A 71-year-old law prohibiting adults from wearing masks goes back into effect in Virginia on Thursday — but local prosecutors say no one wearing a mask “to mitigate the risks of COVID-19” in Charlottesville or Albemarle County will be prosecuted.

Virginia law § 18.2-422 prohibits anyone over 16 from wearing a mask either in a public area or on private property. Violating the prohibition is a Class 6 Felony. 

The law was temporarily waived by Gov. Ralph Northam’s state of emergency last year. That waiver will expire along with the state of emergency later this week.

Anticipating the law’s re-emergence, the commonwealth’s attorneys for Albemarle and Charlottesville issued a joint statement advising local law enforcement that “it is not a crime to wear masks in public to mitigate the risks of COVID-19 spread and exposure.”

Officials in some other Virginia localities have made similar statements.

The [law’s] purpose is to hold people accountable who are doing something criminally wrong,” Albemarle Commonwealth’s Attorney Jim Hingeley told Charlottesville Tomorrow on Monday.

But concerns about the anti-mask law are enough that Northam has asked the state’s legislature to clarify its position on masking for medical reasons when it returns for a special session in August.

The law in question was enacted in 1950 with the intent of stopping Ku Klux Klan members from wearing their infamous white hoods that covered their faces. At least a dozen other states enacted similar laws around that time as tools to stop the Klan members from concealing their identities while intimidating or attacking others.

The law appears among Virginia’s “crimes against peace and order” in “activities tending to cause violence.”

The statue reads that:

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.

The law is rarely used to prosecute people, Hingeley said. But it does happen.

In 1989, a Ku Klux Klan member dressed in full regalia — including a hood that covered his face —  was arrested in Fredericksburg while distributing Klan propaganda. He was charged and convicted of the felony of wearing a mask.

More recently, Black Lives Matter protesters have expressed fear that the law will be used to arrest people gathering for demonstrations.

However, using the law to target people masking against COVID would be a stretch, Hingeley said.

“The statue says that the wearing of the mask has to be with the intention of concealing your identity, and of course anybody wearing a mask in COVID is not doing that with the intention to conceal his identity,” Hingeley said. 

What’s more, the statute includes an exemption that masks may be worn by people “engaged in professions, trades, employment or other activities and wearing protective masks which are deemed necessary for the physical safety of the wearer or other persons.”

“That’s a pretty broad exception,” Hingeley said. “The way that exception is worded is ‘engaged in other activities.’ So that’s broad enough to include engaging in ordinary life activities while protecting the health of the wearer and others. I use that in giving advice to the police that somebody who’s wearing a mask because of COVID, under this statute, should not be prosecuted.”