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Virginia § 18.2-422 makes wearing a KKK hood or other face covering a felony, both in public, and in private unless it is with the owner's written permission.

Could someone (not mentioning any names) still be prosecuted for violating this law in the 1980s?

(Also, if it matters, the "with the intent to conceal his identity" clause was recently added. That phrase was absent in the 1980s.)

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  • The law you quote has an exception for with permission of owner of private party, though presumably he did not have written permission, and if it was a rental (they were students), the host was not the owner. But it also has exceptions for holiday costumes and masquerade balls. Presumably this was a Halloween party and not a "reenact the era of lynching" party. Without answering the title questions (hence this is a comment), I think a hypothetical person found to be in a photo wearing a hood and standing next to a minstrel character and holding a beer would be OK from this law.. – Damila Feb 4 '19 at 17:15
  • @Damila according to this virginia.ourcommunitynow.com/news/halloween-virginia-mask-law it might still be illegal even if it is a Halloween party. – DavePhD Feb 4 '19 at 17:21
  • @DavePhD one could presumably provide a defense by wearing a name tag in addition to the mask. – phoog Feb 4 '19 at 17:24
  • @Damila also: nbc29.com/story/11419913/halloween-mask-warning – DavePhD Feb 4 '19 at 17:26
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    @DavePhD That is my point- the picture was at some sort of party. And I thought the dance contest was in Texas. I mean, if we were talking about anyone real of course ;) – Damila Feb 4 '19 at 18:11
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Virginia's "limitation of prosecutions" is at § 19.2-8. Section 18-2.422 provides that the offense in question is a class-6 felony. Nothing at 19.2-8 appears to apply generally to felonies nor specifically to 18.2-422.

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  • So, are we to understand that Virginia has no statute of limitations at all for felonies, except for those specifically mentioned in 19.2-8? That seems surprising, and it would be good if we had some more explicit confirmation (e.g. court decisions, law review, etc.). – Nate Eldredge Feb 4 '19 at 18:10
  • Is there perhaps a limit coming from common law? – Nate Eldredge Feb 4 '19 at 18:11
  • @NateEldredge I wouldn't think so, but I certainly do not know. I encourage anyone who knows more about that than I do to post an answer, which I will upvote. I will also encourage the asker of the question to accept any such answer. – phoog Feb 4 '19 at 18:49
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Assuming that a person work a mask in public and violated the law, it could have been prosecuted as a class 6 felony. The statute of limitations limits prosecution in cases where the accused has not fled the state. There are specific exclusions surrounding murder and manslaughter where there is expressly no limit. Otherwise, the limit is between 1 year and 5 years, depending on the specific crime committed. There is no provision limiting prosecution for rape, robbery, or mask-wearing.

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  • the law says "or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing" – DavePhD Feb 4 '19 at 17:30
  • @DavePhD so someone attending a costume party without a written invitation could presumably be prosecuted. But those with written invitations would have a defense. – phoog Feb 4 '19 at 17:34
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    Yes, it is not clear whether there was a crime in the first place in the current-news context and we're not naming names, so since this is not about a specific incident, this is about whether prosecution is still possible. – user6726 Feb 4 '19 at 17:38

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