Virginia HB 246: Mental illness, neurocognitive disorder, etc.; affirmative defense or reduced penalty.

Bill Text

2026 SESSION

INTRODUCED

26102477D

HOUSE BILL NO. 246

Offered January 14, 2026

Prefiled January 8, 2026

A BILL to amend and reenact § 18.2-57 of the Code of Virginia, relating to affirmative defense or reduced penalty for mental illness, neurocognitive disorder, or intellectual or developmental disability.

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Patrons—Watts and Seibold

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Referred to Committee for Courts of Justice

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Be it enacted by the General Assembly of Virginia:

1. That § 18.2-57 of the Code of Virginia is amended and reenacted as follows:

§ 18.2-57. Assault and battery; penalty.

A. Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, gender, disability, gender identity, sexual orientation, color, or ethnic or national origin, the penalty upon conviction shall include a term of confinement of at least six months.

B. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, gender, disability, gender identity, sexual orientation, color, or ethnic or national origin, the person is guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months.

C. In addition, if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a judge, a magistrate, a law-enforcement officer as defined in subsection H, a correctional officer as defined in § 53.1-1, a person directly involved in the care, treatment, or supervision of inmates in the custody of the Department of Corrections or an employee of a local or regional correctional facility directly involved in the care, treatment, or supervision of inmates in the custody of the facility, a person directly involved in the care, treatment, or supervision of persons in the custody of or under the supervision of the Department of Juvenile Justice, an employee or other individual who provides control, care, or treatment of sexually violent predators committed to the custody of the Department of Behavioral Health and Developmental Services, a firefighter as defined in § 65.2-102, or a volunteer firefighter or any emergency medical services personnel member who is employed by or is a volunteer of an emergency medical services agency or as a member of a bona fide volunteer fire department or volunteer emergency medical services agency, regardless of whether a resolution has been adopted by the governing body of a political subdivision recognizing such firefighters or emergency medical services personnel as employees, engaged in the performance of his public duties anywhere in the Commonwealth, such person is guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of six months.

It is an affirmative defense to prosecution of a person for assault or assault and battery under this subsection if such person proves, by a preponderance of the evidence, that at the time of the assault or assault and battery (i) the person's behaviors were a result of (a) mental illness as defined in § 37.2-100 or (b) a neurocognitive disorder, including dementia, or an intellectual disability or a developmental disability such as autism spectrum disorder, as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, or (ii) the person met the criteria for issuance of an emergency custody order pursuant to § 37.2-808. If such person intends to introduce evidence pursuant to this subsection, he, or his counsel, shall give notice in writing to the attorney for the Commonwealth at least 60 days prior to his trial in circuit court, or at least 14 days if the trial date is set within 21 days of his last court appearance, of his intention to present such evidence. In the event that such notice is not given, and the person proffers such evidence at his trial as a defense, then the court may in its discretion either allow the Commonwealth a continuance or, under appropriate circumstances, bar such person from presenting such evidence. The period of any such continuance shall not be counted for speedy trial purposes under § 19.2-243.

If such person does not prove by a preponderance of the evidence that at the time of the assault or assault and battery his behaviors were a result of his mental illness, intellectual disability, developmental disability, or neurocognitive disorder but the evidence establishes that his mental illness, intellectual disability, developmental disability, or neurocognitive disorder otherwise contributed to his behaviors, the finder of fact may find such person guilty of a misdemeanor pursuant to subsection A.

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