Virginia Felony Malicious Wounding Laws, Penalties, and Defenses Explained by a Virginia Criminal Defense Attorney

VIRGINIA MALICIOUS WOUNDING AND UNLAWFUL WOUNDING

Malicious Wounding is punished under Virginia Law § 18.2-51 as a felony criminal offense. If any person maliciously shoots, stabs, cuts, or wounds any person, or, by any means cause him bodily injury with the intent to maim, disfigure, disable, or kill, then he can be guilty of a Class 3 felony in Virginia. Malicious wounding in Virginia is punishable by up to 20 years in jail, with a 5-year mandatory minimum sentence, and up to a $100,000 fine.

To be convicted of malicious wounding, the Commonwealth must prove that the accused maliciously stabbed, cut, or wounded any person, or, by any means, caused him bodily injury, with the intent to maim, disfigure, disable, or kill.

To be guilty of malicious wounding, a person must also intend to permanently, not merely temporarily, harm another person. A wound is defined in Virginia as a breaking of the skin. (If you see blood in a fight, the skin has been broken.) An injury in Virginia is defined as internal or organ damage. There is no requirement of severe injury or disfigurement. To have the requisite intent under this law, the accused must have intended to inflict a permanent wound. It is not required that the wound is in fact permanent, or even severe, but only that the accused intended to cause such harm.

If the wound was, in fact, permanent, disfiguring, or severe, the accused would be charged under Virginia Code Section 18.2-51.2, the Aggravated Malicious Wounding statute. Aggravated Malicious Wounding is punished as a class 2 felony, by up to life in prison, and have a minimum prison sentence of 20 years, with a fine of up to $100,000. (This is the same penalty as a murder charge!)

“By any means” can mean any physical act, including using your dog or pit bull to inflict the injuries. Under ordinary circumstances, an intent to maim may not be presumed from a blow with a bare fist. But an assault with a bare fist may be attended with such circumstances of violence and brutality that an intent to kill may be presumed. It is proper for a court to consider not only the method by which a victim is wounded but also the circumstances under which that injury was inflicted in determining whether there is sufficient evidence to prove an intent to maim, disfigure, disable or kill.

Malice is defined generally as the ill will to do something or an intentional and wrongful act without legal justification.

Intent may be inferred from acts or words the accused used during and prior to the fight. But, intent can also be inferred from the final act when the intentional act could reasonably lead to a wounding injury. There is a presumption in the law that the natural and necessary consequences of an act were intended by the accused when he carried out the act. Of course, using weapons or a dog easily triggers the inferred intent as described above. Using fists, however, is a different story. The only way that punching someone with your fists can lead to an inference of intent for one of the results described in the statute is if the beating is so violent or brutal that it can reasonably be concluded that the accused had such intent. Thus, even if the blows don’t cause disfigurement, if they were carried out with strong violence or brutality, this felony wounding statute would apply. An example of a case where the accused was convicted of malicious wounding for punching someone was in Clark v. Commonwealth, where the accused continued punching the victim after he was down and had to be pulled away by others before he would be stopped. The courts look at the severity of the punches and the number of blows. Unlawful Wounding lacks the malice that is required for Malicious Wounding, and so it serves as a lesser-included offense of this statute.

Virginia Law:

§ 18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.
If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.

§ 18.2-54. Conviction of lesser offenses under certain indictments.
On any indictment for maliciously shooting, stabbing, cutting or wounding a person or by any means causing him bodily injury, with intent to maim, disfigure, disable or kill him, or of causing bodily injury by means of any acid, lye or other caustic substance or agent, the jury or the court trying the case without a jury may find the accused not guilty of the offense charged but guilty of unlawfully doing such act with the intent aforesaid, or of assault and battery if the evidence warrants.


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This article is written by Virginia criminal defense attorney Marina Medvin, an award-winning Northern Virginia lawyer serving Alexandria, Fairfax, and Arlington, VA. Please call for a Virginia malicious wounding defense consultation.


EXAMPLE CASES

In Roark v. Commonwealth, an attack with a bare fist did not constitute malicious wounding. Roark got into an argument with the victim, shouting “You don’t know a … damned thing about what you are talking about.” Then, Roark struck the victim with his non-dominant hand and knocked him down on the sidewalk. Seeing the victim’s injury, Roark rushed him to the hospital and offered to pay for all his medical expenses. The court reasoned that: “The relation of the parties, the facts leading up to the blow, the use of the left hand or fist, and the acts of [the][/the] defendant immediately after the blow clearly show that defendant did not intend to inflict serious bodily injury upon [the victim][/the].” Therefore, the court found that the defendant did not act with the requisite intent, and as a consequence, there was insufficient evidence for a malicious wounding conviction.

In Shackelford v. Commonwealth, the accused, a strong, hale, heavy-set man, made an unprovoked attack upon a frail woman 50 years of age in her own kitchen. While the attack apparently lasted only a few moments, it was brought to an end not by the voluntary action of the accused but by the attempts of his wife to stop him, and the fact that the victim made her escape from the room. The defendant admitted that he had not only struck the victim but that he had `followed up’ the blow.” The court reasoned that all of these actions and statements were evidence of the brutal and violent circumstances of the crime and the defendant’s intent to maim.

In the case of Fletcher, the accused struck the awakening victim with a bare fist, resulting in a blow-out fracture of the orbital floor with the incarceration of muscle and the orbital tissue in the fracture. The defendant also attacked two other individuals in the same incident. The court determined that the assault upon the victim “with the bare fist was attended with such circumstances of violence and brutality that [there was sufficient evidence of][/there] an intent to maim.”

In Burkeen v. Commonwealth of Virginia, the victim did nothing to provoke the attack, and he was hit with extreme force in a vulnerable area of his body while he was defenseless and not expecting such a blow. The blow resulted in serious and disfiguring injury. Burkeen bragged of his strength and training while taunting and cursing the victim after the first blow, indicating his intent to inflict such harm upon the victim. Additionally, Burkeen was poised to attack the victim further until someone else intervened, at which time that person was attacked by Burkeen instead. In fact, Burkeen only discontinued his attack when he heard that the police had been called. The court reasoned that although Burkeen delivered only one blow with a closed fist, he acted with malice and he intended to maim the victim.

What these cases teach us is that the actions described by witnesses, together with statements made to the police by the accused, are used together to find guilt.


AGGRAVATED MALICIOUS WOUNDING

Virginia law 18.2-51.2 states:

A. If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.

B. If any person maliciously shoots, stabs, cuts or wounds any other woman who is pregnant, or by any other means causes bodily injury, with the intent to maim, disfigure, disable or kill the pregnant woman or to cause the involuntary termination of her pregnancy, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.

C. For purposes of this section, the involuntary termination of a woman’s pregnancy shall be deemed a severe injury and a permanent and significant physical impairment.

This felony offense is punished by life in prison, and has a minimum prison sentence of 20 years, with a fine of up to $100,000. This is the most serious charge of the malicious wounding group of offenses.

The language “permanent and total incapacity” includes, among other things, the loss, or the loss of use, of both hands, both arms, both feet, or both legs. In determining the extent of disability, courts must apply both a functional and humane approach, taking into consideration not only the injured person’s permanent unemployability, but also his non-vocational quality of life.


§ 18.2-51.2. Aggravated malicious wounding; penalty.
A. If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.

B. If any person maliciously shoots, stabs, cuts or wounds any other woman who is pregnant, or by any other means causes bodily injury, with the intent to maim, disfigure, disable or kill the pregnant woman or to cause the involuntary termination of her pregnancy, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.

C. For purposes of this section, the involuntary termination of a woman’s pregnancy shall be deemed a severe injury and a permanent and significant physical impairment.


Virginia Malicious Wounding Penalty Table

Description of OffenseCode SectionCriminal ClassificationMaximum JailMinimum JailMaximum Fine
Assault / BatteryVa. Code 18.2-57Class 1 Misdemeanor12 monthsN/A$2,500 Fine
Assault as Hate CrimeVa. Code 18.2-57Class 1 Misdemeanor5 years1 month$2,500 Fine
Assault as Hate Crime w/ InjuryVa. Code 18.2-57Class 6 Felony5 years1 month$2,500 Fine
Unlawful WoundingVa. Code 18.2-51Class 6 Felony5 years1 year$2,500 Fine
Malicious WoundingVa. Code 18.2-51Class 3 Felony20 years5 years$100,000 Fine
Malicious Wounding by MobVa. Code 18.2-41Class 3 Felony20 years5 years$100,000 Fine
Malicious Wounding of PoliceVa. Code 18.2-51.1Class U Felony30 years5 years$100,000 Fine
Aggravated Malicious WoundingVa. Code 18.2-51.2Class 2 FelonyLife20 years$100,000 Fine

 


UNLAWFUL WOUNDING & ASSAULT AND BATTERY

If such act is done unlawfully but not maliciously, with intent, the offender shall be guilty of a Class 6 felony. This is punished by up to 5 years in prison, with up to a $2,500 fine.

Assault and Battery, the misdemeanor charges for beating someone, is also a lesser-included offense of this code section. While the maiming law specifically punishes wounding as a felony, the Battery statute punish misdemeanor beating/touching.

Read more about Domestic Assault here: Virginia Domestic Assault Laws & Penalties: Defense Attorney’s Explanation of Va Code 18.2-57.2 Assault and Battery Against a Family or Household Member


MALICIOUS WOUNDING OF POLICE OFFICER

§ 18.2-51.1. Malicious bodily injury to law-enforcement officers, firefighters, search and rescue personnel, or emergency medical services personnel; penalty; lesser-included offense.
If any person maliciously causes bodily injury to another by any means including the means set out in § 18.2-52, with intent to maim, disfigure, disable or kill, and knowing or having reason to know that such other person is a law-enforcement officer, as defined hereinafter, firefighter, as defined in § 65.2-102, search and rescue personnel as defined hereinafter, or emergency medical services personnel, as defined in § 32.1-111.1 engaged in the performance of his public duties as a law-enforcement officer, firefighter, search and rescue personnel, or emergency medical services personnel, such person is guilty of a felony punishable by imprisonment for a period of not less than five years nor more than 30 years and, subject to subdivision (g) of § 18.2-10, a fine of not more than $100,000. Upon conviction, the sentence of such person shall include a mandatory minimum term of imprisonment of two years.

If any person unlawfully, but not maliciously, with the intent aforesaid, causes bodily injury to another by any means, knowing or having reason to know such other person is a law-enforcement officer, firefighter, as defined in § 65.2-102, search and rescue personnel, or emergency medical services personnel, engaged in the performance of his public duties as a law-enforcement officer, firefighter, search and rescue personnel, or emergency medical services personnel as defined in § 32.1-111.1, he is guilty of a Class 6 felony, and upon conviction, the sentence of such person shall include a mandatory minimum term of imprisonment of one year.

Nothing in this section shall be construed to affect the right of any person charged with a violation of this section from asserting and presenting evidence in support of any defenses to the charge that may be available under common law.

As used in this section, “law-enforcement officer” means any full-time or part-time employee of a police department or sheriff’s office that is part of or administered by the Commonwealth or any political subdivision thereof, who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic, or highway laws of the Commonwealth; any conservation officer of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115; any conservation police officer appointed pursuant to § 29.1-200; and auxiliary police officers appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733 and auxiliary deputy sheriffs appointed pursuant to § 15.2-1603.

As used in this section, “search and rescue personnel” means any employee or member of a search and rescue organization that is authorized by a resolution or ordinance duly adopted by the governing body of any county, city, or town of the Commonwealth or any member of a search and rescue organization operating under a memorandum of understanding with the Virginia Department of Emergency Management.

The provisions of § 18.2-51 shall be deemed to provide a lesser-included offense hereof.


MALICIOUS WOUNDING BY MOB

Virginia code 18.2-41 states: “Any and every person composing a mob which shall maliciously or unlawfully shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disable, disfigure or kill him, shall be guilty of a Class 3 felony.” This felony is punishable by up to 20 years in prison, and has a minimum prison sentence of 5 years, with a fine of up to $100,000.

Malicious wounding by mob, as set out in Code § 18.2-41, is a different offense from malicious wounding as codified in Code § 18.2-51. Malicious wounding by mob does not require the Commonwealth to prove malice because it defines the crime as “maliciously or unlawfully [wounding][/wounding] any person . . . with intent to maim, disable, disfigure or kill him. . . .” The disjunctive term “or,” which separates the terms “maliciously” and “unlawfully,” indicates that Code § 18.2-41 only requires proof that the wounding was unlawful. Code § 18.2-41 therefore criminalizes different conduct from malicious wounding under Code § 18.2-51.

To sustain a conviction of maiming by mob under Code § 18.2-41, the evidence must establish that the accused was a member of a group composing a mob; that the mob caused the victim bodily injury; and that the mob acted with the malicious [or unlawful][/or] intent “to maim, disable, disfigure or kill” the victim.

An otherwise lawful assembly of people can become a mob simply by adopting an unlawful intent to commit violence. Whether a group of individuals has been so transformed into a mob depends upon the circumstances; no particular words or express agreements are required to effect a change in a group’s purpose or intentions. Events or emotionally charged circumstances suddenly may focus individuals toward a common goal or purpose without an express or stated call to join forces. Because the impulsive and irrational forces that may exist to transform peaceable assembly into mob violence are to be evaluated on a case-by-case basis, the determination is a question of fact for the fact-finder – judge or jury.

Every person composing a mob becomes criminally culpable even though the member may not have actively encouraged, aided, or countenanced the act. In other words, the statute imposes individual liability based on collective act and intent.

§ 18.2-41. Shooting, stabbing, etc., with intent to maim, kill, etc., by mob.
Any and every person composing a mob which shall maliciously or unlawfully shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disable, disfigure or kill him, shall be guilty of a Class 3 felony.

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