 Good morning. We are returning from our break. And this is Senate judiciary Friday, April 30th, the final day of April. And we're taking up H 183 and act relating to consent or sexual violence. And I had Peggy do a Peggy show drafted a redraft. It's draft 1.1 dated 429 2021 that I thought we should work from. And it but first Sarah Robinson sent an email out to all of us with her concerns about the term totality of the circumstances. And if Sarah wants to comment on that, I'm happy to have her do so at this time. Good morning, Sarah Robinson, deputy director at the Vermont network against domestic and sexual violence. I know that the brief memo has been posted to the committee webpage. So I would just say that, you know, we support the draft that is in front of you all this morning that does not include the language, the totality of the circumstances, we have considerable concerns about that language. And so we support the draft that you are discussing this morning. Thank you. Are there any questions about Sarah's email? If you haven't read it, I thought it was it tells us why she and the network feel that the totality of the circumstances would make it could open up indoors box. Senator White. So my understanding what from the testimony that we received from Rory and other people was that that's a concept that's kind of already taken into account. But that and so but what you're saying is that by putting it in there, it, I mean, that we already take it into account kind of the whole, the whole situation. But you're saying it presents a problem by actually putting the words in there. Correct. So while there are references to, while the prosecutors you heard from certainly talk about the way that the system considers all circumstances, considers relevant circumstances, even in some jury instructions in Vermont, there's reference to all circumstances. We have considerable concern with putting something like that in the statute itself. And especially with the language totality of the circumstances, we did reach out to the National Alliance to End Sexual Violence. They did an initial survey for us of other states, consent and sexual assault statutes and could not find any other states where there was a reference to the totality of the circumstances or even all irrelevant circumstances directly in those statutes. Thank you. Senator Benning. Thank you. I did read Sarah's letter. And Sarah, I have great respect for the work that you do. I'm also on the other hand, a criminal defense attorney and the current state of affairs in the judicial system, as I understand it, includes conversation about the totality of the circumstances when a trial is conducted. Someday, a reviewing court will look back at this conversation to determine legislative intent. And I want to make very clear that I remain concerned that we do not leave the impression with the courts that current jurisprudence is somehow discarded by the decision to take this language out of the bill. I'm going to stick to my guns on the way I feel about this provision and vote against the amendment. But for the chair's edification and Sarah, for yours, I'll vote for the bill because I do appreciate and support the concept of what's trying to be done here. But I do feel a responsibility to my own profession to stand up and make sure that we are at least represented in the conversation. So thank you. Thank you, Joe. Our senator Benning. I do want to make clear, though, that the totality of certain stances was not in the house draft. So we're just not putting it in. We're not actually taking it out in draft two point of one point. So either Rebecca or Rory want to comment on the issue ofality one last time. Thank you. Thank you, Chair Rebecca Turner from the Defender General's Office. I just wanted to quickly weigh in and appreciate Senator Benning's comments as reflecting accurately reflecting the law as I see it as well as the head of the appellate division and who litigates this area of the law frequently before the Supreme Court that this is the current standard. And I just also for what it's worth, Sarah Robinson's point as to concerns that somehow the statute, the Rape Shield statute referenced there would somehow be in jeopardy. There certainly isn't any risk of there being any undercutting with the inclusion of totality circumstances. So I just wanted to correct that concern, at least from what how Sarah Robinson expressed that in that memo. The two are apples and oranges and they don't impact the other. Thank you. Thank you. Rory. Good morning for the record, it's attorney Rory Tiba from Washington County. So I want to first thank Sarah for her concise and well written memorandum. I think the important distinction for this committee and for the full Senate to consider is the difference between embedding that standard in statute versus it being where other states included, which is an injuring instructions and certainly nothing here would preclude the model during instruction committee from assessing whether there should be totality language added to those instructions provided to jurors in the future. The main distinction, of course, being without the caveats of considering Rape Shield or admissible evidence to totality may be much broader than what is actually intended or ought to be considered by jurors. So following the New York model of keeping that standard injuring instructions is probably wiser and more prudent than trying to create a statutory construct. Thank you. Any further discussion? Michelle, would you walk us through 2.1.1? Sure. Peggy, I think you need to enable my screen share. Everybody see it? Yeah. OK, so I did a strike all section one is your definition section. We looked at this language yesterday. So definition of consent means the affirmative, unambiguous and voluntary agreement to engage in a sexual act, which can be revoked at any time. So we removed the the reference to 2.601 to L and L. There were no changes to the definition of incapable of consenting. Section two is your sexual assault statutes and the elements there. So there's no changes to that. Can I just so I'm clear? Section two is exactly what came over from the other body. Yes. Thank you. Section three trial procedure and consent. Again, we've gone to the language as it exists currently in statute with the lead in language on line 12 and 13. So prosecution for crime defined in chapter 72. So anything under the sexual assault chapter as well as L and L because that's the way that it is currently under law. So subdivision one, you reverted back to existing law. You eliminated the subdivision two that came over from the house around and that's gone. And then two, three, four and five are the same as what came over to the house and you didn't make any changes to that. Section four is new. And so what I added here was to address that issue of whether or not in light of the changes to prohibited was prohibited acts before and and was in the prostitution sub chapter. And now that was relabeled as prostitution and you create prohibited conduct under lewdness sub chapter. And so this just says the Vermont Sentencing Commission shall examine whether the application of 3254, which was up above to the L and L continues to be appropriate, given recent amendments to chapter 59. And so I understand from Eric, I was looking and I was like, wait, isn't the Sentencing Commission supposed to go away? But I understand from Eric that that sunset's been bumped out a year. So assuming that that's going to pass, then they would take this up this summer. Section five is data collection. And that is the same as the house language and then the effective date being July 1st this year. We go back to page four, lines nine through 12. That's just rewritten what the house did. Is that correct? You didn't change that. That was the house. Well, but as I read the as past the house version, everything here is underlined in our version. And their version. No, you're right. You're right. We didn't change. What was I read? OK, thank you. Well, you're good. Michelle, you're right. Can I ask a question? She's always right. Sure. Did I did I miss something here? I've been trying to find my original copy of it. And what what did we do with the the council or whatever that was called Philip that was removed. We did remove it. Yeah, the sexual campus. Intercollegiate sexual violence prevention council. OK, OK, I didn't think I saw it. There was moved and the 40,000 nurse forensic for the same nurses and seven in the house versions and seven B 40,000 for the Vermont Center for Crime Victim Services to provide a grant for the Vermont forensic housing. We did get that in the budget, right? Right, I saw that. Yeah. Oh, that's in the budget. So that's why it's not here. And we just removed that council. Well, because we removed the council seven A and B weren't necessary. Right, right. Yeah, OK, I just for the council weren't needed if we removed it. I just couldn't remember. That's where we're at. OK. Senator Bruce, I don't know if you're ready to entertain a motion. Yeah, I am. Absolutely. I would move that this draft be passed favorably onto the Senate as amended. Sounds good. Senator Baruch has moved that we report that we amend H 183 as seen in draft one point one dated for twenty nine twenty one. Any further discussion? Senators to clarify, we are voting on the amendment at this moment. Correct, yes, not on the bill. We're voting to support amending the house. So if I could, Mr. Chair, I just want to say again that I would have preferred the language totality of the circumstances to be injected in the bill. I remain somewhat concerned that there is an impression that we are not continuing jurisprudence by keeping that out. I do understand that we had that in a provision that we were proposing that we are no longer proposing. But I feel as if this is the only place I can plant my flag and say, I want to protect the interests of my profession. Appreciate that, Senator. I want to make clear that one of the most important things is the change, in least in my opinion, in this draft from the House version is we talk about what consent is rather than what it's not, which I think that adding that, those few words are very helpful. Secondly, I do appreciate the committee's hard work on this bill. It was not easy. These subjects are never easy. We all have personal experiences and we all have our own thoughts on these bills. And I'm sorry that in many ways it developed, the misunderstandings regarding our interest in making this bill the law and changing and updating our consent statutes after 40 years. It was our goal. I think we've done that with this draft and I really appreciate the hard work of all the committee members, we stuck with it. And even if Senator Benning is voting against the amendment for the reasons he explained, I really appreciate his hard work on this bill as well. With that, is there any further discussion on the amendment? Hearing none, Peggy, would you please call the roll? Senator Benning. No. Senator Nica. Yes. Senator White. Yes. Senator Baruth. Yes. Senator Sears. Yes. Now, we have to move to. Now we have to move to report H183 favorably as amended. As amended. Senator Baruth. So moved. Senator Baruth has moved that we report H183 favorably as amended in draft 1.1. Yes. Is there any further discussion on the bill? Hearing none, Peggy, could you please call the roll? Senator Benning. Yes. Senator Nica. Yes. Senator White. Yes. Senator Baruth. Yes. Senator Sears. Yes. I think I'd like to report this. So when there's a final editing draft, Michelle could get that to us. This has been edited. So this is good to go. Oh, wow. So the one that you sent me yesterday, Michelle, that's the one, right? We didn't change it, right? No. Okay. Nope, you're good to go. And please let me know if I can help you with anything for the floor. Yes. You can. Certainly a section by section. If you could be a little more. The section asking the sentence commission to look at L and L, if you could have some of the history on what the little of the history of, of why that doesn't fit. I hate to talk about acts, lewd acts on the Senate floor to try to explain why it doesn't fit. Okay. That pretty well wraps things.