Virginia’s 2026 Autism Deferred-Disposition Law

A Safer Path Through Court for Defendants with Autism and Developmental Disabilities

In certain criminal cases, Virginia law allows a judge to postpone entering a conviction and give the defendant an opportunity to earn a dismissal. This is generally called a deferred disposition.

The basic concept is fairly simple. Instead of immediately entering a conviction, the judge takes the case under advisement. The defendant is usually placed on probation and required to comply with conditions set by the court. Those conditions may include:

• Treatment or counseling;
• Continued mental-health services;
• Community service;
• Good behavior;
• Payment of restitution; or
• Other requirements appropriate to the defendant and the case.

If the defendant successfully completes the deferral, the court may dismiss or reduce the charge, depending on the statute being used. If the defendant violates the conditions, the judge may enter a conviction without holding a trial and proceed to sentencing.

Virginia has several deferred-disposition statutes, and they do not all work the same way.

For example, Virginia Code § 19.2-298.02 provides a broader form of deferred disposition in some criminal cases. That statute generally requires the prosecution and defense to agree to defer the case. Other deferred-disposition statutes apply only to particular offenses or circumstances.

Virginia Code § 19.2-303.6 is different. It applies when a defendant has been diagnosed with:

• Autism spectrum disorder;
• An intellectual disability; or
• A developmental disability.

Unlike the broader agreed deferred disposition under § 19.2-298.02, the prosecutor does not have to agree to a disposition under § 19.2-303.6. The judge must consider the prosecutor’s position and the views of the victim, but the ultimate decision belongs to the court.

A Diagnosis Alone Is Not Enough

A defendant does not qualify for this disposition simply by presenting the court with an autism diagnosis.

The defense must establish several things:

1. The defendant was diagnosed by a psychiatrist or clinical psychologist with a disability covered by the statute.
2. The defense must prove, by clear and convincing evidence, that the alleged criminal conduct was either caused by the disability or had a direct and substantial relationship to it.
3. The defense must present evidence connecting the defendant’s documented disability to the conduct involved in the particular case.

The third requirement is important. It is not enough to establish that the defendant has autism and was charged with a crime. The defense must explain how the characteristics of that particular defendant’s autism or other qualifying disability affected the conduct at issue.

Even when the defense establishes the necessary connection, the judge is not required to grant the request. The statute gives the court another option. It does not guarantee a particular outcome.

The statute is also not available for every criminal charge. Among other exclusions, it does not apply to capital murder, an “act of violence” as that term is defined in Virginia Code § 19.2-297.1, or certain offenses for which the General Assembly has created a separate deferred-disposition procedure.

A prior criminal conviction, juvenile adjudication, or previous deferred disposition does not automatically disqualify a defendant. The court may still deny the request, however, if it determines—after considering the prosecution’s position, the views of the victim, and the defendant’s evidence—that another deferred disposition would be inconsistent with the interests of justice.

Why the Prior Law Created a Problem

Virginia first enacted this deferred-disposition law in 2020. In practice, however, trying to use it could place a defendant in a difficult position.

To determine whether autism was directly connected to the alleged conduct, a psychologist may need to ask the defendant questions that go far beyond confirming a diagnosis. The evaluator may need to understand:

• What happened;
• What the defendant was thinking;
• What the defendant understood at the time;
• How the defendant interpreted the situation;
• Whether restricted interests, compulsive behavior, repetition, or other characteristics of autism played a role; and
• How those characteristics were connected to the alleged criminal conduct.

The defendant may therefore need to speak candidly about the allegations to establish that the statute applies.

That type of conversation is not ordinarily required of someone accused of a crime. The Fifth Amendment protects a defendant from being compelled to incriminate himself. In most criminal cases, the defense would be extremely cautious about allowing the defendant to make detailed statements concerning the alleged conduct.

Before the 2026 amendments, § 19.2-303.6 did not clearly protect potentially incriminating statements made during the evaluation or while asking the court to grant the deferred disposition.

That created a serious dilemma.

The defendant could disclose damaging information in an effort to establish that the disability was directly connected to the conduct. If the judge then denied the request, the criminal charge would remain pending—and the defendant had no clear statutory assurance that those statements could not be used against him.

The prior procedure also created a second problem. A defendant could be required to enter a guilty plea, or otherwise allow the case to reach the point where the evidence justified a finding of guilt, before knowing whether the judge would grant the requested disposition.

The defendant was being asked to give up the right to contest guilt before knowing whether the court would approve the very outcome that made giving up that right worthwhile.

Virginia changed the law in 2026 to address those problems.

What Changed in 2026?

The 2026 amendments make three important changes:

1. A defendant may ask the judge to consider the request before entering a plea.
2. Statements made during the hearing or qualifying psychological examination are generally protected from use in a criminal proceeding.
3. If the defendant successfully completes the deferral and the charge is ultimately dismissed, the dismissal may qualify for expungement.

1. The Defendant May Request a Hearing Before Entering a Plea

Under the amended law, the defendant may request a hearing to determine whether a deferred disposition is appropriate at any time before or after a plea.

At that hearing, the parties may present the relevant facts by proffer. A proffer allows the attorneys to explain what the evidence would show without necessarily presenting every witness and exhibit that would be required during a full trial.

If the hearing occurs before a guilty plea, the judge may first decide whether a deferred disposition is appropriate.

If the judge agrees, the defendant must then stipulate that the evidence is sufficient to support a finding of guilt before the court formally enters the deferral.

The defendant therefore does not receive the deferred disposition while preserving the right to demand a trial if the conditions are later violated. Like most deferred dispositions, it remains a tradeoff:

• The defendant receives an opportunity to earn a dismissal; and
• The court may enter a conviction without a trial if the defendant violates the terms of the deferral.

The important change is the order in which those decisions may occur. The defendant can now ask the judge whether the court will approve the disposition before stipulating to facts sufficient to establish guilt.

That allows the defendant to make a more informed decision about whether to give up the right to contest the charge.

2. Statements Made During the Process Are Generally Protected

The amended law also protects statements made by the defendant:

• During a hearing under § 19.2-303.6; or
• During an examination conducted to determine whether the defendant meets the statute’s requirements.

Those statements are generally not admissible in a criminal proceeding.

This protection matters because the evaluator cannot always determine whether autism was directly connected to the conduct without discussing the alleged offense. A meaningful evaluation may require the defendant to explain thoughts, conduct, motivations, understanding, and decision-making in a way that could otherwise be harmful to the defense.

The new protection is not absolute.

A statement made under oath may be used in a prosecution for perjury. A voluntarily produced statement may also be used, under the circumstances identified in the statute, to impeach the defendant during the trial of another criminal matter.

Subject to those exceptions, the amendment allows the defendant to participate more openly in the evaluation and hearing without creating the same risk that the process itself will become a source of evidence for the prosecution.

3. A Dismissed Charge May Qualify for Expungement

The 2026 amendment also creates a potential path to expungement.

When a defendant successfully completes the court’s conditions, § 19.2-303.6 permits the court to discharge the defendant and dismiss the proceedings without entering a judgment of guilt.

Under the amended law, a charge dismissed through this process may be treated as “otherwise dismissed” for purposes of Virginia’s expungement statute. This includes:

• The original charge when it was reduced as part of the disposition;
• A charge dismissed after a guilty plea; and
• A charge dismissed after the defendant stipulated that the evidence was sufficient to justify a finding of guilt.

This clarification matters because a plea or stipulation sufficient to establish guilt could otherwise create a significant obstacle to expungement.

The dismissal does not automatically erase the record. The defendant must still pursue expungement under Virginia law, and the court must determine whether the applicable requirements have been met. The amendment means that the manner in which the deferred disposition was entered does not, by itself, prevent the dismissed charge from being considered for expungement.

What the New Law Does—and Does Not—Mean

The 2026 amendments make § 19.2-303.6 safer and more practical to use.

They do not mean:

• Every defendant with autism qualifies;
• A diagnosis excuses criminal conduct;
• The prosecutor’s position is irrelevant;
• The judge must grant the request;
• Every criminal charge is eligible; or
• A dismissed charge is automatically expunged.

The amendments create a fairer procedure for deciding a narrower question: Was the defendant’s documented disability genuinely and substantially connected to the alleged criminal conduct, and is a deferred disposition appropriate under the circumstances of the case?

How This Law May Apply in Child-Pornography Cases

Section 19.2-303.6 may be particularly important in some Virginia cases involving allegations of child pornography, more accurately described as child sexual abuse material.

The existence of an autism diagnosis does not explain or excuse the possession, receipt, distribution, or production of illegal material. Nor does autism affect every person in the same way.

In an appropriate case, however, the court may need to understand more than the number or nature of the files found on a device. Depending on the individual facts, relevant issues may include:

• Restricted or highly focused interests;
• Compulsive collecting or downloading;
• Repetitive behavior;
• Categorization and organization of digital material;
• Social and sexual development;
• The defendant’s understanding of legality and harm;
• The manner in which files were acquired;
• Whether the defendant sought particular material;
• How the defendant interacted with the material after it was acquired; and
• Whether particular characteristics of the defendant’s disability had a direct and substantial relationship to the conduct.

None of those issues should be assumed merely because a defendant has autism. They require individualized clinical evaluation and careful factual development.

This Virginia Law Does Not Apply in Federal Court

One limitation is especially important: § 19.2-303.6 is a Virginia state law. It does not apply in federal court.

That distinction matters in cases involving child sexual abuse material and other internet-based offenses. Conduct occurring in Virginia may be investigated or prosecuted by:

• A Virginia Commonwealth’s Attorney in state court, such as in Fairfax County, Prince William County, or Warren County;
• The United States Attorney’s Office in federal court, such as in the Eastern or Western District of Virginia; or
• State and federal authorities working together during the investigation.

The available charges, sentencing consequences, defenses, and possible dispositions can differ substantially depending on whether the Commonwealth or the federal government prosecutes the case.

A person should not assume that this Virginia deferred-disposition procedure applies merely because the conduct, investigation, or arrest occurred in Virginia.

Experience Matters When Presenting the Connection

A request under § 19.2-303.6 is not established merely by submitting a diagnosis to the court.

The defense must identify the relevant characteristics of the defendant’s disability, explain how those characteristics affected the conduct, and present evidence satisfying the statute’s demanding legal standard.

That can be challenging when the prosecution opposes the request or the court is reluctant to give the defendant the opportunity to earn a dismissal.

Developing the request may require coordination among:

• The attorney;
• The defendant;
• The defendant’s family;
• Treatment providers;
• A qualified psychologist; and
• Other people who understand the defendant’s history and functioning.

The psychologist must understand autism, but that alone may not be enough. The evaluator must also understand the specific legal question the court is being asked to decide: whether the conduct was caused by, or had a direct and substantial relationship to, the defendant’s disability.

The attorney must then connect the clinical evidence to the facts of the case and explain that relationship to the judge in a clear and legally relevant way.

Experience presenting these requests—and credibility with the court—can make a meaningful difference.

If you or a family member is facing a serious criminal charge in Virginia and believes autism, an intellectual disability, or a developmental disability may have contributed to the conduct, it is important to speak with an attorney familiar with both defending the underlying charge and developing a request under § 19.2-303.6.