Can a person who was forcibly sterilized by Virginia between 1924 and 1979 sue the Commonwealth under the Virginia Tort Claims Act?

Plain-English summary

Delegates Marshall and Hope asked whether someone forcibly sterilized by the Commonwealth under Virginia's eugenic-sterilization laws (in effect from 1924 to 1979) could bring a successful claim under the Virginia Tort Claims Act.

The historical context: Virginia's Eugenical Sterilization Act of 1924 authorized the involuntary sterilization of people in state institutions deemed "feeble-minded." The U.S. Supreme Court upheld the law in the notorious 1927 case Buck v. Bell. Virginia sterilized thousands of people, mostly women, before the program effectively ended around 1979. The 2013 General Assembly was considering compensating victims of the program.

The AG was asked specifically about VTCA recovery, not about other compensation mechanisms.

The answer was no, and the analysis is short.

Sovereign immunity at common law. Virginia, like every state, enjoyed absolute common-law sovereign immunity from tort claims. The Commonwealth could only be sued when it had expressly waived its immunity through a constitutional or statutory provision.

The VTCA was that statutory waiver, enacted in 1981. But the General Assembly made it prospective: the VTCA "shall be liable for claims for money only accruing on or after July 1, 1982." By design, the Commonwealth chose to start the clock on its waiver more than a year after enactment, making clear the prospective nature of the waiver.

Causes of action accrue in Virginia at the time the tort occurs. A sterilization performed in (say) 1965 created a cause of action in 1965. That date is well before the July 1, 1982 effective date of the VTCA, so the claim never enters the waiver. The Commonwealth retains absolute immunity for it.

The notice requirement. Even if the claim somehow accrued within the VTCA window, Va. Code § 8.01-195.6 requires a written statement of claim to be filed within one year after accrual, or the claim is "forever barred." No such notice could have been filed in 1980 because the VTCA did not exist then. The only escape from the notice requirement is legal disability under § 8.01-229. The AG noted that many sterilization victims were under disability (the program targeted institutionalized people), but the prospective nature of the VTCA waiver made the disability point moot.

General statutes of limitations. Even apart from the VTCA-specific bars, ordinary statutes of limitations would block most or all of these claims.

The AG's bottom line: the VTCA does not provide a path. The opinion did not address other compensation mechanisms the General Assembly might enact directly, such as a special compensation statute.

Currency note

This opinion was issued in 2013. 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.

In 2015, Virginia enacted a special-purpose compensation statute for forced sterilization victims that did not depend on the VTCA. The 2013 AG opinion's analysis of the VTCA itself remains the law on that statute, but the practical landscape for compensation is different now.

Common questions

What were Virginia's eugenic sterilization laws?
The Eugenical Sterilization Act of 1924 (and a follow-on 1942 amendment) authorized the involuntary sterilization of people held in state institutions for the "feeble-minded," "insane," or "epileptic," based on the eugenic theory that mental defects were heritable. The U.S. Supreme Court upheld the law in Buck v. Bell (1927). The program continued in some form into the 1970s, with the last sterilization reportedly in 1979. The laws were repealed by 1981.

Why does sovereign immunity matter here?
Because Virginia is a sovereign state, and you generally can't sue a sovereign without its permission. The VTCA gives that permission for some kinds of tort claims, but only those accruing on or after July 1, 1982.

Why is the VTCA prospective?
That was the General Assembly's choice. When it waived sovereign immunity in 1981, it picked a future date for the waiver to start (July 1, 1982) to give state agencies time to set up procedures, secure insurance, and otherwise prepare. The decision to make it prospective also limited the Commonwealth's exposure to claims accumulated under absolute immunity.

Could a claim "accrue" later than the sterilization itself?
In Virginia, causes of action generally accrue when the tort occurs, not when the harm is discovered. So a sterilization in 1965 creates an immediately-accrued claim in 1965, regardless of when the victim later realized the harm.

What about claimants who were under disability?
The notice requirement can be tolled for legal disability, but tolling does not save a claim that never entered the VTCA waiver in the first place. The accrual was pre-1982, so the claim never fell within the waiver.

Can the General Assembly compensate sterilization victims through other means?
Yes. The General Assembly is free to enact special-purpose compensation statutes, public apologies, monument funding, or other remedial measures. The AG opinion addressed only whether the existing VTCA gave a litigation path. It did not address whether the General Assembly could or should enact something else.

What is the difference between an apology and a compensation statute?
An apology acknowledges wrong without creating a legal cause of action or monetary obligation. A compensation statute appropriates money to be paid to identified victims or classes of victims. Many states with eugenic-sterilization histories adopted one, the other, or both during the 2000s and 2010s.

Background and statutory framework

Statutes the AG cited:

• Va. Code § 8.01-195.1: defines the VTCA's scope.
• Va. Code § 8.01-195.3: the operative waiver, including the "on or after July 1, 1982" effective date.
• Va. Code § 8.01-195.6: one-year notice requirement.
• Va. Code § 8.01-229: tolling for legal disability.
• Va. Code § 8.01-230: accrual rule (cause of action accrues at the time of the tort).
• Va. Code §§ 8.01-228, 8.01-243, 8.01-248: general statutes of limitations.

The interpretive framework:

• Sovereign immunity is absolute absent express waiver. Carter (2004), Patten (2001), Baumgardner (1994).
• The VTCA is "in derogation of the common law" and must be strictly construed (Carter).
• The 1981 enactment of the VTCA, with a July 1, 1982 effective date, demonstrated the General Assembly's intent to limit the waiver prospectively.
• Causes of action accrue in Virginia "at the time the tort occurs" (§ 8.01-230).

Putting it together: every sterilization claim under the eugenic statutes accrued before the VTCA waiver took effect; the waiver does not reach those claims; the Commonwealth's absolute immunity remains intact for them.

Citations

• Va. Code § 8.01-195.1 through § 8.01-195.9 (VTCA)
• Va. Code §§ 8.01-228, 8.01-229, 8.01-230, 8.01-243, 8.01-248 (general limitations)
• Gray v. Va. Sec'y of Transp., 276 Va. 93, 662 S.E.2d 66 (2008)
• Bd. of Public Works v. Gannt, 76 Va. 455 (1882)
• Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 591 S.E.2d 76 (2004)
• Patten v. Commonwealth, 262 Va. 654, 553 S.E.2d 517 (2001)
• Baumgardner v. Sw. Va. Mental Health Inst., 247 Va. 486, 442 S.E.2d 400 (1994)
• 1981 Va. Acts ch. 449 (original VTCA)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-015_Marshall-Hope.pdf

Original opinion text

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

March 15, 2013

The Honorable Robert G. Marshall
Member, House of Delegates
Post Office Box 421
Manassas, Virginia 20108-0421

The Honorable Patrick A. Hope
Member, House of Delegates
Post Office Box 3148
Arlington, Virginia 22203

Dear Delegates Marshall and Hope:

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 inquire whether someone who was sterilized by the Commonwealth between 1924 and 1979 could successfully bring a claim against the Commonwealth under the Virginia Tort Claims Act ("VTCA").[1]

Response

It is my opinion that, because the VTCA does not provide relief for torts committed by agents of the Commonwealth that occurred prior to July 1, 1982, it is unlikely that a claimant could successfully bring an action against the Commonwealth for having been sterilized.

Applicable Law and Discussion

At common law, the Commonwealth enjoyed absolute immunity from tort and other claims because "'[i]t is an established principle of sovereignty, in all civilized nations, that a sovereign State cannot be sued in its own courts ... without its consent and permission ....'"[2] The Commonwealth retains its absolute immunity "[a]bsent an express statutory or constitutional provision waiving ..." that immunity.[3]

In the 1981 session, the General Assembly enacted a statutory waiver of the Commonwealth immunity, the VTCA.[4] The VTCA was and remains only a "limited waiver" of the Commonwealth's immunity and is to "be strictly construed because the Act is a statute in derogation of the common law."[5]

By its express terms, the VTCA waived the Commonwealth's immunity only prospectively. Specifically, since the VTCA's adoption, § 8.01-195.3 has provided that, subject to the law's other provisions, "the Commonwealth shall be liable for claims for money only accruing on or after July 1, 1982 ...."[6]

Generally, and for the purposes of your inquiry, causes of action accrue in Virginia at the time the tort occurs.[7] Thus, the latest a cause of action could have accrued given the dates in your letter is 1979, which is prior to the enactment and effective date of the VTCA. Accordingly, no such claim falls within the VTCA, and therefore, the Commonwealth retains its absolute immunity from any such claims.

In addition, any potential claim also may be barred by the notice provisions of the VTCA. Section 8.01-195.6 provides that

[e]very claim cognizable against the Commonwealth or a transportation district shall be forever barred unless the claimant or his agent, attorney or representative has filed a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred and the agency or agencies alleged to be liable, within one year after such cause of action accrued.

Obviously, no notices of claim were filed within one year of 1979, because there was no VTCA in 1980.

The only exception to the notice provisions would be if the tort victim were under a legal disability, and thus, entitled to a tolling of the notice requirement.[8] While some of those who were sterilized were almost certainly under a disability, the prospective nature of the VTCA nevertheless would bar any claim.

Finally, for at least some of the potential claimants, there also could be general statute of limitations problems.[9]

I therefore conclude that the VTCA does not waive immunity for any torts committed by agents of the Commonwealth that occurred prior to July 1, 1982.

Conclusion

Accordingly, it is my opinion that it is unlikely that a claimant could successfully bring an action against the Commonwealth for having been sterilized.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] Va. Code Ann. §§ 8.01-195.1 through 8.01-195.9 (2007 & Supp. 2012).

[2] Gray v. Va. Sec'y of Transp., 276 Va. 93, 101, 662 S.E.2d 66, 70 (2008) (quoting Bd. of Public Works v. Gannt, 76 Va. 455, 461 (1882)).

[3] Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 244, 591 S.E.2d 76, 78 (2004) (citing Patten v. Commonwealth, 262 Va. 654, 658, 553 S.E.2d 517, 519 (2001); Baumgardner v. Sw. Va. Mental Health Inst., 247 Va. 486, 489, 442 S.E.2d 400, 401 (1994)).

[4] 1981 Va. Acts ch. 449.

[5] Carter, 267 Va. at 244-45, 591 S.E.2d at 78 (citations omitted).

[6] The prospective nature of the VTCA is perhaps best demonstrated by the fact that, while it was first adopted in 1981, the General Assembly chose to make the waiver effective for the first time more than a year after the VTCA's adoption.

[7] See § 8.01-230 (2007).

[8] See § 8.01-229 (2007).

[9] See §§ 8.01-228 (2007); 8.01-243 (Supp. 2012); 8.01-248 (2007).