 Good morning and welcome to Vermont House Judiciary Committee. It is Thursday, March 11th. And we are going to be starting with H 183, an act relating to sexual violence. We do have a strike all amendment that is on our committee page. And Attorney Michelle Childs will, will do a walkthrough and witnesses we will not necessarily be going in order. Due to some, some schedules of the witnesses so we'll hear from Major Ingrid Jonas after Michelle. So, thank you. Good morning Michelle. Good morning. So, is it okay if I share my screen and put the document up. Sure, thank you. So committee members, if I don't see your hand because of the screen sharing please just just jump in with your, with your questions for Michelle. Can everybody see the document. Yes. Awesome. So, make it a little bit bigger is it possible to make a little bit bigger Michelle. If you tell me how to do that. Yeah, there is a way. I think it's down at the bottom, right. Yeah, bottom right that's right where it says 100%. Yeah, right then you can, you can make it a little bigger. Okay. Is that helpful. Okay, I'm going to say Martin, more. My old eyes can see it I suppose. Oh, I hear you I know I can't I don't want to scare everybody by getting too close to the screen but I got the same issue so this is probably a good trick to learn. Thank you. Sure. Okay, so we're going to we're working off of draft 2.3. Strike all committee amendments and most of these changes you've already seen and we've discussed but there have been a couple little tweaks so but I'll go over. And I've highlighted a lot of the language in here so in section one definition of consent. All the last hearing we discussed that the some of the witnesses and the discussions between the Attorney General's office and the state's attorneys had suggested that online 11 instead of having a knowing and voluntary agreement that it be a knowing or voluntary agreement to gauge in a sexual act. The next one is online 13 and this is adding a definition of incapable of consenting. And so I'll, I'll just kind of note it here and then when we go through the rest of the draft you'll see where, where we use that but this is this definition is in current federal law from, from Title 10, where we borrowed some of the other language standard. And so incapable of consenting means the person's incapable of appraising the nature of the conduct, or is physically incapable of declining participation in or communicating unwillingness to engage to act at issue. Okay. So again, I'm going to just mention and I said this few times before but definitions that you have online 17 through 19. Those are just up to updating terms so there's current language in the in the chapter that uses outdated terms and, you know, whenever we come across those outdated terms. We want to change them to make sure that we're using respectful language, and in consultation with our health care attorneys in our office these are the terms that they said that should be substituted so that's not a change and that's always been in there but I just wanted to note that as we go through the rest of the draft is that there it's not adding things necessarily necessarily it's just clarifying that these are the terms that are used in current that are the respectful terms to use in those particular circumstances. So section two. And so this is our sexual assault statute. I'm not going to go over the stuff that's always been in there and that we've already already talked about I'm going to focus on the highlighted but let, let me know if you have questions about something that I'm the if I skip over it. So you recall that this is the existing statute for subsection be addresses the issue of if an actor administers drugs or alcohol or other intoxicants to a person. And then, without their knowledge, or against their will, and then engages in sexual act with them and so there is a piece to that but then there's also an additional piece that that you've added. So section one, it is, is a, it's just kind of rewording the existing law subdivision be to is that no person shall engage in a sexual act with another person when the other person is and here's that term that we define up above, incapable of consenting to a sexual act, and the new language that we've just added is due to substantial impairment by alcohol drugs or other intoxicants, and that condition, or reasonably should be known by the person. And so the addition of substantial, it was in response to some folks concerns that that there might be. It was interpreted without the substantial that basically anybody who's under the influence of drugs or alcohol is therefore incapable of consenting. And so that's not the intent. And I think this language if you look at the combination of using the term online 18 the person is incapable of consenting which means you go back up to the definition you say basically, they're not able to engage in the nature of the conduct or they're physically incapable of signaling their willingness to engage in that conduct. So you have to have that. So they're incapable due to being substantially impaired by an intoxicant so kind of those two things together, I think addresses some of the concerns raised by witnesses around. Well, you know people in, you know, engage in sexual conduct all the time, when they're voluntarily intoxicated, and that doesn't necessarily mean that that that there is a violation of boundaries and that that that there's a crime here. So, noting also what you used to have an earlier version of subsection be was kind of belts and suspenders language around vulnerable adults and engaging in a sexual accurate vulnerable adults and that was removed in the last version at the request of prosecutors because they felt as though they were already covered by things elsewhere in the chapter as well as the abuse a sexual abuse of a vulnerable adult statute that we talked about at the last committee meeting. So that's just not in there any longer. Michelle before we go off of substantial. There's not a definition of substantial is there. So would that be determined in case law, you know, as time goes on. I mean that's going to be that's going to be something that they're going to show the you know the prosecutors going to show going to offer facts or evidence as to, you know, whether or not the degree to intoxication of the person I mean substantial is something that is obviously it's subjective but it is used we use it frequently in drafting. And there's no, you know, there's no way to really get at anything more. More precise than that I mean you're not going to say well if the person has a BAC of 0.08 or whatever it is right. And so I think substantial is something we use frequently and folks don't seem to have an issue around interpretation of that. Okay. All right, great thank you. Yeah. Just like a jumping just to just to stay on that word. The lawyers in court won't rip that word apart of of interpretation what whatever way somebody wants to take it. Well sure that's going to be one of the things that they go back and forth and argue about is was the person substantially impaired by an intoxicant and that's that's a matter for them to you know for the state to have to prove. But I would say I would I would rather than speak for them I think maybe when because we have Rory on here and is you know I think that's probably a better question for him about whether or not he has a concern about that but he has seen this language and prosecutors are comfortable with it. Okay, thanks I didn't know he was here. Thank you. Sure. Tom did you have another question or is your hand still up. Somehow I always forget to lower my hand. And I can only see three people at a time so if I don't see your hand just just shout at me. So moving on so now we're moving to section three and and in section three under 3254 we already have a lot of language around what constitutes consent and we've kind of built that out and in a little more detail on subdivision for again this is something that we discussed at the last committee meeting is is that this is a reference to the rape shield law where we already have provisions in there that talk about that you can't bring in the sexual conduct of the of the victim and the case or the way the person was dressed things like that and so rather than repeat it here we're just making a reference to it. And then I'm going to look at the lead in language on the bottom here online 20 on subdivision six so person shall be deemed to have acted without the consent of the other person, where the actor, and then here's where I've got a couple of changes. So subdivision D, the person new or reasonably should have known that the other person was and you'll see right now it says the person is mentally incapable of resisting or declining consent to the sexual act, due to a mental condition, or psychiatric disability so the changes here is we updated the language so we struck mental condition and we're using the psychiatric or development mental disability terms. And we're, we're going back and using that definition that we added up there about incapable of consenting. And so this is an issue that I think people are, you know, rightly concerned about that there's nothing in here that saying that because someone has a psychiatric or developmental disability does not by nature of having that disability mean and they're incapable of consenting to sexual conduct. Obviously they are. So when you add the term in here that the person was incapable of consenting due to the disability again you go back up to the language and say because of that disability. That disability makes them incapable of praising the nature of the conduct or physically incapable of declining participation or communicating to the actor that they don't want to consent to that. And so you have to have that piece. It just it doesn't mean just because someone has a disability that they're incapable of consenting so those two things go together and I think when those two things go together, then it's getting at what your goal is here which is that the person basically is not able to consent freely. Yeah, Martin. Yeah, so so just I'm confirming is does that address do you believe that addresses the issue that was brought to us from will do it and mad freedom. What what yes. Okay, alright thanks. Yep. Yep, and that's why I changed that. The language we had in there before had the old language which was, you know the person is incapable of resisting or declining due, you know, consent due to, but I think just again using a consistent term throughout the statute rather than relying on the old language. I think it just makes it a little clearer. Any other questions about that one. So sub sex subdivision e. And I just tweaked that a little bit of to be again using the term up above of incapable of consenting so this is in the context of someone being substantially impaired by an intoxicant. And because of that impairment, they were incapable of consenting and then I also added online 16 you'll see or lute and lascivious conduct. I had just kind of left that off in the earlier draft but if you'll you'll see is that this whole section applies not just a sexual assault or sexual act but also to L and L. And so I'm just making it consistent with the other subdivisions in this section. And so, before I move on to the next one are there any other questions about about this particular about kind of the statutory crime language that folks have questions about, and I can I'll be here, I'll be here all morning or at least as long as you're doing it so, you know, after you hear from witnesses and stuff we can circle back and Tom. Tom, did you have a question. Yeah, now I'm having issues on muting. Say if both people are substantially impaired. Potentially in somebody was charged, you know, with a crime and would it potentially go back to. I think it's section one line 14 being incapable of appraising the nature of the conduct issue as a defense. No, the language about incapable of consenting is is with Reese is is not applied to the defendant that is. So, so I think what you're asking is like, in the case of, you know, if if two people are intoxicated, you know, what's the culpability what's the mental culpability of the actor if they're just as drunk as the person who they're sex with right and that actually that's a larger issue in terms of mens rea and culpability when people are impaired and violate the law and I would say that I would I think that. So it's not, it's not specific just to this instance and so what I would say is I think maybe hearing from prosecutors on that about how they address the issue of impairment by an actor who's charged with a crime, I would defer to them on that. Okay, great, thank you. Sure. Okay, I'm going to move on to data collection and reporting. So this is has been reworked. I know some of the advocates who were requesting that there be additional data they have kind of reworked this and put it out to stakeholders and back and forth and this is what folks have come back to you with is a tweaking of this section to be making sure that they're asking for information that isn't already available or available in a certain kind of digestible format and so what you have here is in subsection a is that on or before September 1 of 2024 and then by annually after that DPS is to DPS has the Vermont crime information center within it and they're the repository for all the criminal records. So they shall provide a statistical report to you based on data from the national incident based reporting system and the Vermont judiciary on the following. And so subdivision a online three the number of sexual violence cases reported to state county and municipal law enforcement. Sub division B is the number of civil sexual assault or stalking orders granted because you have a civil process in title 12 that allows for someone to obtain a civil order of protection with regard to sexual assault and stalking. The number of sexual violence cases referred by law enforcement to a state's attorney or the AG's office for potential charges. D is the number of sexual violence cases charged the nature of the charge and the disposition of those charges. And then subdivision two notes that the data that's requested in the previous subdivision is to be organized and reported by county. So, Subsection B is that DPS has to make a reasonable effort to protect victim confidentiality when the statistical information might be identifying Vermont's a small state so sometimes that can be a little bit of a challenge. Subsection C is DPS is required to post the data that's collected on its website in a manner that's clear understandable and accessible to the public. Any questions about that. So next in section five. So this is the intercollegiate sexual violence prevention council and we have talked about that the only changes in this are the addition of recommended addition of two new members on there and one would be a sexual assault nurse examiner. And so these are the folks who respond when someone has reported a sexual assault and and they go to a hospital. And if your bill passes then maybe they'll get to go to their local doctor if because of that extension of funds to be able to expand it beyond hospitals. So this is a sexual assault nurse examiner someone who's specially trained to collect evidence and those in those cases and so it's adding someone adding a same nurse and then also adding a prosecutor and the recommendation came to me that it be a prosecutor from either the attorney or the AG's office. And there is just kind of hanging out there about really who appoints that person so House government operations is looking at this section later today and so that will come up. And just for me in the drafting my left of that ways you know normally if we say oh somebody from the state's attorneys office appointed by the executive director of the state's attorney, or that kind of a thing but I'm not sure who should appoint when it's from two different offices so it can be anybody y'all want I just wasn't sure. And I think that's it in terms of changes yep that's it in terms of amendments from the bill is introduced. Great. Thank you so much Michelle I really appreciate having a strike all. It's much easier. So, any questions for Michelle. A strike all. And I can't see everybody so if I committee members if I'm missing it please please jump in. So. Okay, great, then I am going to please move to major Jonas because I know you have a. Another commitment so thank you so much and welcome. Thanks everybody. Can you hear me alright. Great. Ingrid Jonas with Vermont State Police. I've been the state police for almost 23 years. I will just add that I spent about 11 years in special investigative units and rep Norris will remember me from back in those days. So this bill is certainly nice to see and I appreciate the effort that you've all worked on. I'll put in for the work in this bill. We support the bill we support the language I know that the goal of being able to look more comprehensively of sexual violence cases which are so under reported. We learn more about the trends and patterns with these cases. Taking a look at it from that lens of how many cases are reported to all of us in law enforcement, which have how many of those are then charged in the various counties and then what are the outcomes I think it could be incredibly enlightening and help helpful. So we, we certainly support that. We already is being collected we already have that CRG has indicated that they can produce the statistical report as part of their current contract with our department. So we certainly we support that I will note that DPS has kind of a larger vision the commissioner has the larger goal that by you know the end of this year. Or the latest 2022 more of a comprehensive data initiative that should be able to that will be public facing that should result in anyone being able to get this and other sorts of data. That we certainly don't, you know that'll happen at the same time or sooner than this 2024 September requirement. So we're hoping that that everybody will have more ability to get this type of statistical report from a public facing portal. And this data exists, we are happy to support a report being produced for the General Assembly and the public. Thank you. Thank you very much. Appreciate it so section four as is DPS supports is what I'm, is what I'm understanding is that correct. That's correct. Okay, great. Thank you. Questions for major Jonas. Okay. Ready. Great. All right. Thank you. Take care. Okay. Let's move to that disability rights secretary has it. You see you. Good morning. Morning. Thank you for having me inviting me to this. Thank you and your testimony is posted. Under under your name for today. Excellent. So I'm trying to be brief. I have sort of put some explanation of the testimony that we provided for the red lines and make a few additional comments based on the testimony that I've heard prior to me. So this is a quick sort of introduction again, disability rights per month is the Vermont protection advocacy organizations are roles to protect and promote the rights of people with disabilities. We do that in a wide range of areas, including representing victims of crimes and protecting their rights through that process and relief from use orders and that sort of thing as well. You know, as I folks know that people with disabilities are incredibly vulnerable and often victimize some recent statistics. I found recently was that nationally about 90% of people with disabilities will experience some sort of abuse in their lifetime. And I think it's important that, you know, that people disabilities are kept into consideration. And the terms of being victimized but also in terms of their autonomy their agency and their ability to make decisions for themselves and that as well and so that's kind of the, our focus here was on that balance and so that language of in cable of consenting to have that balance of, you know, protecting people with disabilities from being victimized, but at the same time not interfering with their agency and their ability to make those decisions to engage in sexual activities. I just heard from from his trials earlier that was that language was apparently pulled straight from federal law I have not looked at that but really our only concern was just that language. Without having looked at the federal law, the language that that is currently in the bill just seems a bit unclear. And so that was our main come up with something that that was a little more straightforward and already found in other areas of the law. And without be more consistent throughout the, the bill is the language of appraising the nature just a little big but again if that is in federal law and it's clear that I think we're good with that. Another thing I would say on that is the section for the down in the bill with about, you know, applying incapable of consenting to people with disabilities. I think again that just has just has to make sure that that being incapable of consenting is a pretty high bar. And that's focused at the moment in time, they're playing people with with disabilities that for the most part in the most of times in their life. They're able to understand what's happening and make those decisions. And certainly we're focusing just a particular moment of time when the sexual activity occurred did they, you know, were they so impaired by their disability that they, they couldn't understand what was happening or they couldn't physically stop what was happening. I think that's, that's the conduct that I think this bill is trying to get at, and not limiting people who may have a developmental disability or a psychiatric disability from being able to engage in sexual activities and their partner not getting in trouble for it. The other thing I'll just sort of add, you know, I thought that the language of substantially impaired related to substances. Again, just seemed seemed unnecessary. I think what I understood from Ms. Childs earlier was that it does, you know, emphasize the person has to be substantially impaired and not just somewhat impaired, but I do think it's the language of incapable of consenting is really high and it sort of seems redundant there but on that I would defer to the prosecutors because they'd be the one for having to prove that element. But I'm just pointing that out because I noticed that. And I think, you know, again going back down to the language about people with disabilities. One would be that if the language of substantially impaired for substances is really important for prosecutors, then I think that same language of substantially should be applied to the person's disability as well because again you want to have a pretty high standard there to for that. And I think that I think that that pretty much covers sort of my comments again the other thing just to be clear on the disability piece. I think that the referring to people with disabilities and the definitions that are currently used for developmental psychiatric disability is is fine. If the incapable of consenting, you know, everyone is confident that that is a pretty high threshold because the those definitions of disability are more for, you know, accommodations for disabilities and it's a sort of a lower, you know, it's about just determining if a person has a disability for certain benefits and abilities and not about, you know, so much, you know, again it doesn't want to we don't want to use it to infringe on people's rights to engage in sexual activity and so you do sort of need a higher threshold for how that person is impacted in this moment to prevent the abuse. And so, without I'll be available for any questions. And again, thank you for providing me. Great. Thank you. Thank you very much and I appreciate the explanation of your of your testimony. And I think it'll be helpful when we do hear from from prosecutors later and I, I hope you can either stay or watch it if you're, if you're not available. Martin. Yeah, just, I guess a clarification on your suggestion on 3252 be to. And this is something you know certainly want to hear from the prosecutors and, and other folks on what they think of that but, but the terminology seems to be a little bit different than what we have in our definition section of mental physical and developmental impairment where the definition we talk about developmental and psychiatric disability we don't have the definition of physical. So I'm wondering if, if this is something we're going to do should shouldn't we be matching closer what we have as far as the definitions. As far as the developmental psychiatric and physical I guess disability. Yes, I would agree with that I think probably putting having the same language of psychiatric and development disability would be more appropriate than the language that I put in my edits. So do you think physical should be included, there can be times where a physical disability can prevent somebody from from being able to consent so I think that does need to be included but yes I think having consistent language would be the best way to go. Thanks. I asked a question so Martin I didn't understand where you were saying add something connect. So the suggested language that for 3252 that Zachary has suggested has language, adding or mental physical or develop developmental impairment and I'm just suggesting if we do go with something like that that we should match the definition language that should have developmental psychiatric and physical disability instead of the language that was proposed. Okay, are you just looking at something he he gave. Yeah, it's on it's on it's on website. Yeah. Okay, I'll take a look at it. Yeah that language. Thanks. I would just add on that I'm sorry to mention earlier but the child mentioned earlier that there were prosecutors felt that there didn't need to be disability element in this because you can also be found in the vulnerable adult statute. I would defer to prosecutors on this for the most part but I, I do think it would be beneficial to have some language about disability in here to sort of provide more options and again the definition of vulnerable adult is is a very high bar. And I think this would allow for some of you to come in under under this statute that you may not quite fit, you know the individual may not be a vulnerable adult, because being a vulnerable adult it really is about how the person is most of the time. Whereas here this is more about a person with a disability who at this particular moment was so impaired that they could not consent. Thank you on my silence means I'm taking notes. I want to make sure I'm recording your testimony. Thank you, Barbara. Thank you. Put my hand down before I forget. So, I appreciate you, you thinking through that nuance. I'm, I'm wondering if disability itself. Limits it just because of discussions of what medical conditions are considered disabilities and what aren't and when that gets changed. It should be disability or condition. Or some other words so that we don't get hung up in like a federal definition that might if somebody's having an epileptic seizure for example and epilepsy is in considered a disability. One example, or someone's on him. Yeah, I'm trying to think of something else I'm not sure about that but curious to hear what your thoughts are. So I think the benefit of using the definitions of psychiatric and development disability physical disabilities that it already exists in other areas of state law. I think that's sort of helps clarify that and make that simple I think. Don't worry about different diagnoses because the definition of disability doesn't require a diagnosis about the person, you know, being impaired for major life functions. Does not. Go ahead. Sorry, I didn't hear if you said it does or does not require the major life functions. It requires an impairment to a major life function the diagnosis is not important so one person can have a diagnosis or not it's, it's doesn't really matter it's more about how it compares the person. Right. And in some cases. And maybe it's just I'm not that as familiar with the state definition as well as how like insurers interpret it but sometimes it's like three impaired by three life conditions or mean it seems like I've seen numbers put on the life conditions in certain situations before. So under the definitions of disability that are included in this bill and included in title one. It doesn't require a certain number of conditions it's, you know, any impairment any, any one major life function. And there's there are different definitions of disability and different areas of state law in different areas of federal law but I do think that the one that that's here covers it for the purposes. Thank you. Go ahead. Good morning. Thanks for your, your testimony. This, this is one of those areas. When we think about the protected class that is still a little fluid, you know, to, in the sense that some clinicians that work through the DSM system and using that handbook still believe that DSM for is the the Bible of choice, whereas it's been modified to five now and who's to say where it's going to go from there. From a clinical perspective. So I think having the the parameters that you're suggesting seems to make sense for consistency purposes and having that bar set so high that it's almost an impairment in a sense. Doesn't I'm glad you brought up your point I guess is the main is the main thing if we can come up with language that works for consistency. I think Martin might have hit on it with the order of the language in that in your handout that you gave us this morning. So I just wanted to say I really appreciated you coming to help us with that. Thank you coach. I do see Michelle I do see that you have some things in the chat I was wondering if Michelle if you could speak to us on on the record about that. Sure, I just wanted to know with regard to Barbara's questioning around some type of condition that might not technically fall under the definitions of a that are in the statute with regard to disability is that there are provisions in 3254 subdivisions A and B around incapable of consenting that I think encompass those certain circumstances so somebody may not fall under one of those definitions of a psychiatric or developmental disability but they're going to be covered by those other sections. There is there is still quite a I think overlap in you know in a lot of the language that's in here to kind of ensure that we're not kind of leaving any any cracks there that somebody could fall can can fall through so that's my sense is that I think you're covered in those two in those two subdivisions. Okay, thank you and thank you so much and again we will be hearing from the state's attorneys and later as well. Coach your hand is up but I'm going to assume it's from before. Let's see say otherwise. Okay, anything. Any other questions. Great well thank you so much Zachary really do appreciate your testimony. Great. Thanks again. Great thank you. Why don't we start with you and then I want to usually take a break around 10 but I don't want to cut you off so. So welcome good morning. Good morning for the record where he but Washington County State's attorney and for those who know me well 10 minute limitation on speaking is probably a good thing. Primarily today I just wanted to be able to answer questions and Michelle did a great job of the walkthrough and discussion and why some of the changes were made. Zachary's comments today as well on behalf of disability rights from on and I think David chair should get credit for this from the AG's office of being really the one to note that there is an inherent friction. When we start talking about limitations on somebody with either a psychiatric illness or a developmental disability, many people who experience those conditions are perfectly capable of consenting and making their own choices in proper circumstances so ensuring that we're not infringing upon the protected activities and bodily autonomy is incredibly important. And that was really contributed to the reason why people the state's attorneys and AG's office supported. Removing some of the language that was originally included about vulnerable, you know, for lack of better term vulnerable adults because of what we have in specific statute I did put in the chat window. The definition of what constitutes vulnerable adult and I think it's important to note that it's not just somebody who is in an acute situation inside of a psychiatric hospital or is receiving services from either Dale or DMH rather sub part D I think covers what we're looking at in particular vulnerability whether it's a traumatic brain injury, infirmities of aging or physical mental or developmental disability impacts someone's ability to care for themselves or more importantly and in this context, protect himself or herself from abuse, neglect or exploitation. So that flexible standard already exists. And I think some of the questions that I've seen by email and some conversations with members and also with Michelle. It's important that when we talk about the term substantial, whether in the context of alcohol intoxicants or looking at consent in the context of vulnerable adult, it still loops back to that critical definition of incapable of consenting. So I think sub part 10 of 3251 the definitions that addition really is some of the most critical language. I also want to briefly note representative bird its comments about substantial. One thing I can just offer substantial is defined in black slots dictionary from my Supreme Court in the absence of a specific statutory definition will construct the meaning of a word from secondary sources and black slot dictionary in the plain meaning, often being where we look to so some of the definitions offered by substantial and black slot dictionary include of relating to or involving substance material, real and not an imaginary having actual not fictitious existence, important essential and material of real worth and importance, strong solid and firm large and strongly constructed, considerable extent amount or value, larger in volume or number. I had this conversation with some members but reading substantial impairment in conjunction with incapable of consenting doesn't radically transform the definition, I think it emphasizes concerns of others that this, you know, we're not trying to criminalize to people who've had a few beers, engaging in consensual sexual activity quite the contrary. This ensures that the definition sets a high standard and a sustainable standard of where criminal liability begins. So, in that sense, I know there's some feedback from Council for UVM and the title nine program with concerns that just using the term impairment might require title nine to have a broader breadth of investigatory activities than they want to have, because the title line program is in part guided by interpretation of state law. So from that standpoint, the substantial doesn't radically in any way really shift or change the burden, but it does have clarity as to what the scope of intent is so I think that is good language to include the final comment that I'll offer today before any questions is along with some members and with Michelle among others. I did a sort of informal survey of other states around the country some that are traditionally conservative some that are liberal, including California, Colorado, Oregon, others that would be more conservative such as Kansas, Oklahoma. And what it really reflects is that there's a been a broad movement in jurisdictions of different political leanings to adopt some of the linguistic changes that we're looking at here, giving greater cognizance and credit to incapacitation by substances being a distinct theory of sex assault. So I know that previously the defender general testified about some due process concerns from our perspective. I think tight tailoring the language use of substantial clearly defining incapable of consenting all mitigate those risks and mirror what other jurisdictions have done in constitutionally sustainable manners. As without goes without saying that we recommend and believe that these are positive changes to enhance the ability to respond and deal with sex assault cases. Great, thank you and thank you very much and and also my understanding is that the language person knows or recently should have known we not only have that our vulnerable adults stocking statutes but that is used in criminal law, correct. And I did find specific examples of that I think in Kansas, Oklahoma, among other jurisdictions and either Colorado or Oregon perhaps there's a there's a lot of them. So certainly it's not a foreign concept and again the base of definitions you were taken from the analogous federal and military law which Congress passed in reforms back in about 2008 and then revised again in 2012. Okay, thank you that that's very helpful and again to summarize. So I did understand you say that yes this is a high bar in terms of the standard which for the terms that disability rights was using and then focused on the moment I know that was an important, important point. Yes, and I think that you know in when actually prosecuting these cases, a lot of emphasis and first investigative inquiry and then discovery or the actual merits of the case rest on what state the person is at that time, not just a general condition so we don't have a per se standard meaning if someone has let's say a diagnosis of bipolar disorder there's no per se presumption that they cannot make decisions for themselves in the context of sexual relations or other decisions. But again, that particular vulnerability can manifest in a stressful situation. We've been during prior testimony discussed the flight and fight response along with freeze. These are all considerations that come into play and it's also incredibly important to note that when we do have a complaint of sex assault by involving a vulnerable adult. It really comes in one of two ways either from a caretaker where someone actually has assistance or somebody in their life who is potentially guardian or assist in the data activities, or alternatively it is the vulnerable adult him or herself, who makes the complaint. So, and again, even a vulnerable adult, nothing would stop the state from proceeding under a general theory of sex assault without consent. Recognizing again, that that person can still consent or not consent and 1313 BSA 1379 gives credit to that of two theories of sexual assault on a vulnerable adult either without the consent of that person or based upon the particular infirmity at that time. Thank you. It's helpful, really helpful. Thank you, Tom. Hey, Rory. Thanks for your testimony. And thanks for addressing the question I had. And but another question that I had and I think Michelle suggested that I ask you. If both people are substantially impaired, and a charge is brought is, is that not only a tool for prosecution but a tool for defense. I think that does come into play and you know mistake of fact as to consent is and remains a defense in that context so. But even before getting to a trial setting where we have to think about defenses. I can speak for every prosecutor where we take a really hard look at what are the facts of the case. Can we prove it at trial. And I think our media when she testified as on behalf of the state's attorneys victim advocate program. You know indicated that we often are stuck having these incredibly difficult conversations where we credit our belief that someone was a victim and yet have to can really say that we do not believe that we can sustain the burden of proof which is beyond a reasonable reasonable doubt can be generated any number of ways and certainly when you have perspective defendant who is under the influence of alcohol. The potential for miss signals or misinterpretation of things increases and oftentimes these cases when with the gated focus on on those things and really emphasize the conduct of both parties particularly. The victims so they are they remain very difficult cases to prove and again just as a reminder most sex assault cases don't have third party witnesses. It is the two people who are our president in that circumstance and the presence of alcohol or intoxicants means that sometimes are complaining witnesses or victims do not have perfect recollection or you know may have important recollections that they don't recall that you know may or may not have happened. It's not uncommon for us to have you know outside information of text messages are other things that people won't even remember sending that sometimes become dispositive to the case that would you know show that there was in fact some intention or you know agreement that the person later cannot recall. So this is why this is why we have great people like major Jonas and other people in si us and hopefully reasonable prosecutors to really assess this and make good decisions up front about whether to proceed with the case or not. Great thank you. Thank you, Martin. If you could comment and maybe you kind of have but I'd like more direct comment on the suggestions from the disability rights particularly with respect to the 3252 B2. I see their, their input on the definition of incapable of consenting and I think that's prior clear but I think I'm fine with what's already in there but if you could comment on the suggestion of adding the language or something equivalent to the language like I was suggesting being a little more consistent but if you could just comment on that 3252 B2 suggestion. I think that when adding. So there was previously if you recall, the separate section that dealt with mental fiscal or developmental impairment that was taken out by virtue of you know recognized we have an existing statute under 13 BSA 1379 the mobile out of statute. This would step that I guess back, which I'm not sure. The main concern we had was trying to avoid a circumstance where there are two different theories of criminal liability in two different places that are, you know, similar. I would note, in one case, well, first of all the maximum punishments are different. And then to If it is already covered someplace else it may not be the best to include there. Again, noting that there are other ways to proceed on that theory so it would be our recommendation to stay with the existing language rather than incorporate the recommended change to be to and I'm not sure if today if further discussion has been taken on that decision or maybe assistant, you know, recognizing that there isn't as critical a need I think to amend that. No, I appreciate that I just wanted to make sure I got on the record I do understand that we had taken something similar out before but wanted to make clear why we may not want to proceed with this, this suggestion. So thank you for kind of reiterating that. Thank you. Thank you. Anybody else. Okay. Great. Well, thank you very much. We are going to take a break and we are going to continue with this because we have not finished with our witnesses I realized that our agenda says otherwise but I'm hoping that our, our witnesses can stay after the break. So let's come back at Michelle. I'm booked in another committee at 215 so but just email me if you've got anything and I'll circle back when I'm when I'm out of the other committees. Okay. Okay. Great. Yeah, I mean, we probably need you later for an amendment. So we'll have to figure that out. Yeah, so 1020 please.