Background
In 2021, James Tyler Myers, then 24 years old, pleaded guilty to carnal knowledge of a 14-year-old minor in violation of Virginia Code § 18.2-63—a non-forcible offense by statutory definition. He also pleaded guilty to three counts of possession of child pornography. Following his conviction, the Commonwealth petitioned under Virginia’s Sexually Violent Predators Act (SVPA), Code §§ 37.2-900 to -921, to have Myers civilly committed as a sexually violent predator upon his release from incarceration.
At the commitment hearing, both the Commonwealth’s expert (Dr. Gravers) and Myers’s court-appointed expert (Dr. King) diagnosed Myers with antisocial personality disorder. Dr. Gravers opined that the disorder made it difficult for Myers to control his predatory behavior and that he presented a “well above average probability of sexually violent recidivism.” Dr. King agreed that Myers was well above average in his risk for future sex offenses but concluded clinically that, if Myers reoffended, it would likely be another non-violent carnal knowledge offense rather than a forcible sex crime. Dr. Gravers similarly acknowledged on cross-examination that any reoffense would “probably be another carnal knowledge type of offense” involving manipulation rather than actual force.
The Franklin County Circuit Court found that the first two statutory elements were satisfied—Myers had been convicted of a sexually violent offense and both experts diagnosed him with antisocial personality disorder. However, the court denied the Commonwealth’s petition, holding that because the SVPA does not define the term “sexually violent act” and Myers’s history did not involve “particularly violent actions,” the Commonwealth had not proven he was likely to engage in “sexually violent acts” as that phrase is used in the definition of a sexually violent predator. The Commonwealth appealed.
The Court’s Holding
A divided Court of Appeals reversed and remanded. Writing for the majority, Judge Malveaux held that under the plain language and legislative purpose of Code § 37.2-900, the undefined term “sexually violent acts” necessarily encompasses the enumerated “sexually violent offenses,” including carnal knowledge of a minor under Code § 18.2-63. The majority reasoned that an “act” is simply a “deed” or “something done or performed,” and that an “offense” is comprised of such deeds. Because the General Assembly expressly designated carnal knowledge—regardless of whether force is involved—as a “sexually violent offense,” the actus reus of that offense is necessarily a “sexually violent act” for SVPA purposes. To hold otherwise, the court explained, would create an internal inconsistency: a predicate offense could trigger SVP proceedings but could never, as a matter of law, support civil commitment if the offender was likely only to repeat that same offense.
The majority also grounded its holding in the Act’s dual legislative purposes: protecting the public from dangerous sexual recidivists and providing treatment to those whose mental disorders render them a menace to public safety. Allowing forcible-sex-only predicate offenses to qualify as “sexually violent acts” while excluding non-forcible predicate offenses would arbitrarily undermine those purposes. The court further noted that several of the SVPA’s enumerated predicate offenses—including certain forms of rape and sexual battery—already encompass conduct that may or may not involve actual force, making a force-based distinction unworkable within the statutory scheme.
Because the circuit court had expressly stated it would find Myers to be a sexually violent predator if the Commonwealth’s statutory interpretation were correct—and the underlying predicate conviction and personality disorder diagnosis were undisputed—the Court of Appeals held the circuit court’s denial was plainly wrong. The case was remanded for the circuit court to apply the correct statutory interpretation and make a new SVP determination, along with any further proceedings the Act requires. Judge Athey dissented, arguing that the canon against surplusage requires “sexually violent acts” to have a meaning distinct from “sexually violent offenses,” and that the ordinary meaning of “violent” implies force, making carnal knowledge—expressly defined as non-forcible—categorically insufficient to satisfy that element.
Key Takeaways
- Under Virginia’s SVPA, the enumerated “sexually violent offenses” in Code § 37.2-900—including carnal knowledge of a minor under Code § 18.2-63—qualify as “sexually violent acts” for purposes of the sexually violent predator definition, even though carnal knowledge does not require proof of force or violence.
- A circuit court may not require the Commonwealth to prove that a respondent is likely to reoffend through acts involving actual physical force; likelihood of repeating the predicate offense is sufficient to satisfy the “sexually violent acts” element if that offense is listed as a sexually violent offense in the statute.
- The court reserved the question of whether acts beyond the enumerated predicate offenses could also qualify as “sexually violent acts” under the statute, leaving that issue for another day.
- The dissent’s surplusage and plain-meaning arguments signal that this interpretive question may be ripe for review by the Supreme Court of Virginia.
Why It Matters
This decision has direct practical significance for Virginia prosecutors pursuing civil commitment of sex offenders whose predicate convictions involve minors but not physical force. Before this ruling, circuit courts could—and at least one did—deny SVP petitions on the theory that a respondent diagnosed as likely to repeat a non-forcible offense posed no risk of “sexually violent acts.” The Court of Appeals has now closed that avenue, holding that the General Assembly’s legislative designation of an offense as “sexually violent” controls the analysis, not a judicial inquiry into whether the offense involved actual force.
The sharp disagreement between the majority and dissent over foundational canons of statutory construction—whether to prioritize legislative purpose and internal coherence or the plain meaning of “violent” and the rule against surplusage—reflects a genuine doctrinal tension that practitioners in SVP proceedings will need to navigate. Defense counsel may argue on remand, and in future cases, that the dissent’s reasoning should be revisited at the Supreme Court of Virginia level, particularly given that both experts in this case agreed Myers was unlikely to commit a forcible sex crime.