if anything, a misdemeanor assault. The elevated felony assault on a protected person statute gives police and prosecutors extraordinary power to punish those who may be perceived as intentionally insulting or defying an order,” says Rob Poggenklass, executive director of Justice Forward Virginia, the non-partisan advocacy organization founded by public defenders.

Champion isn’t alone, countless Virginia families that advocate alongside The Virginia Autism Project (VAP), where Champion serves as executive director, share almost identical stories. The outcry for help  pushed VAP, Mental Health America of Virginia (MHAV), Decriminalize Developmental Disabilities (DDD), and others to work feverishly for the last five years to amend the assault on a protected person statute in the Virginia General Assembly. HB 267 and SB 357 addressed the communities’ concerns and both passed the Virginia House and Senate in early March of 2024 with some bipartisan support. Virginia’s governor, Glenn Youngkin, vetoed the legislation, outraging members of the disability community and those that advocate for them. “These bills were carefully and thoughtfully constructed to protect this vulnerable group of people and to give families like mine reassurance that we can feel safe calling on the people sworn to protect and serve us,” Champion stated. Governor Youngkin stated that the legislation would have “undermined public safety” and that he has a duty to “protect people from harm” and bills that “impede law enforcement officers, prosecutors, and judges from holding criminals accountable and bringing them to justice.” Jennifer Litton Tidd, a disability rights advocate, says, “Governor Youngkin calls intellectually developmentally and mentally disabled people 'criminals' he needs to protect Virginians from. It was a vicious smack in the face to disabled people and their families.”

The bills’ patrons, Senator Jennifer Boysko and Delegate Vivian Watts, are adamant that the proposed amendment in this year’s legislation was not designed to be an attack on law enforcement and other protected individuals. Rather, it recognized that some of the most vulnerable people in our community aren't able to understand the deterrence that the law creates in a moment of crisis. “I’ve been working on this policy with families who have loved ones in the disability community for a number of years and am especially happy with the compromise language which reflects many meetings with law enforcement organizations, Justice Forward Virginia, Mental Health America, The Arc, Legal Reform for the Intellectually and Developmentally Disabled. This is a step in the right direction for making it safer to seek help for people experiencing a crisis,” said Senator Boysko. “The bills would not have prevented law enforcement officers from charging individuals who assault them,“ explains Poggenklass. “They simply created an affirmative defense for individuals with mental illness, and folks with intellectual or developmental disabilities, such as autism spectrum disorder. An affirmative defense is ultimately decided by lawyers, judges and juries.” The Governor stated that the affirmative defense “is unnecessary because Virginia laws already provide protections for individuals who are not criminally responsible due to mental illness,” referring to a narrowly drawn mental health evidence statute passed in 2021. “It’s extraordinarily rare that the mental health evidence statute would ever cover any of these cases. These are tactics of an opponent to reform—a soundbite he hopes that someone who doesn’t understand the law will accept,” says Poggenklass. 

A statement on the veto from Mental Health America of Virginia explains that 90% of these arrests are without any injury or simply with minor injury, like a scratch. “However, if it is a protected person, no matter how minor, the person is charged with this felony assault. A family member who calls police for help ends up regretting that call for the rest of their life,” explains MHAV’s executive director, Bruce Cruser. "We need to divert individuals with serious mental illness from the criminal justice system altogether, particularly when there is no bodily injury involved, and get the appropriate care—which is generally why the family member has called for help in the first place. The bills created an opportunity to avoid unnecessary felony convictions, imprisonment and further damage to a person’s mental health," says Cruser. According to the Virginia State Police, in 2022, there were a total of 2,903 reports of assault on a protected person. In 1,912 of those reports there was no injury at all; 703 of those reports cited a ”minor injury” (bruise, scratch, etc.).

Brian Kelmar, executive director of Decriminalize Developmental Disorders, explains that a felony charge can result in losing access to vital support services that families with loved ones with I/DD, mental illness, and neurocognitive disorders rely on, creates barriers to unemployment, and burdens families already navigating the difficulty of caregiving for their loved ones. “The unemployment or underemployment rate for autistic people is already around 85%. For an autistic person with a felony, it is almost 99%. The family’s initial cry for help can turn into a nightmare. Instead of getting help for their situation, the family faces long-term damage to their mental, emotional, and financial well-being,” says Kelmar. “Unless the General Assembly overturns the Governor’s veto and the law changes, our Commonwealth’s response to a family in dire need of help is to ruin their lives forever. Families in these situations need help now, not long-term devastation.” 

Martin Mash, network program director of Vocal Virginia—the only statewide mental health organization that is 100% staffed and governed by individuals living with mental health challenges—says, “amending the law would improve public safety by removing individuals from our criminal justice system who do not belong there. Further, the bills helped decriminalize mental health while also helping to remove the stigma associated with mental health challenges. These Individuals deserve a recovery-oriented approach to crisis, not criminal charges for behavior that is often outside of their control.”