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Subcommittee backs affirmative-defense bill for people with intellectual and neurocognitive disabilities, 6–1
Summary
Senate Bill 10-13 would allow courts to consider an affirmative defense when a defendant’s assaultive behavior is found to be primarily caused by an intellectual or developmental disability, neurocognitive disorder or specified mental-health conditions.
Senate Bill 10-13, carried in the hearing by Senator Boyseco, would add an affirmative defense for defendants whose assaultive conduct a court finds was primarily caused by an intellectual or developmental disability, neurocognitive disorder or certain mental-health conditions. The measure also creates the possibility of reducing some charges to misdemeanors in those circumstances.
“SB 10-13 … gives protected people … a potential avenue, with an affirmative defense that if the individual’s behavior is correlated to their intellectual developmental disability like autism or mental health disorders such as dementia, then they would have the ability to have the courts decide if the affirmative defense is appropriate,” Senator Boyseco said. He emphasized the change would not prevent officers from charging, but would allow the court to determine whether the defense applies.
Disability advocates supported the bill in forceful testimony. Bridal Kellmar, president and co-founder of Decriminalized Developmental Disabilities, said families fear calling 911: “This amendment provides for an affirmative defense for individuals whose behavior are caused by their disabilities, helping to prevent unfair criminalization.” Tonya Milling of The Arc of Virginia and Bruce Cruiser of Mental Health Virginia also urged passage, saying the change would keep people who need treatment out of jail and encourage families to call for help.
Opposition testimony came from Nathan Green, Commonwealth’s Attorney for the City of Williamsburg and James City County, representing the Virginia Association of Commonwealth’s Attorneys. Green said the measure creates a defense that is asserted at trial rather than earlier in the process and deprives prosecutors of notice and expert documentation used under other statutes. “Rather than being transparent and open with the situation, this is a keep-your-cards-close-to-the-vest and only play them at trial,” he said.
Committee counsel and members discussed whether the bill should include a notice requirement similar to discovery rules or existing provisions for other defenses. Counsel noted the court must find the disability or disorder was the prevailing factor in the defendant’s conduct for the defense to apply. The sponsor said he was open to working on a notice provision and that members had previously discussed similar language.
After public testimony and committee discussion, the subcommittee moved to report the bill. The clerk recorded the roll: SB 10-13 was reported by a vote of 6 to 1.
Votes at a glance: SB 10-13 — Reported 6–1.
The measure will be refined before full committee, with members flagging a potential statutory notice provision to give prosecutors earlier notice in cases where the defense may be asserted.
