Is assaulting a nurse or doctor who treats inmates a felony in Virginia like assaulting a corrections officer?

Plain-English summary

Senator Northam asked whether health care professionals who serve in correctional facilities get the same enhanced punishment protection that § 18.2-57 gives to law enforcement officers when they are assaulted on the job. The AG concluded that the protection is narrower than the question assumed.

Section 18.2-57(A) makes ordinary simple assault and battery a Class 1 misdemeanor. Subsection (C) bumps the offense up to a Class 6 felony with a mandatory six-month sentence if the victim is in one of several enumerated categories and the attacker knew or had reason to know the status. The relevant categories the AG worked through:

• A "person employed by the Department of Corrections directly involved in the care, treatment or supervision of inmates." Yes, doctors, nurses, and other medical personnel employed directly by DOC count. The opinion adds an important qualifier: the words "employed by" suggest independent contractors who have a contract with DOC to provide care would not be covered.

• A volunteer rescue squad member or member of a bona fide volunteer fire department or volunteer rescue/EMS squad engaged in the performance of duties. Yes, these volunteers are covered when treating inmates as part of their duties.

• Medical personnel who do not fall into one of those two categories. No. The opinion is explicit that medical personnel employed by local or regional jails are not covered. Emergency room personnel who treat an inmate brought in from a jail are also not covered. An assault on those workers can be prosecuted as a Class 1 misdemeanor under subsection (A), but not as a felony under subsection (C).

The AG had no controlling case law interpreting the specific question and so applied plain-language statutory interpretation.

Currency note

This opinion was issued in 2010. 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.

Section 18.2-57 has been amended multiple times since 2010. The General Assembly periodically adds new categories of protected victims (school personnel, judges, certain volunteers). Anyone evaluating a current assault-and-battery charge should check the current version of § 18.2-57 to see whether the victim's category has been added or modified.

Common questions

Why does it matter who the victim is for an assault charge?
Because Virginia's assault statute uses victim status to elevate the offense. Routine assault and battery is a Class 1 misdemeanor (up to 12 months in jail). Assault and battery against an enumerated category of victim, when the attacker knew the status, becomes a Class 6 felony with a six-month mandatory minimum. The list of protected victims has grown over time.

Why didn't the AG just say all prison medical staff are covered?
Because the statute draws a precise line. It covers a person "employed by the Department of Corrections." That language excludes employees of local or regional jails (which are run by sheriffs, not DOC) and excludes ER staff at hospitals where inmates are transported for care. The legislature chose specific words, and the AG read them literally.

Are independent contractors who provide care under a DOC contract covered?
Probably not. The opinion notes that the language "employed by" the Department of Corrections suggests independent contractors who have a contract with the Department to provide care would not be covered by the enhanced-penalty provision.

Are volunteers really covered alongside DOC employees?
Yes, per the explicit text of § 18.2-57(C). The statute covers a "rescue squad member who is a member of a bona fide volunteer fire department or volunteer rescue or emergency medical squad ... engaged in the performance of his public duties." So a volunteer EMT responding to an inmate medical emergency falls inside the enhanced-penalty provision. A paid jail nurse working that same emergency does not.

What about local jail correctional officers?
The opinion focuses on medical personnel. Other parts of § 18.2-57(C) cover law enforcement officers, which can include correctional officers depending on the precise statutory language. The opinion does not analyze that category, since the question was specifically about medical staff.

Background and statutory framework

The statute being interpreted:

• § 18.2-57(A). Simple assault or assault and battery is a Class 1 misdemeanor.
• § 18.2-57(C). Assault and battery against an enumerated victim, with knowledge of the victim's status, is a Class 6 felony with a mandatory minimum of six months. The enumerated victims include law enforcement officers, persons employed by DOC directly involved in inmate care/treatment/supervision, volunteer rescue squad members in their duties, and other categories the statute spells out.

The AG's reading distinguishes among medical providers based on employer:

• DOC-employed medical personnel: covered.
• Local jail-employed medical personnel: not covered.
• Hospital ER staff treating an inmate: not covered.
• Independent contractors with a DOC contract: likely not covered (the "employed by" language).
• Volunteer rescue squad members: covered.

Interpretive approach: the AG found no controlling authority interpreting the statute on this question and so read § 18.2-57 according to its plain language.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 18.2-57, including subsections (A) and (C)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-090-Northam.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

September 24, 2010

The Honorable Ralph S. Northam
Member, Senate of Virginia
P.O. Box 9363
Norfolk, Virginia 23505

Dear Senator Northam:

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 the assault and battery statute, § 18.2-57, provides health care professionals who serve in correctional facilities with the same enhanced punishment protections afforded to law enforcement personnel.

Response

It is my opinion that, except for employees of the Department of Corrections involved in the care of inmates, and volunteers and members of a bona fide rescue squad who are engaged in the performance of their duties, medical personnel who provide care to inmates are not covered by the enhanced punishment provisions of § 18.2-57.

Applicable Law and Discussion

Section 18.2-57 provides in relevant part that

A. Any person who commits a simple assault or assault and battery shall be guilty of a Class 1 misdemeanor ....

C. In addition, if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is ... a person employed by the Department of Corrections directly involved in the care, treatment or supervision of inmates in the custody of the Department ... or rescue squad member who is a member of a bona fide volunteer fire department or volunteer rescue or emergency medical squad regardless of whether a resolution has been adopted by the governing body of a political subdivision recognizing such firefighters or members as employees, engaged in the performance of his public duties, such person is guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of six months.

Having found no controlling authority interpreting the provisions of the statute about which you inquire, it must be interpreted according to its plain language. First, the statute plainly provides that assault and battery can be elevated to a felony if the crime involves "lifesaving or rescue squad member[s] who" are members of a "bona fide volunteer fire department or volunteer rescue or emergency medical squad."

Second, for persons who are "employed by the Department of Corrections directly involved in the care, treatment or supervision of inmates," § 18.2-57(C) provides that an assault and battery against such persons, when the inmate "knows or has reason to know" these persons are involved in the care or treatment of inmates, constitutes a Class 6 felony. Therefore doctors, nurses, and other personnel who are employed by the Department of Corrections receive an additional level of protection from the statute. I note that the language "employed by" the Department of Corrections suggests that independent contractors who have a contract with the Department to provide care would not be covered by this language.

An assault and battery committed upon medical personnel not listed in the statute would not give rise to a felony charge. Thus, medical personnel employed by local or regional jails, and other persons providing medical care to inmates, such as personnel in the emergency room of a local hospital, are not covered under the enhanced penalty provisions of § 18.2-57(C). An assault and battery committed on such persons would constitute, at most, a Class 1 misdemeanor.

Conclusion

Accordingly, it is my opinion that, except for employees of the Department of Corrections involved in the care of inmates, and volunteers and members of a bona fide rescue squad who are engaged in the performance of their duties, medical personnel who provide care to inmates are not covered by the enhanced punishment provisions of § 18.2-57.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General