 All right. Good morning. We apologize for being a little bit late. We were transferring between links on zoom and Many of our witnesses were given the wrong link and so those technical difficulties cost us a few minutes, but we're lucky that everybody is back that ready to go live Dealing with age 183 and act relating to sexual violence the committee has been working Very hard on changes to it and we'll hear from Shell, but we also asked Kate Great from victim services director of one state police menu crime unit to discuss this bill and Over to you Kate look forward to hearing you just Thank You chairman Sears for inviting me to testify today and thank you and Hello to the rest of the committee members. Good morning. My name is Kate Searles Brayton I'm a licensed clinical social worker in the state of Vermont and in my social work career I've worked with hundreds of sexual assault victims in different capacities Currently I'm the victim services director for the Vermont State Police and I'm assigned to the major crime unit In my daily job, I work with family families who are experiencing acute trauma From the loss of a loved one through homicide or other traumatic death during the investigation case investigation phase of their case My other responsibilities include involved it include consulting on cases statewide that include acute trauma or victimization I'm part of the internal domestic violence task force for the Vermont State Police as well as domestic violence fatality review committee Time I teach at Norwich I teach victimology victim services and restorative justice to spread a little background And here today to talk about how trauma responses can substantially impair the ability of someone to react during a sexual assault regardless of other contributing factors When a person is faced with an instance of perceived danger or fear our bodies Respond with mechanisms that originate deep within our brain and affect our whole body These reactions are involuntary meaning they happen to you and not because of a decision-making process. I Would expect that most of you have heard of a couple of the defense mechanisms fight flight and freeze are ones that often people refer to and have some common knowledge about They're part of a defense mechanism called a defense cascade and So there are six specific defense cascade reactions that can happen. I'm going to talk about a couple that we don't hear about as much The first response is arousal And when we experience arousal what happens is our body opens up our center to take in data to start to look at potential threats around us. So all of our body systems get heightened What usually follows is freeze and freeze is when we stop and scan our environment and start to detect threat And you can see this in animals and in humans You only have to open your door to look at rabbits and squirrels in your yard to see how they react to you When you open the door, you see that freeze happen and they're scanning their environment to decide How big the threat is or how big of a threat you might be? I also see it often in my dogs in the daily behavior if there's a knock on the door They'll freeze and scan before they decide what to do next and freezing can it can take just a couple of seconds Before you move into the next phase and usually the next phase is that fight-or-flight phase where you take action or you retreat depending on your ability to do so and so That's the one that people know most about But if you're in the freeze response where you're scanning and assessing and you your brain Assesses that there is no way to escape or there is no way to fight Your body can quickly go into what's called tonic immobility and tonic immobility is a defense mechanism mechanism that gets gets triggered in humans and animals when they have the The perception of being caught and not being able to escape, right? So tonic immobility is a state of involuntary paralysis In which a person cannot move and cannot speak In animals we work to it as feigning dead or feigning death In sexual assault, it's referred to sometimes as rape induced paralysis The reaction happens for two primary reasons biologically one is to deactivate the kill reflex in the predator And two is to try to avoid consumption It's truly a last resort mechanism to preserve life and that's its function In this reaction, the person is aware of everything going on around them They are aware of what's happening, but they are unable to access their motor systems including speech In a 2007 study from Stockholm Sweden about tonic immobility They found that of the participants who had survived a sexual assault 70% Experienced significant tonic immobility In that study It's important to understand that tonic immobility in and of itself is terrifying Because while under in the middle of an assault you're unable to engage your body and unable to verbalize And it can have long-term impacts on mental health People who experience tonic immobility during a sexual assault are twice as likely to experience post-traumatic stress disorder And three times more likely to experience severe depression in the months after the assault People with a previous history of sexual assault are twice as likely to experience tonic immobility during a subsequent assault And people who experience violence or penetration during an assault are also twice as likely to exhibit these symptoms According to an article in Scientific American that looked at the research regarding tonic immobility Part of the reason for increased adverse mental health outcomes for survivors May be how we understand and judge involuntary reactions that we have perceived it in some way to be voluntary During an assault when the body is doing exactly what it needs to do to survive Victims are judged for not doing enough Not fighting back or not saying no The lack of awareness and understanding in the public on this topic mixed with the possible shame and self-doubt Experienced by victims of sexual assault leads to a misunderstanding of the strength that it took for a person to endure the assault and survive it Court systems can reinforce this harm by failing to recognize innate biological responses to serious incidents Along with tonic immobility one of the defense mechanisms past that is Collapsed immobility and collapsed immobility uses the same biological defense mechanisms as tonic immobility Except that you are rendered unconscious or semi-conscious So the difference between the two is awareness and memory retention Which happens much more significantly in tonic immobility than collapsed immobility In h183 lack of verbal and physical consent is not only Inhibited by outside factors that you've discussed in previous testimony like alcohol medication or substances Or another barrier. It can actually be our own biological defenses reacting to keep us alive That impedes our ability to resist an assault Legislation like 183 allows for these natural and voluntary and many times life-preserving mechanisms And it's important for victims who are seeking safety and justice and validation of their experience The acknowledgement of affirmative consent in this bill Is a way to validate the survivors of sexual assault did exactly what they needed to do to get through a life threatening or violating event The language proposed in this bill regarding consent allows for the concept that silence doesn't equal consent It allows for the possibility that the defense cascade immobility Would cause serious impairment for a victim of sexual assault When someone experiences immobility related to defense mechanism Engagement becomes impossible consent becomes impossible and fight and flight become impossible in those moments There's one part of the bill in particular in the definition section under the definition of sexual assault That says when the person knows or reasonably should know that the other person is asleep Unconscious or otherwise unaware that the sexual act is occurring I might be so bold as to suggest adding to that Something like unable to engage in something like unable to engage in In order to capture these These reactions as they happen So it would read something like when a person knows or reasonably should know that the other person is asleep unconscious unable to engage in Or otherwise unaware that the sexual act is occurring That may better include the trauma responses I talked about today I have to say that I really appreciate the leadership of this committee To to work towards more effective laws and language that truly speaks to the research in regards to trauma and violent crime I'm also as an adjunct professor Excited about the provisions regarding higher ed resources to focus on this as an issue Um, and I'm happy to respond to any questions or talk a little more about any of the things I've talked about today Oh, um, thank you very much. Kate. I don't I think your explanations are I mean, it's like a college lecture. I might say and it's something I think we Don't usually get but we can certainly use to help better understand what victims may be going through um I I do appreciate your Suggestion for unable to engage in Um, but I'm wondering what if other states have used similar language we A number of us are Concerned about the draft here and to make sure that Um, the totality of the circumstances are taking into account and using more of the federal definitions So I'm curious if other states have used the unable to engage in or And I don't know the answer. Yeah, I don't know the answer to that question But certainly, you know Thank you other questions for kate senator benning Kate this just seems to be my week for looking at things in a different way and sounding like i'm a neanderthal, but i'm going to take this shot The one thing that has me concerned here is the concept that a long-standing married couple Um may be in bed together And one partner um Is interested in having relations sexual relations with the other partner And the other partner is asleep at that moment and The hope is that if there is an advance of some kind the other partner will wake up and be willing As I read this bill with that language, we're creating a crime out of that situation And my misreading something or is that what you nevertheless would prefer to be the case that we are creating a crime out of that event I would I would argue that the moment that that person wakes up and begins to engage in Uh with their partner That that becomes a mute point Um, it's the engagement I would agree there, but I i'm i'm looking at the language and i'm thinking to myself The initial move Is now being made a crime and i'm It could just be me. It could just be the way i'm reading it as a defense attorney that wouldn't surprise me this week, especially but um I'm thinking there's there's just something to leave me uncomfortable there Let me just add a little bit about um tonic immobility in the study in stock home Which was a nice study because It captured victims Assessments early after the assault and not a lot of the research on tonic immobility is Looking at past experiences, especially with childhood sexual assault, which is tonic immobility is has very high Incidents and they use a tonic immobility diagnostic tool In order to assess the level of tonic immobility and collapsed immobility in clients And there are a series of things that that you know that they assess and so tonic immobility if I could just so If you're Experiencing tonic immobility and somebody were to move your arm It would it they could just lift it and it would drop right you don't have You don't have the ability to kind of manage those motor skills Which looks very different and I would expect should be a reasonable Assessment that somebody who is trying to engage in sex with you would have That your body is not mobile and you are not using motor skills at that time If that makes sense whereas the situation you're talking about In a married couple who engages in sex, you know as one of them awakes It has full function of their body and their speech usually at that time Because the The mechanism is triggered Only when Fight and flight is seen to be impossible It is the final and last resort I guess I'm I'm not sure it's clearing my hurdle and that's what I'm I mean the sleeping person could very well say No, I'm not interested and contact should stop. I have no question about that But we seem to be one step before that decision being made By labeling a sleeping or unconscious person as someone who cannot consent I guess I'll I'll wait to hear from the Attorney general's office and the state's attorneys and the defense counsel to see if I'm missing something It could just be me. I could be missing something But that's what I'm fearing right now Could I have a question? Oh I'm muted because my entire file system I'm muted. No still applies. Oh, I'm sorry. You had the question. I was explaining that um My entire my entire file system here at the house just fell over and So, uh, unfortunately, I thought I was muted, but it was Phillip who was muted So, uh, I just tell if you have a question. I just wanted to say I'm sorry senator baruth. Yeah I just wanted to tag on to what joe was saying It has seemed to me the more we discuss this That it it really even though the bill doesn't say it it really is creating a standard where you need um a vocal expression of consent And if you don't and and I wanted to ask you, um, miss bradon Is that how you see it? Um I don't see it as as specifically always having to be vocal Um, but the uh resistance to engage in um I I believe is a lack of consent. So for instance if well, but let's let's stay on the consent side because The bill is the bill is defining everything as what doesn't count as consent Right. So when when you talk about resistance So we're we're saying that if someone is A sleep or unconscious or frozen Um, that's not consent And so there has to be some active expression of consent And I understand what you're saying that it could be non-verbal But it it seems as though under this framing The absolute safest thing for everyone within the law is to get an expression of verbal consent Since anything else could be read or misread in the moment and I I know that that's a fine line that the drafters of the bill were trying to walk because There has been in other states like california There's been pushback against the idea that there would be express consent Not just for the act, but at each stage of the act Right. So I'm I'm wondering how much you can help us with What what does this bill require in terms of having something count as consent? Yes, and and and you know to be uh Honest most of my work is in the field and it's you know, so I don't often in you know, engage in policy discussions at this level my But my opinion is that verbal consent is the best-case scenario. It is a clear indicator of engagement Engagement can happen non-verbally and I think It it is hard to It is hard to pin down if you know it when you know it, you know, and so But verbal engagement. I think our verbal consent is the clearest An easiest to define I believe in in consent. It is best best practice um Okay, so that's that's my real You know my real thing that i'm thinking through here is it's It's very clear on what doesn't What doesn't count as consent clear that our laws are now That's good But but there's a one sentence. I don't know if you have the legislation in front of you Okay, so there's a one sentence thing at the beginning That says consent means words or action by a person indicating a knowing and voluntary agreement to engage in a sexual act And words obviously would be clear actions, um Again less less so but I think what joe is talking about is that same area where um If it comes down to actions It seems to me that's where the the real genuine possibility of misunderstanding comes in um You know if if someone squeezes your hand tightly Does that mean that they want it to go forward or they don't want it to go forward So that's why I pose the question to you as somebody who Is familiar with that tonic immobility um Isn't that the case that you might have Some reactions that could be misread physical reactions That's a great question with tonic immobility in particular um, it would be really hard to misread the uh, the point at which somebody is physically incapable of engaging in That acts that you're engaging in um, they Literally are unable to move their body on their own and so especially with collapsed immobility Um, although their eyes may be open or you know, they may be semi-conscious They are unable to Action their body. So well, but couldn't there be um, couldn't there be a range of Of freeze reactions and and you might have somebody who was more or less immobilized but capable of some small physical response There can be a range and there can be a going in and out of um, but tonic immobility itself does not look like um It doesn't I'm trying to word this the right way It is not an act of submission It's an act of protection Um, and I am trying to imagine a case Or somebody was engaging um in sexual conduct with somebody who was not able to realize That that they are not in control of their body or their speech Well, I guess I guess what I'm going to is it it seems In this rendering in the bill we're looking at It seems to me that the drafting and the thinking about what is in consent has been Considerable It it seems a little underdone on What constitutes consent and that's of course the pivot point that people will be prosecuted on So, you know Any any suggestions for how we might beef up that language we we had um our Attorney send us around some other definitions of consent From other other states, but that's that's my question at this point Yeah, um and and again, you know, it's not entirely in my wheelhouse to be thinking about it in those ways my um You know my certainly my goal today was to kind of open up the conversation about When the bill talks about incapacity or impairment that that looks like more than You know being intoxicated or having substance use be occurring in the in the act so I certainly would like to hear from other witnesses and also we'll think about Ways that that would that would make sense and can come back to the committee Great. Thank you Yes, I very much appreciate the discussion. Um, I think Obviously if some if there's verbal consent and that's fairly easy or if there is not verbal consent Also, really if somebody verbally says no, that's Understand, but if somebody is unable to engage in I like that term Um is unconscious So intoxicated they're unable to engage in I'm not sure at what stage of intoxication You know You're rendered incapable Siding You know it I think there's some A lot of thought needs to be taken into this And that's one of the reasons I liked having something in there regarding the totality Totality of the circumstances, right? So that you're taking into account everything that's going on and That's not in the house draft. It's believe in the federal Senator white So thanks, Kate. That was helpful and I I'm sorry to have been late, but Um, again at the risk as Joe said of I'm putting myself in the hot spot here I do have the same concern at the of the non verbal Ascent that there there is consent non verbally and I'm I am concerned and I hope that we can come up with some language that um That clarifies that so that just because there isn't verbal consent It means no consent and so I I I do have that same I think it's pretty clear if somebody is Incapable of of moving or incapable of engaging That's pretty clear in my mind, but it's A different um level that I'm concerned about and so I hope we can come up with some Some language that Doesn't mean that just because there isn't verbal consent. It's non consent Um, is there anybody in the I really had a question for Kate first Is there anybody else in the room? with us Who would like to comment on the discussion At this point either Sarah Becca David brewery or Michelle sorry While let michelle go first if if you'd like I was just I was just going to mention something with respect to senator benning's concern about a sleeping partner And um, so the act requires as an element that a sexual act the the statute does and so that sexual act is specifically Defined and I'm going to put that in the chat so you can look at that and um send it out to everybody so the definition of the sexual act and so I would imagine that In the scenario that you're talking about Joe that You know, you kind of turn to your partner and whatever they're not necessarily while they're still asleep Going directly to what is defined as a sexual act. There's a little bit of a lead up Or there's something that then rouses the person and and then the actor is able to engage the person's interest or willingness to engage in the sexual act But the person the actor wouldn't be Engaging in the sexual act while the person is still asleep and unaware that the sexual act is occurring Michelle any intrusion however slight Of the parts listed I don't want to get too personal here, but the long and the short of it is people Commence sexual activity In many different ways. I know that this bill is trying to get at preventing someone who either doesn't want it Or is manipulated by the perpetrator To stop that kind of behavior But it seems to me there's a strong possibility That the sleeping person may have been invaded in one of these categories In the hopes by the other person that when they wake up, they're going to continue the activity And that's where I get a little Queasy on moving that particular portion of it. Yeah, I think the act clearly does say You don't intrude into a person's Unless you know you have consent And so you have a sleeping partner And this may have been activity that was In previous engagements perfectly acceptable That doesn't matter under the rape shield law I know So now you're you're specifically saying to all couples in this situation You cannot Move to go into one of these categories If your partner is asleep There's no ends if buts or maybes about it. It's a very clear statement. We're creating A potential criminal case If you do And that Has me leery about how people normally interact with each other I fully understand and support the concept of preventing Activities by people who are either Manipulated into when they don't want it or they are unconscious or rendered under Some kind of duress I fully understand and support that concept. I want to be very careful that we are not including something Um that was unintended And as I see it written the way it is currently I have that fear very deep So I'm Can I ask Joe a question? Yeah So Joe in that case, um Nobody's gonna know about it unless the other unless the partner files some kind of charge. I mean So if if the partner files some kind of a charge Then maybe there's issues there that go beyond just A nice healthy relationship and I just I'm I I can't Deny that but we are setting up initially a charge And if the partner Wakes up and says okay, that's great You're right. No reports made we're we're done with the conversation But if for whatever reason and I've represented people in family court for 37 years And I know there are instances where people suddenly have a change of heart We have now created a criminal offense that i'm not sure we want to go in that direction with but I'm I'm open to hearing other conversations all that good and right now I've got rebecca turner who's got her hand up and rory Who um was good was going to speak and I'd like to hear from both of them and then we can continue the conversation So starting with rory and then rebecca Good morning for the record rory kiba washington county states attorney. I think it's important to go back to the existing Law and definition of consent, which is consent means words or actions by a person indicating a voluntary agreement to engage in a sexual act So under existing law a sleeping person cannot demonstrate through other words or actions that they are voluntarily engaging in that Again, I agree with senator whites assessment, which is past actions or pattern of conduct may May suggest that that's okay in a confines of an established relationship And again, if there is a complaint, it's not there are detectives There aren't siu detectives in everybody's bedroom or or camera monitors When we deal with their address a complaint like this, it's because One partner the other has come forward with Those circumstances even then I think sarah robinson in the past has provided great testimony about the number of reports Versus the number of cases filed versus the number that actually proceeded to a trial I think what you're taking out of the loop here is prosecutorial discretion, which includes necessarily analysis of potential mistake of fact as to consent These are all factors that get considered before Going forward and you know, I don't want to be the Winey prosecutor, but we are resource limited We do not have the luxury of pursuing complex sex assault cases on fringe theories where We stand very little chance of succeeding a trial And fortunately, I think to the detriment of victims There are times where tough calls fall on the side of not filing because there's such a low likelihood of succeeding a trial Leaving them to really you know seek civil remedies or other recourse to protect themselves So I think that I don't mean to be You know too dark with this but the scenario in which is being discussed is Incredibly limited and under existing law that person if sleeping and penetrated there is a potential prima facie case The modifications proposed by h183 tend to clarify the state of the law But they don't cover any new ground with respect to the propriety and engaging in a sexual act with someone who's sleeping or unconscious Last point I like to make as well though I think senator sears point is very well taken about the totality of the circumstances While it does not appear out of the federal draft or in h183 It does seem appropriate that the consent definition in section one Be concluded with a comma based upon the totality Of the circumstances But with that being said there are some circumstances That either fall into the rate messes We'd previously discussed that are currently under the trial procedure or rape shield evidence, which is precluded Absent that the totality of the circumstances is always considered not just by the fact finder trial But by the prosecutors and investigators who are looking into these cases in the first place We absolutely take into account What the nature of the relationship was what the history was what the past Experiences were and the rape shield is not a full shield if you will rather There are some Institutionally based defenses or circumstances particularly when relating to a mistake of fact That can come in So with that being said believe that there is not new ground being covered and The discussion here is I think more academic than than how things are are practiced Well rory clearing my hurdle I'd feel a lot more comfortable with the phrase totality of circumstances Being plugged into the mix Thank you Rebecca For the record, Rebecca turner from the appellate division office of the defender general. Good morning I want to Jump off of where senator bennings concerns are specifically with this conscious person cannot consent language and then Step back a little bit, but I agree with his interpretation that as proposed now that presents as an absolute No consent scenario that doesn't take into account the moments before Uh, the sleep in terms in terms of whether or not the partner the sleeping partner Consents affirmatively even Expressly as as senator bruce was trying to tease out in terms of we still don't quite know what it takes to satisfy Consent under this, but let's even assume we have affirmative clear unequivocal. Yes. Yes to sexual activity while i'm asleep Under this statute and let's let's say that this is this is a long term relationship buried or not Loving and that this is also Something that is done Is is something that is perhaps that under this statute? It's an absolute cannot cannot consent And so senator bennings concerns are warranted. I also wanted to point this committee To On this question the vermont supreme court was presented with a challenge conviction of sexual assault involving a sleeping complainant and What and the supreme court ultimately affirms that sexual assault conviction? And in that analysis interpreting current law on consent and the requirement of compelled conduct The supreme court took note That there was no indication Before sleeping that the complainant consented again And of course the supreme court also noted that of course a sleeping complainant cannot consent As sort of an obvious sort of truism that if you were asleep, you can't affirmatively And again, again, this is back to the affirmative. Yes consent, right, but if uh But the point of the supreme court's decision and that is state v snow 2013 vt 19 was that consistent with what With what is discussed here, which is considering the totality of the circumstances including before sleeping That that goes into the analysis of whether or not there was consent whether or not the Charged person the defendant knows that there was consent all pieces to the puzzle Explored by our vermont supreme court. So there is case law this the statute departs from that significantly and creates that absolute my ability to worry t-bow attorney t-bow's point that Uh we should take comfort in the prosecutorial discretion to only prosecute offenses where The attorneys involved law enforcement involved has done considerable investigation trust them To exercise their discretion and judgment as to what is a crime Now with all due respect to attorney t-bow and i've discussed this before That is not how we assess the constitutionality of laws that cover Otherwise innocent conduct. I also want to make sure and I know that we've talked about And I still haven't heard An answer as to what is lawful consent Because even if there is an affirmative clear yes beforehand how At what point must that continue right to what extent? but I understand and I see Michelle child has pulled up the comparison of the consent laws to What is referenced has been referenced to federal law, but let's be clear That is a reference to military military law not Uh, not federal criminal law that applies to civilian courts But military law that only applies to military courts and I think that But I think it's important to note that s when h 183 When drafted in the house is my understanding they followed the military federal law. And so that's why it's there I know I don't think there was That that's what the house did Is Thanks, they did and they looked at the other one, but the the title 18 federal law A plot has not been amended since the early to mid 80s and Military has been updated recently They were looking at using title 10 Because it had been had a fresh look rather than being 40 years old is fine And Go ahead Rebecca. Oh, excuse me. I don't I don't question that and I'll take that In terms of the most recent amendment what I wanted to just highlight in terms of stressing why It's significant that this law is being pulled from military law and that civilian law Is that military law has is fundamentally different from law that is developed in the civilian courts fundamentally different Because of the underlying purposes served Five military law and I'm extending that to definitions of crimes And I know and it may seem obvious to to sound that it's different, but I think that It's worth recognizing and we're talking about proceedings that operate in the court martial context Where we don't have independent judges and jurors and the peers and that goes to a procedural side of things But in terms of again the creation of crimes the expanse of creation of crimes the motivation reasons for that is because The military has an has an absolute interest in maintaining a disciplined force And the integrity of military forces. I was reviewing some of the academic Uh journaling on sort of the fundamental differences and why they just don't cross pollinate between the two systems But you know one one here describes it that You know commission of certain offenses in the military Is seen as fundamentally destructive military order and safety And again the emphasis there is not on individual rights and liberty interests, but on maintaining military order and control And therefore I think we have to be extraordinarily cautious when we are considering changing our own states development of jurisprudence of sexual assault laws pulling in from not just federal law military law Again where those definitions are broad I was looking quickly finally. I was looking quickly at that specific military code That michelle siden. I just I read it as title 10 us See section 9 20 not 9 10 There where I was interested to see how to what extent they eliminated mens rea requirement as this proposal does here inserting Knowing or reasonably should have known standard I upon my quick look also saw that the military statute on sexual assault didn't go as far in terms of dropping mens rea so I just wanted to alert the committee to even appreciate Would it be your testimony that this law is not needed? Yes current law protects These cases that this law seems to try to Yes, that current law regarding consent is at it I think that the current law regarding consent is clearer than the proposed law here that Rory, um, did you want to comment on that? I want to respond to one thing. So I think it's the last time I testified. I reminded the committee that um I served for eight and a half years as a united states army judge advocate in prosecuting and defending sex crime cases I think miss turner's assessment of the ucmj particularly with enumerated articles is Wrong First every united states military member is subject to the same constitutional protections as a civilian While there are procedural differences in the system the statutes are applied evenly Reference to good order and discipline refers to only one part of the uniform code of military justice specifically article 134 which requires a showing of prejudice good order of discipline or that discredits the service sex assault murder aggravated assault all common law crimes That are codified under the ucmj are treated commensurate with how state and federal law is treated so that um, I don't think that's a correct assessment Of how this applies what I would also note is that parallel to what vermont and other states have experienced the military about 10 15 years ago began A sexual assault crisis much like what we see on college campuses today a large number of young people in Kind of closed universe with a lot of alcohol available leads to some unfortunately Dire circumstances and a lot of victims being created It was in response to the national uproar and upheaval Over the proliferation of sex assault in the military ranks that led to the united states congress going back and revising These statutes additionally, I would note the ucmj applies not just to uniform service members But also applies to us individuals whether contractors State department officials who are operating overseas or accompanying Uh military members. That's the military justice extraterritorial judicial jurisdictional act So that is applied to civilians as well I would note that the reforms that we see in 10 usc 9 20 were bipartisan Such individuals with a huge stake in the military such as senator mccain senator jill brand from new york Uh senator mc form senator mcaskill and others were instrumental in adopting these definitions upon consideration not only of The modern uh application of these statutes in states Certainly what has been proposed by the house does not go nearly as far as what some other states have done illinois new jersey colorado For example, uh, so I will respectfully disagree with this turner's assessment that we don't need this we're relying on 40 year old uh or more definitions. I think 1977 is what michelle indicated the last time we took a fresh look at how to define consent And again, I think we're in dire need of clarity and a standard Particularly when alcohol is involved and particularly when someone is incapacitated as these are increasingly the types of cases That we see and are forced to reckon with in the court system Thank you. Um michelle With the little time we have left Perhaps you could go over the document that you provided the comparison that I've got to pull it up again on my own Device, um, it's a comparison between federal law and what h183 And I compliment you on all the different colors So, uh, where where is that? It is on our Um on our where is it michelle? Yeah, I think she's gonna pull it up. I think it's on our web page You see it? I also I emailed it I emailed it to all of you, uh yesterday Yeah, so we should have it there and if I could compost it It is See that's the nice thing is we have green yellow blue and purple and hopefully uh there's So I was just trying to show to you how um When I was drafting I was pulling the language, um from that And uh, so I have to I guess correct that citation there So, um, you can see on the left the the federal definition of the military code And you'll see there that it and not yellow that it has an expression Of lack of consent through words or conduct means there is no consent And you'll see on the right hand side there in h1883 that's in section 3254 on subdivision two Then the second one on lack of verbal or physical resistance does not constitute consent Um, you'll see is in subdivision one of 3254 Then the next one submission resulting from the use of force threat or force replacing another person in fear Does not constitute consent, which is subdivision three and 3254 and then the final one um A current or previous dating or socials or sexual relationship by itself or the manner of dress Does not constitute consent and then we have uh the reference to that provision in current law um so then Be in the federal you'll see a sleeping unconscious or incompetent person cannot consent and that's in subdivision five and 3254 um I think the the language that's also in b is already uh In with regard to the force provisions under the existing law that we didn't change The one thing as senator sears mentioned Joe said he was interested in is that I didn't pull in there was subdivision seven c there that all the surrounding circumstances are to be considered And whether a person gave consent Which would be the case whether you had that language or not But I certainly understand that just having it there and the statute may provide folks with some greater comfort about that So moving down to the definitions of incapable of consenting So you'll see on the federal level on the left there It's incapable of appraising the nature of the conduct that issue and then in the house first It's incapable of understanding the nature of the conduct issue I did have the same exact language with appraising and after hearing from various witnesses. They decided to use the word understanding instead You'll see that uh on the Um, what's unwillingness? Right, so then if you see an eight b physically incapable um right now you have visit In in current law Which so we're just re redoing that is is is not physically capable of resisting And then the rest in in the 10 b is the same as existing law in in vermont And then you'll see on the last one on 10 c lacks the mental ability to make or communicate a decision about whether to engage in the conduct that issue And that's just a reworking of current law that you have on the books that says the person is mentally incapable of understanding the nature of the act And then another provision that says the person is mentally incapable of resisting or declining consent. And so that's something that we worked through um with some uh with some of the mental health law advocates that were Defying in the house Thank you Good question. Sure So michelle, would you go back up? To the yellow so if I leave out words and say an expression of lack of consent through conduct Means there is no consent. So that's said in a negative way, but what it If I read it it says Conduct that Um implies consent is consent Is that I think it's it's I mean it's saying that if you through your conduct so like in joe's scenario um my partner uh Is you know starts loving me up in bed and I Pushes, you know pushes hand away or you know just kind of roll back over and or something like That that's an expression of lack of consent Right, but I'm putting trying to put it the other way so by By my conduct Um, I can't consent Sure, because if if when they do this instead of pushing the person away You open your arms right turn towards the person or you start to engage Then you're you're not saying anything but now right express their interest you turn to them and Right, so my conduct is giving consent. It's yeah, your conduct is giving consent because you're choosing to engage In this I don't I don't have to say I don't have to say yes Right, I can through conduct. Okay, correct. I think I've got a michelle. I really appreciate this And everyone who's been here unfortunately It is now 11 24 and we're due on the floor at 11 30 So I've got to cut this short um But I appreciate everyone being here and hopefully we can take this up again Peggy, can we fit it in next friday? Yes, we can nine o'clock Uh, I thought yeah, well look at your agenda or whatever. Yeah. Yeah, we can do it for a half an hour But I'm gonna be overly ambitious. I'll go ahead. Um I We can go offline You and I can talk about the agenda Peggy. Okay, hold on one second. Um, you're on the floor You all on the floor. Okay. I thank all the witnesses