Is Wearing a Mask for Halloween Illegal in VA?

People in pumpkin mask

According to Virginia mask law, section 18.2-422, individuals over the age of 16 can't wear masks "with the intent to conceal" their identity. As a result, many young adults and parents over the age of 16 are left wondering: "Could I be arrested for wearing a mask on Halloween?"

In today's blog, we answer this question and more. To schedule a consultation with our team for your criminal defense case and work with a team who cares, contact us online or via phone at (757) 267-4949.

What Does Virginia Mask Law Say?

First, let's look at the specific wording provided in section 18.2-422:

"It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing."

This section of Virginia law has an interesting bit of history behind it - it was originally conceived to criminalize terrorism. According to Dr. Darryl Brown, a professor at the University of Virginia:

"The law's original purpose, after all, was to prohibit mask-wearing by Ku Klux Klan members and other potential criminals or domestic terrorists who wear masks to display messages or conceal their identities."

To get it out of the way: The mask law won't impact the majority of trick-or-treaters, since it doesn't affect anyone under the age of 16. If an individual aged 16 or older does wear a mask as part of a Halloween costume, they could face charges, but the chances of such charges resulting in criminal penalties are probably minor.

Firstly, intent is important. The individual wishing to press charges against a mask-wearer 16 or older would have to prove that the person intended to conceal their identity. Secondly, they'd have to prove the person they're accusing is old enough to be impacted by the mask law. Safe to say, homeowners who are willing to engage with trick-or-treaters in the hope they catch an older teen or adult wearing a mask so they can levy the mask law against them are probably few and far between.

There are also some additional exceptions to the law:

  • Masks worn as part of traditional holiday costumes are exempt, which could be used to argue for the legality of masks that are clearly part of a Halloween costume;
  • Individuals who require a mask for protection due to a medical condition or professional dangers can still wear one, although people with medical conditions requiring a mask must have an affidavit from a licensed physician or osteopath.

Virginia Mask Law & COVID-19

Concerns about trick-or-treaters aside, the mask law has consistently made the news over the past year and a half because it could impact people who choose to wear masks to decrease their chances of contracting COVID-19.

Although Dr. Brown said he would be "very surprised" to see the police enforcing the mask law on people clearly wearing medical masks as COVID-19 protection, it could happen. On the behalf of the state legislation, a spokesperson for Governor Ralph Northam did report that the Governor is committed to ensuring individuals can wear medical masks to protect against COVID without fear of repercussion.

As with the application of the law to trick-or-treaters, chances of an individual actually facing penalties for wearing a medical mask are incredibly slim. Once again, the plaintiff would need to prove that the masked individual was attempting to "conceal their identity."

In most cases, people who wear medical masks for COVID do not make any attempts to conceal other identifying factors, such as their hair, clothes, or accessories. Given the statements from the Governor's office and the fact that wearing masks has been recommended by federal agencies such as the Centers for Disease Control, it's safe to say that chances of facing charges for wearing a medical mask are slim.

At the Law Offices of Daniel J. Miller, our team can help you pursue the ideal outcome in a criminal defense or family law case. Give us a call at (757) 267-4949 or contact our office online to learn more.

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