Women and Justice: Court: Supreme Court of Virginia

Domestic Case Law

J. v. Victory Tabernacle Baptist Church Supreme Court of Virginia (1988)

Statutory rape or defilement

The plaintiff, the mother of 10-year-old girl, sued the defendant, the Tabernacle Baptist Church, alleging that her daughter had been repeatedly raped and sexually assaulted by an employee of the church.  The plaintiff alleged that the church knew or should have known that its employee had recently been convicted of aggravated sexual assault on a young girl, was currently on probation for this offense, and that a condition of his probation was that he not be involved with children.  In spite of this fact, the church hired the offending employee and entrusted him with duties that encouraged him to interact freely with children, gave him the keys to lock and unlock all of the church doors, and failed to supervise him.  As a result, the plaintiff’s daughter was raped by the employee multiple times, on and off of church grounds.  The trial court dismissed the action, concluding that, as a charitable organization, the church was immune from tort liability under the doctrine of charitable immunity.  The Virginia Supreme Court reversed and remanded. The question  before the court was whether the church, as a charitable institution, was immune from prosecution for torts under the charitable immunity doctrine. Answering in the negative, the Court cited cases in which Virginia courts held charitable hospitals liable for negligent hiring and concluded that there was no basis for distinguishing those cases from the case before it.  Thus, the Court held that the church could be held liable for negligently hiring an employee.

S. v. Cayouette Supreme Court of Virginia (1992)

Sexual violence and rape, Statutory rape or defilement

The defendant sexually abused the plaintiff between 1969 and 1978 when she was 5-14 years old. The plaintiff turned 18, the age of majority in Virginia, in 1982. She first received information from her psychologist regarding the causal connection between the childhood sexual abuse and the severe emotional harm she manifested in March 1990, and she subsequently filed a lawsuit against defendant for the abuse in July 1991. However, the trial court dismissed the lawsuit as untimely. The issue before the Virginia Supreme Court was whether, upon the lapse of the time fixed in the statute of limitations and the tolling statute (the grace period before the statute of limitations begins), the defendant acquired a right protected by due process guarantees notwithstanding a recent statute by the legislature with provisions to: (a) retroactively apply a ten-year statute of limitations . . . in cases in which the statute of limitations had expired . . . and (b) to create a twelve-month period during which such cases could be filed regardless of when the cause of action accrued. In affirming the lower court’s ruling the Virginia Supreme Court reaffirmed its well-established principle that the legislature possesses the power to enact retrospective legislation only if the statute is not destructive of vested rights. Here, defendant’s statute of limitations defense was a vested right. Infant plaintiff suffered an injury in that "she experienced positive, physical or mental hurt" each time defendant committed a wrongful act against her "and her right of action accrued on that date." The last such act was committed in 1978. Because plaintiff was 14 years old at that time, the statute of limitations was tolled until she attained her majority in 1982. The two-year time limitation expired in 1984. At that time defendant right to a statute of limitations defense vested and could not be repealed by subsequent legislation. The court therefore affirmed the lower courts’ ruling that defendant had acquired a right protected by due process guarantees and plaintiff’s suit was untimely.

Middlekauff v. Allstate Insurance Co. Supreme Court of Virginia (1994)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff sued her former supervisor and former employer for intentional infliction of emotional distress due to her supervisor’s harassment, which consisted of sexist and belittling remarks over an extended period of time.  The lower courts held that her claim was barred by the Virginia’s Workers Compensation Act, which supplies remedied for injuries by accident, arising out of and in, the course of the employment or occupational disease but excluded any other remedies for such injuries. The issue before the Court was whether a pattern of harassment constituted the type of injury for which a lawsuit had to be filed under the Workers Compensation Act only. In reversing the lower courts’ decision, the court overruled its prior decision in Haddon v. Metropolitan Life Insurance Co., 389 S.E.2d 712 (Va. 1990), which held that a pattern of sexual harassment constituted an “injury by accident” and thus could only be brought under the Workers’ Compensation Act.  The Court reasoned that Haddon was irreconcilable with long-established precedent holding that a “gradually incurred” injury over an extended period of time did not constitute an “injury by accident” and was thus not covered by the Act’s exclusion of other remedies.  The Court’s decision allowed for a tort cause of action for intentional infliction of emotional distress based on a pattern of sexual harassment in the workplace.   

Lockhart v. Commonwealth Education Systems Corp. Supreme Court of Virginia (1994)

Employment discrimination, Gender discrimination, Sexual harassment

Two plaintiffs, A and B, sued their former employer for wrongful termination, one based on racial discrimination and the other based on gender discrimination. Plaintiff B alleged that her supervisor touched her sexually without her consent and, when she complained, he fired her.  The lower courts dismissed the actions, concluding that, pursuant to the employment-at-will doctrine, the plaintiffs were at-will employees who could be terminated for any or no reason at all.  The issue before the Court was whether workplace discrimination could constitute a public policy exception to the employment-at-will doctrine and whether the availability of federal statutory remedies precluded state tort lawsuits. In reversing lower courts’ decision, the Court cited its precedents recognizing a public policy exception to the employment-at-will doctrine and concluded that it is “[w]ithout question” that it is the public policy of the Commonwealth of Virginia that individuals within the state are “entitled to pursue employment free of discrimination based on race or gender.”  The Court rejected the employer’s argument that the availability of federal statutory remedies should preclude a state tort cause of action based on wrongful discharge, explaining that it is not uncommon for injuries resulting from the same set of operative facts to give rise to multiple remedies.

Niese v. City of Alexandria Supreme Court of Virginia (2002)

Sexual violence and rape

The plaintiff alleged that she was raped several times by a police officer who had been assigned to help her deal with her son’s behavioral issues.  The plaintiff reported the rapes to municipal mental health and domestic abuse entities, and she alleged that these entities violated their statutory duty to report these incidents or take further action.  Consequently, the plaintiff sued the Alexandria Police Department for intentional tort and negligent hiring.  The issue before the Court was whether the sovereign immunity doctrine barred the plaintiff from suing municipal entities for both intentional torts and negligence in failing to act upon plaintiff’s reports and in hiring and retaining the offending officer. The Virginia Supreme Court affirmed the lower court’s dismissal of the action as barred by sovereign immunity, explaining that a municipality is immune from liability for negligence associated with the performance of “governmental” functions, which include maintaining a police force and the decision to retain a specific police officer.  It declined to adopt an exception to sovereign immunity for the tort of negligent retention, as it had done in the context of charitable immunity.  The Court observed that whether a municipality is liable for an employee’s intentional torts was an issue of first impression in Virginia, but the Court relied on Fourth Circuit precedent to conclude that sovereign immunity applies in this context.  Finally, the Court held that the then-applicable statute requiring officials to make a report whenever they have “reason to suspect that an adult” has been “abused, neglected, or exploited” imposed a discretionary duty and not a ministerial duty upon the individuals subject to the reporting requirements and thus dismissed the claim. (i.e., ministerial duties make actions necessary when conditions for their performance arise while discretionary duties make actions optional, subject to the official’s judgment.)

Molina v. Commonwealth of Virginia Supreme Court of Virginia (2006)

Sexual violence and rape

The defendant appealed his convictions for rape and sodomy, arguing that there was insufficient evidence to convict him and that the victim was incapacitated due to voluntary intoxication.  The victim suffered from bipolar disorder and substance abuse. She was found non-responsive and half-naked behind a convenience store with rape-related injuries. She had high amounts of cocaine and alcohol in her blood, but low amounts of her prescribed lithium.  She stated that she had kissed the defendant but did not consent to sexual intercourse and had no recollection of intercourse with the defendant.  The defendant claimed the intercourse was consensual.  The issue before the Court was whether defendant could be convicted for rape because of the victim’s incapacity if such incapacity was not a permanent condition but a transitory condition such as voluntary intoxication. In affirming the conviction, the court explained that “[n]othing in the statutory definition itself limits the definition of ‘mental incapacity’ to a permanent condition,” but rather the statute defines incapacity to mean a condition existing “at the time of the offense” that “prevents the complaining witness from understanding the nature or consequences of the sexual act.”  Accordingly, the Court held that “mental incapacity” could extend to a transitory circumstance such as intoxication because the nature and degree of the intoxication went beyond the stage of merely reduced inhibition and reached a point where the victim did not understand “the nature or consequences of the sexual act.” Consequently, the Court upheld the convictions.

Nobrega v. Commonwealth of Virginia Supreme Court of Virginia (2006)

Domestic and intimate partner violence, Statutory rape or defilement

The defendant was convicted of rape and sexual abuse of his minor daughter and appealed, challenging the trial court’s refusal to order the victim to undergo a mental health examination and the sufficiency of the evidence supporting his conviction.  The defendant’s daughter, who was 11 years old, reported to her mother that defendant had sex with her on two occasions when she was seven and eight years old. In a motion to order a psychiatric examination of the child, defendant pointed to the child’s mental health history, which showed that she “had been diagnosed with psychological disorders and exhibited dysfunctional behavior.” The trial court denied the motion and the Virginia Court of Appeals affirmed the denial. The issue before the Court was whether the trial court erred in denying defendant’s motion to subject the plaintiff, a rape victim, to a psychiatric examination and whether the plaintiff’s testimony alone, without the requested mental examination, was sufficient to sustain defendant’s conviction. The Court affirmed the lower courts, finding that the trial process afforded “adequate safeguards to the accused to test the competency of the complaining witness without a court-ordered mental health examination of that witness.” Therefore, “a trial court has no authority to order a complaining witness in a rape case to undergo a psychiatric or psychological evaluation.”  With respect to the sufficiency of the evidence, the court noted its precedents establishing that “the victim’s testimony alone, if not inherently incredible, is sufficient to support a conviction for rape,” and that because the child’s testimony was not inherently incredible, it was sufficient to sustain defendant’s conviction. The trial court did not err in denying defendant’s motion to subject plaintiff to a mental examination and the plaintiff’s testimony, by itself, was sufficient to support the conviction.

Stephens v. Rose Supreme Court of Virginia (2014)


The plaintiff filed a petition for a protective order against the defendant, her ex-boyfriend.  The two  ended their relationship in 2007, but from 2009 to 2012, the defendant made repeated, unsuccessful attempts to re-establish contact with the plaintiff via e-mail and social media.  In 2013, the defendant escalated his attempts, first driving to the plaintiff ’s parents’ home in Canton, Ohio, and approaching her father at 6:20 a.m. to find out where the plaintiff  was currently living.  The plaintiff’s father told the defendant not to contact the plaintiff anymore and then called 911. The plaintiff became afraid upon learning that the defendant had visited her parents’ home, asking her current boyfriend to stay with her because she was afraid to be home alone.  The defendant  began repeatedly calling and leaving voice messages for the plaintiff.  Within a one-week period, he called her 40 times.  On one occasion, the plaintiff ’s boyfriend answered the phone and told the defendant that he had the wrong number and not to call anymore.  The defendant also attempted to contact the plaintiff at her work.  Then, one day, after placing several calls between 2 and 3 A.M., the defendant showed up at the plaintiff ’s home at 7 A.M. with flowers, and the plaintiff ’s boyfriend called 911 and had him arrested. The issue before the Court was whether these acts satisfied the statutory requirements for a protective order which require an “[a]ct of violence, force, or threat.”  The Court held that stalking satisfies the requirements for a protective order even in the absence of physical harm or threatened physical harm.  The Court set forth three elements necessary to prove stalking: (1) “the defendant directed his or her conduct toward the victim on at least two occasions”; (2) “intended to cause fear or knew or should have known that his or her conduct would cause fear”; and (3) “the defendant’s conduct caused the victim ‘to experience reasonable fear of death, criminal sexual assault, or bodily injury.’”  The Court held that, in this case, these three factors were satisfied and explained, with respect to the third factor, that it was sufficient that the plaintiff said that she “was scared,” because “[a] victim need not specify what particular harm she fears to satisfy the third element of stalking.”   

Robinson v. Salvation Army Supreme Court of Virginia (2016)

Employment discrimination, Sexual harassment

The plaintiff sued her former employer, alleging wrongful termination because she refused her supervisor’s request for unmarried sex in violation of a statute that proscribed fornication. The plaintiff alleged that her supervisor also made frequent lewd requests and comments when he was alone with her as well as suggestive gestures and inquiries concerning her romantic life. After plaintiff played secret recordings of these conversations to human resources she was terminated without explanation.  The issue before the court was whether termination for refusing to engage in unmarried sex could be the basis of a public policy exception to the at-will employment doctrine. In rejecting the plaintiff’s claim, the court reasoned that a public policy argument cannot be based on an unconstitutional statute. Further, that a statute that sought to regulate private consensual sexual activity between adults was unconstitutional. Here, plaintiff could not base her claim on the statute that forbade unmarried sex because such a statute sought to regulate private consensual activity between adults and was therefore unconstitutional. This case is significant because the court reached this conclusion even though the conduct at issue was economically coercive and the same alleged facts could arguably have supported a wrongful discharge claim based on statutes concerning gender discrimination or “criminal acts” of “adultery and lewd and lascivious cohabitation,” statutes, which the court did not purport to overrule.   

Crawford v. Commonwealth Supreme Court of Virginia (2000)

Domestic and intimate partner violence

Sarah Crawford ended an abusive relationship with her husband but remained fearful of him and took various precautions to protect herself, including applying for an order of protection.  She signed an affidavit for the order, in which she recounted instances of past abuse, including threats to her life.  The following month, she was found murdered and evidence overwhelmingly pointed to her ex-husband.  Before the trial, Crawford made a motion to suppress the affidavit, arguing that the document was testimonial hearsay.  However, the trial court admitted the affidavit, holding that under the doctrine of “forfeiture by wrongdoing,” Crawford forfeited his right to confrontation with respect to statements by Sarah.  The trial court agreed and a redacted version of the affidavit was admitted.  A jury convicted Crawford of capital murder, abduction with intent to defile, rape, grand larceny, use of a firearm in the commission of a murder, and use of a firearm in the commission of abduction.  Crawford appealed, arguing, inter alia, that admission of the affidavit violated his rights under the Confrontation Clause of the Sixth Amendment of the U.S. Constitution.  The appellate court reversed every conviction except for the grand larceny conviction on grounds that Crawford’s Sixth Amendment rights were violated by the admission of the affidavit. The Virginia Supreme Court held that the admission of the affidavit of a victim in support of her application for a preliminary protective order against defendant was testimonial and therefore violated the defendant’s Sixth Amendment right of confrontation. It also held the trial court could not admit the affidavit under the “forfeiture by wrongdoing” doctrine because there was no evidence that the defendant killed the victim to prevent the victim from testifying. However, it found that the admission of the affidavit was harmless since the other evidence against Crawford was overwhelming.

Mitchem v. Counts Supreme Court of Virginia (2000)

Sexual harassment

Mitchem filed a motion for judgment against her former employer, Counts, alleging wrongful discharge in violation of the common law following her refusal to have a sexual relationship with him, as well as several instances of 13.  She argued that her discharge violated Virginia’s policy “that all persons . . . are entitled to pursue and maintain employment free of discrimination based upon gender.”  The trial court held that the amendments to the Virginia Human Rights Act “eliminated the VHRA as a source of public policy to support a common law cause of action for wrongful termination.  The trial court also held that Code §§ 18.2-57, -344 and -345 do not articulate public policies that support a common law action for wrongful termination.  The court dismissed Mitchem’s action with prejudice, and Mitchem appealed from this judgment. On appeal, Mitchem withdrew parts of her previous claim, arguing that she was discharged from employment due, not to gender but rather, to the fact that she would not consent to her employer’s demands that she violate sections of the Virginia code prohibiting fornication, lewd and lascivious cohabitation, and was discharged for failing to “consent to commission of a battery upon her person.” The court addressed whether Code §2.1-725(D) “bars a common law action for wrongful termination based on public policies not reflected in the VHRA, when the conduct alleged in the motion for judgment also violates a public policy reflected in the VHRA.”  That section states, “Causes of action based upon the public policies reflected in this chapter shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances.”  The court noted that the statute only abrogated common law causes of action for wrongful discharge based on public policies in the VHRA; common law causes of action for wrongful discharge based on public policies not in the VHRA are not prohibited by the section.  The Court upheld the trial court’s dismissal of plaintiff’s wrongful discharge claim based on the public policy of “refusing to consent to commission of battery upon her person” – since if she had consented, there would have been no battery.  However, it reversed the trial court’s holding as to wrongful termination based on public policy in Code §§ 18.2-344 and -345, which prohibit fornication, and lewd and lascivious behavior respectively.

Middlekauf v. Allstate Ins. Co. Supreme Court of Virginia (1994)

Sexual harassment

A former employee brought an action against supervisor and employer for intentional infliction of emotional distress due to harassment. She alleged that her supervisor intentionally sought to humiliate her in front of her co-workers and made harassing, sexist, and belittling comments.  Although she complained to her manager and other supervisors, they failed to intervene.  The Defendant argued that her claims were barred by the exclusivity provision (Code § 65.2-307) of the Virginia Workers’ Compensation Act.  The court held that her allegations of gradually incurring severe emotional distress due to harassment did not amount to “injury by accident” under the Workers’ Compensation Act; therefore the action against the employer was not barred by the exclusivity provision of the Act.