When a Virginia juvenile court issues a child protective order requiring someone to 'abstain from offensive conduct,' does that include harassing, stalking, threatening, or putting a person in reasonable fear of bodily injury?

Plain-English summary

The State Police Superintendent asked the Attorney General whether "offensive conduct" in Virginia juvenile court child protective orders included harassing, stalking, threatening, or placing a person in reasonable fear of bodily injury. The question matters operationally because the Virginia Criminal Information Network (VCIN) includes a federal "Brady Indicator" field used by federal firearm background checks. That field flags whether a protective order subject is prohibited under 18 U.S.C. § 922(g)(8)(B) from "harassing, stalking, or threatening an intimate partner ... or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury." If the standard Virginia child protective order term "abstain from offensive conduct" includes that range of behavior, the protective order can trigger the federal firearm prohibition, and the State Police can accurately flag the order in the Brady Indicator field.

Acting AG William Mims concluded yes. Section 16.1-253(A)(1) authorizes Virginia juvenile and domestic relations district courts to issue child protective orders requiring persons "[t]o abstain from offensive conduct" against the child, family or household members, or anyone with custody. The General Assembly did not define "offensive conduct," and no Virginia court has interpreted it. Under standard Virginia statutory construction, undefined terms take their plain and ordinary meaning. The AG turned to Black's Law Dictionary: "offensive" means "unpleasant or disagreeable to the senses; obnoxious" or "causing displeasure ... repugnant to the prevailing sense of what is decent or moral," and "conduct" means "personal behavior, whether by action or inaction; the manner in which a person behaves." Those broad terms easily cover the behaviors listed in 18 U.S.C. § 922(g)(8)(B).

The opinion is short. It tells the State Police that they may flag a § 16.1-253 protective order in the VCIN Brady Indicator field on the theory that the order's "offensive conduct" term carries enough breadth to reach the harassing/stalking/threatening conduct that triggers the federal firearm prohibition.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia's protective order machinery is split among several courts and chapters of the Code. Section 16.1-253 sits in the juvenile and domestic relations district court framework, authorizing emergency and ongoing protective orders for children. Subsection (A)(1) is the catch-all "abstain from offensive conduct" provision; other subsections authorize more specific terms like no-contact, exclusion from certain places, custody and visitation, and other conditions.

Section 52-45 directs the Superintendent of State Police to establish and maintain a Protective Order Registry; § 19.2-387.1(A) describes how the Registry interacts with the broader VCIN system. The Brady Indicator field is the federal interface: VCIN must accurately tell federal NICS firearm background-check operators whether a protective order subject is disqualified under federal law.

18 U.S.C. § 922(g)(8) is the federal firearm prohibition triggered by a protective order. To qualify under § 922(g)(8)(B), the order must restrain the subject from "harassing, stalking, or threatening an intimate partner ... or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child." Note that this federal provision is keyed to "intimate partner" protective orders; the AG's analysis treats § 16.1-253 child protective orders as capable of carrying terms that satisfy that federal predicate when the "offensive conduct" provision is included.

The AG read "offensive conduct" through standard statutory construction tools: undefined statutory terms take their plain and ordinary meaning, as confirmed by recent Virginia case law (Winborne v. Va. Lottery, 278 Va. 142 (2009)). Black's Law Dictionary supplied the dictionary definition. The AG's reading is generous: "obnoxious," "disagreeable to the senses," "personal behavior" are broad terms. Harassment, stalking, threats, and conduct producing reasonable fear of bodily injury all easily fit within that scope.

Common questions

Does this opinion mean every Virginia § 16.1-253 protective order triggers the federal firearm prohibition?

Not necessarily. The federal prohibition under 18 U.S.C. § 922(g)(8) has several requirements: a hearing of which the subject received actual notice, an opportunity to participate, a finding of credible threat or an explicit restraint on the conduct listed in (g)(8)(B). The opinion addresses only the meaning of "offensive conduct" as a Virginia statutory term. Whether any particular protective order actually satisfies all the federal predicates is a fact-specific question.

What kinds of behavior does 'offensive conduct' cover beyond the listed examples?

The AG noted the dictionary definitions are "broad terms that encompass a wide variety of behavior." The opinion's examples (harassing, stalking, threatening, placing a person in reasonable fear of bodily injury) align with the federal Brady predicate, but the term as construed could reach further. The opinion did not catalog its outer bounds.

Why didn't the General Assembly just list these behaviors in the statute?

The opinion does not answer that, and reading the legislative record would be speculative. The drafting choice to use "offensive conduct" gives juvenile courts flexibility to tailor protective orders to specific situations without exhaustively enumerating every prohibited behavior, at the cost of leaving the term undefined.

Does this apply to adult protective orders, or just juvenile court orders?

The opinion analyzes § 16.1-253(A)(1), which sits in the juvenile and domestic relations district court chapter. Other Virginia protective order statutes (for adults, in circuit court, etc.) use their own statutory language. The reasoning method (undefined terms take ordinary meaning) is portable, but each statute would have to be analyzed on its own terms.

Can a defense lawyer argue that 'offensive conduct' is too vague to be enforceable?

Vagueness challenges to "abstain from offensive conduct" protective order terms are conceivable but face an uphill climb. Virginia courts give effect to undefined terms by their ordinary meaning, and protective orders are civil orders subject to civil enforcement standards. The opinion does not address vagueness directly.

Citations

• Va. Code Ann. § 16.1-253(A)(1) (juvenile court protective order; offensive conduct)
• Va. Code Ann. § 19.2-387.1(A) (Protective Order Registry within VCIN)
• Va. Code Ann. § 52-45 (Superintendent's duty to maintain Registry)
• 18 U.S.C. § 922(g)(8)(B) (federal firearm prohibition under qualifying protective order)
• Winborne v. Va. Lottery, 278 Va. 142, 677 S.E.2d 304 (2009) (plain and ordinary meaning of undefined statutory terms)
• Black's Law Dictionary 1188, 336-37 (9th ed. 2009) (definitions of "offensive" and "conduct")

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-048-Flaherty.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

August 27, 2009

Colonel W.S. (Steve) Flaherty
Superintendent, Department of State Police
P.O. Box 27472
Richmond, Virginia 23261-7472

Dear Colonel Flaherty:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether "offensive conduct" includes the acts of harassing, stalking, threatening, or placing a person in reasonable fear of bodily injury.

Response

It is my opinion that "offensive conduct" includes the acts of harassing, stalking, threatening, or placing a person in reasonable fear of bodily injury.

Applicable Law and Discussion

The Department of State Police maintains a computerized Protective Order Registry which may be shared with law enforcement agencies through the Virginia Criminal Information Network ("VCIN").[1] VCIN includes a "Brady Indicator Field" for subjects who are prohibited from "harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child"[2] by way of a judicial protective order.

Section 16.1-253(A)(1) authorizes juvenile and domestic relations district courts to issue child protective orders that require persons "[t]o abstain from offensive conduct against the child, a family or household member of the child or any person to whom custody of the child is awarded."[3] The General Assembly has not defined "offensive conduct," nor has a Virginia court interpreted its meaning. Thus, the plain and ordinary meaning of the statutory term must be considered.[4] "Offensive" means "[u]npleasant or disagreeable to the senses; obnoxious" or "[c]ausing displeasure ... repugnant to the prevailing sense of what is decent or moral."[5] "Conduct" may be defined as "[p]ersonal behavior, whether by action or inaction; the manner in which a person behaves."[6] These are broad terms that encompass a wide variety of behavior. It is my opinion that harassing, stalking, threatening, or engaging in other conduct that would place a person or child in reasonable fear of bodily injury would constitute "offensive conduct."

Conclusion

Accordingly, it is my opinion that absent a judicial or statutory definition, "offensive conduct" includes the acts of harassing, stalking, threatening, or placing a person in reasonable fear of bodily injury.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. See VA. CODE ANN. § 19.2-387.1(A) (2008); see also VA. CODE ANN. § 52-45 (2005) (requiring Superintendent to establish and maintain Registry regarding outstanding, valid protective orders).
2. 18 U.S.C.S. § 922(g)(8)(B) (LexisNexis 2005).
3. VA. CODE ANN. § 16.1-253(A)(1) (Supp. 2009).
4. Winborne v. Va. Lottery, 278 Va. 142, 148, 677 S.E.2d 304, 306 (2009).
5. BLACK'S LAW DICTIONARY 1188 (9th ed. 2009).
6. Id. at 336; see also id. at 337 (defining "wrongful conduct" as "an act that unjustly infringes on another's rights"; defining "disorderly conduct" as "[b]ehavior that tends to disturb the public peace, offend public morals, or undermine public safety").