CHAPTER 468

An Act to amend and reenact §§ 20-45, 20-46 and 87-281, as amended, of
the Code of Virginia, relating to marriage of habitual criminals,
insane persons, and mental defectives; sexual sterilization of epilep-
tics and others.

[H 419]

Approved April 2, 1968

Be it enacted by the General Assembly of Virginia:

1. That §§ 20-45, 20-46 and 37-231, as amended, of the Code of Virginia
be amended and reenacted as follows:

§ 20-45. Marriages which are void from time so declared or
from time of conviction.—All marriages which are prohibited by law on
account of consanguinity or affinity between the parties, and all mar-
riages solemnized when either of the parties was incapable from physical
or mental causes of entering into the marriage state, or when either of
the parties has been lawfully adjudged to be insane, * or feeble-minded, as
provided in Chapter 5 (§ 37-136 et seq.) of Title 37, shall, if solemnized
within this State, be void from the time they shall be so declared by a
decree of divorce or nullity, or from the time of the conviction of the
parties under § 20-40.

§ 20-46. Marriage of habitual criminals, insane persons, and mental
defectives.— (1) Definitions—The term “habitual criminal” as used in
this section shall be construed to mean anyone who has been convicted
at least three times of felonious crimes. *
(2) Habitual criminals and mental defectives—No woman under
the age of forty-five years, and no man of any age, unless he marry a
woman over the age of forty-five years, either of whom is an habitual
criminal, idiot, imbecile, * or insane person, shall hereafter intermarry
or marry any other person within this State.

(3) Clergymen not to solemnize such marriages.—No clergyman or
other officer authorized by law to solemnize marriages within this State,
shall hereafter knowingly perform a marriage ceremony uniting persons
in matrimony, either of whom is an habitual criminal, idiot, imbecile, *
or insane person, unless it be that the female party to such a marriage
is over the age of forty-five years.

(4) Clerks not to issue license to such persons; evidence to determine
disability, certificate of capability to marry.—No clerk of court, whose
business it is to issue marriage licenses, shall knowingly issue a license
to any applicants either of whom is an habitual criminal, idiot, imbecile, *
or insane person, unless it be that the female applicant is over the age
of forty-five years. The clerk, in the event he is not satisfied as to whether
either one or both of the parties is or are an idiot, feeble-minded person,
imbecile * or insane person, shall be authorized to follow the recommen-
dation of the chairman of the board of health of his county or city or
some duly licensed practicing physician in the county or city of his
selection, and for which examination and report a fee not exceeding two
dollars and a half may be charged, to be paid by the party or parties
applying for the license, to be paid to the physician making the report
and recommendation.

In the event any person applying for such license shall present to
the clerk a certificate dated within the preceding thirty days from a
qualified physician or superintendent of any mental institution showing
that such person has been discharged from the care of such physician
or from an institution for the care and treatment of the mentally ill or
mentally deficient, or has improved and in the judgment of such physician
or superintendent, is not an idiot, imbecile * or insane person and is
capable of entering into the marriage relationship, the clerk may issue
such license, and be discharged of any liability under the provisions of
this section.

(5) Presentation of evidence of disabiity.—It shall be legal for any
person, knowing that any applicant for marriage is subject to any of
the disabilities named in this section, to appear before the clerk to whom
application for license is made, or before the clergyman or other officer,
who may solemnize the marriage ceremony, and present evidence why
such license should not be granted, or why such ceremony should not
be performed.

(6) Right of appeal—Upon refusal of the clerk of any court in
this State to grant such license, the person or persons refused shall have
the right of appeal, at their own cost, to the circuit or corporation court
of the county or corporation in which the female party usually resides,
with the further right of appeal to the Supreme Court of Appeals.

(7) Penalty for violation—Any person knowingly violating any of
the provisions of this section shall, upon conviction thereof, be punished
by a fine not exceeding one hundred dollars, or confinement in jail not
exceeding ninety days, or both.

37-231.—Whenever the superintendent of the Western State Hos-
pital, or of the Eastern State Hospital, or of the Southwestern State
Hospital, or of the Central State Hospital, or of the Lynchburg Training
School and Hospital, or of the Petersburg Training School and Hospital,
shall be of opinion that it is for the best interests of the patient and of
society that any inmate of the institution under his care should be sexually
sterilized, such superintendent is hereby authorized to perform, or cause
to be performed by some capable physician or surgeon, the operation of
sterilization on any such inmate afflicted with the hereditary forms of
mental illness that are recurrent or mental deficiency * ; provided that
such superintendent shall have first complied with the requirements of
this chapter.