Indecent Liberties & Non-Contact Child Sex Offenses

A. § 18.2-370(A) — Taking Indecent Liberties With Children

1. The defendant was 18 or older at the time of the act.
2. The defendant acted with lascivious intent (§ 4.1 below for definition and proof framework).
3. The defendant knowingly and intentionally committed one of the following acts.
4. The complaining witness was a child under 15 at the time of the act.

Subdivision (A) acts (element 3)

• (A)(1) Exposes his or her sexual or genital parts to any child to whom he is not legally married, OR proposes that the child expose his or her sexual or genital parts to him.
• (A)(2) [Repealed by Acts 2014, c. 794 — confirm current numbering before relying.]
• (A)(3) Proposes that the child feel or fondle his or her own or the defendant's sexual or genital parts, OR proposes that the defendant feel or fondle the child's sexual or genital parts.
• (A)(4) Proposes to the child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus, or any act constituting an offense under § 18.2-361.
• (A)(5) Entices, allures, persuades, or invites the child to enter any vehicle, room, house, or other place, for any of the purposes set forth in subdivisions (1)–(4).

B. § 18.2-370(B) — Sexually Explicit Material

1. Defendant 18+.
2. With lascivious intent.
3. Knowingly receives money, property, or any other remuneration for allowing, encouraging, or enticing any person under 18 to perform in or be a subject of sexually explicit visual material, OR knowingly encourages such person to perform.

Grade: Class 5 felony. Cross-reference § 18.2-374.1 et seq.

C. § 18.2-370(D) — Family-Member Enhancement

1. Defendant is parent, step-parent, grandparent, or step-grandparent of the complaining witness.
2. Defendant commits a violation of § 18.2-370 (any subdivision A) or § 18.2-370.1(A)(v) or (vi).
3. Complaining witness is the defendant's child, step-child, grandchild, or step-grandchild.
4. Grade follows victim age: Victim under 15 → Class 4 felony; Victim 15–17 → Class 5 felony.

D. § 18.2-370.01 — Juvenile Indecent Exposure

1. Accused is a child over 13 but under 18 at the time of the act.
2. With lascivious intent.
3. Knowingly and intentionally exposes his or her sexual or genital parts to (or proposes such exposure to/by) any other child under 14 who is 5 or more years junior, measured by actual dates of birth.

Grade: Class 1 misdemeanor.

E. § 18.2-370.1(A) — Custodial or Supervisory Indecent Liberties

1. Defendant 18 or older.
2. Maintains a custodial or supervisory relationship over the complaining witness (§ 4.4 below for case law).
3. Complaining witness is under 18.
4. Defendant is not legally married to the complaining witness, and the complaining witness is not emancipated.
5. With lascivious intent.
6. Knowingly and intentionally commits one of six enumerated acts.

Subdivision (A) acts (element 6)

• (i) Proposes that the child feel or fondle the defendant's sexual or genital parts, OR that the defendant feel or handle the child's sexual or genital parts.
• (ii) Proposes to the child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus, or any act constituting an offense under § 18.2-361.
• (iii) Exposes his or her sexual or genital parts to the child.
• (iv) Proposes that the child expose his or her sexual or genital parts to the defendant.
• (v) Proposes to the child that the child engage in sexual intercourse, sodomy, or fondling of sexual or genital parts with another person.
• (vi) Sexually abuses the child as defined in § 18.2-67.10(6).

Grade: Class 6 felony. Subdivision (B) elevates to Class 5 for a second or subsequent conviction.

F. § 18.2-371(ii) — Consensual Sex With 15–17 y/o

1. Defendant 18 or older.
2. Engages in consensual sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus with or performed upon or by the complaining witness.
3. Complaining witness is 15 or older at the time of the act.
4. Complaining witness is not the defendant's spouse, child, or grandchild.

Grade: Class 1 misdemeanor.

G. § 18.2-371(i) — Contributing to Delinquency / Abuse / Neglect

Clause (i) is separate: willful contribution to acts, omissions, or conditions rendering a child delinquent, in need of services, in need of supervision, or abused or neglected as defined in § 16.1-228. Class 1 misdemeanor. Conduct may be sexual or non-sexual. Outside the central scope of this sheet but worth knowing as a charging alternative when conduct doesn't quite reach a Chapter 8, Article 4 sex offense.

4.1 "Lascivious Intent" — Definition and Proof

The cornerstone for every offense on this sheet. Defined by the Virginia Supreme Court more than fifty years ago and applied without significant doctrinal modification since.

The intent must be proved beyond a reasonable doubt as an independent element. McKeon itself reversed a conviction because the conduct — a clothed defendant in his bathrobe asking a 10-year-old neighbor girl to run an errand, then telling her to "turn around" and smiling at her from 35 feet away — did not prove lascivious intent BRD even though some exposure may have occurred.

4.2 The McKeon Four-Factor Framework

Viney v. Commonwealth, 269 Va. 296, 300, 609 S.E.2d 26, 28 (2005) consolidates and articulates the framework. Four kinds of evidence may prove lascivious intent:

1. The defendant was sexually aroused;
2. The defendant made gestures toward himself or to the child;
3. The defendant made improper remarks to the child; or
4. The defendant asked the child to do something wrong.

Examples from the cases

• Viney, 269 Va. at 300 — eye movements directing the child's attention to the defendant's exposed genitals satisfied the gestures-toward-himself factor.
• Holley v. Commonwealth (Va. App. 2002) — defendant's admission to police that he 'had a problem controlling himself' and 'had a problem with exposing himself' supplied lascivious intent in a daycare-adjacent exposure case.
• Mason v. Commonwealth (Va. App. 2006) — photographer-defendant's contemporaneous arousal and her conduct of posing a 13-year-old with a vibrator near the child's genitals satisfied the factors; conviction affirmed despite defense argument the photographs were for the imprisoned husband, not the defendant herself.

4.3 Indecent Exposure — "Reasonable Probability" of Being Seen

For § 18.2-370(A)(1) and § 18.2-370.1(A)(iii), exposure does not require that the child actually saw the defendant's genitals. Siquina v. Commonwealth, 28 Va. App. 694, 698–99, 508 S.E.2d 350, 352–53 (1998): the statute reaches "the intentional display by an adult, with lascivious intent, of his or her genitals in the presence of a child where a reasonable probability exists that they might be seen by that child, regardless of the child's actual perception of such a display."

This adopts the common-law standard from Noblett v. Commonwealth, 194 Va. 241, 245, 72 S.E.2d 241, 243–44 (1952): "an indecent exposure must be either in the actual presence and sight of others, or in such a place or under such circumstances that the exhibition is liable to be seen by others."

4.4 "Custodial or Supervisory Relationship" — § 18.2-370.1

The signature element. The Supreme Court of Virginia construed it broadly more than fifty years ago, and the Court of Appeals has expanded the application in a consistent line of cases.

Foundational authority — Lovisi v. Commonwealth, 212 Va. 848 (1972)

Rejected an overly restrictive definition of custody on the ground that it "would eliminate, among others, teachers, athletic instructors and baby-sitters, all of whom might have temporary custody of children, from the purview of the statute." Controlling Supreme Court statement; every Court of Appeals decision in this line applies it.

Operative definition — Krampen v. Commonwealth, 29 Va. App. 163 (1999)

Applies Lovisi; the Supreme Court "rejected limiting the definition of 'custody' to legal custody," instead defining it as "the care and control of a thing or person." Includes those with a temporary custodial relationship. A custodial relationship arises when the supervising adult "exercises care and control over the child, with the care including the responsibility for and the control of the child's safety and well being."

Temporary relationships count — DeAmicis v. Commonwealth, 29 Va. App. 751 (1999), aff'd en banc, 31 Va. App. 437 (2000)

Defendant counselor/photographer to whom the mother left her teenage daughter for sessions had a "temporary custodial relationship" for the duration of each session. Temporary, shared, even one-off control suffices.

Conduct outside school setting counts — Moyer v. Commonwealth, 33 Va. App. 8 (2000)

Teacher's § 18.2-370.1 conviction affirmed for "unlawful conduct with a student outside of the school environment." The custodial/supervisory relationship of a teacher to a student does not evaporate when the school day ends.

No specific entrustment required — Guda v. Commonwealth, 42 Va. App. 453 (2004)

School security officer with authority to issue hall passes had a custodial/supervisory relationship to the 15-year-old student he directed into the boys' locker room. "Code § 18.2-370.1 does not require the specific entrustment of the child to the care of the adult to create a custodial or supervisory relationship." 42 Va. App. at 459. Functional care and control — not formal legal status — is the test.

Voluntary course of conduct suffices — Snow v. Commonwealth, 33 Va. App. 766 (2000)

Construing parallel "person responsible for the care of a child" language in § 18.2-371.1: "one may become a person 'responsible for the care of a child' by a voluntary course of conduct and without explicit parental delegation of supervisory responsibility." Guda cited Snow approvingly as parallel reasoning under § 18.2-370.1.

4.5 § 18.2-370 vs. § 18.2-370.1 — Charging Choice

4.6 The "Proposal" vs. "Completed Act" Distinction

Most subdivisions of § 18.2-370 and § 18.2-370.1 criminalize the proposal, not the completed act: § 18.2-370(A)(3) "Propose that any such child feel or fondle..."; § 18.2-370(A)(4) "Propose to such child the performance of..."; § 18.2-370(A)(5) "Entice, allure, persuade, or invite any such child to enter any vehicle..."; § 18.2-370.1(A)(i), (ii), (iv), (v) "Propose..."

This is by design. If the act itself occurred, more serious charges apply: sexual battery (§ 18.2-67.4) for fondling; rape, forcible sodomy, or object sexual penetration (§ 18.2-61, § 18.2-67.1, § 18.2-67.2) for completed intercourse/sodomy; aggravated sexual battery (§ 18.2-67.3) where statutory aggravators are met. § 18.2-370 reaches the preparatory proposal and gives it its own grade and elements.

4.7 Strict Liability on Age — Cross-Reference

The age elements of § 18.2-370 (under 15), § 18.2-370.1 (under 18), and § 18.2-371(ii) (15+ but not spouse/child/grandchild) operate as strict-liability age elements — the defendant's knowledge of the child's age is not a defense, consistent with Virginia's general approach. See the sexual-assault companion sheet for the controlling Virginia case authority framework.

4.8 Mens Rea Cumulative Stack

§ 18.2-370(A) and § 18.2-370.1(A) each require three distinct mental states. Defense will sometimes argue insufficient proof of one, and trial courts and juries can blur them. Plead and prove each separately.

1. Lascivious intent (the McKeon state-of-mind element);
2. Knowingly (knowledge of the conduct);
3. Intentionally (purposeful commission of the conduct).

The lascivious-intent element is usually the contested one; knowing and intentional are typically inferable from the conduct itself.

A. Charging Document

• Correct statute and subdivision identified (§ 18.2-370(A)(1)/(3)/(4)/(5), § 18.2-370.1(A)(i)–(vi), or § 18.2-371(ii))
• If § 18.2-370(D) enhancement sought, family relationship and victim age alleged
• If § 18.2-370.1(B) second-or-subsequent enhancement sought, prior conviction allegations made in compliance with applicable enhancement procedure
• Cross-reference § 18.2-67.5 (attempt), § 18.2-374.1 et seq. (child porn), § 18.2-374.3 (use of communications systems) where conduct supports parallel charges
• Multiple subdivisions pleaded in the alternative where evidence supports
• § 18.2-67.7:1 prior-conviction notice prepared (14 days pretrial) if applicable
• Subsequent-offense enhancement notice (§ 18.2-67.5:2 / § 18.2-67.5:3) prepared if applicable (30 days pretrial)

B. Lascivious Intent — The McKeon Factors

• Sexual arousal — physical evidence (erection observed, ejaculation, defendant's statements)
• Gestures — defendant's body language toward himself or the child, including eye movements directing the child's attention
• Improper remarks — sexualized statements before, during, or after; texts; pretextual-call admissions
• Asking the child to do something wrong — proposal language, instructions, requests
• Defendant's subsequent conduct (flight, false statements, destruction of evidence) for consciousness of guilt

C. Exposure Cases (§ 18.2-370(A)(1) and § 18.2-370.1(A)(iii))

• Scene geometry documented — where defendant was, where child was, line of sight, distance
• Reasonable probability the child might have seen established
• Defendant's awareness of the child's presence established
• Repetition / pattern documented if applicable

D. Custodial/Supervisory Relationship (§ 18.2-370.1)

• Documented relationship — employment records, school records, family-relationship records, daycare licensing, religious-organization rosters
• Person who entrusted the child to the defendant identified and subpoenaed
• Authority over the child documented — could the defendant direct the child's movements, behavior, dress?
• Duration and exclusivity of relationship documented (even brief / shared control suffices — DeAmicis)
• Child's own understanding of who was in charge developed in witness preparation

E. Child Victim — Same Considerations as Sexual Assault Sheet

• § 18.2-67.8 closed prelim motion filed
• § 18.2-67.9 CCTV motion if child qualifies (14 days pretrial, 7 days pre-prelim)
• § 18.2-67.9:1 facility dog motion if applicable
• § 19.2-268.3 child hearsay motion drafted; in camera hearing scheduled
• Recent-complaint witness (§ 19.2-268.2) identified and subpoenaed
• Forensic interviewer subpoenaed if interview was conducted
• Victim advocate notified

F. Forensic and Electronic Evidence

• Electronic communications (text, app messages, social media) preserved; search-warrant returns reviewed
• § 18.2-374.3 (use of communications systems) review for parallel charging
• Sexually-explicit material (if § 18.2-370(B) charged) preserved with proper chain of custody
• Surveillance video / scene photographs preserved

G. Defendant Statements

• Miranda compliance documented
• Defendant's admissions / partial admissions preserved — common in this practice area (Holley's 'problem controlling himself' is the model)
• Custodial-interrogation video preserved
• Pretextual / monitored calls with victim's family considered

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

• Reviewed for anticipated specific-instance defense theory
• Reviewed for anticipated motive-to-fabricate (especially common in custodial-relationship cases — disgruntled family, employment dispute)
• Reviewed for any anticipated Clinebell proffer
• Demand the § 18.2-67.7(C) in camera hearing

I. Sentencing / Registration

• Sex Offender Registry consequences confirmed — felony violations of § 18.2-370 and § 18.2-370.1 trigger registration; misdemeanor § 18.2-371(ii) does not trigger lifetime registration but does carry registration consequences in some circumstances (verify current registry statute)
• § 18.2-370.2 through § 18.2-370.5 post-conviction restrictions confirmed for plea/sentencing colloquy
• Restitution worksheet (counseling, medical) prepared
• No-contact / stay-away conditions drafted