 Well, good morning. This is Senate Judiciary a little bit late this morning due to floor action. And we are taking up it's Tuesday, March 23 2021 we're taking up h18 and actually relating to relating to sexual exploitation of children. It's a fairly specific area of law that we will get into it has to do with proposals to include simulated conduct with within the definition of sexual conduct for the purposes of crimes involving sexual exploitation of children. So this is an issue that we took up last year and we're continuing our work on that on this issue we passed legislation last year regarding a specific portion of that. So Michelle go ahead if you could remind us a little bit of last year's bill as well as what's changed in this year. Sure, and is it okay if I share my screen to put the language absolutely. Okay. Senator Sears is correct so last year you passed legislation updating chapter 64, which is the title of which is the chapter on sexual exploitation of children, and that's entitled 13 and that focuses mostly on the on production and possession of child sexual exploitation materials. And so there were a number of little tweaks that you did that were upon the recommendation of the. And you passed that but there was one issue that there wasn't consensus on and that was the issue of including simulated sexual conduct involving a child and and where does that how could that fit in with this and I believe Mr Raymond had talked about certain scenarios that fell outside of the law that they couldn't prosecute and the additional language for simulated, but it just folks were in disagreement about what that language look like and so what you have now is a proposal that does incorporate simulated conduct into the definition and they there was quite a few hearings on it in the house and so we had the both the attorney general's office defender general's office and the state's attorneys as well. So discussing the language, I will cautiously say, you know they an agreement with regard to the generally with regard to the language but I'll, I'll let them speak for for themselves I think it's, I'm not saying any. Of course it but I think there was some people got to a point of being comfortable with the language and so let me put that up on the screen for you. Anybody see that. Nope. Okay, so, so you're looking at section one in the definition section that would apply to the entire title. I remember just a little refresher when we're talking about a child we're talking about someone who is under 16 years of age. And so you see subdivision to as a definition of sexual content. And then all the different things that constitute sexual conduct versus of the chapter. And you'll see the addition on the top of page two of the new subdivision G so any simulation of the conduct that's described above so it may not actually be occurring the simulation of that particular conduct of a through F. So, there's a new subdivision seven that's added here to further define simulation. So it means the explicit depiction of any conduct that's up above that we just took a look at that one, it must involve a child as defined in current law so we're talking about. A full child, a live child so we're not talking about that the, that the conduct is what simulated not the child, and then subdivision seven. A child it has to be a child not a cartoon of a child. Correct. Yep. So the second is under subdivision seven a it has to create the of such conduct that's listed above. It has to on on the third has to exhibit the naked genitals buttocks or breasts below the top of the areola. So you have to have an actual child. It has to create the appearance of the prohibited conduct, and it has to exhibit nudity as, as provided there so you have to have all three things for it to fall under the definition of simulation for purposes of this chapter. Subdivision subdivision seven be simulation does not include wait a minute. Okay, it has to be both naked genitals buttocks or breasts or is it any of the yes. It could be any of them to be okay, because you just said something to the effect. Had to be all three. It could be any one of the three or all Michelle meant the first three. Okay, one, two, and three. Right, I meant the right I meant that okay child create the parents conduct and there has to be nudity involved. Okay. Okay, and subdivision seven be simulation and include paintings drawings are non visual or written descriptions of sexual conduct and subdivision seven see as I mentioned earlier simulation applies to the conduct, not to a simulated child. And then the death, and then it takes effect on July 1. I think probably what's if it works for you is that rather than going into all the details about how this came about as maybe if you hear from the witnesses and they can talk to you a little bit about their process and why they've gotten to this point here and then I'll be here to answer any questions. I think actually I'm going to jump right to Matthew Raymond I think that's what I would prefer to do who could talk about as the director of the internet crimes against Children's Task Force. Just to make sure we have time to hear from him on on the bill and I might add that the same bill has introduced by the S8 introduced by Senator Ruth Sears and Ochre is the same as HAT has introduced. So, Mr. Raymond, thank you for being with us again. Thank you for having me and thank you and the committee for its work in passing the laws last year around this and it's really been beneficial just to remind everybody. We're the Vermont internet and the commander of the internet crimes and Children's Task Force and we are primary purpose is to prevent the victimization or exploitation of children through the computers technology or the internet. We receive just in cyber clips alone which come from the National Center for Missing Exploded Children from electronic service providers that find child exploitation on their sites. We get between three and 400 complaints a year at this point. And the changes that were made last year really address helping to do those cases more effectively and protect children in Vermont better. The law. Did you just say I missed that. Between three and 400 that's just from electronic service providers that's not counting, you know referrals we get from DCF parents schools, other police agencies. But that's just just the cyber tips alone. And on top of doing the investigations of course we also do examinations of devices and kind of the third leg of our stool is education, because obviously that's the most important to us is to educate children, parents, teachers, the general public about online safety to protect our children. So, as far as the law changes the last one that we asked for corporate simulated. Unfortunately, there's many images out there they get circulated that don't. But I think everybody when they looked at it would consider child sexual abuse material, but just don't fit into the current statutory language. And I apologize in advance to be graphic but one such image or we have many such of these images but there's like three or four year old clothes girls standing right in front of an adult male with an exposed direct penis. But the problem is from the camera angle you can't tell if there's actually contact between the penis in the mouth. There could not be, and then that currently doesn't fit the definition, but the simulated language would draw that in as child sexual abuse material, and I would believe that everybody would agree that that is, you know, an atrocious image and should be currently fit the definitions so that that's just one example. But why that I would ask that this get passed the, I think the language that has been proposed this year is better and does take care of all the issues that were brought up last year about the concerns. You know, I have seen the movie taxi I've seen cuties and all the other ones and not this language would not apply to those movies. That wouldn't meet the statutory requirements that has laid out here, and I can answer any questions anybody has. Yeah. Unfortunately, I just lost my video. Try to bring it back. It's a very unstable broadband today. Can you has the pandemic resulted in an increase in the behavior or no, in terms of the cases that you're seeing. The first few months of the stay home stay safe procedures way back in like March or April of last year into May, we were seeing at first like the one and a half and then two and a half times increase in the number of cyber tips we were getting those months. And usually, usually those months are actually, there's kind of an ebb and flow to cyber tips usually those are down a little bit. I think it's because people are starting to get outside and you know some work, but Hello everybody and we did see a sharp rise and then and then how much was attributed after that it's hard to say because each year we're seeing just market increases each year in the cyber tips. When we first started doing cyber tips. It is increased like 219% amount of service we get currently versus in 2015 when the office took over stewardship of the ICAC. It just keeps going up each year so it's hard to, it's hard to take off how much of that is pandemic related now and how much of that is just the natural, you know, occurrence of things that has been going on and I apologize everybody can hear that that's my dog is Oh, that's fine. We're used to my dog taking over committee meetings when somebody's outside or he wants to go out or back in. We don't mind in a patch are important to have around us but sometimes they don't understand zoom meetings. I don't have any other questions for Raymond, but I appreciate your joining us. Senator Nick. I was just wondering, where were we hung up last year why didn't it pass. Why didn't we include a we passed a lot of the bill but we didn't include this because of a concern that was particularly speaking to dogs. Particularly expressed by Marshall Paul regarding movies like taxi and when those issues might have been simulated acts and would they be criminal or not. So we decided to wait until we looked at this issue again. I'm going to go take care of the dog but maybe Raymond answer the question or perhaps Marshall would like to jump in. Okay. Yeah, the line. There was language included that wasn't included last year, which includes exhibiting the nudity requirement that wasn't in the bill last year. I believe that language mirrors the New York language which actually was where taxi was filmed. So, and is predominant in actually a majority of states I believe so but the attorneys can speak better about that aspect to it rather than I can but I think that's where it was hung up last year was not including that type of language. I see. Marshall. Sure. Thank you. And good morning to the committee. That is where we were hung up last year and I agree with detective Raymond that at this point, the bill is not. You know we've addressed the two primary concerns that I had last year which were the over inclusiveness of the language, which, you know closely related was the potential unconstitutionality of that language. And I still have concerns about the language in this bill, but they are not concerns with over inclusiveness or constitutionality. It's simply that this definition of simulation is not consistent with what's done with what is. It doesn't reflect the language that's used in the case law. It's not clear. And it's just sort of a ugly way to write a definition is to include the word that you're defining in the definition, which this one does and my primary concern is with this. You know, subsection seven C, which says simulation applies to conduct not to a simulated child. Because that's where we get into that territory of using the word simulation in our definition or scope of the word simulation. We had in the house proposed some language that would have used the words that are used by the US Supreme Court and by other federal and state courts when they're considering this issue. They use the language actual child or real child. So they simply say that in order for a simulation to be prohibitable, it must essentially be the product of sexual exploitation of an actual or real child. And that's the language that I proposed in the house. That language was consistent with there had been testimony in the house from Professor Peter teach out from Vermont law school. He had proposed similar language or identified a similar concern. And that's also, you know, that's like I said that's consistent with what's used in the case law. Attorney General's office had an opposition to that language I'll let them explain their opposition to that language in part because I know I think they are going to explain it, their opposition better than I am. And frankly, I don't quite understand their opposition. But that's why we wound up with the language we wound up with. As I said, we do feel that this language is probably constitutional and not over inclusive. We still don't support the language because it's our opinion that when you are, you know, messing around with laws that are and really not just messing around with really that, you know, break the expanding the scope of laws that are, you know, carry very significant sentences, these are five year felonies 10 year felonies 15 year felonies that it's really important to do the absolute best you can to keep the law tightly reflective of the boundaries that have been set by the US Supreme Court and, you know, federal courts in our jurisdiction. And to me that means using the language that they use which is actual or real child, which in addition to being reflective of the actual case law. What I feel is that is just simply clearer because that avoids this problem of using the word simulation to define the scope of the word simulation. So that's our answer at you know we're happy to provide the same language that we had provided in the past though. You know just one other thing I'd like to add is that we've been in communication with law professor. I'm talking to Hessek who's really, you know, among people who have written about the scope of the First Amendment with regard to child pornography, and actually about how to draft a child pornography law. She is sort of the preeminent scholar there she's written the only articles that are really specifically about not just child pornography and the First Amendment, but about statutory drafting and how to draft the best child law that incorporates that, you know, covers everything that is covered by First Amendment case law, but does not cover the things that are not covered by First Amendment case law. She and I have been exchanging emails and she has not yet given me her opinion of this language. We just most recently emailed back and forth last night, and she wanted to see more of the language from the chapter. So I sent her the whole chapter and I haven't heard back yet. I'd assume that this is not going to be assuming this won't be voted on today, and that there will be an opportunity for further testimony. I'd like the opportunity to come back. Perhaps even if Professor Hessek has anything, particularly, you know, she looks at this and says, I think this is fine I think this reflects actually some case law that's out there that, you know, perhaps I didn't know about, and that, you know, this is consistent with what's done in other states, then we would probably withdraw every objection that we have to this because my objection to this is the fact that it doesn't reflect the case law and that it is inconsistent with what's done in other places around the country. And so, but if she tells me that I'm wrong about that I'm happy to withdraw that objection. It's just that there's problems in this that we hadn't identified. I'd like the opportunity for us to bring that information back to the committee, or perhaps even to bring Professor Hessek to testify. So that's what I would leave this as is, you know, for now, we certainly think that this is constitutional not over inclusive. It's a better way to do this that's more accurate, more carefully ties to the case law that's out there and to the extent that, you know, are reaching out to experts in the field leads us to a different conclusion. Over the next few days we'd certainly like the opportunity to either withdraw our objections or bring the committee some more specific information about those objections. So, so that's our duty, dog control. The good news for you is that we will not vote on the bill today. Won't even vote on the bill this week. So I suspect we'll go back to it really next week. And so, yes, we would love to hear from. What's her name again. Professor Carissa Hessek, I'm trying to remember the law school she's added to. If she's willing to testify, just let Peggy know. Absolutely. Just let us know maybe by the end of the week when we put together our agenda for next week. I'll be happy to hear from her and from you and whatever, but we will take it up again next week sometime. Okay. That's good news. Anything else for March? Any questions from Marshall? I'm sorry, I missed part of your testimony. I was taking care of the dogs. Okay. Next up is James Pepper from the Department of State's Attorneys and Sheriff's. Good morning, James Pepper from the State's Attorneys and Sheriff's. The State's attorneys are very supportive of this bill. Certainly there's a compelling interest in preventing children from being participating in the production of sexual abuse material. I think that the addition of requiring nudity, actual nudity, you know, takes this squarely into the realm of a crime and not in protected speech. And, you know, just the State's attorneys just for the record don't really prosecute these crimes. These are generally handled by Matt Raymond and the Attorney General's Office, the Internet Crimes Against Children Task Force. So, but, you know, the mere fact, so they ask for this bill and, you know, if they're asking for it, I think it really indicates that, you know, they've had to decline prosecutions because of this simulation. I don't want to call it a loophole, but this gap in the law. And so the State's attorneys are very supportive of this language. They're very supportive. They believe that the addition of nudity is what it was an improvement over last year's bill. So they believe this, the as introduced bill is constitutional but certainly support this, this version that as passed by the House version as well. I don't have much more to add, but I think a lot of the kind of substance of the debate in the House was between the Attorney General's Office and the Defender General. Well, thank you very much and have a great day. Thank you. We'll turn right to David's chair and if we don't finish his testimony this morning, we will pick up with him next week and we'll probably hear from you next week depending on how you and Marshall and the professor. Thank you Senator from the record David chair with the Attorney General's office and you know I think a lot of the important substances already been spoken about this morning on this bill. Commander Raymond as he always does did a good job of explaining the necessity for the bill and why we're asking for it. There has this bill has been the subject of a lot of discussion already. As Marshall Paul pointed out, you know, we, we, there is agreement on the constitutionality of this but I think they're, you know, there remains a disagreement on precisely the right way to draft. We support this language. We think that this is a good way to move forward that both addresses the issues of constitutionality, while also addressing some of the concerns of our criminal division with respect to how exactly we create a definition that doesn't unintentionally make a higher barrier to prosecution than is constitutionally necessary, or then we really intend to create. I think that, you know, one of the key points of disagreement is that the, you know, there's a preference on one side to precisely imitate some of the language in the federal constitutional case law, in the federal court case law in particular by defining child or the purposes of a simulation as being an actual child and using that terminology. It's a position of our office that having that modifier to the term child could be interpreted by a Vermont court to add something in addition to what the current definition of child is which in you know it's our reading of the statute at the current definition of a child already means a real human being who is under 16 years old. Having that additional term could potentially lead a Vermont court to say, well, you know, it already meant a real human being under 16 what does this actual mean on top of that you've got to bring more facts to prove that. And, you know, that's an area of disagreement in terms of statutory interpretation. We support this language, it's our belief this language is constitutional and it doesn't add that sort of wrinkle that we are worried about how a Vermont court might interpret that wrinkle. And, you know, it's our read that a Vermont court may not necessarily feel, you know, look to the federal case law to say that that's what that must mean. And so they could do that. But they may just say, look, it's another word. We need to give that word meaning as we do in the course of statutory interpretation, because we read words not to be superfluous as a matter of standard statutory interpretation. And so we're going to require the state to bring forward another element of proof. So that's our that was our concern with adding that obviously again you know that that is an area of statutory interpretation, where we weren't in 100% agreement but we do support this language we do believe it's addresses the constitutional issues. And, you know, we're happy to continue the discussion, if we hear more from experts on the issue and see, see where that might take us but that's where we are on it and don't want to rehash the entirety of our prior discussions but I hope that gives the committee a brief overview of where we've been and where we are and and again happy to continue that discussion as needed. How many prosecutions are there in Vermont. Under this literally under these statutes. I'd actually ask Commander Raymond, if he is still on the line I don't have that number off the top of my head he is more likely to. Yeah, each year there's our rest are between 40 and 50 persons. That's helpful I understand the scale. Are any of those what we might turn the sexting. Well, no no under what you're what the what's commonly referred to as sexting so when we have underage children sexting their age counterparts. I think one of those cases for investigation at the icac because we have such a backlog of cases that involve, you know, like 40 year old men with under eight year old girls. And the reason I asked is during our conversation last week about current that we heard of cases where 15 year old asking 10 year old or whatever to send those. Yeah. We have not had cases that involve juvenile on juvenile. We've assisted local jurisdictions with handling them when they couldn't figure some stuff out. But our priorities on adults that are abusing. And generally the children are under 10. Sometimes under eight. In fact, the two real disturbing trends that came out this year that that I noticed that review all the cases and assign them are just a market increase in toddler and infant abuse in Vermont, where there's sexually assaulting infants and toddlers and sharing the videos. And sex distortion, which is when somebody convinces, you know, it's usually an adult male convincing a young child to send sexually explicit images and then uses those that you know first of all they pretend to be their friend or offer them and then as soon as they get the first image it changes, you know, 180 degrees and they start threatening them to do worse videos to to get more child sexual abuse material from these children. And many times when we have the victims of Vermont the offenders are actually in another state, and then it works. Vice versa when there's victims in another state. The offenders are here they transfer those cases to us work with their 61 icacs across the country, and we work in concert on those type of cases, and then typically prosecute those where the offender resides. And so I have to admit that this whole conversation is making me feel queasy. But, and I hope that you throw the book at the offenders here but my question is, what happens to the children. How do we address the children. Right so the sooner the children are identified and the faster they receive services, the better the rest of their life will be. And that's pretty universally known. So we work actively to identify the children when we identify the children that are here in Vermont. Obviously, we make a report to DCF, we get services involved right away. And, and, you know, whether that child needs to be removed from their surroundings or not whether it was, you know, family member or familiar like a fender, you know, make obviously goes into all those decision making points and those cases. And then nationally, you know when we have an offender here that has victimized somebody from afar. We rely on those states to get those services to those children. And then, then there's always those children we weren't able to identify right that we see an abuse images because currently what used to be thought that there was a, you know, a small amount of child pornography circulated among, you know, a small amount of offenders. Because this is not true. We've done a better tracking and we're up to like 4.5 million hash, and I might even be more than that now. Hash value and a hash value is a digital signature of a of a of an image or video that's unique to that image or video so we know of at least, you know, four and a half million videos now that doesn't mean four and a half victims because you know it can be multiple. Unfortunately, multiple incidents for her child. So then we work all together. And with neck mix see that the child victim identification program so that we pull information about all of our series like if this child's been seen before, then they're a recognized child if they've been identified they're an identified child and if we don't we've seen this show before it's a new unknown child. And then we work together because if someone took 10 pictures of a of a child, and you put all the background pieces together we might be able to identify that child but if I only have one of them, Georgia I can't have one forward I can't get one. So that's why we work with see that to pull all that stuff and the images or videos and try to identify something in there to identify the children and then have the appropriate I can't go make the rescue of that child. Well, I really appreciate everybody's testimony this morning and we'll pick up.