 Good morning and welcome to Vermont House Judiciary Committee and we are looking this morning at age 183 a bill regarding crimes and sexual assaults. And we're going to start with the bills lead sponsor representative Sarah Kobahansis and welcome. And thank you so much. Thank you so much for having me this morning. I appreciate the opportunity to help you understand a little bit of the background that brings age 183 to your table today. This bill, the origins of this really date back three or four years now to the time when I was working on sexual harassment prevention legislation. And I had a young person come to me and say, thank you so much for the work you're doing on sexual harassment, but there's so much more we need to do on sexual assault and here's why. And, and from that moment, I've had, you know, sort of in the back of my mind that we need to come back to this issue. But what really brings me here today brings me not just as a citizen legislator, but as a former teacher of high school age students a former coach and a parent and the experiences that I've had over the last year. The pandemic of being able to really slow down. Take a seat around the fire pit outside and listen to the experiences of the young adults in my life really led me to, to the understanding that there are some really disturbing cultural trends that we need to recognize we need to bring into the open we need to talk about. Because sexual assault has become disturbingly pervasive. Some of the conversations I have had over the last year. Report that there are, you know, there are sexual conquests that that that young people keep track of of how many partners they've had those conquests have led to the lines of consent being blurred and and have led to a lot of really disturbing outcomes for some of the young people in my life. And so the answer to this, this conundrum is really multifaceted and that's, that's what you'll see when, when Michelle walks you through the details of the bill. But I think it's helpful just to orient ourselves to some of the statistics. I have some national statistics but also some Vermont based statistics. Nationally, if there are, you know, for every 1000 sexual assaults, only 230 of those are actually reported to the police of the 230 that are reported to police. Only 46 reports lead to an arrest. Nine of those cases are ultimately referred to prosecution. Five of those cases on average will will lead to a conviction and fewer than those five convicted will ever serve time in jail. And and so that disturbing lack of justice is really one of the things that was most most apparent to me in the conversations that I have had over the last year with with young people who have experienced sexual assault. And the Vermont statistics I think that are helpful to understand and disturbingly the Vermont youth risk behavior survey which I'm sure this committee has had opportunity to, to look at from time to time, 9% of female students in Vermont report being physically forced to have intercourse that they did not want to have 9% that is a huge number. And unfortunately, 80% of those sexual assaults go on reported. And there are some really disturbing reasons for that, not the least of which is the sense on the part of survivors of sexual assault that nothing good will come of it. And so I think it's incumbent upon us to take some time to understand the impact that this has on the young people in our lives. And to do whatever we can as policymakers to to prevent future sexual assaults from happening and to to educate people around us on what needs to happen to prevent sexual assaults so Michelle will walk you through the details of the bill. There's just there's four main goals of the bill. The first being modernizing our consent laws to be sure that that we move, move beyond the myth that rape happens when a stranger jumps out from behind a bush and grab and really recognize that many, many of these unwanted sexual encounters are happening because of the presence of intoxicating substances. We need to improve our data collection. Alright, because I gave you those national statistics about how many sexual assaults turn into reports to law enforcement will turning into investigations turning into charges filed. We need to understand where every step along the way where this system breaks down. We need to make sure that we expand access to to forensic nursing in all corners of the state so you'll see a small appropriation in this bill, just in recognition that there are certain primary care settings where it's difficult for a survivor to access a rape kit. And also, finally, and perhaps most importantly for the future. I think we need to re reintroduce the concept of campus sexual harm task force. We need to ask our college campuses around the state to engage in a long term effort to to educate and prevent sexual assault to help young people on college campuses understand what consent means. And, and then we need to take those best practices and we need to recognize that that these activities start when these kids are in high school. So that is sort of the overview of what the bill does. And I really look forward to working with you on this and happy to take any questions. Any questions from the members of the committee or comments. Go ahead Barbara. And then Selena. Thank you for introducing this bill. This has been an issue that has been important to me since I started being a legislator. Since I represent part of UVM and part of sampling college. We've had the opportunity, the misfortune and of hearing people's bad experiences and one comment that somebody said to me that just keeps ringing in my ear that I'm hoping this bill can help address is the legal process was worse than the sexual assault, because it felt like a very public and blaming version of it. And this person ended up having this happen again which apparently is pretty common it once you've been assaulted there's a greater chance that you will be sexually assaulted and forget which national group gave that statistic, but that person refused to take action again, because the reality is as you said so few people end up getting prosecuted and so it's like a double whammy. So, thank you for your efforts with this and I'm eager to hear how we can address the, the horror for people who not only don't understand the system find it intrusive, but then feel left in the dark and abandoned. Thank you for, for bringing that up. And, and while my heart, when I think back to the conversations that I've had with with young people who've experienced sexual assault, my heart wants to fix it all right now, because I know the traumatic trauma that this has been for many young people in my life. But I also know that if we want to, to arrive at the right solution. Long term and globally, we need to understand the problem better. And that's why this bill takes modest steps towards modernizing our consent laws. But it also, more importantly, requires us to start collecting that data so that we can hear from from the legal system every step along the way and understand where these breakdowns are happening. And that's, that's how we're going to get to the point where we no longer have survivors of sexual assault saying, there's no way, why would you ever put yourself through that. Next bootstrap yourself, figure out how to process whatever you went through and don't tell us all. And that's heartbreaking because I've seen the financial impact, I've seen the emotional impact, the long term impact on people who, who have not been able to experience justice after having been wronged is just really disturbing. Madam chair, Selena is up next. Great. Great. And thank you so much. Sorry. Sorry about my technical difficulties. Okay, Selena. Great. Thank you. Thank you. I don't have a question. Just a comment just really wanted to thank you representative Copeland Hanses for introducing this bill and offering the opportunity to co-sponsor. This is my legislative district includes a huge number of college students, UBM, as does representative Rachel since UBM students and Champlain students and this is just a concern that I've heard about again and again. You know, why last by any of them we did advance a campus sexual harm task force and I really appreciate the way you've built on some of that work and one of the big themes in that group. You know, we, I think we were able to just kind of scratch the surface of getting started in that group and so I appreciate your efforts to kind of carry that forward but one but also one of the things we heard was just the challenges and consistency across campuses and and particularly with really different definitions of consent operating from campus to campus and so I think the work that you've done here with Michelle and stakeholders to really get more clarity stronger language around what constitutes consent is. It's really important in all in all settings and just just really want to voice appreciation for your thoughtful, your thoughtful work on this and your, your personal connection to this issue. Thank you. Right. Thank you Selena and I echo that as well. Thank you. Thank you so much. Okay, great. So I'm going to turn to Michelle unless sorry of anything else to add at this point. Great. Great, right. Thank you so much. Okay, Michelle, if you could do a walkthrough please I hope everybody has has what they need terms of the bill. Yep. So we're just working with the bill is introduced so hopefully everybody has that and I'm not going to share the screen today so I hope that's okay if I'm going too fast or you lose your place let me know and I'll slow down and try to get you really reoriented. So represent Copeland haunts did a great job just kind of outlining what's in the bill for you so she made my job a little easier there and I know we have a lot of witnesses this morning and so I'm just going to do kind of a broad, you know overview and I will go with line by line and and go through all the sections but I'll try to I'm not going to get too deep into some of the elements and things like that because you know how that can go sometimes and can take up some time so I'll be here all morning and can help answer questions and I'll be listening to the witness testimony and we'll circle back. And certainly one of the issues that's going to be in there is mens rea and we've talked a little bit about that and got into that subject on the on 18 and so we're going to be kind of revisiting those kinds of issues and I think that will be one of the topics for kind of discussion in the witnesses. So, so starting on on section one. So we're dealing in chapter 72, which is a sexual assault chapter of title 13 in your crimes and criminal procedure. And the first changes in section one under definitions and you'll see on line nine. There is the existing definition of consent. And so you see there it currently means words or actions by a person indicating a voluntary agreement to engage in a sexual act. And this adds that it's a knowing and voluntary agreement to engage in a sexual act so you have that added piece there that it's that the person is is has knowledge of the sexual act and what's going on it's not just the voluntary piece. The addition of the definitions on lines 12 and 14 so developmental disability and psychiatric disability. These are technical changes so the statutes. A lot of the statutes in this chapter. Haven't been updated necessarily in certain ways and so there was some kind of antiquated language. You know what we often refer to is, you know, is changing terms to more respectful language and my understanding from the, from the disability is that these are the proper terms there so this should not be changing it substantively, but should just be focused on using the correct terms now. So moving on to section two. So this is our statute on sexual assault so starting on subsection one. So right now no person shall engage in the sexual act with another person and then right now it's there's an added element of having to prove to compel the other person to participate in the sexual act so that is struck here. And then you'll look in and the subdivisions there so no person shall engage in a sexual act with another person without the consent of that other person. So we'll go through and there's a specifics consent statute that we'll look at that will further kind of outline consent in this particular instance it's not saying that you have to have affirmative verbal consent here, but we'll go through and look for the consent language and a little bit. The second one is by threatening or co or coercing the other person. Third by placing the other person in fear that any person will suffer imminent bodily injury, or for when the person knows or reasonably should know that the person is asleep unconscious or otherwise unaware that the sexual act is occurring. Okay, and I will just give you a little peek into the big debate on this bill I think in one of the issues is going to be the whether the person knows or reasonably should know so using that kind of reckless standard on the should know, and whether or not prosecutors have to either prove that the person let's say if, if subdivision for is looking at a circumstance where someone was substantially addicted to drugs or alcohol, you know, should the actor have known that that person was unaware of what was occurring, you know, or do they have to prove that that that the actor actually knew. Moving on to subsection B, and I'll just note here is that there's definitely some overlap in the provisions under this section, and that was my choice from a drafting standpoint because I wanted to make sure that through revising the section. I didn't unintentionally lose something that was in the existing statute because the sponsors were looking to expand and so, you know, I am your drafts person and your legislative lawyer or whatever but I'm not, you know, out there litigating these types of cases and stuff and so I think we can narrow it down a little bit because I think there is some overlap in these and I just mentioned that because sometimes it'll it'll seem a little bit like wait didn't we mention that up there so I just, I was trying to be careful about not unintentionally kicking something out so under existing law in subsection B, no person shall engage in a sexual act with another person and impair substantially the ability of the other person to appraise or control the conduct by administering or employing drugs for intoxicants without the knowledge or will of the other person so that's a situation where you kind of think of you know somebody slipping something in a drink right to incapacitate the other person and engage in a sexual act with them. I that's just rewritten a little bit so that it's no person shall administer any alcohol drugs or other intoxicants to another person without the person's knowledge or against their will. And while the person is impaired by the alcohol drugs or intoxicants engage in a sexual act with that person. And that's not something that is specifically addressed in the current statute and this is no person shall engage in a sexual act with another person when the other person is incapable of consenting to the sexual act due to a impairment by alcohol drugs or other intoxicants and that condition is known or reasonably should be known by the by the actor or they're incapable of consenting to the sexual act due to a psychiatric or developmental disability and that condition is known or should reasonably be known by the actor. So that one is addressing the issue of the person is impaired or either by alcohol drugs intoxicants or they have a disability that impairs their judgment with regard to being able to consent, but it doesn't require that the actor. In the case of intoxication actually administered the intoxicants to the other person. So that's where there's a difference and with subdivision one. Top of page four F and G I just put that in there there's no changes to the penalties and any of this. I just wanted you to be able to see what the existing penalties are for these offenses. Section three is where we go to the consent statute and I looked at the legislative history for this. And other than a technical language tweak done I think on the actually on the respectful language bill several years ago. This statute has not been amended or updated or anything since it was originally enacted in 1977. So there was the adoption of act 51 in 1977 that puts most of this sexual assault chapter together and we've had you've added to it over the years. But I just mentioned that in terms of the language, you know, because it's good to kind of know what's the legislative history here have you guys been updating it consistent consistently in the last several years have you not taken a look at it and I can say that I think in, you know, the 20 plus years I've been here I, I actually don't recall ever even working in this particular statute so I don't know that we've ever. I mean, Eric might have taken something up or whatever but I don't recall a discussion specifically around the consent issues, you know, for a while. So, so you see in a prosecution for crime under the chapter so it's applying to the whole chapter applying to sexual assault and aggravated sexual assault. You'll see the existing law says lack of consent may be shown without proof of resistance. And so there's a small language tweak there that changing it to more closely followed the federal definition which is lack of verbal or physical resistance does not constitute consent and so just saying that basically the fact that somebody you know physically fight back or scream, you know, or things like that does not constitute consent. The second one is an expression of lack of consent through words or conduct means there is no consent. So if somebody says no, that means there is no consent. Submission resulting from the use of force threat of force or placing another person in fear does not constitute constitute consent. Subdivision for a current or previous dating social or sexual relationship by itself or the manner of dress of the person involved with the accused and the conduct that issue does not constitute consent. Again, a little bit overlapping with another section that I'm not amending in here with regard to evidence and kind of the rate shield law but it's kind of belts belts and suspenders here. Subdivision five a sleeping or unconscious person is unable to consent. And then subdivision six you'll see there's a lot there under existing law with regard to determining when people have are incapable of consenting and the main change in this particular subdivision is changing it from who knows like a knowing center to new or reasonably should have known so the first one being that the person is deemed to have acted without the consent of the other person. If the actor knew or recently should have known that the other person was mentally incapable of understanding the nature of the sexual act. So I just want to mention is it this applies to L and L as well so these standards which is in another chapter. The second one is the actor knew or reasonably should have known that the other person was not physically capable of resisting or declining consent to the act. Third is the person the actor knew or recently should have known that the other person was unaware that the sexual act was being committed. Again that's kind of like the instance of someone being intoxicated and out of it and not being aware of what's really going on around them. Fourth is the person knew or recently should have known that the other person was mentally incapable of resisting or declining to consent to the act because of a psychiatric or developmental disability. So the person knew or recently should have known that the other person was incapable of making a knowing and voluntary decision to engage in the sexual act because they were impaired by alcohol drugs or intoxicants. So that's it with regard to the amendments to the statutory language with regard to consent I'm going to move on now if it's okay to section four and the data collection. And so this again this may need some tweaking and I think it'll be helpful to hear from the witnesses about the best way to go about collecting this this data. But we wanted to kind of get the outline there and talk about the kinds of things that the general somebody's interested in collecting. So on July 24 July 1 of this year, every state county municipal law enforcement agency and every constable who has law enforcement authority shall begin to collect data on the following the first one being the number of domestic and sexual violence cases reported to the agency or the constable. So I think at the number of domestic and sexual violence cases the agency or constable refers to a state's attorney or the attorney general for potential charges so how many cases are investigated by that law enforcement agency and then how many are subsequently referred to a prosecutor. The second one is on or before September 1 of next year and then annually thereafter, every state county municipal law enforcement agency and constable who has law enforcement authority is required to report the data that they are collecting in subdivision one they're required to report it to BCIC. And then subsection B is on or before July 1 of this year judiciary shall begin to collect information on the following the number of domestic and sexual violence cases charged the nature of the charge and the disposition of those cases that is something that you know may be available now and the question is this you know what's the best way to aggregate that information and get that to you that might be something through crime that you don't know for whatever but the idea is that you're going to have the information. You'll see in subdivision two at the top of page seven that they're going to be reporting the data to BCIC as well. The date is not later than December 1 2023 and annually thereafter BCIC shall aggregate by county the data that's that's an A and B and report that data to the General Assembly and post the data on its website so that it's accessible to the public. Okay. In section five. This is the intercollegiate sexual violence Prevention Council that Sarah spoke about. This is the result of there was a name of the group so there was the legislature in 2019 past act 77 and created a task force on campus sexual harm. The report came out last year about a year ago and one of its main recommendations was the creation of a council like this and so this is based on that report. So you see that online 12 subsection a creates the council for the purpose of a coordinated response to campus sexual harm. There's a long list of folks who have the experience either working with the issue of sexual violence or or people or their education folks. So you've got the long list of people there who would be on the council. In section C, the council duties are starting online 15. So they're responsible for interdisciplinary planning and information sharing to support sexual violence prevention programs on every college campus in Vermont. They're required to do an annual review of data collected from climate surveys on sexual violence on campuses in Vermont. They're required to do development and distribution of best practices and recommendations on sexual violence prevention sexual health education and strategies for mitigate mitigating sexual violence on college campuses. They're going to be staffed by the network against domestic and sexual violence. Do you have a report due on or before December? Huh, I just have December there, I guess. I probably I'll pick a date or you guys don't know what do you want to do but I guess I just put December it was probably supposed to be December for something. And annually there after council has to report to the general assembly with a summary of what they've been doing and any recommendations for you with regard to legislative action. So the rest is just kind of housekeeping logistics how it works with regard to compensation and things like that. Section six, there's two appropriations the first one is $13,000 for the network for the purpose of staffing the council. And then the second one is to is $40,000 to the Center for Crime Victim Services to be used in the forensic nursing program so that they can expand their services from because right now it's just in hospital emergency rooms that these types of exams are done. And they want to be able to expand those out beyond hospitals to primary care providers and others especially in areas where they're more rural so that if you have a sexual assault survivor they don't need to drive to three hours to get to an ER to be able to have that exam but they can go to someone locally and so that's a $40,000 appropriation to expand that program. And then the effective date is this July. Great. Thank you. Thank you so much Michelle. That's very, very clear and helpful. It's great. Committee members any questions not seeing any hands but up there we go. Well, go ahead. Thank you. Going back to page five. Let me get there myself. So going back to page five where we're talking about new or reasonably should have known. With that cover and an aggressor who is themselves intoxicated, because I think in a lot of occasions where a victim potential victim is being applied with with alcohol or drugs. So I just wanted to make sure that the language and question wouldn't provide someone with being able to use a defense that they were intoxicated and were unable to reasonably process. I think that's an excellent question and I don't necessarily have an answer for you on that I think that that's going to be one of the things that we flesh out and discuss through the process of this of taking testimony on this one. That's obviously something that happens pretty commonly and then the, you know, trying to figure out, you know, just despite some the actors intoxication, should they still have reasonably known that the person that they were engaging in sex with was incapable of consenting on this one. So I think that's one of that's one of the tricky issues with this, with this type of these types of charges so I don't have a great answer for you necessarily on that one I think. But I think it'll be a part of the discussion, I think that we're really going to focus on. Okay, thank you. Sure. Thank you. Can hear you. I don't know if you've ever sounded better. I'm sorry to lower my hand representative, not covered the exact same question that I was concerned about a possible defense and I appreciate his question is concerned so, and I guess we're going to be addressing so thank you. Great. Thank you. Anybody else committee members. Good books time to raise your hands or jump in. Not seeing anybody else. Great. Thank you so much, Michelle. Great. Appreciate it. Okay, like to please welcome Chief Brian Pete. Good morning. Morning. Nice to see you. Good morning. Welcome. Well, thank you so much. Well, I can, I really appreciate the opportunity to be here. And I can and reviewing specifically, I believe it was section four for data collection. I would just advise or recommend clear definitions on the data sets. We can make sure that we can avoid a garbage in garbage out scenario. And that because we want to make sure that the quality of information that we're, that we're bringing in is going to provide you with the information you need to make the decisions going forward. And it also allows us and gives us additional time we need to make sure we have that time to build structures for our record management systems, universal reporting systems as well. So I would also recommend that even though I know that the data collection is specific to this bill itself is that to continue or consider broadening the scope of the data. So that, like, like right now this is a very, this is a, this is a very important thing, but other things that we can look at going down the road that we that we can anticipate that we're going to want to collect data on. We're just looking at crimes that are related to sexual assault or sex violence sexual violence, but what other things data points do you want to capture that may that may have an impact on on sexual assault data. Consider possibly looking at the crime research group to collect the data. I know that it says in there that the thick, but I think the crime research group also does data collection within the state again and please forgive me if I'm incorrect, but I'm still trying to learn the layout of Vermont itself, and then just potentially the clearinghouse is essays or stage attorney's offices as well as police departments that we need to again defining the data that we want to collect a type of data. So that we make sure that our numbers are the same that there's not going to be a discrepancy and reporting numbers between the state's attorney's offices and the respective police departments. Thank you. Thank you. Appreciate that. So, very, very helpful. Thank you. Other parts of the bill that you that you wish to testify on. No, ma'am I think there are other folks that are on the call that probably that have definitely a lot of more information pertaining to the law enforcement presence but I do want to say that that personally I think that this is something that's very much needed when I was in Little Rock and in Las Vegas as part of the rape crisis centers of volunteering to do that type of work and it's, it's, you know, if this is a very important work. So, I just definitely leave it at that it's just extremely important work so thank you very much for the opportunity to be here. And if there are any questions I can answer, I will be more than happy and willing to do so. Great. Thank you. Thank you so much. It's always good to see you. Thank you. Let's see. Not seeing any hands but again I'll give folks a few seconds to reach out or guess not great. Right. Thank you. Take care. Thank you very much. Lieutenant John McCallum. I believe you're here I see a John sees that. Yes, I'm here ma'am. Okay, wonderful. Welcome. Good morning. Good morning. Thank you very much for having me be part of this committee. I'm simply here just to convey Commissioner Sherling's position on the bill. The commissioner wasn't available today, but he would like an opportunity to meet with the committee. If that's possible. And overall, the bulk of the bill appears sensible. The content the wording appears sensible enhancing protections and services for victims of domestic and sexual violence is a good endeavor. Commissioner would just like to have a little more discussion with the mandate concerning the data collection, I believe it's section four. And just whether the just whether or not it needs to be a mandate has an appropriate mechanism. Commissioner would like an opportunity to talk a little bit about his modernization strategy, which within that includes a new statewide record management system, which would be used by all all agencies in the state. There's a wide RMS that would be essentially able to collect the information, the data, the statistics that the committee is speaking about and interested in having the commissioner can obviously speak more to the benefits of the, the vast data collection and reporting capabilities that it has. But just wanting to discuss if it needs to be a mandate, or simply having it be available upon request for whatever data or statistics, any group or committee is interested in having. And the new RMS system will be able to produce any of the statistical reports, such as I think these data sets that the committee is interested in having. And that is all I need to provide insight on, I believe. If there are any questions regarding the information I provided but you know, thank you. Thank you very much. It's helpful. I do see that the commissioner did just join us so we certainly can hear from him as well. Okay. Any questions from committee. Seeing any commissioner you're welcome to testify or if you want to continuing continue listening that's that's fine too but I do see that you're here and I do want to acknowledge that. Madam chair apologize for being so late had COVID calls and testimony on the capital bill just ended a moment ago actually hasn't ended I just jumped off a moment ago. I think I may I don't have full context of your discussion at this point. So to weigh in for the record, Mike, Charlie and commissioner public safety and I do have an extensive background in in sex crime investigations having been both an investigator and director at the Chittin unit for special investigations for I wish I could remember how many years a number six I think I think before I go back to listening mode. Relative to the data collection point of this. I think that was the main reason that I wanted to at least be on with you for a bit this morning to flag as a reminder for the committee something we started talking about last year, which is, we are now. We have a contract in place and are beginning the deployment of a statewide computer a dispatch and records management system that will enable us to much more swiftly and accurately collect and report on a wide variety of data. It's my hope that we move away from directing individual components of data to be collected and reports to be generated and move toward a more comprehensive rubric of public safety in particular leading the development of data dashboards and reports and open data that people can analyze on a host of topics across all of the information that's available through that new system which will is actually online in about half of the agencies and has been for a number of years and the other half and the state police will be moving to that system in July of this year. Thank you. Committee members or representative Copeland Hansis a sponsor if you have any questions. Selena. Yeah, I really, really appreciate the work that's happening to create a company, you know, comprehensive kind of open access to all kinds of data around public safety. I, I very much understand what you're asking there, but I guess I just have a question about, you know, if we were to eliminate the mandate for this, like how then how would we have an assurance that this data would be that this particular data would be collected and if Rose give her a minute to see if she comes back. I believe the if she can hear us or not. Let me, let me reach out to her to see. I think my, my connection dropped there. Exactly reconnected which is impressive. I think I'd started to say put a pin in the data component. This time next year, ask us to come in and show for you what data is available via the new system to track these kinds of events, and then begin to, to work from that as a starting point to inform. So that's one of the things that we should do. Okay. Thank you, Selena, you. Yeah, I'm back. I really apologize. I think I, you know, I cut the gist of a commissioner's response. So thank you for that. Okay. All right, so you're good. Okay. Thank you. Anybody else. Tom. Thanks commissioner. For whatever reason what's going through my mind that you know I realize it's going to be, you know, easier to share data. Maybe you'll have it all in one place for us but is there, is there any reason or is it capable of connecting to out of state. Just going through my mind because I mean borders are just an imaginary line in a sense and I didn't know if there's any benefit to that or if it, if it would happen to, you know, connecting to other networks. The short answer is it does not the federal government has experimented with a justice exchange standard and a number of times over the last decade, each of those efforts has been not fruitful. Probably the best way to put it. In terms of data sharing across states the primary way that that is done is through a time tested in a robust system to share to share criminal histories and criminal charges through the National Crime Information Center, which is what the Vermont crime information center exists in large part to do. But that only shares information about arrests and convictions that have not been otherwise eradicated through expungement or other means. It doesn't share the 85 or 90% of other events that law enforcement's responding to that may not yield a criminal charge and with sex offenses in particular. We're not always able to get to a threshold of probable cause but when you weave together one event that has been reported with another event that has been reported, sometimes that puts you over the line and and you're able to bring a charge so being able to track those. It would be beneficial to be able to track those across borders as well but that is a bit of a challenge. Thank you. Great. Anybody else. Okay, great. Thank you very much commissioner appreciate it. Thank you. Okay. Okay, it's good to Rebecca Turner from the defender general's office. Good morning. Welcome. Good morning. Can you hear me. Yes, yes. Good. All right, I'm hopefully I won't have the computer problems on my end. Good morning for the record. My name is Rebecca Turner. I'm the head of the appellate division of the office of the defender general. And I've been an appellate defender here in Vermont since 2007. And then took on the supervisor role in 2015. He had reviewing this bill and getting the preview from Michelle child and reading the purpose section. I commend the endeavor to. Attempt to clarify this area of law specifically consent. And the issues of consent in the sexual assault statute. And this area of the law is indeed a need of clarification. Spoken from the position as an appellate attorney before the Supreme Court, who let me litigate these issues over and over and over again. And so this bill comes with a lot of history and decisions by the Vermont Supreme Court. And by way of the introduction this morning, there was a point there haven't been a lot of legislative amendments to the statute and I would just like to point out to this committee that sexual assault of course is a common law offense so we bring with it. So much of that history and that's reflected by how our court has treated and have so much of how we understand these essential assaults have come through through the decisions. And that by way of introduction, I also wanted to add that when I went through the language of some of the proposed new language as to what should or shouldn't be consent. And then the negative, a lot of that does come from the decisions from the Supreme Court already, but much of the language here in the statute does not. And so I read this as greatly expanding the breath of what type of conduct or what constitutes lack of consent. And I want to make sure that the committee is aware that that is moving in an direction where I think is the opposite of the intent of it which is to clarify this area I think by broadening. What means consent here just adds to the confusion confusion in the criminal context of course is not just that it litigation becomes more complicated here we have a serious felony offense. It's a life imprisonment. So they're extreme consequences to what it means to us as to what is unlawful sex. And specifically when is it not consensual. And, again, in this context, the confusion that I think this bill adds to this area of law now raises to the level of due process concerns. And I think the intent that we'd be litigating that. What is the meaning of these terms here. I don't think that that will bring any more surety as to, you know, keeping the, this type of prosecution of these type of offenses. There are more, more definite and more discreet. And let me go through a little bit of what I mean by that. The first due process concerns in this context means that we have to have fair warning of what constitutes an offense. Fair warning. Can be broken down and then another in a couple other ways and concerns for warning and that it brings up the void for famous doctrine. You know, which is sufficient surety and certainty what, again, the standard is this, a person of ordinary intelligence has a sufficient certainty of what conduct is criminal. The other part of it is that it can't be so big as to invite discriminatory or arbitrary enforcement. And so, when I look at how consent is now being attempted to be defined. As pointed out earlier in the in the walkthrough. It's not just in one section of this bill but occurs. 3251 3 3254 1 through 5 3252. So at least three sections of the statute, we have, or I have to go through we have to go through what is the meaning of consent or lack thereof, both defined here in the affirmative and in the negative. And so just focusing on that issue of what does it mean to not consent. We can I can walk through each of the sections here that raises that ambiguity and lack of clarity. I wanted to first start with the 3254 section one that's page four of my bill 3254. And here the language is trial procedure consent is the title. Here there is one through six new categories, new language that doesn't currently exist, defining what consent is or is not. And here, it's established that lack of verbal or physical resistance does not constitute consent. So, silence doesn't constitute some consent. What becomes ambiguous well then what, what then does require consent, we know in this proposed language to that a clear expression of no consent means there's no consent that's that's fairly clear. But when we go go back down through this and apply the other aspects to it. What I'm left with is is really scratching my head what does it take to have full consensual sex under this proposed statute in this state. So it seems to me that unless you have written consent, no one can be safe from perhaps inadvertently committing this crime. And when I say inadvertently because that brings in the other major concern of this proposed legislation and that's going to the mens rea requirement and that's on page five. It's also sprinkled in throughout and it's the language, reasonably should have known language the newer reasonably should have known language. Again, the reasonably should have known brings this to a mens rea less than less requiring less than the defendant or the person actually know that there was no consent. When we combine this possibility, and then there and then we add new language here too. This is page five, again in the same section 3254. Six. We have a new section that's added that's going to make it that someone who I'm possibly going to the wrong. Let me go to this. The other one is relating to the impairment of alcohol. 325434. That's going to sleeping. Let's see. Hang in there. This is page three of the bill. This is new language again, not currently in the in the sexual assault statute, but it's prohibiting it. Someone from engaging in sex and a sexual act. When that other person is incapable of consenting so essentially it's it's establishing that there is no defense of consent in this particular situation when there is impairment of alcohol. And that the other person has impairment of alcohol. To me, that covers a potential scenario of a common dates and situation where you go out to a restaurant and have a drink have a glass of wine. What does it mean to have to have the other person impaired by alcohol. Particularly when now. Particularly when now. We've dropped the mens rea requirement of engaging in consensual sex, where the person just should have merely reasonably known that they were impaired by alcohol. I think that when you layer on the changes of the language here throughout. The end result is something where we're left with really an inability to know when it is okay when it is lawful to have sex. In this state and not risk of triggering and committing this potential life imprisonment offense. I can stop here because I feel like I can go through each of these line by line and if that makes sense or or if I should just sort of hit the high high note. So let's see if there are any questions before I for respond to that. Seeing Michelle. Thank you. I have a question hi Rebecca nice to see you. Good to see you too. My question is, I'm wondering, let's take the reasonably should have known. Let's take that out. Just for discussion purposes. And then I'm wondering about your concerns, whether it's due process or over breath or anything like that, if you didn't have the should have reasonably known, right. So I'm wondering about those aspects to because I'm clear that how you feel about the about the reckless standard. Right. No, and thanks for that question that would that would absolutely be better for sure, because now you're back into to bringing in that intent and the knowing right and and and and making sure that that it doesn't drop below that. That it doesn't fix this. It doesn't make the due process. Concerns go away. Let's let's let me let me give you an example. So I'm on page to 3252 a, and there is a recommendation that we eliminate the critical language in this statute, and that's relating to compulsion. One person shall engage in a sexual act with another person. Currently the law requires and compel the other person to participate in a sexual act. And then it goes through without the consent of another person, going down through to for when a person knows or reasonably should know that the other person is asleep unconscious, or otherwise unaware that the sexual act is So the case law in Vermont. The Vermont Supreme Court has has considered in what situations does compulsion differ from lack of consent. Right. And there's a series of decisions on that and what we have learned and what they've, they've confirmed is that at the age of the complainant when it's when a child is involved right incest you, you cannot consent to not be able to consent there because of the circumstances of that particular case, there is compulsion. So it collapses those two elements are not two elements they're one element right on one level that would seem that the proposed deletion would suggest that that is consistent. But again, the Supreme Court has gone through the specific cases where we can were compulsion and lack of consent or the lack of ability to consent have been the same but it's not always the same. Again, it's because of the narrowness of narrowing of the circumstances involved in these cases, whether it's age of the accuser involved, whether it's the special relationship that the defendant has with with the complainant right parenting brawl, or particularly vulnerable person who is in the complainants position. Again, there's case law that develops whether compulsion and lack of ability to consent are one in the same. But again, the compulsion requirement, keeping it there and those circumstances not falling within those categories, helps to narrow the circumstances and provide better notice and fair warning, as to what would otherwise require or be the difference between consensual and non consensual sex between two adults, without those considerations as to like age differences are our relationship mental disabilities and things like that so there's that concern on due due process, moving down to for page three of that. Can I just ask a quick follow up and then I'll drop so because I know I don't want to take over in the committee but I guess I'm just wondering is so I get like on the, on the issue of of the age of the victim but you know we have specific specifically addressed elsewhere in the chapter with regard to the relationship of the victim to the actor and the age of the victim to the, you know, and I guess I'm wondering when I'm looking at, you know, the amendment. I mean I get what you're saying on on the on the compulsion bit but if I look at the way that it would read under this proposal so no person to engage in a sexual act with another person and then I go down to four. Let's take out the reckless piece would say when the person knows that the other person is asleep unconscious or otherwise unaware that the sexual act is occurring. I guess I just don't, I don't necessarily quite see the issue with so you, you know the person know so the actor knows that the person's asleep unconscious or unaware that the sexual act is occurring I don't know why you need for fair questioning or due process compulsion in that particular case. Well, and and as the Supreme Court would agree with you. The state sees no is a decision on point on that and, and you don't in that is yet another example that the Supreme Court has carved out where compulsion and consent are collapsed into one. So let's review that that site it's 2013 VT 19. Again, the Supreme Court held there, reviewing the facts its consent is not a defense where a complainant is sleeping or unconscious. And so my suggestion there is by adding that specific reference to the asleep unconscious in language number four. It's confusing what is already the case law and a one without the consent of the other person. We have that snow case that already says well you don't have consent when someone is sleeping and unconscious. I think it's just the goal is to say that specifically in here so you don't. And doesn't look at the statute and have to know about this no case right and so we're trying to kind of bring some of the, what's developed with the case law into the statute, and then the sponsors have chosen, you know, to be more expansive than the case law. So, I don't want to, we, you know, you and I let's get on email and we can geek out on the case law feel I'd be great to for you to send me some sites of some cases that that need like me to take a look at and stuff but I don't want it. I don't want to pick up more committee time. Okay, thanks. Moving, and I just want to point out in terms of be one. There's, there's language shifting from a substantial impairment. That is in the original language and Paris substantially the ability of the other person to apply to appraise or control. Be one, and the new language drops substantially and just makes it mere impairment by the impairment by alcohol. Again that that that was intentional because that provision is where the actor is actually drugging the victim. So the standard of it so it's just they have to without the knowledge of the victim, the actor drugs the victim and then engages in sex with them so I think it's so that wasn't. I could easily make an oversight on that by dropping the substitution but it was intentional but I respect your point there. Okay. I understand if the intent was not to change the substantive meaning from the beginning from the first part, I think it I think it does by dropping substantial you and I can connect back on that. So, again, is where I worry that this captures a date restaurant, where, where, how much alcohol, how what constitutes impairment of alcohol, and whether or not. So if you bring alcohol into any amount of alcohol that results in impairment that you don't do so without risking falling within this if sex happens afterwards. That's my concern. And then 3254 again these this is a list of one through six, taking out the mens rea. What I'm left with is that. When do you know, when do you know that you have consent to have sex. And it seems to me the way that this is understood whether it's this section whether you combine all these sections you have to have it in writing, and then even then I'm not even sure that that that protects someone. And, and again I put that in what's 3254 three, which means that it's a crime submission resulting from the use of force does not constitute consent. So even in the in the context where you have actual in writing that that was the agreed upon sex sexual act that was going to so there was it was a consensual but there's going to be involving uses of force so you know I was I was thinking about how much we are starting to legislate actual types of sexual behavior. Exploring what is consensual and what is not under this scenario, you know 50 shades of gray with written consent that that is okay does the 3254 one, where you submit submission resulting from the use of force does not constitute consent does that take away and remove any of the prior written consent to have such sex. Again, I think that this is where we start to have ambiguity. This is where we have lack of clarity of what it takes what where where is someone can go and not go to not risk this triggering this offense. I want to move on to to a different part of this bill. But before I do. I want to stress that the effect of this is to broaden what could fall within this, this criminal category. And whenever we brought you brought in the language to the point that you don't have fair warning. This is concern is about the discriminatory effect. And one thing to keep in mind, particularly this this offense. We know that the over criminalization generally is having very huge impact on racial minorities. When you throw in the extra historical context of how such biases against black men have played out in rape accusations. I think that should be very careful consideration of, of when we look into what we mean by no consent or consent that we put in some clear standards. So as we don't perpetuate a problem while we're trying to solve another one. On the data collection section. My only suggest suggestion here. Again, I, we don't object to that suggestion. It is important to for transparency to collect such information. I certainly highlight that to make sure and check that there aren't any discriminatory practices happening that the type of data collected also include demographics of the accuser of the accused of law enforcement and the attorneys involved the judges involved. Again to get a full picture of how this is playing out in practice. Our black men disproportionate being accused, being charged, being convicted, being overly sentenced. So that would be while we have this opportunity to collect data I just don't want to us to miss that opportunity so that we can make sure that if that's happening that corrections can be made on the recommendation on the council. My only recommendation there is to make sure that the, that it be fair and balanced and proposed membership of that panel right now doesn't appear to include anyone from, from for instance, communities of color, or from the perspective. And so I would encourage that that be considered in the draft here. There are no other questions. I think I'll stop here. Thank you. Thank you very much. Barbara has her hand up. Rebecca, your last point is is a really important one and I am wondering how we walk that line of addressing a crime that currently is well under reported and under prosecuted, even though it is overly over representation of people of color, I remember doing when I was on jury duty, not getting selected for a case. And the, the, it was a refugee, and they came up. How many of you think not knowing English as a defense, and how many of you think local customs is a defense and it was a pretty new refugee who was being charged with rape of a minor. The minor told him he was, she was older and it was like the saddest situation because this man did not understand at all what was going on and he was convicted and so, I mean it doesn't make the situation better for the person who the person was. But it, it, it, I'm just wondering how do we thread that needle in a way that is as sort of just as possible. I don't know if you have thoughts on that. I do and I appreciate your concern because there you're talking about layers of potential biases to that can come in, not just affirmative defenses that that he could have in that instance but the biases that come into play from all different levels and I think that what could be done is, is to clarify, because I do think this, this area needs clarification, it just needs very, very clear standards, mens rea shouldn't be anything less than knowing. If we require that the defendant know there was no consent, then that gets closer to avoiding all of those questions of, well, how am I misreading or misunderstanding the situation. I think through what innocent, you know, intentions I thought I thought I took that that silence as acquiescence as willingness as as consent. Right. So I think there's there's that start with the intent keep it keep it at knowing. I don't want to drop to anything less. I think that whenever we whenever words and phrases are used to define what is lack of consent. Again, keep it so that there's, there's, there's no room for ambiguity or, or, or ways to litigate the meaning of it. If you're sleeping or unconscious person that's clear. Right, as long as someone knows the defendant knows the intent takes care of that. Right. But again, the impairment level, the impairment of someone. So it means that alcohol and sex can't mix it all to be safe. What is that level how to how do we understand that. The silence right that this this is this is the big question. I think that 3254 when you look at and discuss all of those things that do and do not constitute consent. What are what are we left with what what is what is it that we're requiring in this statute by default to make sure someone who's trying to comply with the laws doesn't inadvertently commit sexual assault. Does it. I mean, given how confused it confused our society is about these issues. And it seems so important to have a public education like representative couple and Hanses spoke about working with colleges but I think it's also working with public schools, working with new Americans for sure. It's not people to not break on the law and it's going to be important. I mean, not just this law but but this one is one that there is prevention if we can do some public education and I don't know. That fits in with this bill but just to general I think it's something for the for us as legislators to think about how do we how do we educate our. How do we make it as easy as possible to be a good law abiding citizen. Okay, thank you Barbara. Felicia and then we're going to take a break and thank you everybody for hanging in here. Thank you. I just had a super quick comment to some of Rebecca's testimony and I appreciate you being here. You mentioned acquiescence being unclear. And I think both in the education portion. I want to encourage an understanding as to where exactly the boundaries lie as well as existing case law is recently as 2017 up here in Franklin County. It's quite clear that acquiescence has never been a marker of consent. I'm sure that as we continue our work on this bill, we do not insinuate otherwise in any way shape or form, it may not be as perfectly cut and dry, as we might want any issue to be but I don't think this issue is cut and dry, but on that matter. Acquiescence is not consent and should not be used as a defense in any way shape or form. So I just want to make sure that the comment on that matter is crystal clear and we are not letting that fall by the wayside as we move forward. Thank you. Was that a question for the witness. It was more my understanding of her comments. And as we move forward, something that I wanted to reach understanding on. Thank you. Okay. Okay, anything, anything else before we break. Thank you. And representative Lefler, I just wanted to say that that I didn't mean to inadvertently misrepresent the current law, and you can see in 3254 one, which is crossed out now. But there it was clear lack of consent may be shown without proof of resistance and, and so certainly that that isn't I'm not suggesting otherwise and that in terms of that. I think I think the question then becomes, because this is this is where we have a life imprisonment max possible. How do we know in the bedroom, just in going about about a bribe private lives and navigating these minefields, generally, with relationships and consent but how do we know that we're not here in this most serious felony, and the definition of consent and not consent has to be crystal clear. And again, because of the dune process concerns at stake, because we have a life imprisonment sentence at stake. And that's why, and that's why the Constitution requires that that that kind of of clarity and so I just urged the committee to consider that as you navigate these tricky, these tricky laws. And so, thank you. Thank you very much. Okay committee let's come back at 1045 take a 15 minute break, Barbara I know you're going to appropriations thank you so much for for doing that I'm not sure if Ken is joining you or not but if you want to can go ahead. Okay, thanks. We'll see you in 15.