 Okay, good morning, and welcome to Vermont House Judiciary Committee. We are considering further considering our Celebrations on H183 and actually relating to sexual violence Let's see we're going to turn back to disability rights and then we'll go to the Defender general's office and then to the network. Okay, great. Welcome Zachary. Thank you Thank you so much for this opportunity one response to Rory's comment About the issue of adding disability language to section 352 b2 I think his point is well taken that the vulnerable adult statute covers similar link similar You know issues I do think it is different and just that the one comment I would make is Well, we definitely defer to Rory and other prosecutors on this issue. So we the ones applying this to cases We have found And our concern is that in our statewide work on this we have found that generally prosecutors are hesitant to rely on the vulnerable adult statute in Particularly if that section subsection D in there is the only thing that they feel that they could possibly use Because that one's not as clear as the others and it's a lot harder to prove We've just found that if that's all they can rely on they generally don't rely on don't don't bring that That charge and so we think that this bill reading that we're discussing here is a bit more universally applicable And so including that disability language in the bill. I think would be helpful for people with disabilities overall But again, we defer to the prosecutors on that but just want to raise that comment terms of how we see it used around the state Okay, great. Thank you. I appreciate that any questions before we move on Any questions for Zachary? Okay, great. Thank you. Thank you so much Okay, Rebecca Turner defender general's office. Good morning Good morning. Good morning everyone For the record Rebecca Turner from the office of the defender general's office Uh, so I wanted to start in on Just taking notes here responding to the state's attorney's testimony on uh, the Suggestion of Removing or adding a should have known Component to this bill and as I've testified before the uh, that is the most significant and substantial change being made and proposed here to this Life imprisonment of the statute. I've said before that that creates a strict liability offense And what I mean by that is that it removes because by using the disjunctive there or You permit a conviction to happen if a reasonable person if a should have known if an objectively objectively viewed Should have been uh, should have known that that's enough now The state's attorney testified today that that language should have known And is included in other jurisdictions I'm not here to dissect other jurisdictions, but the reference was made to the Vermont statute pertaining to stalking which I can address and he He indicated that there should have no language again the objective standard again not a subjective mens rea requirement of what the person is thinking at the time But what someone reasonably should have known I that that should have no languages in our current stocking statute now That is technically correct. The should have known is part of the definition But let me walk through what the stocking statute actually requires and that is I count at least two mens rea requirements And the objective should have no language. So what we have there is several Several checks several requirements for a stalking which is 13 10 62 The legislature has defined that or established the crime of stalking as someone who intentionally stalks Another person. So how do we know what stalking means? We're referred to a separate statute and that is 13 10 61 subsection four Where the definition of stalking there is well first we have intentionally stock Now we go to what is stalking require it requires Purposeful engagement in a course of conduct. That's another purposeful is another intent And then engaging in a course of conduct at a specific person That's where you get embedded in there Also, the additional requirement of the should have known. It's a really tricky charge and To raise or understand even because of the multiple layers of that now all of that I want just want to point out to is required for stalking two mens reas at least Along with the objective standard should have known And what's the max punishment for that stalking statute? It's a misdemeanor offense That is max two years punishment Let's go back and focus to this sex assault life imprisonment max offense strict liability There is no precedent in this state in title 13 to have The mens rea removed entirely Now when you combine that with with with a life imprisonment offense, certainly we don't even have that for the misdemeanor offense here of stalking When you combine that with the expanded definition of what it means to have no consent and this latest version Defining incapable of consenting every time I see another draft of this it just gets more and more broad in terms of What lawful conduct is potentially covered here and also How much harder it is for a person who's engaging in lawful act or thinks they're engaging in a lawful sex act How that captures inadvertent unlawful act so that you can't know in any given moment What is in fact lawful and unlawful and subject to a life imprisonment fast offense again in criminal law We have these fundamental requirements And and so that even though I understand the the several motivations underlying this this bill It is just a fundamental premise that we need to know what Conduct is illegal So that we can have notice before we engage and try to engage in lawful activity But as it stands the current writing includes and captures lawful activity I wanted to also specifically address a question from a representative on substantial impairment Now the state's attorney in his testimony said that the supreme court interprets terms Um When they're not otherwise defined or linked to a specific definition by looking to common understanding And then what the state's attorney did was turned to the black's law dictionary Now the black's law dictionary is not a readily accessible dictionary that people Out in public have I do But I I I'm I'm an appellate nerd and a lawyer So what in fact we do have the arguments about what is Commonly understood the terms, but we don't turn to the black's law dictionary. We look at websters Marion websters. We look at others and when you look at that definition, I just pulled up for substantial online Marion Webster is substantial The definition of substantial consists of relating to a substance. It's important. It's essential It's not imaginary or a loser. It's real. It's true Now I I I don't these are not helping me understand what Substantial as opposed to substantial impairment means now we do have the help that we have Considerable DUI law which requires impairment now. We know that Charges and arrests are are supported by allegations of impairment. What do they what are the police officers and prosecution point to as evidence watery eyes red eyes nervousness I've seen not not shaking an ash off of a cigarette timely enough too much ash at the end of the cigarette you know Basically all sorts of factors can come into to develop and and support an allegation of impairment now here The question back to the representative that posed to the state's attorney that I like to take a stab at and and as I understood the question What happens if both parties go out? I'm adding here go out for a drink go out for a date go out to dinner and have some drinks and Both parties become or fall within the definition of whatever that means substantial impairment Uh How can that be used if the person who's accused who's substantially impaired? How can that be used as a defense? At the later trial now if you take out the mens rea requirement And just have the should have known you can't come in you can't argue I I I I couldn't know because I was substantially impaired It just is something that is not part of the equation So that's not factored in so I just I just wanted to add that angle perspective to to that question and answer I think that that is all that I have for the My comments at this time and I'll take a pause So any questions? Thank you Giving committee members a Minutes either raise their hands or or jump in Kate thanks, um I don't even know if this is a question or a comment. I guess What keeps coming to mind for me? Um, Rebecca when I hear your testimony, which I which I really appreciate Is I guess I keep going to mine for me when I hear your testimony is reflecting on like Well, then let's re-examine what the Um potential punishment of the crime is versus Not pursuing a bill like this How do I want to say this? The testimony on this bill started with some pretty alarming numbers in terms of how rarely um People receive justice when they have been victimized And so what keeps coming to mind for me when I'm hearing this testimony is You know, we need to have this high bar um Which I I understand fundamentally but the court like the the justice system is failing people in this situation and so It it it feels a little like I'm trying to get my thoughts in order around this, but it just feels confusing to me a little bit To be saying well, look, this is how the justice system works We need to have this really high bar, but the way the justice system is working on this particular issue is not working So I I guess I'm just I'm feeling conflicted about About this type of testimony Um because I feel like it doesn't help address the fundamental reason why this bill is in front of us, which is people are being Harned in significant ways and the system is failing them um So again, I don't know if that's a comment. I don't know the question, but I just felt compelled to to say that I appreciate um you sharing those thoughts and and I think My response or maybe it's further questions because I wasn't I'm not recalling the numbers that that um That were brought up during you know in the context of this bill specifically and and I'm not necessarily preview to what what numbers are Are you know what I what I think about and I actually didn't Respond, but I heard states attorneys uh shebo talk about um Well, maybe make a reference to how difficult it is to prosecute these cases from from a defender's perspective and specifically from an appellate defender's perspective Uh where we're seeing cases After conviction of sex assault now I'm just talking about sex assault right because there are a whole slew of possible offenses that could fit any Any um any of the scenarios that potentially are wanting to be addressed here, right? but in terms of of The sexual assault statute And the prosecutions I don't know if someone has presented Numbers to this committee as to how many are actually charged How many result in convictions? How many of those are appealed and how many of those are reversed? I don't know if you've heard those tangible numbers I think that would be giving you some objective data in terms of knowing how much um Is this is this is not this is failing and if if if they're looking at that where where are those? What is what is happening there? Um very few sexual assault convictions are reversed on appeal by the vermont supreme court and That I hope is not due to uh my appellate division shop Shawty more equality. I think instead what it what it reflects is that we have extraordinarily expansive It's Definitions already on on how to prove no consent, right? And and so that that has not been a difficult bar To for the prosecutors to have to prove again. I don't know having Not clearly not included in the numbers that maybe you're talking about but again To the extent that it's as to convictions charges versus convictions versus Final convictions on appeal upon review. I don't know how many of those are being ultimately reversed um so I think that the problem here is that by trying to Broaden the elements even more than they currently are You see how you quickly run up against? Sort of the ceiling you're already there this this sexual assault assault statute Is already being interpreted and has been the elements are so broad but I just I I throw the question back to the committee members. I I I don't know where that line is between lawful and unlawful sexual conduct with this bill And when and and that and fundamentally that's the notice problem Particularly given with this life imprisonment offense Thank you That's not seeing any other hands. So thank you rebecca. Appreciate it Uh sarah robinson morning Welcome Good morning. Thank you for having me for the record sarah robinson from the vermont network against domestic and sexual violence Very much appreciate the conversation that has taken place this morning and the testimony To date i'm going to be brief and i'm just going to speak about two items um, I I wanted to to speak briefly about the conversation that um attorney turner and Others were just having and reiterate that The addition of substantial in our view. Um, we support that language And we do think frankly that it it helps clarify that line between Lawful and unlawful sexual conduct and of the total number of sexual assaults This is according to the department of justice 23 of them are ever reported of those reported Only 20 lead to arrest and less than one percent of cases ultimately lead to a conviction So it is really exceedingly rare That these cases even ever make it to trial Or lead to lead to a conviction And the stories that we hear about when we um Our member organizations work with survivors or survivors are seeking medical care in the wake of an assault In regards to impairment are are so far outside of two people You know going out to dinner and having a few glasses of wine the cases we hear about are people who are completely unable to respond um due to impairment And that is those are really the cases that we believe that this bill will be exceptionally helpful in providing more tools To ensure that those cases can be captured and when survivors do choose to report um that The statute is able to respond to the facts of the case accordingly and on uh the revised language that you see Regarding data collection. I just wanted to note that um, it's exactly the the sort of data that The committee was just speaking about that it would be really helpful to have a statewide picture of So we have a wealth of national statistics And we certainly have snapshots of how the judicial system does not work well for survivors of sexual assault here in vermont and We hear from survivors themselves about how that process doesn't go well often And where in the process those cases break down? Or frankly their participation in that process becomes Uh equally traumatizing to the assault that they experienced But the statistical report will really help us Direct future systems reforms to the places in the system where We see case attrition happening and be able to understand what the trends are here in vermont So we're very glad to see this revised language and believe that this will be very helpful in the long run and being able to diagnose Uh where where the system isn't working and where we might um direct future efforts And I would just say we're we're supportive of the bill and we're very grateful for all the time that the committee has spent on it Great. Thank you. Thank you, sarah Any questions for sarah My understanding is that at uh either right now or or shortly uh from from now that house government operations will be looking at the council section of the bill Because that really is in um In their jurisdiction. I I know that both the education and government operation chairs Have spoken and decided that government operations will will take a look at it Uh, actually I see martin's hand Yeah, this is actually I wanted to circle back to uh state's attorney Tebow as well and just And the issue keeps on coming back up with the recently should have known Uh component really being a a focus of concern and and I have expressed some concern in the past and have received some more information About other states that have gone with this but but uh, you know rory if you're able to How would this play out? How and do you know of other cases and other In other uh jurisdictions or your experience on on how this actually would play out As far as the reason we should have known standard in this kind of a criminal offense Here so I'll start with a 20 000 foot view on that so The statute is the starting point for how a jury or a fact finder considers a case. Uh, there's a Jury instructions are really, you know, what where the rubber meets the road and that is The instructions are put in simple to understand lay terms based upon the statutes applicable case law To ascertain that standard. Um, vermont has a standing committee that does Uh provide model jury instructions for us and in looking at other states that have adopted similar language These instructions have been developed have been tested and I did just for you know, the record. I did just send out To represent of a blonde Two cases I found really quickly from other jurisdictions that have similar language On the fly it's not probably the best research but just showing that they do pass constitutional muster In terms of ascertaining where that standard is I think that sarah robinson's comments are on point that typically what we're dealing with are people who are at the point of virtually You know, no no cognitive ability remaining while there may be some nominal consciousness. They're not There and you know as an example that I think many will probably recall it was not a vermont case fortunately, but It going back now four or five years ago The case of rock turner really shocked the nation and that was an intoxicated woman who was being held up by mr. Turner by at a dumpster so while she Probably was opening her eyes at various points in time could make noises and respond to external stimuli She was not in a state of mind where she could provide consent Even the rock turner situation as an example I think any of us looking at that situation would say that that woman was not in a position To know appreciate or understand what was happening to her or make a conscious or deliberate decision about whether she consented It should be no excuse that You know rock turner in that situation for example Would claim just blanketly that well no she wanted to well That's not really the standard if it's a subjective standard Then of course the person who is committing the offense is always going to think that they're entitled to take that from The victim or do what they want to do and unfortunately when it comes to I think an issue of body autonomy such as this and basic human dignity and decency when it comes to sexual relations We should apply an objective standard I mentioned previously that in washington county We have a case pending right now that involves a young woman who was vomiting out of toilet because of alcohol consumption And while she's laying next to the toilet that is when she was sexually assaulted I think to any reasonable person that would be a circumstance where that is not an invitation for sexual activities That is not somebody who is in a position to consent at the end of the day I think it's important to note that our criminal justice system relies upon peers these are peers from our community 12 jurors Just as much as this committee of uh, think 12 has expressed a range of opinions or views about What is or is not the line so to with those individuals on a jury interpreting instructions provided by the court Every case is different Facts are unique But this I think is a both constitutionally sufficient framework And provide sufficient specificity to understand the use of in terms incapable of consenting Of substantial impairment all elevate this that it's not just something of Under the influence if it were we could just say well, you can't have sex in the influence It'd be probably a lot of objections around the state for that But that's not the standard It's not a criminal standard here in other jurisdictions and it shouldn't be the standard rather what we're endeavoring to do I think is to ensure that there is a clear line where Intoxication becomes incapacity and incapacity is fairly well defined Both in this proposed statute in other jurisdictions and certainly in other Interpretations again I think one of the benefits of borrowing this language largely from federal sources is to be able to allow and Enable Vermont courts to look outside to persuasive legal authority in federal contexts of how These definitions are interpreted to go it alone or create our own You know sort of unique Frasiology for this would be of course scrambling to start from scratch And I think that's again one of the key benefits here. We're not doing that and we can look to neighboring jurisdictions and our federal jurisdiction to Help us again as I mentioned the first time I testified right now There are individuals who are either on some form military duty who are subject to this type of definition And certainly if there was occasion for a federal sexual assault Cause of action to be brought here in state of mind Maybe someone moving across state lines or or some other federal nexus. Let's say That would be the standard applied So as of this moment, there are Vermonters who are already subject to this standard. So, uh, I think that it is not It's a large review process concern to representative donnelly's comment I would agree that if there is concern about the life offense being attached to sub part b2 then we could perhaps look to treating this akin to How statutory rape is treated when it's based upon a should have known standard limiting exposure to 20 years I think a survey and maybe rom and joy could provide this data or someone from crg very few of Very few sex assault cases end With sentences with life as a max does happen But many more are in termed years and are often below the 20 years so But that's a policy decision and ultimately my main concern is just having clarity and definitions and their ability to ensure We're best serving justice I appreciate that. Um, so I guess the big uh difference from a lot of other criminal offenses is we're talking about an objective standard here The reasonableness standard is objective. So it's not going into the The uh criminal defendants, uh state of mind particularly Uh, it's it's what would an objectively reasonable person Perceive in that situation. So just a follow-up question in that situation the situation where you have two people who are very intoxicated and Is there an object? I mean, how does the objective reasonableness standard go to the perpetrator who was as intoxicated and Really in their state of mind wouldn't have known one thing or another As far as the consent of the of the victim Well, so I'll offer one thing so Mr. Turner when discussing the stocking statute indicated that there are multiple mens rea. So two are there within sex assault statute First of all, there has to be a knowing sexual act So if we look at for example A female victim with a male Perpetrator and it's a sexual act means there's a penetrative action That male at some point forms a specific intent to engage in that sexual act with the female victim So that's step one. You have a specific intent to engage in that sexual act You know, there may be I guess in the context of l and l or two people laying together There may be context where there's sort of touching that may be that being intentional Which could be sorted out But it seems very unlikely that there's ever a circumstance where someone accidentally penetrates another person So meaning there is some specific desire To do that as a threshold then the question becomes was that with or without Consent and that's why I think there is the ability to apply an objective standard In my previous material submitted to the committee. I think on the second hearing I provided an excerpt from the united states army military judges bench book That's really just the the book that judges within that system used to provide instructions to the jury My personal experience with it is it's well created Generally because there's a standardization across jurisdictions everywhere from southeast asia back to you know continental united states so As a geographically dispersed Jurisdiction consistency is incredibly important Those instructions do go into detail about how jurors should be informed of that how to consider the voluntary intoxication of an offender But at the end of the day since we're dealing with sexual act in this context It all begins with some specific sexual act For which there's a specific intent And when making that call to engage in a penetrative sexual act with another I think that comes with it that it should be done under an objectively reasonable circumstance again When someone is drunk and lying by a toilet or having to be held up by a dump at a dumpster It seems incredibly unlikely that reasonable people would believe that that individual was acquiescing Seeding to or consenting to sexual activity Thank you Great. Thank you. Thank you very much Okay, uh Chief pete please welcome Welcome ma'am. Good morning It looks like I I believe I'm having uh some some camera issues It's uh telling me that camera has failed to start so I apologize for that. Um, and good morning, uh representatives members of the committee My name is brian pete. I'm with the Montpelier police department And uh, and I appreciate the opportunity to be here, uh and can answer any questions that may be uh that you may have for me I would just uh pretty much echo the sentiment of um Of uh the vermont state police regarding this that that this would be something I think that Uh that I would and and other chiefs of police within the state, uh can can definitely Uh get on board with and do our part to uh to um to meet this and then just and um and again looking at uh And I and I and I know that this has already been spoken about but just uh How how we collect the data and and uh going forward and as well as um looking at processes for um Uh establishing processes to find data or to collect the data for um other items that may be of interest in the uh in the future And moving forward and with that I I'd stand ready to answer any questions folks may have Great. Thank you. Thank you very much Just looking to see if we have any questions Look for a minute No, okay great. Well, thank you and uh, thank you for being here. Appreciate it Okay, uh David chair attorney general's office Morning. Thank you, madam chair. Uh, David chair with the attorney general's office for the record Um, we are supportive of the latest draft. Uh, that was posted Um, I believe that is draft 2.3 and it incorporates a number of Changes that I believe we actually already discussed and that we had worked on with state's attorney tivo I know it also incorporates some changes around the data collection or reporting which are also Items we've worked on with stakeholders and are certainly supportive of those changes as well I know there's been a lot of back and forth today about some of the Legal issues. I don't think that I could do a better job than has already been done by state's attorney tivo of engaging on some of those issues And I defer to The state's attorney on on those answers. We don't have disagreement on those I know that there'd been a brief discussion about um Uh addressing mental physical or developmental impairment in this law I also we do agree with state's attorney tivo And I want to express sensitivity to the fact that I don't have particular expertise on this issue, although I appreciate state's attorney tibos Uh, giving me some credit there. I do want to give credit where it's due Which is to the chief of our criminal division, dominica padula who does have some expertise on these issues and I certainly understand the Concern and potential frustration around the vulnerable adult statute potentially not being used as much as it should that I've heard expressed today But I I do agree and that is our office's position that we agree that It is more these are very complex issues issues that intersect with bodily autonomy and As well as appropriate venues for prosecution and making sure that these sensitive issues have A body of case law and carefully considered statute behind them. So we do agree with state's attorney tivo that Uh, the vulnerable vulnerable adult statute remains the appropriate place in statute to deal with some of these issues um And we also I you know, I hear today the concern that that may not be being used as much as it Should be or where it might be appropriate and I think that is a matter of education And making sure that both law enforcement and state's attorneys are fully aware of the tools that are available to keep people safe And certainly that's something that our office would be happy to work with other other stakeholders on ensuring that The tools that we have available are being used and where appropriate and where effective And other than that happy to take any questions if there are any okay Thank you, david Just looking to see if anybody has any Any questions Okay I am not seeing any Okay, so I make sure I'm not missing anybody who's here to testify, but I um I think that uh, I think that is it for now So, um I'm gonna switch gears uh Committee we uh might have an amendment on h195 and I'm hoping that David doesn't go too far. Uh, I am gonna see if I can reach representative china to see if he can Come to committee now um Barbara you're with um You're still here for half an hour or so, right? I am um, okay, um, so Let's take a um, you know five minutes stretch break while I try to reach representative china so we can hear from him and address that David does that work for you? Sorry Yeah, yes, I I'm supposed to be elsewhere at 1115, but I can push that a little bit if I need to and uh, and I'll be here for that and I'm happy to connect I'm not sure representative china will be presenting an amendment, but happy to connect on that as needed Okay, yeah, and I appreciate that and we'll we'll hear that from him. Okay, so, um, five minutes. Thank you