Improving the Law of Abduction in Virginia
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: jcall@radford.edu
On August 6, 2015, a woman, K.V., was jogging along a popular leisure path in Roanoke. She observed a man, later identified as Alexander Billow, standing on the edge of the trail, masturbating. She crossed to the other side of the trail in order to avoid him. As she passed by Billow, he lunged at K.V. and “kind of body slammed her.” Billow wrapped his arms around K.V., pushed one of his hands under K.V.’s sports bra, and groped her breast. K.V. testified that “my arms had gotten stuck between us … and … I couldn’t get free.” Then Billow stopped, pushed K.V. away, and took off running, apparently because he saw a cyclist approaching on the trail.
Billow was convicted of abduction with intent to defile. He was sentenced to a prison term of life, with the life sentence to be suspended once Billow has served 20 years of the sentence.[1]
Abduction is defined in the Virginia Code as the use of force, intimidation or deception, to seize, take, transport, detain or secret another person with the intent to deprive such other person of his personal liberty.[2] Simple abduction is a Class 5 felony, punishable by 0-10 years in prison. If the abduction is done with an intent to sexually abuse the victim (i.e., with an “intent to defile,” as the statute puts it), it is a much more serious crime – a Class 2 felony, punishable by 20 years to life in prison.[3]
The sexual aspect of this case, from a criminal law perspective at least, is comparatively minor. Obviously, there was no rape in this case, nor does it appear that an attempted rape would have been an appropriate charge. Billow’s outrageous behavior did not go far enough to raise a fair inference of an intent to rape K.V., a necessary element for attempted rape. There are also three forms of aggravated sexual battery in the Virginia Code that carry a potential sentence of twenty years, but none of them apply to the facts of this case either.[4] Thus, the sexual behavior in this case appears to constitute a sexual battery, a Class 1 misdemeanor, punishable by a maximum of twelve months in jail.[5] Sexual battery requires “an act committed with the intent to sexually molest, arouse, or gratify” through the use of “force, threat, intimidation, or ruse.”
Based on this analysis, there were two charges that could possibly have been brought in this case – sexual battery and aggravated abduction. However, under Virginia law, Billow could not have been convicted of both offenses. Virginia courts have developed an “incidental detention doctrine” in abduction cases where the victim was not moved.[6] Under that doctrine, a defendant may not be subjected to separate penalties for “abduction by detention and another crime involving restraint of the victim” where both offenses occurred at the same time unless “the detention committed in the act of abduction is separate and apart from, and not merely incidental to, the restraint employed in the commission of the other crime.”[7] However, the prosecution did not charge sexual battery and aggravated abduction in the Billow case, so the incidental detention doctrine was not applicable.
Since Billow could not be charged with both sexual battery and aggravated abduction, the critical question is whether the aggravated abduction charge was appropriate. The state’s theory of the case was that when Billow grabbed K.V., he detained (i.e., abducted) K.V. with an intent to defile her. The defense did not dispute that Billow’s conduct demonstrated an intent to defile. Instead, it argued that the prosecution failed to prove abduction. As indicated previously, abduction requires both an act (i.e., seize, take, transport, detain or secret another person) and a specific intent (i.e., an intent to deprive the person detained of his personal liberty). The defense argued that the prosecution failed to prove that Billow intended to deprive K.V. of her liberty.
The defense based its argument on two Virginia Supreme Court cases. In Johnson v. Commonwealth,[8] Johnson entered a woman’s apartment on the pretext of asking for a glass of water. While the woman was getting the water, Johnson came up to her from behind, attempted to kiss her, and rubbed up against her body. When the woman screamed, Johnson ran away. The court held that Johnson did not detain the woman under the abduction statute with the requisite intent because his actions were “in furtherance of his sexual advances and not with intent to deprive [the victim] of her personal liberty, although such a deprivation did occur momentarily.”
In Burton v. Commonwealth,[9] Burton posed as a mechanic, approached a woman’s parked car, and told her that her car appeared to be leaking brake fluid. The woman had just had brake work done on her car and was concerned that the job had not been done properly. After the woman allowed Burton to open the hood to her car, he told her to lie face down across the front seats of the car with her weight evenly distributed over both seats. When she got up from the seats, Burton had unzipped his pants and placed one of his hands inside his pants. When the woman said she had to leave, Burton stepped in front of the woman, blocking her way. When she again stated that she had to leave, Burton stepped aside. The court held that, while the deception used by Burton to induce the woman to lie across the front seats of her car might be construed as a detention of her, it was not done with an intent to deprive her of her liberty because Burton stepped aside when the woman continued to insist that she had to leave.
The Court of Appeals indicated that Johnson and Burton were not the controlling cases in Billow.[10] Instead, the court relied on Ellis v. Commonwealth.[11] In that case, the victim, Alice Ford, was working early in the morning at a convenience store. Ellis approached her and eventually moved into the kiosk area where Ford was working, even though Ford told him he could not be in that part of the store. Ellis hugged Ford, without Ford’s approval, and suggested that the two of them go into the back of the store and “mess around.” When Ford declined and attempted to return to the kiosk area, Ellis held her by her wrists. For about twenty seconds (the encounter was recorded on the store’s surveillance cameras), Ford physically resisted Ellis’ efforts to move her toward the back of the store until Ellis finally desisted in his efforts to move her when a vehicle approached the store.
The court held that Ford’s resistance to Ellis’ efforts to move her to a different location in the store and Ellis’ persistence in those efforts made the restraint of Ford more than merely incidental to his attempt to persuade Ford to engage in sexual activities with him. According to the court, these facts also demonstrated a clear intent to deprive Ford of her liberty and therefore satisfied all the requirements for abduction under Virginia law.
In Billow, the court indicated that the facts in that case were similar to the facts in Ellis, “because [Billow] body slammed K.V. and wrapped his arms around her, preventing her movement, while also trying to pull her off the path.” The facts in Billow were dissimilar to Johnson and Burton, according to the court, because those cases “involved a struggle between the perpetrators and the victims separate from the sexual assault.”
The difficulty created by these cases is making the distinction between simple sexual battery and aggravated abduction with intent to defile. The stakes are high. Aggravated abduction with intent to defile carries a minimum punishment of twenty years in prison and a maximum of life. Sexual battery, on the other hand, carries a maximum punishment of only a year in jail. Therefore, the difference between the two offenses is at least 19 years in prison and perhaps more (as was the case in Billow).
Most unwanted sexual contact probably involves some temporary detention of the victim. Note, for example, the language in Johnson where the court found that there was no abduction but conceded that there had been a “momentary” deprivation of the victim’s liberty. The cases in Virginia seem to suggest that this temporary detention will not be sufficient for abduction (at least in “intent to defile” cases) unless there is some, perhaps significant, resistance on the part of the victim. This is a very slim reed indeed to justify a difference of 19 years in prison.
What is the solution to this problem? At least three reasonable possibilities come to mind. The first is to create a new statutory offense where a victim is detained briefly (perhaps specifying something like less than five minutes or less than two minutes) with an intent to sexually abuse the victim. This offense could be a Class 5 felony, a special type of abduction, punishable by 0-10 years in prison. Admittedly, this time limit would be difficult to assess accurately. Undoubtedly, there would be conflicting evidence in many cases about the length of time a detention lasted. A person’s ability to estimate the time that an incident lasted, especially when under stress, is also questionable. However, it is not unusual to leave it to juries to sort out questions like this.
A second possibility is to leave the present statutory scheme as is but indicate through judicial interpretation that in cases of unwanted sexual contact involving very brief detentions of the victim, courts should examine the facts of the case to determine whether the gravamen of the offense is the detention of the victim or the unwanted sexual contact. In Billow, for example, the gravamen of the offense would seem to have been the unwanted sexual contact, more than the temporary inability of K.V. to move from the spot where Billow assaulted her. It is anticipated that under this approach, most of the cases discussed in this article would be treated as sexual battery cases.
This latter approach might be deemed by many observers as too lenient on persons who briefly detain someone with unwanted sexual intentions, especially someone who has a long track record like Billow’s. Therefore, a third possibility might be to add a provision to the sexual battery provision[12] that would result in enhanced punishment for repeat offenses. A second offense could be a Class 6 felony and a third offense a Class 5 felony, for example.
These proposals are not the only possible ways of rectifying what seems to be an unreasonable and undesirable situation in Virginia. However, the difference between a year in jail and twenty years in prison should not turn on the presence of 15-20 seconds of resistance by a victim. Some reasonable changes in the law to provide ways of charging defendants in addition to these radically different options are appropriate.
[1] This was not Billow’s first, nor would it be his last, brush with the criminal law. He has been convicted of at least 10 sex offenses since 2001. https://www.roanoke.com/news/crime/roanoke/man-convicted-of-attack-on-roanoke-greenway-faces-new-sex/article_f1fcb4a2-53d9-5d55-a7e9-0c1bf7648921.html (accessed January 3, 2019).
[2] Va. Code §18.2-47.
[3] Va. Code §18.2-48.
[4] Va. Code §18.2-67.3.
[5] Va. Code §18.2-67.4.
[6] At common law, these cases were called false imprisonment cases. They have traditionally been considered much less serious than abduction (i.e., kidnapping) offenses where the victim has been moved from where the incident began. The Virginia abduction statute does not explicitly recognize this traditional distinction. The statute treats false imprisonment and kidnapping as equally serious offenses.
[7] Brown v. Commonwealth, 337 S.E.2d 711 (Va. 1985).
[8] 275 S.E.2d 592 (1981).
[9] 708 S.E.2d 892 (2011).
[10] The court’s disposition of this case was handled by means of an unpublished opinion. Unpublished opinions are not binding in future cases, but Virginia courts will consider them for their persuasive value. Otey v. Commonwealth, 735 S.E.2d 255 (Va. Ct. App. 2012) and Virginia Supreme Court Rule 5A:1(f).
[11] 2012 Va. App. LEXIS 92 (Va. Ct. App.). This is also an unpublished opinion.
[12] Va. Code §18.2-67.4.