Legal Memorandum: Aggravated Sexual Battery in VA

Issue: Under Virginia law, what criminal liability may be imposed on a counselor who sexually abuses a client?

Aggravated sexual battery occurs when a person sexually abuses the complaining witness and “[t]he act is accomplished through the use of the complaining witness’s mental incapacity or physical helplessness . . . or the act is accomplished by force, threat, or intimidation.” Va. Code Ann. § 18.2-67.3(A)(2), (4) (2014).  “‘Sexual abuse’ means an act committed with the intent to sexually molest, arouse, or gratify any person, where [t]he accused intentionally touches the complaining witness’s intimate parts or material directly covering such intimate parts [or] the accused forces the complaining witness to touch the accused’s, the witness’s own, or another person’s intimate parts or material directly covering such intimate parts . . . [and] the act is accomplished through the use of the complaining witness’s mental incapacity or physical helplessness . . .”  Va. Code Ann. § 18.2-67.10(6) (2014).

The jury instruction for aggravated sexual battery provides:

The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

(1)        That the defendant sexually abused [name of person] ; and

(2)        That at the time of the offense [name of person] was mentally incapacitated; and

(3)        That at the time of the offense the defendant knew or should have known [name of person] was mentally incapacitated; and

(4)        That the sexual abuse was accomplished through the use of [name of person’s] mental incapacity.

Va. Crim. Jury Instruction 30.18.

In Holcomb v. Commonwealth, a pastor, Roger Holcomb, was convicted of sexually abusing several children.  Holcomb […]