Duncan v. Commonwealth4/8/2003
parent puts a child at risk of being burned, cut, drugged, beaten, shot, or otherwise seriously injured -- but the trauma would not have likely resulted in death -- the parent has not violated Code § 18.2-371.1(B).
For two reasons, I do not believe the legislature intended the interpretation adopted by the majority. First, the phrase "reckless disregard for human life" is a statutory term of art that describes the requisite mens rea of the criminal actor, not the actus reus of the criminal act. The phrase has been used in many contexts, for many years, merely as a synonym for criminal negligence. We should presume that, by including this phrase in Code § 18.2-371.1(B), the legislature intended the traditional mens rea meaning ascribed to these words by the courts. Second, Code § 18.2-371.1 should be read as a whole and not as a series of freestanding phrases. A holistic approach leads us to subsection (A), which criminalizes "serious injury" to a child, as we search for the relevant actus reus of subsection (B).
I.
A.
When the General Assembly enacted Code § 18.2-371.1 in 1981, the statute included only the language now found in subsections (A) and (C). The 1981 statute criminalized behavior resulting in "serious injury to the life or health of such child," but did not address the felonious endangerment of a child short of actual injury or death. The General Assembly amended Code § 18.2-371.1 in 1993 to include a felony endangerment section, subsection (B), to address this omission.
The phrase "reckless disregard for human life," used in subsection (B), is a statutory term of art for criminal negligence. See, e.g., Goodman v. Commonwealth, 37 Va. App. 374, 387, 558 S.E.2d 555, 562 (2002) ("A conviction for aggravated involuntary manslaughter in violation of Code § 18.2-36.1(B) requires proof, in addition, that the driver's 'conduct . . . was so gross, wanton and culpable as to show a reckless disregard for human life,' i.e., that the driver was criminally negligent." (emphasis added)).
The phrase has been used interchangeably with a variety of other phrases such as "disregard of another person's rights with reckless indifference to the consequences," Hubbard v. Commonwealth, 243 Va. 1, 15, 413 S.E.2d 875, 883 (1992), "reckless and utter disregard for the life and personal safety of others," Gallimore v. Commonwealth, 15 Va. App. 288, 294, 422 S.E.2d 613, 616 (1992), and "reckless or indifferent disregard of the rights of others," Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992).
We have equated the language "reckless disregard for human life" to the common law definition of criminal negligence enunciated in Bell v. Commonwealth, 170 Va. 597, 611-12, 195 S.E. 675, 681 (1938), where the Virginia Supreme Court
defined criminal negligence in terms of "gross negligence," stating that conduct "is culpable or criminal when accompanied by acts of commission or omission of a wanton or wil ful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts." Wright v. Commonwealth, 39 Va. App. 698, 703, 576 S.E.2d 242, 244 (2003) (quoting Ellis v. Commonwealth, 29 Va. App. 548, 557, 513 S.E.2d 453, 457-58 (1999), and Bell 170 Va. at 611-12, 195 S.E. at 681)) (emphasis added); see also Banovitch v. Commonwealth, 196 Va. 210, 220, 83 S.E.2d 369, 375 (1954).
We have never limited the mens rea of criminal negligence to risk-of-death scenarios, as has the majority in
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