 Good morning. It's the Senate Judiciary Thursday, April, excuse me, Wednesday, April 7th. We're working on S 99, which is a bill which would eliminate the statute of limitations on cases of child physical abuse. Similar to the bill that we did several years ago, that would eliminate the statute of limitations that did eliminate the statute of limitations for child sexual abuse. So that was 2019 when we did that bill. We have with us this morning Eric Vistacker from Legislative Council, Kim Doherty, who represents survivors from the current Hatton School, survivors of abuse that, and Jerry O'Neill represented survivors of abuse at various church, involved with the Catholic Church, and who was instrumental in the drafting of the bill on child sexual, eliminating the statute of limitations on child sexual abuse. Again, it's that civil, for civil damages, not for the criminal. So, okay, we've discussed it, we've discussed it, excuse my term. The only notes I have, Eric, on changes to the bill were in a redraft to make clear that attempts, attempted aggravated assault, we used to physical, childhood physical abuse, and we were concerned that an attempt at physical abuse would be extremely difficult for anybody to prove, and that such attempts are part of aggravated assault. I wonder how to take that out. Yes, in fact, I sent, this is Eric, it's Patrick with the Office of Legislative Council, and yes, Senator Sears, I sent Peggy a new version which he posted that has some language to address the attempts issue, if you want to take a quick look at that. Yeah, that'd be good. Okay, and I'll pull that up real quick. That's draft 1.1, Eric. Yes, exactly. So, this is a proposed possible strike all for S99, and at this point, as you say, Senator Sears, this is only the first, only one issue at this point under discussion, but you see it was actually pretty straightforward as I looked at it, it seemed like it was actually a pretty relatively straightforward fix. So, just to clarify that the remember child physical abuse is the operative term here, because that's the offense for which the proposal is to repeal the statute of limitations. But again, as you mentioned, the issue had been how difficulty involved with proving an attempt happened so long ago. So, it just just clarifies that for purposes of this statute, child physical abuse means any act other than an attempt committed by the defendant against the person 18 years of age or under, which would have constituted a violation of the aggravated assault statute in effect of time. So, I think that would actually do it, is when you look at the language of the aggravated assault statute, it includes attempts, that was the issue that you noted, but by specifying that it's any act other than an attempt, then I think you would exclude those sorts of offenses from the statute of limitations repeal. So, if it was just an attempt, then it would be subject to the same three-year statute of limitations. It's in existence currently. And I did have highlighted on page three lying, I don't know where it is now, I don't think it's gone. Oh, line four. Line seven, the issue of gross negligence, is not the standard that we, is that the same standard we used in the other bill in the child sexual abuse? Yes, that's, you see it right above there on line 20. That's obviously a policy decision for the committee, but yes, that was the one you used last time. I should point out there's still that, I didn't fix that typo yet, I missed that online, also on line seven, refers to sexual abuse, that should be physical abuse. Yep. Any questions for Eric, Kim or Jerry, if you have any comments, we'd be happy to hear them now. Senator, it's Jerry O'Neill. I think that makes sense, the change in the attempt language, taking that out of there, because you're right, proof with respect to that would be so challenging. I think it's a wise move to take that out. Yeah. Thank you, senators. I agree with respect to the attempt language. It may be helpful also when you're actually referencing the statute, to also again say, accept attempts, because it's the statute that actually sets forth the attempts. I think it's, it might be the one that's listed right there in section E, just for clarity. With respect to gross negligence, I understand that that was probably something that was discussed and debated at length with respect to the sexual abuse cases. We have taken a look at how the courts in Vermont utilize that standard, and it is a high standard. We've just put together some of the case law and the interpretation. We're happy to share that with the committee to consider it, and whether or not it should be as equally applicable in a physical abuse case as opposed to a sexual abuse case. I think the standards for sexual abuse are fairly clear. It's physical abuse where it may be muddied a little bit more, so just something to consider as to whether you want as high of a standard on a physical abuse case as you would a sexual abuse case, which is a lot easier to prove. Can you give us an example? I think it would help. Yeah, and I'm happy to put this in writing to you all to consider. One case, Canary versus the state, interpreted the standard gross negligence, and the court wrote, gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. A driver's momentary inattention by itself is insufficient to warrant a finding of gross negligence. Likewise, falling asleep at the wheel does not in and of itself constitute gross negligence. Obviously, this is a car accident case, but if you were to look at some of these institutions, could you say that they fell asleep at the wheel and say they do not meet the standard of gross negligence? That's how that court case could be interpreted. So we've just been looking at some of that case law, and we're happy to put that in writing for you all to consider. That's just one of the cases that we came across. But I do recognize that that was probably debated in the last bill. Probably it was a compromise, as I understand it. In the last bill, it's just something because Senator Sears, you asked about it. We looked into it, and we're happy to provide you something. Eric, you could take that down now. Thank you. Sure. I'd actually like to get to vote the bill out today if possible. It is a Senate bill, and so it is late, and we'd have to get real suspension. Can I ask a question, Dick? Yes. With regard to this whole thing reversed, on page three lines, the end of the first paragraph, it damages maybe awarded against an entity, an employed supervisor, supervised or had responsibility for the allegedly committing, had the person allegedly committing the physical abuse if there's going to gross negligence. So I'm wondering, so this specifically says an entity, but I was thinking this was also against an individual person. No, the individual person. Go ahead, Eric. I think you were probably going to be right on the money, Senator Sears. Against an individual, Senator Nitka, it would be the standard negligence standard that would apply. So lack of reasonable care, the negligence standard. So that's making, in a sense, what that sense says, which is the same thing that was done with the respect to the sexual abuse cases was to make a different standard apply when the defendant is an institutional defendant, an entity as a defendant. In those cases, it would be a higher standard of proof, gross negligence, which is in shorthand conscious disregard of a known risk, often that's what gross negligence is described as. So it's not just lack of reasonable care under the circumstances that you knew about a risk and you acted anyway. So I think the decision that the committee reached a couple of years ago was that when you're allowing those actions essentially to revive an action that would have been barred by a statute of limitations, but they're being revived going forward so that, you know, actions long ago can be brought. You may remember it was a contentious discussion and committee with many different witnesses from a lot of different perspectives. I think where the committee landed was have a have a higher standard when there's an institutional defendant, but keep the negligence standard for an individual. So when you go back to an individual, what if it was, you know, a 17 year old, I'm wondering if a 17 year old living at home, sexually molests say a 15 year old, are the parents of the 17 year old liable also for failure to supervise? Do you mean potentially? Yes. Yeah, I don't think this language has any impact because the parents are individuals. And this is really a question of the institutional defendant there, but it is certainly possible that there could be a negligent supervision claim against the parents in a fact pattern like that. We're not the child sexual abuse is not in this bill. I mean, the language is here, but we're focused on the issue of the child physical abuse. And we are, but it comes right in here at the same time. Right. Well, I mean, that's already in place and realized, but we decided on gross negligence because Yeah, I don't I don't have a problem with that. Senator Barouf. Yeah. And I, Ms. Doherty is right. We did have a back and forth and a compromise. And I'm comfortable with that. And I think absolutely we should mirror it in what we what we do rather than trying to create some different set of standards for physical abuse. So I like the draft as it stands now. I don't have any further issues with the language. I'm okay with it also. All right. So majority of the committee is okay with gross negligence for the entity. Um, they're a known risk. I mean, if they knew some of the testimony, any other comments on that on the risk, Jerry, any comments on the standard? Senator, thank you. I have none. If the chair would entertain a motion, I would I would move that the committee act favorably on draft 1.1. Senator Barouf has moved that we amend S99 as seen in draft 1.1 with a technical amendment that Eric's going to move. Any further discussion? Not, Peggy, could you please call the roll? Sorry, give me one second. Okay. Senator Benning. Oh, Senator Benning's not here. Senator Nica. Yes. Senator White. Yes. Senator Barouf. Yes. Senator Sears. Yes. Now the motion is that further move that we report S99 favorably as amended. Ready? Okay. Senator Nica. Any further discussion? Hearing none, Peggy, could you please call the roll? Senator Nica. Yes. Senator White. Yes. Senator Barouf. Yes. Senator Sears. Yes. Amazing. Okay. We will get Senator Benning's vote when he returns. So we'll hold on to the draft. Who would like to report this vote? I would be happy to report it unless you would like to report it. No, I think it'd be great if you were. Okay. Senator Sears, could I ask you a question about the procedure? So any S-bill now has to go to the Rules Committee in the Senate first to be out flat out? I believe so. And I did not, I have not, I didn't, I do want to talk to the next representative grad. So to alert her that this is coming and they know that we're dealing with current happenings. Okay. But may not, you know, it'll be up to the House, be up to the Rules Committee first where they want to release the bill. Right. And then the House Rules Committee will take it and decide whether they're going to release it to the committee. Okay. Because I have, I have three S-bills that, do we wait till tomorrow to get Senator Benning's vote? I think we could wait till tomorrow, which would give me time to alert representative, Senator Ballant, representative grad that we voted out S-99 that we go into the Senate Rules Committee and would they be willing to, you know, take it up? Okay. So we don't do anything till tomorrow. Send it up to Secretary or anything. Okay. No, it gives Eric. Yep. It still needs to be approved and edited by our staff. So I'll send it to you, Peggy, once once I get it back. Yep. Thanks. All right. Well, since we had nothing else on the agenda. Are you serious? I didn't expect to do this. But quickly, I thought, you know, hey, I'll tell you, the witnesses from both current Hatton and St. Joseph's Orphanage were so compelling. They're the ones who really, you know, the bravery of them coming forward, especially somebody 80 years old, I mean, to look back on what she experienced at current Hatton. And then you look at some of the folks that were there from St. Joseph's. Just amazing. And Kim, you were going to get back to us in terms of the budget issue. If there was something for the survivors of current Hatton that we could use similar to what Mark Winberg is doing with St. Joseph's. Yes. I spoke briefly with Eric on Monday and he alerted me that I need to talk with someone in appropriations. Well, that's three of us right here. Oh, excellent. All three of us are on appropriations. So if you can just send us some kind of a memo, we'll be we'll be happy to take it. Okay. And what would you like in the memo and just sort of our sort of what yeah, plan to help the survivors of the abuse to similar to what's going on with the St. Joseph's. And there has there has to be some place for the money to land. Yeah, I think there it's the Burlington YMCA. Yeah. So some organization that's going to agree to or I suppose you could create an organization for the survivors and open a bank account for the purpose of hiring a facilitator or however you want to spend it. Well, or you could you could do something like United Way of Wyndham County. Yeah, because it current Hatton was in is in Wyndham County. So that would I would think something like that might be I was trying to think of an organization in Wyndham County that would it's actually a good idea. The United Local Mental Health Center. And with HCRS. Yeah, it could be. I think if you're looking at just a pass through that it would be less complicated to United Way than to the HCRS. But that's I don't know. I mean, I don't know the organization. It's a great or they're both great and United Way does a lot of here does a lot of that kind of pass through stuff and they're very results driven. So okay, so they essentially hold the funds and then disperse it to the potential facilitator counselor as the okay. I think that's how the Burlington situation. Okay, I think that's how it worked. I don't know if they are the ones that hire hire the facilitator or how that worked in Burlington. Okay, and Mr. Windberg may have more information on that. And would there be a time frame over which that money would be spent so it isn't all just put out and swoop and then I think it's actually with the Attorney General's office, by the way. Oh, it is. Okay. I believe that you can contact. You know, what I'm thinking is, you know, these people have come forward now. There may be others later who might become a part of that group and it would be good not to have the money used all used up at once. Well, we we pre fund it because they're not starting it until July 1st. But the way I understand it is the money doesn't go to the to the people who are there. The money goes for forming the group and then people can join it any any time. And in the case of Burlington, it was for the facilitator to do all of that work to reach out to survivors to organize them to facilitate at the meetings. The one who requested the money from for the Burlington one of me was the Attorney General. Yeah. But I mean, I might be the place. Although that might be because it was a Burlington issue. Yeah, right. Yeah, I know. But I mean, it would be great if the AG's office handled Manhattan too. Yeah. Yeah, I have a colleague who is is good friends and is supposed to put me in touch with the AG's office. So we will look into that and also United Way. And I will also follow up with Mr. Winberg just to get a better sense of how that process works. So we can put something formal together for you all to consider. And we really appreciate it. It's this is a critical piece to helping them heal. Many of them have wanted to reach out to each other and seek some sort of counseling together. And this is going to help answer that problem for them. So thank you all so much for that. Thank you. Yeah, I thought it was very interesting when and I don't remember which one it said, which person said it, but that they had gone through all kinds of counseling and therapy and everything. But once they were part of this group, that's when they really started to heal. Yeah, I think you're all alone. You think you're the only one that this ever happened to. You find out that so many other people are in a similar situation that makes you feel a little bit better. And that you begin to go through a process with other people. It's not unlike a lot of group issues. They've experienced something. They may not have been together and may not have been in the same. They've already experienced a similar problem. Yeah, let's think of it. Senator Sears is when you think about about children in the same in an abusive family, you know, they they are there for each other. They help heal through, you know, being supportive of one another. I think a lot of them at Curnhattan felt more like these were their family, you know, the other peers were their family. So I think that being able to relate back and move forward together will help. And it may help some of those who have not yet processed. Yeah, processed drama and dealt with it and are in denial about it. I, you know, I thought I was fascinating. This woman had taken on herself and donated money to Curnhattan and I remember the alumni had done all those things that you would expect from somebody who was had a positive experience. Yeah, it's it's it's it's hard to process in that regard because of it was, you know, helping them with food and clothing in a place to live. You know, so there's that piece that they really feel, you know, a sense of dedication to the organization as a result of that piece of it. And then there's the other piece that's far more challenging to process. So thank you both very much, Darien Kim, I appreciate you being