Does a Virginia Commonwealth's Attorney have to let local child protective services join the multidisciplinary team that reviews child sex abuse cases?

Plain-English summary

Floyd County Attorney Stephen Durbin asked the AG a clean statutory question on behalf of a Commonwealth's Attorney: does Va. Code § 15.2-1627.5 require the prosecutor to let a representative of the local child protective services unit attend the regular reviews of child sex abuse cases conducted by the jurisdiction's multidisciplinary team?

AG Mark Herring's answer was yes. The statute, enacted in 2014, requires each Commonwealth's Attorney to establish a multidisciplinary child sexual abuse response team to review new and ongoing reports of felony sex offenses involving a child at least every 60 days. Subsection B lists who must be there and who may be invited:

• "Shall participate" (mandatory): the Commonwealth's Attorney; law enforcement officials responsible for investigating child sex offenses in the jurisdiction; a representative of the local child protective services unit; a child advocacy center representative if one exists; and an Internet Crimes Against Children task force affiliate representative if one exists.
• "May invite" (discretionary): the school superintendent; a sexual assault crisis center representative; the director of the victim/witness program; and a health professional with expertise in treating sexually abused children.

The AG read "shall" in the imperative sense settled by Virginia case law (Schmidt v. City of Richmond and others). Because subsection B uses "shall" for CPS but "may invite" for the optional list, the contrast confirms CPS participation is required.

The opinion noted that the General Assembly directed the Department of Criminal Justice Services to distribute sample protocols, procedures, and memoranda of understanding for these teams, and the sample documents include a signature line for the local social services director, reinforcing the participation expectation.

Currency note

This opinion was issued in 2019. 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.

Background and statutory framework

Section 15.2-1627.5 (enacted 2014 Va. Acts ch. 780) sets up Virginia's local multidisciplinary child sexual abuse response teams. The team can be a new team or an existing multidisciplinary team. Subsection A requires regular reviews of new and ongoing reports of felony sex offenses involving a child, plus other child abuse, neglect, or sex-offense reports at any team member's request. The team must meet often enough that no report goes more than 60 days without review.

Subsection B is the participant list, broken into two sentences. The first sentence uses the imperative "shall participate" for the core members; the second uses the permissive "may invite" for the optional list. The drafting choice was deliberate: in Virginia, "shall" generally carries mandatory force (Schmidt v. City of Richmond, 206 Va. 211 (1965), Mears v. Dexter, 86 Va. 828 (1890), Brunty v. Smith, 22 Va. App. 191 (1996)), while "may" indicates "permission and not compulsion" (Board of Supervisors v. Weems, 194 Va. 10 (1952); Masters v. Hart, 189 Va. 969 (1949)).

The Department of Criminal Justice Services maintains sample documents on its Children's Justice Act portal, including written protocols whose signature pages contemplate sign-on by the local social services director, child advocacy center director, law enforcement leadership, and the Commonwealth's Attorney.

Common questions

Q: Can the Commonwealth's Attorney bar CPS from attending if there's a conflict?
A: Per this opinion, no. The statute makes CPS participation mandatory through "shall participate," not discretionary. A specific case-level conflict would need to be addressed through some mechanism other than excluding CPS from the team.

Q: What if the CPS director just doesn't want to send anyone?
A: The opinion focused on the prosecutor's obligation. Read together, "shall participate" runs in both directions: the Commonwealth's Attorney must permit CPS to be there, and CPS as the entity is also expected to participate. Functionally, the team can't do its statutory job without CPS at the table.

Q: Can a designee attend instead of the named role-holder?
A: Yes. Subsection B expressly says "[t]he following individuals, or their designees, shall participate." Same for the discretionary invitees.

Q: What is a "multidisciplinary child sexual abuse response team" doing at these reviews?
A: Subsection A says the team reviews new and ongoing reports of felony sex offenses involving a child and the investigations of those offenses. At any team member's request, it can review other child abuse, neglect, or sex offense reports. The purpose is interagency coordination so that prosecution, investigation, child welfare response, and victim support all stay aligned.

Q: What if the locality doesn't have a child advocacy center or an ICAC task force affiliate?
A: Subsection B includes those participants only "if one exists." The CPS unit, the Commonwealth's Attorney, and law enforcement, however, are always mandatory.

Q: How often does the team have to meet?
A: Subsection A sets a 60-day floor: the team must meet "frequently enough to ensure that no new or ongoing reports go more than 60 days without being reviewed by the team." That sets a practical minimum cadence.

Q: Are these reviews open to the public?
A: The opinion doesn't address open-meetings status. As a practical matter, reviews of active child sex abuse investigations involve confidential information and typically would not be open meetings under FOIA's law-enforcement and minor-confidentiality exemptions.

Q: Does the law require a written protocol?
A: The statute does not, but the General Assembly directed DCJS to distribute sample protocols, MOUs, and procedures for teams to adopt. Many teams use the DCJS samples as the base for their local protocol.

Citations

The opinion is built on § 15.2-1627.5(A) and (B), and on the Virginia courts' settled construction of "shall" (Schmidt; Mears; Brunty) and "may" (Weems; Masters). It also references 2014 Va. Acts ch. 780, cl. 3, and the DCJS Children's Justice Act sample documents.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2019/19-001-Durbin-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

March 29, 2019

Stephen V. Durbin, Esquire
Floyd County Attorney
Sands Anderson PC
150 Peppers Ferry Road NE
Post Office Box 2009
Christiansburg, Virginia 24068-2009

Dear Mr. Durbin:

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 Commonwealth's Attorney must permit a representative of the local child protective services unit to participate in review meetings of the jurisdiction's multidisciplinary child sexual abuse response team pursuant to § 15.2-1627.5 of the Code of Virginia.

Applicable Law and Discussion
Section 15.2-1627.5 of the Code of Virginia governs the creation and function of multidisciplinary child sexual abuse response teams in the Commonwealth. The statute provides as follows:

A. The attorney for the Commonwealth in each jurisdiction in the Commonwealth shall establish a multidisciplinary child sexual abuse response team, which may be an existing multidisciplinary team. The multidisciplinary team shall conduct regular reviews of new and ongoing reports of felony sex offenses in the jurisdiction involving a child and the investigations thereof and, at the request of any member of the team, may conduct reviews of any other reports of child abuse and neglect or sex offenses in the jurisdiction involving a child and the investigations thereof. The multidisciplinary team shall meet frequently enough to ensure that no new or ongoing reports go more than 60 days without being reviewed by the team.

B. The following individuals, or their designees, shall participate in review meetings of the multidisciplinary team: the attorney for the Commonwealth; law-enforcement officials responsible for the investigation of sex offenses involving a child in the jurisdiction; a representative of the local child protective services unit; a representative of a child advocacy center serving the jurisdiction, if one exists; and a representative of an Internet Crimes Against Children task force affiliate agency serving the jurisdiction, if one exists. In addition, the attorney for the Commonwealth may invite other individuals, or their designees, including the school superintendent of the jurisdiction; a representative of any sexual assault crisis center serving the jurisdiction, if one exists; the director of the victim/witness program serving the jurisdiction, if one exists; and a health professional knowledgeable in the treatment and provision of services to children who have been sexually abused.[1]

Pursuant to the first sentence of subsection B, certain individuals, including a representative of the local child protective services unit, "shall participate in review meetings of the multidisciplinary team."[2] It is well established that "[w]hen the word 'shall' appears in a statute it is generally used in an imperative or mandatory sense."[3] Moreover, use of the word "shall" in connection with an action that is essential to a statutory objective denotes the action is mandatory, and no discretion is permitted in its exercise.[4]

As indicated by the context of the statute, the participation of the individuals listed in the first sentence of subsection B, including a representative of the local child protective services unit, is essential to the operation of a multidisciplinary child sexual abuse response team.[5] Without the participation of each of these individuals, a team could not carry out its statutory mandate to coordinate local interagency response to child sexual abuse. It is therefore my opinion that, pursuant to § 15.2-1627.5, a Commonwealth's Attorney must permit a representative of the local child protective services unit to participate in review meetings of the jurisdiction's multidisciplinary child sexual abuse response team.

Conclusion
Accordingly, it is my opinion that § 15.2-1627.5 of the Code of Virginia requires a Commonwealth's Attorney to permit a representative of the local child protective services unit to participate in review meetings of the jurisdiction's multidisciplinary child sexual abuse response team.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. VA. CODE ANN. § 15.2-1627.5 (2018).
2. Emphasis added.
3. See, e.g., Schmidt v. City of Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965).
4. See e.g., Mears v. Dexter, 86 Va. 828, 830-31, 11 S.E. 538, 539 (1890); Brunty v. Smith, 22 Va. App. 191, 194-95, 468 S.E.2d 161, 163 (1996). The use of the word "shall" in the first sentence of subsection B stands in contrast to the General Assembly's use of the word "may" in the second sentence of subsection B, which lists the individuals that a Commonwealth's Attorney "may invite" to review meetings. See Bd. of Supvrs. v. Weems, 194 Va. 10, 15, 72 S.E.2d 378, 381 (1952) (citing Masters v. Hart, 189 Va. 969, 979, 55 S.E.2d 205, 210 (1949)) (observing that the ordinary meaning of the term "may" indicates "permission and not compulsion").
5. See § 15.2-1627.5(A). In addition, the General Assembly's statement in enacting § 15.2-1627.5 supports the conclusion that the participation of these individuals is essential. At the time the statute was enacted, the General Assembly added a statement directing the Department of Criminal Justice Services to "disseminate sample guidelines for protocols, procedures, and memoranda of understanding . . . that may be implemented by [multidisciplinary child sexual abuse response] teams." 2014 Va. Acts ch. 780, cl. 3. See also VA. DEP'T OF CRIMINAL JUSTICE SERVICES, Child Abuse Multidisciplinary Teams and Child Advocacy Centers, https://www.dcjs.virginia.gov/juvenile-services/programs/childrens-justice-act (providing sample documents as directed by the General Assembly, including a sample signature page for written protocols that includes a signature line for, among other individuals, the local social services director).