Aggravated Malicious Wounding

This is from an old appeal I wrote several years back (I'm going through old appeals looking for some law I know I researched once upon a time). It's a brief history of Mayhem which is now know as Aggravated Malicious Wounding in Virginia:

5. Mayhem

Virginia’s aggravated malicious wounding has its roots in common law mayhem. At common law mayhem was a misdemeanor. Commonwealth v. Lester, 2 Va.Cas. 198, 4 Va. 198 (1820). The law’s original intent was to preserve the combat ability of those freemen in the military service of the sovran. 53 Am.Jur. 2d, Mayhem and Related Offenses, § 1. The offense became statutorily defined in Britain and in most of the United States; in the process it became a felony. Id. but see Peoples v. U.S., 640 A.2d 1047 (D.C., 1994) & Moore v. United States, 599 A.2d 1381 (D.C. 1991)(D.C. retains common law elements of mayhem).

Prior to 1991 §18.2-51.2, the aggravated malicious wounding statute, read:

"If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony in any case where the victim is caused thereby to be totally and permanently disabled."

Construing mightily against the plain language of the statute and the rule of lenity, the Court of Appeals held that “the term "totally ... disabled," as used in [1990] Code § 18.2-51.2, does not mean a state of absolute helplessness, but means the "inability to do substantially all of the material acts necessary to the prosecution of any occupation for remuneration or profit in substantially the customary and usual manner in which such occupation is prosecuted.” Branch v. Commonwealth, 14 Va.App. 836, 840, 419 S.E.2d 422, 425 (1992). In so doing it brought the law of Virginia more in line with the ancient common law standard that a conviction for mayhem requires some sort of impairment which would greatly restrict the usefulness of an individual to the society at large. It also brought the Virginia standard closer to the more modern common law standard that sees mayhem as resulting in “permanent injuries, which render[] a member or organ of the body either "wholly useless," or [] its usefulness "greatly impaired." Peoples.

In 1991 the Legislature changed the rather draconian plain language of §18.2-51.2 in a manner which seemed designed to bring the statute in line with common law elements of mayhem:

"If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.

Subsequent to this change of language the Courts Appellate of the Commonwealth have moved away from the common sense standard found in Branch. They have held that scars which do not impede function are sufficient to satisfy the requirement of "significant physical impairment." See Commonwealth v. Donker, 256 Va. 443, 507 S.E.2d 75 (1998)(four inch facial scar is significant permanent impairment), & Newton v. Commonwealth, 21 Va.App. 86, 462 S.E.2d 117 (1995)(“cosmetic disfigurement” is sufficient to satisfy the statute).