Child Sex Offenses — Age-Based Article 7 Provisions

A. § 18.2-63 — Carnal Knowledge of Child 13–14

1. The defendant carnally knew the complaining witness — carnal knowledge is statutorily defined to include sexual intercourse, cunnilingus, fellatio, anilingus, anal intercourse, and animate or inanimate object sexual penetration (§ 18.2-63(C)(ii)). Penetration, however slight, is sufficient.
2. The act was accomplished without the use of force. (If force is used, charge § 18.2-61, § 18.2-67.1, or § 18.2-67.2 instead, depending on the act.)
3. The complaining witness was 13 or older but under 15 at the time of the act. A child under 13 is not a consenting child (§ 18.2-63(C)(i)) — proceed under § 18.2-61(A)(iii) / § 18.2-67.1(A)(1) / § 18.2-67.2(A)(1) instead.

Calibrate the subsection

• Subsection A (Class 4 felony) — default; covers any defendant absent the minor-defendant carve-out.
• Subsection B, first clause (Class 6 felony) — accused is a minor, consenting child is 3+ years junior, using actual dates of birth.
• Subsection B, second clause (Class 4 misdemeanor) — accused is a minor, consenting child is less than 3 years junior.

B. § 18.2-64.1 — Carnal Knowledge of Juveniles in Custodial Settings

1. The defendant was a person providing services, paid or unpaid, to (i) juveniles under the JDR Law, or (ii) juveniles committed to DJJ custody.
2. The defendant carnally knew (same broad definition) the complaining witness, without the use of force.
3. The complaining witness was a minor 15 or older who was (i) confined or detained in jail, (ii) detained in a § 16.1-249 facility, or (iii) committed to DJJ under § 16.1-278.8; or, alternatively, the minor was on probation, furlough, leave, or had escaped/absconded.
4. The defendant knew or had good reason to believe the minor was in such custodial status.

Grade: Class 6 felony.

C. § 18.2-67.4:2 — Sexual Abuse of Child Under 15

1. The defendant is an adult (18+) at the time of the offense.
2. The defendant committed an act of sexual abuse as defined in § 18.2-67.10 (cross-reference sexual-assault companion sheet, § 3.F for the four-prong sexual-abuse definition).
3. The act was committed with lascivious intent.
4. The complaining witness was 13 or older but under 15.

Grade: Class 1 misdemeanor.

D. § 18.2-61(A)(iii) — Rape of Child Under 13 (and parallel under-13 subdivisions)

1. Sexual intercourse with the complaining witness (or causing the complaining witness to engage in sexual intercourse with another person).
2. The complaining witness was under 13 at the time of the act.

No force, threat, intimidation, mental incapacity, or physical helplessness need be proved — age alone is the trigger. Same structure for § 18.2-67.1(A)(1) (forcible sodomy acts) and § 18.2-67.2(A)(1) (object sexual penetration).

E. § 18.2-67.3(A)(1) — Aggravated Sexual Battery of Child Under 13

1. The defendant committed sexual abuse (§ 18.2-67.10(6) four-prong definition).
2. The complaining witness was under 13 at the time.

F. § 18.2-67.3(A)(3) — Aggravated Sexual Battery by Parent/Grandparent of 13–17 y/o

1. The defendant committed sexual abuse.
2. The defendant is a parent, step-parent, grandparent, or step-grandparent of the complaining witness.
3. The complaining witness was 13 or older but under 18 at the time.

No force, threat, or intimidation need be shown — the familial relationship + age + sexual abuse is the gravamen.

G. § 18.2-67.3(A)(4)(a) — Aggravated Sexual Battery by Force + 13–14 y/o Victim

1. Sexual abuse.
2. Against the will by force, threat, or intimidation.
3. Complaining witness was 13 or older but under 15 at the time.

This is the bridge subdivision when force is used and the victim is in the 13–14 age band — distinct from § 18.2-63 (no force) and § 18.2-67.3(A)(1) (under-13).

4.1 Age Proof — The Central Element

Age is the gateway for every offense on this sheet. Lock it down at the front of the trial. Acceptable proof, in rough order of probative weight:

• Certified birth certificate of the complaining witness, authenticated under Va. Code § 8.01-390 (records-of-public-officers business-records exception).
• Hospital birth record or DOB on a SANE/medical record under the medical-records hearsay exception.
• School records confirming DOB.
• Family-member testimony as to the child's date of birth (parent/guardian who would know).
• Complaining witness's own testimony as to age — competent but weakest standing alone.

For § 18.2-63(B), you must prove the defendant's date of birth as well — typically through DMV records, school records, or admission. The statute requires use of actual dates of birth, so a generalized "he's 17 and she's 14" is not enough if the differential is contested.

4.2 Age-Differential Calculation Under § 18.2-63(B)

What this means at the lectern: subtract the child's DOB from the defendant's DOB. If the calendar difference is 3 years or more on the date of the offense, subsection B first-clause Class 6 felony applies. If less than 3 years, subsection B second-clause Class 4 misdemeanor applies. The offense date — not the indictment date or trial date — is the reference point.

4.3 "Without the Use of Force" — The Structural Choice

§ 18.2-63 and § 18.2-64.1 both contain the phrase "without the use of force." The statutes are written this way to funnel force-involving conduct out of the age-based statutes and into the forcible Article 7 offenses (§ 18.2-61, § 18.2-67.1, § 18.2-67.2). If the evidence shows force, threat, or intimidation:

• Victim under 13 → § 18.2-61(A)(i) (force theory) or § 18.2-61(A)(iii) (age theory) — plead in the alternative; the (iii) clause is the cleaner charge because no force need be proved.
• Victim 13–14 → § 18.2-61(A)(i) plus § 18.2-67.3(A)(4)(a) (force + 13–14 aggravated sexual battery, if conduct supports it).
• Victim 15+ → § 18.2-61(A)(i).

4.4 Strict Liability on Age — Mistake of Age

Virginia practice consensus: § 18.2-63, § 18.2-64.1, § 18.2-67.4:2, and the under-13 subdivisions of § 18.2-61, § 18.2-67.1, § 18.2-67.2, and § 18.2-67.3 do not contain any scienter element with respect to the complaining witness's age. The Commonwealth need not prove the defendant knew or should have known the child's age. The defendant's belief about the victim's age — whether based on appearance, the child's misrepresentation, or a fake ID — is not a defense.

The textual basis for this is the absence of any "knew or should have known" qualifier in the age elements (compare § 18.2-67.10(3) and (4), which do require "knew or should have known" for mental incapacity and physical helplessness — the General Assembly knows how to write a scienter requirement when it wants one).

4.5 The "Carnal Knowledge" Definition is Broader Than Intercourse

§ 18.2-63(C)(ii) and § 18.2-64.1 both adopt the broad definition: "carnal knowledge" includes sexual intercourse, cunnilingus, fellatio, anilingus, anal intercourse, and animate and inanimate object sexual penetration. This is the same scope as the combined Article 7 forcible offenses (rape + forcible sodomy + OSP).

4.6 Under-13 Mandatory Minimums — Indictment-Allegation Requirement

The 25-year and life mandatory minimums under § 18.2-61(B), § 18.2-67.1(B), and § 18.2-67.2(B) are not automatic. The predicate facts must be alleged in the indictment:

• For the 25-year mandatory: allege (a) the victim was under 13, (b) the offender was more than 3 years older, and (c) the predicate co-conduct (the specific abduction/burglary/aggravated-malicious-wounding statute on which the prosecution relies).
• For the life mandatory: allege "the offender was 18 years of age or older at the time of the offense" expressly.
• For the 40-year suspended sentence floor: this is statutory, automatic where the 25-year predicate is found and the active sentence is less than life. No separate indictment language is required — but argue it at sentencing so the trial court enters it.

4.7 Parent/Step-Parent/Grandparent/Step-Grandparent Under § 18.2-67.3(A)(3)

This subdivision applies to a 13-to-17-year-old victim where the defendant is a parent, step-parent, grandparent, or step-grandparent — no force, threat, or intimidation required, only the familial relationship plus sexual abuse plus age. The relationship element is binary: prove it with birth records, marriage records (for the step- relationships), or stipulation.

4.8 Juvenile-Defendant Carve-Outs and the Rebuttable Presumption

Minor-defendant variant of § 18.2-63(B). Where the defendant is a minor and the complaining child is a consenting 13–14 year-old, the grade drops to a Class 6 felony (3+ years junior) or Class 4 misdemeanor (less than 3 years junior). For juvenile-on-juvenile consensual sex in this age band, JDR jurisdiction and disposition options become relevant. Confirm transfer-to-circuit- court analysis before charging in circuit.

4.9 Complaining Witness's Testimony Alone (Cross-Reference Sexual-Assault Sheet)

The Wilson v. Commonwealth rule — uncorroborated testimony of the complaining witness, if credible, is sufficient — applies in child sex cases. Wilson v. Commonwealth, 46 Va. App. 73, 87, 615 S.E.2d 500 (2005). Inconsistencies go to weight, not competency. Kelley v. Commonwealth, 69 Va. App. 617, 626 (2019). For the prior-false-accusations defense under Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263 (1988), see the sexual-assault companion sheet, § 6.2.

5.1 § 19.2-268.3 — Child Hearsay Exception

The single most important evidentiary tool in this practice area. Allows out-of-court statements of a child under 13 at the time of trial or hearing describing acts directed against the child, where the alleged offense falls within the enumerated list (which includes § 18.2-61, § 18.2-67.1, § 18.2-67.2, § 18.2-67.3, § 18.2-370, § 18.2-370.1, § 18.2-371.1, § 18.2-374.1, § 18.2-374.1:1, § 18.2-374.3, § 18.2-374.4, and others — read the current text against the charge).

Two-step admissibility

1. Trustworthiness finding (§ 19.2-268.3(B)(1)). The trial court must find — in a hearing prior to trial — that "the time, content, and totality of circumstances surrounding the statement provide sufficient indicia of reliability so as to render it inherently trustworthy." The court "may consider" a non-exclusive list of statutory factors enumerated in subsection (B)(1)(a)–(?), including personal knowledge of the event, motive to falsify or distort, whether the child was suffering pain or distress, presence of extrinsic evidence of opportunity to commit the act, and similar reliability indicators.
2. Child testifies or unavailable + corroboration (§ 19.2-268.3(B)(2)). Either the child testifies at trial or hearing, or the child is declared unavailable. If unavailable, the statement is admissible only if there is corroborative evidence of the act.

Key case holdings

Chenevert — Statute reaches all statements (not just forensic interviews)

Chenevert v. Commonwealth, 72 Va. App. 47, 56, 840 S.E.2d 590 (2020): "[N]othing in the express terms of the statute suggests that limitation. ... The statute at issue, by its plain language, applies broadly to all statements made by a child victim 'describing any act directed against the child relating to' the offense against the child." The letter an 8-year-old wrote to her mother ("Mom you now how Dady comes in my room he makes me kiss his Boo Boo") was admissible even though it was not part of a forensic interview.

Chenevert — "Statement" carries Va. R. Evid. 2:801(a) meaning; drawings qualify

The Court held "statement" in § 19.2-268.3 means "an oral or written assertion or nonverbal conduct of a person, if it is intended as an assertion." A drawing qualifies (a) where it contains labeled words, (b) where marks are intended to be communicative, or (c) as nonverbal conduct intended as an assertion. Anatomical drawings made during a forensic interview, with circled body parts, are statements. Chenevert, 72 Va. App. at 58–59.

Bista — Competency to testify is distinct from § 19.2-268.3 admissibility

Bista v. Commonwealth, Record No. 230721 (Va. Nov. 14, 2024): § 19.2-268.3 does not condition admissibility on the child's competency to testify. An 11-year-old with autism found incompetent to testify at trial nonetheless had her out-of-court statements admitted — the trial court independently evaluated trustworthiness, and corroborative evidence was present (mother's eyewitness testimony, DNA, defendant's partial admission). The Court also held that cross-examination of the child at the preliminary hearing satisfied Confrontation as to her later-admitted forensic-interview statements.

Practical takeaways from Chenevert and Bista together

• The full universe of the child's pre-trial statements is presumptively reachable: statements to parents, teachers, siblings, friends, doctors, SANE nurses, forensic interviewers, peer caregivers — and also writings, drawings, and any other communicative conduct intended to assert something about the abuse.
• The child's competency to testify and the admissibility of her out-of-court statements are distinct questions. A finding of incompetency does not automatically exclude.
• Forensic-interview testimonial-hearsay objections under Crawford can be answered by ensuring the defendant has a meaningful opportunity to cross-examine the child at the preliminary hearing on the same allegations the forensic interview addresses.

Procedural practice tips

• File the motion early — well before trial; the statute contemplates a pre-trial evidentiary hearing.
• The Commonwealth must provide notice of intent to offer the statement; check the current statutory notice period (the 2016 enactment introduced a 14-day pretrial notice — confirm the current period and form).
• Identify every out-of-court statement you intend to offer: to parents, teachers, forensic interviewers, doctors, SANE nurses, peer caregivers, and all writings/drawings/communicative conduct.
• Prepare each statement for the § 19.2-268.3 factors at the in camera hearing.
• The statute is in addition to other hearsay exceptions, not in lieu of (subsection D). Excited utterance, statements for medical diagnosis or treatment, recent complaint (§ 19.2-268.2), and present-sense impression all remain available.

5.2 § 18.2-67.7:1 — Similar-Crimes Evidence in Child Sexual Offense Cases (Va. R. Evid. 2:413)

In any felony sexual offense case with a child victim, the Commonwealth may introduce evidence of the defendant's prior convictions of other sexual offenses, admissible for any matter to which it is relevant, subject to Rule 2:403 balancing. Notice requirement: 14 days before trial, with the date, court, jurisdiction, and offense of each prior conviction. The Commonwealth must provide photocopies of certified copies of the final orders before trial commencement. "Sexual offense" for this purpose: any Article 7 offense or § 18.2-370, § 18.2-370.01, or § 18.2-370.1, or substantially similar laws of any other jurisdiction.

5.3 § 18.2-67.9 — Two-Way CCTV / Encrypted Audio-Video for Child Victims

Available for any victim 14 or younger at the time of the offense and 16 or younger at trial, and any witness 14 or younger at trial. Apply at least 14 days before trial (7 days before other preliminary proceedings). Court must find the child unavailable to testify in open court for one of three reasons:

1. Persistent refusal to testify despite judicial requests;
2. Substantial inability to communicate about the offense; or
3. Clear and convincing expert testimony that the child will suffer at least moderate emotional trauma that is more than nervousness/excitement/reluctance, and that the trauma would impair the child's ability to communicate.

Findings must be on the record (or written for courts not of record). At the testimony, the prosecutor and defense counsel are in the room with the child; only persons necessary to operate the equipment and those determined by the court to be necessary for the child's welfare may also be present. The defendant must be provided private contemporaneous communication with counsel during the testimony. Statute amended in 2025 (c. 191) — confirm current text.

5.4 § 18.2-67.9:1 — Certified Facility Dog

Available in any criminal proceeding involving testifying witnesses. Apply at least 14 days before the hearing. Findings: (1) the dog is a certified facility dog, (2) the dog will aid the witness, (3) presence will not interfere with or distract from the testimony or proceedings. Increasingly common in child-victim Va. trials; coordinate with the local victim/witness assistance program.

5.5 § 18.2-67.8 — Closed Preliminary Hearings

Available in any Article 7 prelim. Routine ask in child-victim cases; the court may exclude all persons except officers of the court and supportive persons. Filed on the court's own motion, or at the request of Commonwealth, complaining witness, accused, or counsel.

5.6 § 19.2-268.2 — Recent Complaint (Cross-Reference Sexual-Assault Sheet)

The fact that the child injured made complaint of the offense recently after commission is admissible as corroboration of the complaining witness's testimony. Identify the recent-complaint witness early — typically a parent, teacher, school counselor, or friend the child first disclosed to. Substance is not admissible under this provision; only the fact of the complaint.

5.7 Forensic Interview — Children's Advocacy Center Protocol

• Single forensic interview, recorded.
• Interviewer trained in NICHD or RATAC protocols.
• Conducted before the criminal investigation has progressed substantially, to minimize multiple interviews.
• Interview admissibility analyzed under § 19.2-268.3, recent-complaint, statements for medical diagnosis/treatment, and Crawford/Confrontation Clause.
• The interviewer is typically subpoenaed to authenticate the recording and testify to protocol compliance.

5.8 SANE Examination and Medical Records

Critical for any case with a recent disclosure or physical evidence concerns. The SANE exam serves three purposes:

1. Medical care for the child.
2. Evidence collection — sexual assault kit, photographs, swabs, clothing.
3. Documentation of statements made for purposes of medical diagnosis or treatment (Va. R. Evid. 2:803(4)).

Anticipate the medical-diagnosis hearsay exception as an alternative path to admit the child's statements; this exception is not limited to children-under-13 (unlike § 19.2-268.3) and reaches statements describing past or present symptoms, medical history, or general character/cause of an injury.

A. Charging Document

• Correct statute and subsection — § 18.2-63 vs. § 18.2-61(A)(iii) vs. § 18.2-67.4:2 vs. § 18.2-67.3 — based on victim age, conduct, and force/no-force
• For § 18.2-63(B), correct sub-clause (3+ years junior Class 6 felony vs. less than 3 years junior Class 4 misdemeanor)
• For under-13 mandatory minimum, all predicate facts (under-13, offender age differential, predicate co-conduct OR offender 18+) alleged in the indictment
• If subsequent-offense enhancement (§ 18.2-67.5:2 or § 18.2-67.5:3) sought, 30-day pretrial written notice prepared
• If § 18.2-67.7:1 prior convictions to be offered, 14-day pretrial notice with date/court/jurisdiction/offense + certified copies
• Alternative theories pleaded where the facts support multiple subsections

B. Age Proof

• Certified birth certificate of victim obtained and authenticated
• Defendant's DOB documented (DMV, school, jail booking, prior court records)
• Offense date confirmed and locked in — central to age-differential calculations
• Age-differential math worked out on paper for § 18.2-63(B)
• Parent/grandparent relationship (§ 18.2-67.3(A)(3)) documented with vital records / family-court records / stipulation
• Custodial-status documentation (§ 18.2-64.1) — DJJ records, jail records, court orders, employment records of accused

C. Child Witness

• Victim age at trial confirmed (matters for § 19.2-268.3 and § 18.2-67.9 cutoffs)
• § 18.2-67.8 closed prelim motion filed
• § 18.2-67.9 CCTV motion considered — 14 days pretrial (7 days pre-prelim); expert evaluation arranged if relying on emotional-trauma prong
• § 18.2-67.9:1 facility-dog motion considered
• § 19.2-268.3 motion drafted with all out-of-court statements listed; notice served per current statutory period (verify current period)
• Pre-trial in camera hearing requested and scheduled
• Forensic interviewer subpoenaed
• Recent-complaint witness (§ 19.2-268.2) identified and subpoenaed
• Victim advocate identified and notified
• Witness preparation completed — anticipate cross on inconsistencies, prior statements, delay in disclosure
• Competency-to-testify hearing prepared for if defense raises it; remember per Bista this is distinct from § 19.2-268.3 admissibility

D. Forensic / Physical Evidence

• SANE exam records obtained and authenticated
• Sexual assault kit submitted; DFS COA received or analyst subpoenaed
• DNA results obtained; analyst subpoenaed
• Photographs of injuries / scene
• Pediatric medical records (medical-diagnosis hearsay path)
• Forensic interview video preserved and authenticated; chain of custody documented

E. Defendant Statements

• Miranda compliance documented
• Partial admissions (common in this practice area — see Bista) reviewed and preserved
• Custodial-interrogation video preserved
• Pretextual / monitored calls with victim's family considered
• Electronics / digital evidence preserved (text, social media, app messages with child — see § 18.2-374.3)

F. Rape Shield / Evidentiary Posture (§ 18.2-67.7 Applies)

• Reviewed for anticipated specific-instance defense theory (rare in child cases but happens)
• Reviewed for anticipated motive-to-fabricate (custody dispute, family conflict — common defense)
• Reviewed for any anticipated Clinebell proffer
• Demand the § 18.2-67.7(C) in camera hearing

G. Sentencing / Registration

• Sex Offender Registry consequences confirmed (lifetime for nearly all offenses on this sheet)
• Mandatory minimum analysis confirmed and alleged in indictment
• § 18.2-67.5:2 / § 18.2-67.5:3 enhancement notice served if applicable
• § 17.1-805(C) violent-felony status confirmed for trial-record purposes
• Restitution worksheet (counseling, medical, lost wages) prepared
• No-contact / stay-away conditions drafted for plea/post-conviction order
• Civil commitment (Sexually Violent Predator) review flagged for serious adult-defendant cases