 Oh, good, good morning. This is Senate Judiciary. This is Tuesday, March 30th, 2021, as we zoom towards April. And our subject this morning is H20, which is a bill dealing with risk assessments, pre-risk assessments, and S27, which creates a pilot project for risk assessments, pre-sentencing. Yes. H20 is pre-dudication. So Eric, why don't you kind of go through the, if you have a new version? Yes, I do. Thank you. Good morning, everybody. Eric Fitzpatrick with the Office of Legislative Council here to talk to the committee about, as the chair mentioned, House Bill Number 20 and S Bill Number 127. We have in front of you now, and I'll pull it up in a moment so that I can share the screen so you can see the language. But just a quick moment about the amendment you're looking at. This is a strike all amendment. Remember House Bill 20, H20 was the bill that affected risk assessments and pretrial services. The two things going on in that bill are the modification of risk assessments so that they become discretionary rather than mandatory and that the universe of folks to whom they apply only going to be people, I'm sorry, that the risk assessments themselves would only be used to determine whether someone was likely to reappear, whether they are risk of flight, as opposed to taking out the former use of them which had been to determine risk of reoffense. So the use of risk assessment tool was focused in those two ways. As well, the pretrial services element of that bill, remember, make sure that pretrial services are available for people 18 and 19-year-olds in particular who are charged as juveniles. Remember, because all the work you've done in juvenile law over the years, some of those older folks are gonna be able to be charged as juveniles in the family division, they wouldn't otherwise be able to get pretrial services without this change in the law. So this is just to make sure that pretrial services are available to those older folks as well when they're charged as juveniles. And the last piece that Senator Sears mentioned is to fold into the strike call amendment Senate Bill number 121, which is the pilot project that the Department of Corrections, the court, and we're adding the state's attorneys, defender general, attorney general as well to consult and pick a criminal division or two unit in the criminal division to participate in this pilot project where the Department of Corrections would provide the court prior to sentencing somebody to probation for a felony with a report that would include the risk assessment, any need screenings and the criminal history records of the person so that the court can have that information available when the court makes decisions about conditions of probation. So that's the piece from S127 that gets folded into H20 in the amendment you have in front of you. So that's a big picture. Should I take a quick look at the language Senator Sears? Yeah, please. All right, we'll do, I'll pull that up. So you should see in front of you now that the strike call amendment to H20. So the, and you'll see there's only a couple of changes other than the addition of S127, but I'll quickly run through everything. You remember that because the risk assessment tool is being scaled back, many of the references to risk assessment in the current statute, the current pre-trial services statute are struck because they're not necessary anymore. So that's all you see in front of you there in the struck language on page one. But the sort of the key point here is right here in subsection B, this is the point I mentioned earlier that you see under existing law, if you look at page two lines, say three and four primarily or two to four, the language that's struck through the existing procedure is that if someone's been unable, you know their arrested law is unable to post bail for 24 hours, now on line two, they shall be offered a risk assessment and if deemed appropriate by the pre-trial services coordinator, the need screening. But the point there is that they shall be offered the risk assessment. You know, that's the mandatory point that I mentioned earlier. The new language that's underlined, you go back above a little bit to line 20. In this case, the judge may request that a pre-trial services coordinator perform the risk assessment. So that's that first change. It goes from mandatory to discretionary. It's not required that they be offered. The court may offer it, may request that it be performed. And you'll see that the performer risk assessment that assesses risk of flight, that goes from line 21 to one. So again, that's the other point about risk assessment. It's not just, it's only assessing risk of flight. It's not assessing risk of reoffense any longer. I may have a rather, well, go ahead, Senator. I have a question on that. The judge may request it. And if he does request it, that means the person has to have it. Is that correct? No, that the person is never, even under existing law, the person is not required to participate. That's a constitutional right they have. They can always decline. So it's up to the defendant whether they want to participate or not. But that's true under existing law as well. Okay, Eric. Is there an adverse inference if someone declines? I don't think so, but that might be a good question for the witnesses. I don't think that the, I don't know if it actually was at trial, there's certainly a potential that a jury instruction could be given not to draw any adverse inference from that, but I'm not sure it would ever even come up. So. Okay. Is there a, this is for that small group of people that are held with bail, but can't make the bail. Is that correct? Right. That's the within 24 hours. Exactly. So it's not people held without bail. Right. Yeah, I think you're right. It's probably a pretty small universe of people. Does anybody want to answer anybody who's a witness today who's online may want to answer Senator Bruce's question. I can't. I can't see everybody. So whomever would like to just jump in. Matt Lario. Matt, thank you. Yeah. It has no negative inference or anything on anything. Okay. I would agree, Ms. Judge Greerson, if someone elected not to take it, I can't foresee a judge making an adverse response to that. Okay. And this may be getting to a point that the chair is going to drop in not too long from now, but all of the work that we had done beforehand around bail was based on, it seemed to me risk of harm in the community or public safety. And it does seem like this draft moves us even further away from that or maybe I'm reading it wrong, but. Of course, the bail is supposed to be said only for factors relating to risk of flight. As opposed to public safety. So the determination of cash bail, if you will, is supposed to relate to that issue, risk of flight. And if you think about it, under the present circumstances, I can't imagine a judge asking for the risk assessment if we know in advance that the pretrial services don't have the resources available to them to conduct a true risk assessment with the tool that they presently have. So I don't foresee this being used, quite frankly at all, until there's an improvement in the tool or the resources available to pretrial services. But we are talking about a very small population. This risk assessment, too, is only designed to deal with risk of flight. It doesn't deal with anything else. What helped me if I'm sounding naive? What are the issues on risk of flight? I mean, the person lives in Oshkosh, Wisconsin, and therefore it's not likely to stick around for this small crime. It's ties to the community. Do they have a job? Do they have a home? Do they have, even if they don't have a, do they have some place to go, even if they don't have a job? Right. We look at their social and criminal history, their ties to the community, resources available to them, maybe they have family support. Are they somebody who's just come in from out of state and have no ties or no either employment or otherwise to the community? The question is, those types of socioeconomic issues. All right, thank you. Any other questions regarding page two? Senator Sears. All of the things that have just been said forces me to ask the question, why are we doing this? Normally a pretrial services coordinator traditionally has been used to assess program issues. The arguments about whether someone is a risk of flight generally are made between the state's attorney and the defense counsel. And I can't see this new entity, shouldn't say new entity, new area of work for someone who is normally a services coordinator being used at all. I will agree with Judge Grierson. I just, I can't understand why this would be used. It would almost delay because you're bringing a third party into an equation where the state's attorney and the defense counsel are already well prepped in making an argument to the judge about whether somebody is a risk of flight. I'll leave it at that. Yeah, but it won't. Yeah. This is David with the, David Sherry, the attorney general's office to Senator, thanks Senator, to Senator Benning's point. I mean, I think that's actually a fair point. What we're amending here is what is currently a broader use of this, it's currently mandatory that it be done for this small category of people. And this is making it discretionary at the judge's discretion. So it is actually narrowing, but I think it's not a new use of it. It's a more narrow use. But I think Senator Benning brings up a fair point about why are we doing it at all? Given the realities on the ground, this provision was recommended by House Judiciary to at least keep the option in case a judge wanted to use it or in case a defendant wanted to ask a judge to use it. Certainly it's an amendment we had no opposition to. If people wanted available, that's fine. But I think Senator Benning's point is a fair one about the very limited utility of it. I feel like a doctor. First priority is do no harm. Does it do any harm to have it in the law? What Senator Beirce, could I comment briefly? One of the things that was important to our office was to have it available for youthful offenders. So you could have it drop down the low, the age, the way it's currently available. And the other portions of it are fine with us. We don't think it does any harm. But we wanted to make sure that the rare occasion where a risk assessment might be useful to somebody who's being held who's a youthful offender, we should get that risk assessment and present it to the judge as something outside of the representations of counsel and whatever witnesses that they might bring to the table. Are we using youthful offender? You bring up, I'm just curious. Are we using youthful offender now that the changes took place in 2018? Yes, absolutely. It's probably slowed down a little bit because of COVID, but the youthful offender status is being used somewhat regularly now. Matt, if I can just jump in with what you just said, if it's necessary or you think there's a use for it in whatever event, I would look at line 20 and 21 on page one and say, it's not the judge who's requesting it, it's upon request a judge may order that a pretrial services coordinator perform a risk assessment. Otherwise it doesn't make sense that the judge would just do that willy-nilly. Why not? Yeah, there's, I've got to flip down. I think there's another portion of this. I think it does say the judge may request the pretrial services. It says a judge may request pretrial services, but usually that's upon request that the judge would order it, not that the judge would just suddenly pop up and say, I'm going to request. Who makes that request? I would believe it would either be the state or the defense. What if the judge feels it's in the best interest of the whole situation? So they ask for it. Yeah, I don't think the judge should be precluded from asking for it. I don't think we need to, I think we're over. I do too. I think you just leave it in there. I think we're fine. This is all in May now. So they don't have to do it. I believe that some of the testimony was maybe at any given time, 80 people held for cash bail because they can't make it. That was the count last week. Last week was around 80 people. And of those 80, there only may be money where somebody would want to request this, that in generally they wouldn't. I mean, you already outlined what the reasons would be. Yeah, that population count is about the same today, Senator, it's a total state detainees 282. And I think you can figure there are about 200 of those are held without. So about 80 of them would be held on cash as of today. I mean, I think you can leave the provision in there and either the court can take advantage of it or not. I don't think it's certainly no harm in leaving. Understood, Your Honor. Note my objection for the record, please. Tomorrow, Senator Benning will be in court requesting one of these. Or somebody to adjust that place. We'll deny his request. You usually do, I'm used to it. You know, with your luck, Joe, somebody, some client of yours is going to get arrested tonight. I'm actually, I'm actually literally. I'm going to dollar cash bail and you're going to want to risk assessment. No, I'm going to say, no. Yeah, I literally have one of those right now in Essex County that Vince and I are arguing about. So now I'm toying with how to use this right. Why don't we move along here to section two? Yes, sure, absolutely. And just to sort of close the loop on this, as the committee was noting that the general reduction in use of risk assessments here, I did follow up with Jeff Wallin at the Vermont Crime Information Center yesterday. And he did confirm that, that the pretrial services coordinators are not able to access the criminal history records. And that's part of the reason for, for this reduction in risk assessment use. But you'll see that, that actually supports the expanded use in the pilot project by Department of Corrections employees who are able to access those records. Eric, can you repeat that? My understanding that a risk coordinator, I'm not using the term properly, does not have access to prior criminal records? Yes, that's what- And how are they going to make the, how are they going to make the call for the judge on whether or not this person is at risk of flight? I think if I understand it correctly, that that's just going to be, they'll use the other facts and circumstances that go into the overall risk assessment report, but then have to note that one sort of outstanding piece that's not in the assessment is criminal history, but other factors that I think your witnesses mentioned, you know, the ties to the community, that sort of thing, that could all be in there. But that one particular piece, right? Would not be available to them and would be noted. Well, just for the committee's edification, normally a criminal record check is going to include information about failures to appear in court. I can't imagine a more important component to that risk assessment now being asked. It could just be me. Well, but they can't get it under the law. No, even under the current law, that's right, they still can't get it. They can't get the criminal history record because that's not available to the attorney general's office, but is available to corrections, which leads us right to section two. Right, just right before I get to section two, if I don't want to get lost, have this other piece get lost, you'll see the other thing going on in section one is the pre-trial services piece. Remember, this is to make sure, and this is what you're looking at subdivision C, to provide that when a person, because of the expansion of the juvenile jurisdiction statute, some 18 and 19 year olds will be charged sometimes in the family division as juveniles, rather than as adults in the criminal division. And the way the statute's currently written, those folks would not be able to access pre-trial services. So this language is to make sure that as you see lines 18 to through line one, that pre-trial services can be engaged by a person 18 years of age or older, who is the subject of a delinquency petition. So if your charge is a juvenile 18 or 19, then you can get pre-trial services too. So that's just to make that available to those defendants. So that's just a technical piece in line D there. So moving on to section two, as Senator Sears said, this is the pilot project, the report to the court. You'll see some highlighted language because the committee discussed last time about making sure that the Department of Corrections consults not just with the court, but chair of some state's attorneys, AG and defender general, when establishing this pilot project and selecting which criminal division or which unit I should say within the criminal division to have the pilot project operate in. And the way the project works is that the idea is that the department provides the court with a report before a defendant gets sentenced to a term of probation for a felony. And that report you'll see in lines two to four has to include defendants risk assessment results, mental health and substance abuse disorder screening results and criminal history. The idea is that that report's gonna assist the court when it sets probation conditions. And again, tying up that last point that the department does have access to criminal history records for purposes of putting together this risk assessment. And if you remember, Senator Sears, you're reading of this was correct. I checked with Dave Demora at CSG that yes, this does require in this pilot project instance that the risk assessment and the screening results are actually completed. Remember, we were discussing that yet. Well, is it just that they're provided when available or actually do they have to be done? And it's the latter Dave confirmed that was CSG's recommendation that for this pilot project at least risk assessment and screening needs to be done. And then they're sent along to the court for the probation decision. So the interested parties then work together to select one or two units to participate in the pilot projects. And then they report on the results to Joint Justice Oversight by December of 2022. I have one question, Eric. Yeah. Any of them folks could comment. If something happens and this becomes really successful, I'm thinking of some of the trials for the vaccine for COVID. Is there ability to move this quicker? And they find this is really helpful that it's getting people out on proper conditions. It's a good program. Makes a lot of sense. We ought to do it statewide. Is there an ability to do it sooner? To come back, say, next January and say the pilot's going well. We think we should expand it statewide. That's a good point. It doesn't, that isn't specifically addressed in the language as written. It says honor before. Oh, that's true. Honor before, yeah. Yeah, okay. Maybe we could... I would think, Senator, that if this does prove successful that the parties themselves would be the first ones to say, let's move this up, let's expand it. I'm just curious if we should do it into a report. But we can leave honor before, I guess. All right. Given some of the things that we're gonna have to vote on this year or next year, some of us may not be mapped. School pensions, I mean, teacher and state employee pensions, I mean, well. All right. All right. Any questions? Should I pull the screen down for now? Yeah, please, Eric. I think we got a good bill. I didn't talk to representative grad yesterday. She's aware that we're combining both these issues into this one bill. And there's a promotion to report draft 1.1 favorably. I move we report draft 1.1 favorably as amended. No, we amend at age 20 as seen in draft 1.1. Second. That's moved and seconded. Thank you, Senator Baruch. Any discussion? Hearing none. I'm still a little uncomfortable about doing a risk assessment analysis with somebody who is deprived of the most important tool in the risk analysis. I don't know what contribution they could make to that conversation. I'll hold my nose and vote for it anyway, but I'm still uncomfortable with that. And I just, I guess I don't hear anybody else screaming that's a witness on the screen, but that's all. I'm just in the mood to be contrary. Okay. Certainly have every right to vote yes or no. Peggy, could you please call the roll on the amendment? Senator Benning. Sure. Senator Nica. Yes. Senator White. Yes. Senator Baruth. Yes. Senator Sears. Yes. I was thinking that Senator Chittenden's nay vote today. Yeah. Which confused, wasn't sure it was nay or yay. Boy, talk about getting a lot of attention. They asked him three times, did you say no? Yes, nay. Nay. So is that a nay that you said nay or is that a nay? Right, right. Yes, I said nay. Oh. Senator Baruth moved that we report SH20 favorably. As amended. Okay. Peggy, is there any discussion? Did you say S20? No, I said H. I might have said S, but it's H. H, yeah. H20 as amended. Ready for the vote? Yes, please. Senator Benning. Yes. Senator, is that a yes? Senator Nica. Yes. Senator White. Yes. Senator Baruth. Yes. Yes. I'm assuming Senator Benning doesn't want to report. I do not. Is there anybody else would like, I'm happy to do it. Worked on it. Senator Nick, if you'd like to, you run the Justice Reinvestment. You're very welcome, Senator. You're very welcome to do it. Thank you. All right, I'll be the reporter, Eric. Thank you so much for the work on this. Who did the draft of S103, which it was that, Michelle? Remind me the topic of that one. That's the Good Samaritan for human trafficking. Yes, I believe that was Michelle. Okay, good. All right, is Michelle available yet? Do you know? I emailed her a couple of minutes ago and told her to join now. So I assume she'll be coming any second now. Eric, you'll give me the clean copy from the, after it goes to editing, right? Yes, that one still needs to be edited. So Senator Sears, if that doesn't come back from editors till tomorrow, is that okay with you? Yeah, that's fine. I don't think, I mean, we don't have, it's a house bill, so it's not a huge, right? Right, thanks. As far as we get it into the, Yep. How long ago did we do Youthful Offender? I know we updated it in 2016, but we do Youthful Offender back in the 90s. When we started back then. That sounds right, although I wonder if it was the late 90s, early 2000s. Yeah, I'm trying to think. I, you know, it wasn't widely used. It was 1999, Senator. Yeah, I think you're right. It wasn't widely used until we did the changes in 2016. All right, Michelle is here. So we're gonna move to, thank you, Eric. And we're gonna move to SH-18, which is the sexual exploitation. But I wanted to talk, and we don't have to take testimony on it today, but I do after talking with Representative Grad yesterday. We will consider adding S-103, which is the immunity from liability for prostitution. It's sort of a good Samaritan law if the person reports that and has been a victim of human trafficking. And it was part of a bill that the house passed last year that had a controversial study in it, if you remember, of working sex workers and it generated all kinds of questions. This didn't seem as controversial, but we may ask for testimony on this. Well, we will take testimony on it. So I don't intend to pass H-18, but we could finish our work on H-18 today and then take testimony on S-103 next week, okay? Just so everybody's aware of that. Everybody remembers the issues, I'm sure that were involved with the sex worker and then kind of took over in the house and lost. Okay, anyway, H-18. We were gonna hear from Marshall who was gonna talk to an expert. I think we just lost Michelle for a minute. Oh. I can just jump in to say that- Yeah, please do. No, I intended to have an expert, Carissa Hickok, who's, or Hesse, sorry, not Hickok, who's a professor at North Carolina State School of Law. She is, has been very busy and has not been able to get back to me. She took a preliminary look at the bill, but wanted to see the whole chapter and just has not had time to read that and get back to me with any analysis. I have nonetheless submitted, and it's, I should be on the website, our office's proposal, which is accomplishes exactly the same thing as past house version of H-18, doesn't change the elements at all. All it does is eliminate the sentence at the end of H-18, which says something along the lines of simulation applies to conduct and not to a simulated child and replaces that with a change to the definition of child that says essentially that child means an actual person under age 16. The reason we did that, the reason we propose that and the reason we support that is because it's a much better definition of simulation because it doesn't use the word simulation in the definition of simulation and also because it uses the exact same language that courts use when they talk about simulated child pornography. The courts do not talk about simulation applying the conduct and not to a simulated child. They talk about simulation by saying that simulation must involve an actual child. Those are the words that courts use when they do this. The objections to that and the reason why that was not adopted by the house seem to involve this perception that if that is put into the statute, courts will not understand what it means and will do something with it that they'll do something different than what the legislature intended. I don't think that's a legitimate objection. First of all, there's no examples of courts doing that. There's none. There's no examples of courts looking at the word, a state adding the word actual before child and a court going, oh my God, I don't know what that means. I'm gonna impose all kinds of obligations on the prosecution that they haven't had up till this point. There are not examples of that happening. I don't think it's a realistic concern. Additionally, there's no examples of, I mean, this is in fact, like this language is derived from the language that courts use. This is the language that the United States Supreme Court used in their cases, defining what is and is not prosecutable simulated child pornography. It's the language that the federal courts use. It's the language that states courts use when they address this issue because they draw all of their case law from the federal courts. So from our perspective, it makes much more sense to use the language that is both clearer and is also the language used by federal courts when they consider these cases rather than to use language based on a concern that courts are going to misinterpret the words actual child to mean something it doesn't mean because frankly, that's just an unrealistic concern. And so I'm sorry that we don't have an expert to testify today about, you know, the sort of scope of federal First Amendment law, but I did want to make sure that the committee was aware of our objection and that we didn't, you know, we weren't just in this case objecting and saying, don't pass the bill, don't pass anything like this. We actually have a proposal that does exactly the same thing that the as-past-the-house version does. And our objection is simply that we should be using language that's clear and language which reflects the decisions of the United States Supreme Court and federal courts. Senator Baruth has a question. I do, Marshall. Thank you for that. I'm wondering, you say you have a counter-proposal if this language turns out to be the will of the Senate as well as the House. Do you oppose it actively or are you just at this point saying you prefer one over the other? Do you think there are hazards of passing what the House sent us? How would you characterize your opposition? I would say that I don't believe that the House's language is unconstitutional. I think the original language that was proposed was unconstitutional. I think that we've gotten it to a point where it is constitutional. I just think that it is not clear. And I think that when we're talking about, I mean, these are very serious offenses. These have substantial terms of imprisonment, five years, 10 years, 15 years, depending on which part of the statute you are convicted of. Lifetime registration on the sex offender registry when we're dealing with such serious felonies and with charges that have such long-term, serious ramifications, I think we owe it to the people of Vermont to be perfectly clear about what we're talking about and to use language, especially when we are in this territory of, trying to create a law that allows prosecution all the way up to the edge of what the constitution permits, but no further to actually use the language from the court cases that define that scope of the constitution. So I don't believe that it's unconstitutional. I do think that courts would probably be able to figure out what it means. I don't think it's clear and I don't think it reflects the language used by federal courts. And I think it should. Okay, if I could just finish up quickly. So my, I won't call it a dilemma because I think I know which way I would go on it, but each side is saying that the other side's draft will be productive of confusion. And so I look at both possibilities, they seem almost equally useful to me and much better than the original language that you helped us work our way away from. So that's why I was asking if you were in any sense actively opposing or seeing risk from this language, but it seems like it's mostly a question of art, which is more specific and clearer and in line with case law. Okay, thank you very much. Could I ask a question? Yeah. So, Senator White. Marshall, why, and maybe this question is also for Judge Greerson, why did the House people get the impression that the courts wouldn't be able to understand it? I mean, where did that, where did that come from? You have to ask Attorney Scher. I think all of the testimony to that effect came from Attorney Scher. Oh, okay. And I don't have any information on it either, Senator White. Okay. So could I ask David that question? Yeah. I just want to point out that Marshall's proposal strikes C, that simulation applies to conduct, not a stimulated, not a simulated child. So he thinks it's clearer because he uses the word child means any actual person rather than any person under 60 and strikes the definite part of the definition of stimulation simulation. It applies to conduct, not to a simulated child. Oh, I'm having some simulation. I think we could follow the law without that language. I don't think it's necessary. The C. Right. Right. David. Thank you, Senator David Scher with the Attorney General's office for the record. So our concern is I'd say the most intense when it comes to changing definitions that apply to the whole chapter, which subsection one of 2821 does do. Certainly, although we've had a lot of back and forth about the proper way to define simulation, changes to that section would are more likely to the interpretational effects of it are more likely to be confined to how we define simulation. When we're changing definitions that are currently in law and that apply to the all of the crimes, especially we're talking about the four crimes related to child pornography, that's a very serious concern for our office and we are worried that it could disrupt the prosecutions which are attempts to keep young people safe in terms of these with regard to these types of offenses. Adding the word actual, and well, let me back up. Courts, when they interpret statutes, presume that each word means something. And currently there isn't, the courts have a general understanding of what the child definition means. It means a person under 16 years old. And the concern is that by adding another word to that, a court will look at that and say, this must mean something additional to what we already understood. And it's not clear exactly what they might ultimately decide that additional burden is. It could be, and the defender general's argument is that it's going to be interpreted in line with federal case law regarding specifically the child pornography case law. The concerns that a Vermont court looking at this isn't necessarily going to be bound by that understanding. They are going to look at it and say the legislature chose to add a new word. We interpret laws such that every word gives a new meaning. That means the term actual must be, or every word means something. They change the definition, which a court could decide means that they intended to change the meaning of that definition. And what is it that they intended to add it a word? What is it, what is that extra sort of element or idea that they were trying to encapsulate? And it could be that instead of the notion that it is a real child, a living child, that maybe the court decides that it means it's a specifically identifiable child in which there's a specific name and identifier that can be made with regard to that person. I don't know that that will happen, but it certainly seems like a plausible and not impossible conclusion that a court could make when confronted with a new word. And that could seriously disrupt, if not frankly, and make impossible many prosecutions under this statute, including currently active cases that have nothing to do with simulation. And adding that, again, remember, we're talking about changing a definition that applies to everything, whether it's simulated or not. And so that's why our office has very strong concern around changing currently existing definitions. Again, if we wanna try to tinker more with the simulation section, that's something we can discuss. I can't promise agreement on it, but that's something we can discuss. We're very concerned that this would disrupt on currently ongoing prosecutions for the interpretational reasons I just discussed. You have any, I think I understand your opposition to the word actual. You agree with Judge Greerson on C, striking C, simulation applies to conduct, not a simulated child? I'll say two things. One, I don't think our office would oppose striking it. I think the Defender General's Office would oppose striking that if you didn't change the definition of child. Well, I'll let him, I'll let him, sorry. You don't oppose that. We wouldn't oppose that, we wouldn't oppose that. I would suggest that, and I haven't vetted this outside of my own thinking here. So I wanna be a little cautious in stating clear support on this, but one thing that you could do is say simulation applies to conduct, not to a child. And I don't know if that, but that might, I need to think about that a little more, but we wouldn't, yeah, my main point here is around the actual and the definition of subsection one. Okay, thank you. Marshall, any further comments? I've gotta say that there's simply not examples of the concern that the AG's office have has ever occurring, that it doesn't happen, courts are not confused by this language, courts interpret this language all the time. There's not actually some doctrine which says that if you put a word into a definition, it necessarily changes the definition. And in fact, we don't have case law that says that the definition that's currently used only applies to actual children. In fact, what we have is a general definition of person which applies to all chapters of Vermont statute, which includes far more than just actual person. It includes all kinds of non-person entities like corporations, parts of the government, but then it also has sort of a catch-all because it doesn't say a person shall mean and then have a exclusive list of things that person means. Instead it says person shall mean and then the following things including, but not limited to. It doesn't say but not limited to, but it says including, not in some way limited to. So we're already talking about a definition which there's no case law which says that it only involves actual people. There's no statutory definitional law that says it only involves actual people. And in fact, that's a major point of friction in the case law. You know, the case law, there was a lot of case law about simulated child pornography which all boiled down to a distinction between simulated child pornography that was created using an actual child versus simulated child pornography that is not created using an actual child. One being protected by the First Amendment and the other not. So this, the definition of actual child is actually really important to the scope of the case law to what it can constitutionally apply to and to what it cannot. And the concerns that the AG's office are raising just simply don't exist. These aren't concerns that are valid, that are based on some actual point of distinction that's been drawn by a court somewhere. These are speculative concerns that frankly just don't make sense when we're talking about this. And I've got to say it's difficult for me to understand what these concerns are because when you start looking as I did, when these concerns were first raised, I started going back looking through case law in other states in Vermont, in the federal court system for any court that's been confused over the term actual child and believed it to mean something like what the AG's office is concerned about. Like, has there been a court that has said, oh, when the word actual child is used, that must mean that the prosecution needs to know the name and age of the child or anything like that. I've found zero cases of that happening. I've found zero cases of anything even similar to that. Frankly, the place where courts seem to get confused is when legislators don't put in the words actual child. That's when courts do things like apply definitions to images created using pictures of children grafted onto the heads of adults and things to the bodies of adults and things like that. That's where courts get confused about what the definition of a word child is, not when they use the word actual child. So we certainly disagree. We do not think that this is a clear definition the way that it's written. And we don't think that the concerns of the attorney general's office are legitimate when it comes to courts misinterpreting the words actual child. Thank you. Appreciate that. I guess I'm gonna, I think I'm gonna tend to agree with the attorney general on this person. It's up to the committee where you wanna go. I also agree with the attorney general's proposal. I am interested in discussing whether to strike C. Yeah, that's two. I'm gonna talk about the courts being confused. That's me. Oh, is that, Jeanette? Move that we not change, just tip for discussion, not change the definition in 28, 21, 1 by adding the word actual. So any discussion? Well, I would just say that Marshall said there's no evidence that adding a word would change the definition in some practical sense, but of course it does. If you, it's not the same definition, it now has the additional word. And I think we can't know what will be the consequence of that, but I don't think it's crazy to view it the way the attorney general's office does. And so looking to mitigate that possible consequence, again, the language seems to do everything we want it to do. And it seems like a fine point of legal language in which I'm comfortable airing on the conservative side, which is leaving the definition the way it is. Anyone else? What is your fine legal mind to say? Who's? Joe's fine legal mind. Oh, I don't know if it's fine, but I think probably the only one in the committee who has sat in the back of a courtroom while a judge, a prosecutor and a defense attorney were all scratching their heads over language in our expungement statute that we had recently passed doing my best to cower down behind the chair so they couldn't see me to ask me that question. At the moment, I guess I'm gonna go along with leaving it the way it is and hope for the best. I'm sure there will be litigation if it's not. That's a majority. You okay, Alice? Yes, I'm not wanting to change. I hope I'm in the right place now. I'm not wanting to change the definition of a child. So now let's discuss whether we should, we're gonna leave, we're not gonna add the word actual in one. Now we go to section one, C, which is striking the words, the simulation applies to conduct, not to a simulated child. I believe Judge Beerson said he agreed that that was not necessary, but I'll let him speak himself. Well, I can only confirm what I said earlier, Senator. I don't think we have no opposition to striking that the last clause in that section. I gotta go get my dog. Come here, Marley, come here, buddy. You don't need that. Okay, thank you, Marley. Marley is ex officio. Yeah, he is, he voted. He doesn't wanna vote on this. He says it's too different. David or Marshall? Striking C? You know, we wouldn't object to it, but my sense is that that would raise constitutional concerns for others. It's our position that we wouldn't object to it. And because of the way we interpret the statute, we believe it doesn't raise a constitutional problem. But again, I'll let others folks testify. So we don't think that it matters that much. We think that the definition is vague enough and unclear enough in using the word it's defining in its own definition that it's not terribly meaningful as a definition. I'm not saying it doesn't like, I do think that there needs to be definition of simulation that makes it clear that simulation does that in order to prosecute simulated child pornography, it cannot be child pornography that was created in a way that did not involve the sexual exploitation of an actual child. I don't think that that definition does it. Can I ask Mr. Chair? Yeah. And I'll pose this to David, but others should feel freed away in as well. Is that the only place and see where we use the phrase simulated child in other parts of the law or here? I believe that that is the only spot where those two words appear like they do. And am I wrong that then by including that we're, then we are creating something new that we're not defining. And granted, we're doing it by reference to what the law doesn't apply to, but we're still referencing a simulated child as opposed to the child described earlier on. If we eliminate C, then I think there's the implication of such a thing, but it almost seems like if it's going to be there, it should be defined. And I don't know that we wanna go through that process at this point. What do you think about that, David? I think that's a reasonable interpretation. I mean, I would not argue that this language subsection C is the product of discussion and compromise. I wouldn't say it's like the most elegant definition that's ever been put into the statute books. I do agree, Senator, that it can be read to add meaning. That isn't that add meaning along the lines of what is constitutionally required, which is that the simulations we're talking about are simulations of the conduct of the sexual act or whatever that might be, and not simulations that create the appearance of a child, whether that's a drawing, a digital rendering, whatever it might be. I do think it can reasonably be read to further clarify that meaning. Trying to read the whole thing, simulation means the explicit fiction of any conduct described in subdivision 2A through F of this section that involves a child, creates the appearance of such conduct and exhibits naked genitals, buttocks, and that's below the top of the ruler, whatever. Simulation does not include painting drawings or non-visual or written descriptions of sexual conducts. And then simulation applies to conduct not to a simulated child. I don't know what that hell that means. Really is confusing. I'm not sure what that means. Senator, I think the idea behind it, the concept behind it is just to further clarify that this is within the constitutional limitations. The constitution does not permit under. If some depraved individual has a Barbie and is simulating behavior with the Barbie, it's obviously not a child. So we're saying that conduct, while repulsive is not necessarily criminal. Is that, can I read it that way? Yes. So I don't, I don't know what I mean it says it does not include paintings, drawings or non-visual or written description of sexual conduct. And then there's not. Michelle, how the heck? Yeah. What does that mean? So, you know, I think you know, we've been working on this issue, this particular issue quite extensively with David and Marshall. Before the session started and getting the bill and the bill introduction, and then also quite a bit in the house. And because they have differing in opinions on the use of the term actual child, we're trying to communicate clearly that use of the term simulation applies to conduct. And if you if you look at the definition of simulation, and you'll see it says right there, 7A simulation means the explicit depiction of any conduct described. And then it lists that there. But without anywhere else in the statute specifically saying that it doesn't apply to CG and things like that, we wanted to have something in there that was clear that no one should interpret the simulation to apply to anything but an actual child. But we don't want to use the actual child because or we didn't in the house because they were trying to kind of go right down the middle between the two witnesses and their positions. I just from my standpoint, I think this language is fine. I also think the defender general's language is fine. So I think either works. I don't have constitutional issue concerns about either. I understand the debate between the two and the positions where they're coming from about what they think would be clearer or better from a practical standpoint of using it. But I think you can use either. And it's really, I think up to you. I think when it says, I understand a bit about not using a word to describe a term. But in simulation, it's not so much saying simulation means doesn't mean assimilatize. It applies to conduct. I mean, I can try to reword that a little bit. I think it would be helpful to reword it. But I do have a question for command. Is it commander Raymond or what's the director Raymond? What's your actual title? I don't want to- It's actually commander but- Commander Raymond, I'm fine with that. I just wanted to- I don't like demoting people or promoting people by title. So commander, does any of this matter to you in enforcing the law? Yeah, I would avoid changing the definitions that change everything because it's not just child pornography under this chapter. There's lowering a child under this chapter and we don't use actual children when we do under covers for that. We use a police officer pretending to be a child. So I would avoid changing to actual child in the beginning of the statute and I would keep the changes inside the simulation section. I don't think that the current language that's on there is overly confusing. It's really just trying to hammer home the point in case someone didn't get it above where it clearly states this involves a child but it's then just reinforcing that in section C that says simulation applies to conduct, not a simulated child. Again, you're not using simulation to define itself. You're just trying to explain this is just pertaining to the conduct. We're not CGI children or anything like that. I don't see a problem with the way it's drafted. Thank you. I would see a problem with changing the definition that changes it for everything. Thank you, that's helpful. Michelle, if you can work on some language there. Well, let me just put it out there. Would people be more comfortable if it said simulation applies only to conduct period? And we leave out the child bit. I mean, it's just, it's kind of belts and suspenders for what you have in the beginning of the lead-in in 7A. Right, right. And then you just take out the child. And so... Yep. I think that's better. Sure. Why don't we do that? And we could look at it next week. Peggy and I figure out when we're gonna take up S... 103? Yeah, S103. You wanna try to take up S103 next Tuesday? Next Tuesday. Sure. We would need to get in touch with David McClendon. I always mispronounce his word. He knows who he is. Nick and Bird. Can I... Did you hear him when we lost power? No. The other day when we lost power in the floor session and he was having a conversation someplace with somebody else and it was being broadcast everywhere. Oh no. He was dropping some bombs too. Ah! Better him than I. Yeah. He may have some witnesses and others, but if Michelle's ready to walk through 125 next Tuesday. 103, excuse me. 103. Okay, if that meets... Are you available next Tuesday, Michelle? I am.