Does a parent who leaves a child alone in a room with a registered sex offender, while staying in another room of the same house, commit a crime under Virginia law?

Plain-English summary

Senator McEachin asked the AG to draw a line. Section 18.2-371 of the Virginia Code makes it a Class 1 misdemeanor for an adult, including a parent, to "willfully contribute to, encourage, or cause any act, omission, or condition which renders a child delinquent, in need of services, in need of supervision, or abused or neglected as defined in § 16.1-228." One subdivision of § 16.1-228, § 16.1-228(6), defines an "abused or neglected" child to include one whose parent or caretaker "creates a substantial risk of physical or mental injury by knowingly leaving the child alone in the same dwelling, including an apartment as defined in § 55-79.2, with a person to whom the child is not related by blood or marriage and who the parent or other person responsible for his care knows has been convicted of an offense against a minor for which registration is required as a violent sexual offender pursuant to § 9.1-902."

The hypothetical: a parent knowingly leaves a child in the same room as a known sexually violent offender but stays elsewhere in the residence (kitchen, basement, another room). Is that a § 18.2-371 violation through the § 16.1-228(6) "abused or neglected" definition?

The AG concluded no.

Plain meaning. The Code does not define "dwelling" for purposes of § 16.1-228(6). Ordinary meaning: a "dwelling" is a "habitation," "place of residence," or "abode." A "room" is something narrower, a portion of a dwelling separated by walls or partitions. Virginia's common-law burglary cases draw the same distinction (Lacey v. Commonwealth; Hitt v. Commonwealth). The General Assembly used the broader term "dwelling" rather than the narrower "room." That choice is presumed deliberate (Alger v. Commonwealth: "the legislature chose, with care, the words it used").

Strict construction. Section 18.2-371 is a penal statute. Penal statutes are "strictly construed against the State" and cannot be "extended by implication or construction" to embrace cases not within their letter and spirit (Armstrong v. Commonwealth). Reading "dwelling" to mean "room" would extend the statute by construction. The AG declined.

Caveat for rented rooms. A footnote noted the opinion did not address the case where a parent leaves a child alone in a room that itself independently functions as a separate "dwelling" (a rented room in a boarding house, for example). Common-law burglary cases recognize that rented rooms can constitute independent "dwelling houses" by construction of law (Clarke v. Commonwealth; Hitt v. Commonwealth). The Fair Housing Law definition of "dwelling" (§ 36-96.1:1) covers "any building, structure, or portion thereof, that is occupied as, or designated or intended for occupancy as, a residence by one or more families." So in a rented-room boarding-house scenario, the analysis might come out differently.

What the opinion did not address. Only the specific § 18.2-371 / § 16.1-228(6) criminal exposure for the staying-in-the-dwelling scenario was answered. Many other potential liabilities are outside the scope:

• Civil child-welfare proceedings under the broader abuse/neglect definitions in § 16.1-228(1) through (5), which include conditions creating substantial risk of physical or mental injury and are not limited to the dwelling/room distinction.
• Other criminal statutes, including the general endangerment statute § 18.2-371.1 if the conduct produces a child's serious injury or death.
• Civil tort liability if the offender harms the child.
• Sex offender registry conditions or probation/parole conditions that might forbid contact with minors regardless of supervision.
• Family law consequences (custody, visitation) in any divorce or custody proceeding.

A parent reading this opinion should not take the legal narrowness of § 16.1-228(6) for moral permission. The opinion is a statutory-construction answer, not a child-safety endorsement.

Currency note

This opinion was issued in 2014. 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.

The statutes cited here (§§ 18.2-371, 16.1-228, 9.1-902) have been amended multiple times since 2014. The sex offender registry framework has expanded. The dwelling/room distinction discussed in the opinion is grounded in plain-meaning and strict-construction principles that have not changed. Anyone applying this to a current fact pattern should pull the current text of § 16.1-228, verify that the room/dwelling language has not been amended, and consult a Virginia criminal defense or family law attorney about the specific facts.

Common questions

Does this opinion mean it is safe to leave my child in a room with a registered sex offender as long as I am in the house?
No. The opinion answers a narrow statutory-construction question about one criminal statute. It does not address the many other ways the situation could lead to harm or to legal exposure, including the broader abuse/neglect definitions, civil custody consequences, or, most importantly, the obvious safety risk to the child.

What does "dwelling" mean here?
The whole habitation, residence, or abode. A house, an apartment, or any unit that functions as the entire living space.

What is a "sexually violent offender" for purposes of this statute?
A person convicted of an offense for which registration is required as a violent sexual offender under § 9.1-902. The Virginia Sex Offender and Crimes Against Minors Registry website identifies registrants and the level of offense.

Does the statute reach being in the same dwelling at all, or only when the child is left alone?
The statute requires the parent or caretaker to "knowingly leav[e] the child alone" with the offender. Presence and active supervision by the parent take it out of the statute's scope. The hypothetical at issue was a partial-supervision scenario (parent in another room, child alone with the offender in a room).

What if the rented-room exception applies?
If the "room" the child is left in is itself a separate dwelling (e.g., a rented studio room in a rooming house), the analysis may differ. The opinion did not decide that scenario; the question would turn on whether the room is a discrete habitation under § 55-79.2 or the analogous burglary case law (Clarke; Hitt).

Is there any criminal statute that reaches the room-level scenario?
The opinion did not survey alternative statutes. Section 18.2-371.1 (felony cruelty/injury to children) reaches conduct that causes a serious injury, which would not depend on the dwelling/room distinction. General prosecutorial theories of accessory or aiding-and-abetting could also apply depending on facts. CPS investigation under broader civil child-welfare standards is also possible.

Does this affect a sex offender's probation conditions?
The opinion did not address probation. Sex offenders typically have probation or parole conditions that restrict contact with minors regardless of supervision; those conditions can be more restrictive than the criminal statute and are enforced through the parole or probation system, not § 18.2-371.

What about civil child-welfare proceedings?
Section 16.1-228 has many subdivisions defining "abused or neglected child." Subdivision (6) is the specific one about being alone with a registered offender, but the broader subdivisions (e.g., creating "a substantial risk of physical or mental injury" by reason of any condition or act) could potentially be triggered by the room-level scenario even if subdivision (6) is not. CPS investigates under the full definition.

Background and statutory framework

• Va. Code § 18.2-371: Class 1 misdemeanor to willfully contribute to, encourage, or cause any condition that renders a child abused or neglected as defined in § 16.1-228.
• Va. Code § 16.1-228: definitions of "abused or neglected child" used throughout Title 16.1.
• Va. Code § 16.1-228(6): specific subdivision covering leaving a child alone in the same dwelling with a registered violent sexual offender.
• Va. Code § 9.1-902: defines who must register on the Sex Offender and Crimes Against Minors Registry, including the "violent sexual offender" category referenced in § 16.1-228(6).
• Va. Code § 55-79.2: apartment definition (referenced for "including an apartment").
• Va. Code § 36-96.1:1: Fair Housing Law definition of "dwelling."

The interpretive moves:

• "Dwelling" in § 16.1-228(6) means the whole habitation; it does not extend to room-level supervision.
• Penal statutes are strictly construed against the state; § 18.2-371 cannot be extended by construction.
• The General Assembly's word choice ("dwelling" rather than "room") is presumed deliberate.
• Rented rooms that independently function as dwellings may receive different treatment, but that scenario was not before the AG.

Citations

• Va. Code § 2.2-505
• Va. Code § 18.2-371
• Va. Code § 16.1-228
• Va. Code § 16.1-228(6)
• Va. Code § 9.1-902
• Va. Code § 55-79.2
• Va. Code § 36-96.1:1
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 722 S.E.2d 626 (2012)
• Commonwealth v. Amerson, 281 Va. 414, 706 S.E.2d 879 (2011)
• Meeks v. Commonwealth, 274 Va. 798, 651 S.E.2d 637 (2007)
• Alger v. Commonwealth, 267 Va. 255, 590 S.E.2d 563 (2004)
• Barr v. Town & Country Props., Inc., 240 Va. 292, 396 S.E.2d 672 (1990)
• Moyer v. Commonwealth, 33 Va. App. 8, 531 S.E.2d 580 (2000)
• McKeon v. Commonwealth, 211 Va. 24, 175 S.E.2d 282 (1970)
• Lacey v. Commonwealth, 54 Va. App. 32, 675 S.E.2d 846 (2009)
• Hitt v. Commonwealth, 43 Va. App. 473, 598 S.E.2d 783 (2004)
• Clarke v. Commonwealth, 66 Va. (25 Gratt.) 908 (1874)
• Armstrong v. Commonwealth, 263 Va. 573, 562 S.E.2d 139 (2002)
• Dep't of Motor Vehicles v. Athey, 261 Va. 385, 542 S.E.2d 764 (2001)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-015_McEachin.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Richmond 23219

May 23, 2014

900 East Main Street
Richmond, Virginia 23219
804-786-2071
804-371-8946 TDD

The Honorable A. Donald McEachin
Member, Senate of Virginia
4719 Nine Mile Road
Richmond, Virginia 23223

Dear Senator McEachin:

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 a parent or caretaker who leaves a child alone in the same room with a sexually violent offender, yet remains within the residence, would be in violation of § 18.2-371, which incorporates by reference the provisions of § 16.1-228(6).

Response

It is my opinion that a parent or caretaker who leaves a child alone in the same room with a sexually violent offender, yet remains within the residence, has not violated § 18.2-371 by leaving the child "alone in the same dwelling" with an offender within the meaning of § 16.1-228(6).

Background

In your request, you present a hypothetical set of facts in which a parent or caretaker leaves a child alone in the same room of a residence with a person known by the parent to be required to register as a sexually violent offender, while the parent or caretaker remains elsewhere within the residence. You inquire whether such actions would violate § 18.2-371, which incorporates by reference the provisions of § 16.1-228(6) with respect to the definition of an "abused or neglected child."

Applicable Law and Discussion

Section 18.2-371 provides, in relevant part, that

Any person 18 years of age or older, including the parent of any child, who ... willfully contributes to, encourages, or causes any act, omission, or condition which renders a child delinquent, in need of services, in need of supervision, or abused or neglected as defined in § 16.1-228 ... shall be guilty of a Class 1 misdemeanor.

According to § 16.1-228(6), an "abused or neglected" child includes a child

[w]hose parents or other person responsible for his care creates a substantial risk of physical or mental injury by knowingly leaving the child alone in the same dwelling, including an apartment as defined in § 55-79.2, with a person to whom the child is not related by blood or marriage and who the parent or other person responsible for his care knows has been convicted of an offense against a minor for which registration is required as a violent sexual offender pursuant to § 9.1-902 [emphasis added].

I note first that, "[w]hen construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute."[1] Moreover, "the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction, and a statute should never be construed in a way that leads to absurd results."[2] Further, "[w]e 'assume that the legislature chose, with care, the words it used when it enacted the relevant statute.'"[3] Finally, undefined terms in a statute must be given their ordinary meaning, given the context in which they are used.[4]

The Code of Virginia does not define the term "dwelling" for purposes of § 16.1-228(6); however, a "dwelling" commonly is defined as a "habitation," "place of residence," or "abode."[5] This term is distinct from the narrower term "room," which is defined as "[a]n area separated by walls or partitions from other similar parts of the structure or building in which it is located."[6] Had the General Assembly intended to enlarge the scope of § 16.1-228(6) by adding the term "room," it could have done so.[7] Accordingly, the reach of § 16.1-228(6) does not include a child who is left alone in the same room as a sexually violent offender, provided the child's parent or caretaker remains within the residence.

Moreover, it is well-established that "[p]enal statutes must be 'strictly construed against the State,' and ... 'cannot be extended by implication or construction, or be made to embrace cases which are not within their letter and spirit.'"[8] Based on the definitions above, a strict construction of § 16.1-228(6) requires that the subsection be limited to instances in which a parent or caretaker leaves the dwelling itself, rather than a room within the dwelling.

Conclusion

Accordingly, it is my opinion that a parent or caretaker who leaves a child alone in the same room with a sexually violent offender, yet who remains within the residence, has not violated § 18.2-371 by leaving the child "alone in the same dwelling" with an offender within the meaning of § 16.1-228(6).

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011)) (further citation and internal quotation marks omitted).

[2] Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (internal quotation marks and citations omitted).

[3] Alger v. Commonwealth, 267 Va. 255, 261, 590 S.E.2d 563 (2004) (quoting Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)).

[4] See Moyer v. Commonwealth, 33 Va. App. 8, 35, 531 S.E.2d 580, 593 (2000) (citing McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970)).

[5] The Webster Encyclopedic Dictionary of the English Language 271 (Virginia S. Thatcher & Alexander McQueen eds., 1967); see also The American Heritage Dictionary: Second College Edition 431 (Pamela B. De Vinne et al. eds., 1985) (defining a "dwelling" as "a place to live in" or "abode").

[6] The American Heritage Dictionary: Second College Edition, supra note 5, at 1070; see also The Webster Encyclopedic Dictionary of the English Language, supra note 5, at 730 (defining a "room" as "an apartment in a house" or "any division separated from the rest by a partition"). In addition, Virginia's common law of burglary draws a clear distinction between the terms "dwelling" and "room." See Lacey v. Commonwealth, 54 Va. App. 32, 40, 675 S.E.2d 846, 850 (2009); Hitt v. Commonwealth, 43 Va. App. 473, 483, 598 S.E.2d 783, 788 (2004).

[7] I note that this Opinion does not address a scenario in which a parent or caretaker leaves his child alone in a room that independently might constitute a separate "dwelling" (such as a rented room), as your inquiry does not present such a scenario. See Hitt, 43 Va. App. at 481-82, 598 S.E.2d at 787 (indicating that rooms within a larger residence may constitute independent "dwelling houses" if they serve as the discrete habitation of individuals who reside therein); Clarke v. Commonwealth, 66 Va. (25 Gratt.) 908, 917, 919 (1874) (noting that a rented room may constitute an individual "dwelling house" by construction of law); see also Va. Code Ann. § 36-96.1:1 (2011) (defining a "dwelling," for purposes of Virginia's Fair Housing Law, as "any building, structure, or portion thereof, that is occupied as, or designated or intended for occupancy as, a residence by one or more families" (emphasis added)).

[8] Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 144 (2002) (quoting Dep't of Motor Vehicles v. Athey, 261 Va. 385, 388, 542 S.E.2d 764, 766 (2001)) (further citation omitted).