 Okay, welcome back to Vermont House Judiciary Committee and we are considering H128 and continuing our testimony. Let's see next week please have the Pride Center of Vermont. Right. Good afternoon and welcome. Hi, thank you so much. For the record, my name is Ann Moyer-Brailian. I use she, her and hers pronouns, and I am the interim director of the Safe Space Anti-Violence Program at the Pride Center of Vermont. So we serve LGBTQ plus Vermonters who've been impacted by violence and or harm. And I'm here today in support of H128. To finish my prepared statement, I just want to say that we heard some interesting things from the Defender General's office, and I just want to explain that the reality of these cases that we're discussing, or that the cases that have used the gay violence panic defense have not been cases of self-defense. I just want to say that I could go through and list all the details of the cases and that they folks have been brutalized for just existing as themselves. So I just wanted to say that and I will be talking about hate violence and when they talk about hate violence. I'm talking about violence that is just purely motivated on bigotry and antagonism of a marginalized group. In 2018 and 2019, an average of 43% of survivors who accessed Safe Spaces Services experienced hate violence. From my experience with Safe Space, the violence has most often been perpetrated by neighbors, landlords, intimate partners, and employers. This trend has increased during the pandemic and in the past three months, 55% of survivors who accessed Safe Spaces Services experienced hate violence. So the percentage has increased and so too has the severity of the cases based on my time taking the calls and supporting other advocates on our hotline. The level of aggression and fear in these incidents have significantly increased. We don't yet know the full impact of the pandemic, but what we are seeing is that people are in more constant proximity to the people who are causing them harm and also have fewer options and alternatives available to the people experiencing harm. This on top of everyday stress layers that are put on by the global pandemic is causing us to see that tensions are escalating quicker and higher than has been the case in the past several years. We're also seeing this escalation nationally as well. Trans people, specifically trans women of color, have increasingly been fatally victimized over the years and I know Representative Small said this earlier, but that 2020 is being considered the deadliest year for trans and gender non conforming people in the United States. It is an epidemic that disproportionately affects black trans women who according to Human Rights Commission research, comprised 66% of LGBTQ plus victims of fatal violence in the US. So anti LGBTQ plus violence is increasing nationally and in Vermont. And it goes without saying that this is a concerning trend. While the LGBTQ plus panic defense has not been used in Vermont. It is not immune to fatal violence. Just a couple of years ago in 2016 a most BD a trans man was violently beaten to death in Burlington fatal violence has, and unfortunately may happen again in Vermont. You often marginalized communities need to experience incredible trauma and violence to receive rights and protections by passing this bill, especially now in a time where reports of violence towards LGBTQ plus people are in an all time high. That would signal to the community that Vermont recognizes the increased threat and safety to the lives of LGBTQ plus Vermonters, and that violence and hate are not tolerated, nor are they excused in our state. Thank you. Thank you very much I appreciate your testimony and you're welcome to submit it for our record is as well if that'd be great to have that on our site. Questions. All right, well thank you very much. And so we'll continue with the network. Good afternoon. I all thank you for the invitation to testify today for the record. My name is Jessica Barquess and I am the policy and organizing director for the Vermont network. The Vermont network wholeheartedly supports each 128. We are proud to stand here with our member organization, the pride center of Vermont in support of this bill. And this is really a bill that is responding to gender based violence. The domestic and sexual violence is often rooted in gender bias and gender based violence disproportionately impacts gender oppressed people, such as women and members of the LGBTQ plus community. This bill specifically addresses gender based violence as it relates to LGBTQ plus individuals. This statutory change has been requested by the trans community here in Vermont as a measure that would make them more welcome and safe in our state. So this is really an opportunity for Vermont to live into its values and stand up for our LGBTQ plus friends, family and neighbors. We do think there are two places where this bill could be strengthened by just clarifying some of the language. The first place I will point out is in section one of the bill on page two, little a line five. And the language there is potential disclosure of the crime victims actual or perceived sexual orientation or gender identity. And this is just a bit unclear to me. So the committee may want to consider some more language here to clarify the intent of who is doing the disclosure and to whom. And which is the other place that I will mention where I think some clarification is needed was also raised by rep Gosland as being a little bit confusing is on line 11, which is little B. And in listening to the walkthrough of the bill, I believe that the intent of this language is that, you know, a defendant can't use a nonviolent sexual advance as a justification for assault, regardless of the defendant's perception of the victim's gender or sexual orientation. And I am not a language strafter, but I wonder if there might be another way to say this that just makes it a little bit more clear for folks, something like a nonviolent romantic or sexual advance by a crime victim towards a defendant who has the perception or belief, even if inaccurate of the gender gender identity or sexual orientation of a crime victim shall not be used to mitigate the severity of an offense by the defendant toward the crime victim. And those are really our only two points on this bill. We're really happy to be here to support this and thank you for the opportunity to testify. Thank you very much. Thank you. Questions. Okay, a few things I, we don't have the states attorneys here today, but certainly do want to hear from from them on this bill. And I'm going to conclude with asking counsel with Bryn. If just her, her thoughts on some of the, some of the objections that we heard from the Defender General's office regarding constitutionality. So I think that I am going to respond pretty generally to some of the testimony that you heard earlier. And I would just point out for the committee that states have, and this committee knows it knows well because of the work you've done on on the bills that you've worked on, especially in the, in the recent past states have pretty really quite broad attitude when it comes to defining the elements of a criminal offense. And especially when states are determining the extent to which their moral culpability should be a prerequisite to a crime. And I'm going to draw your attention to the affirmative defenses that the that you've put into statute in the past. Those I'm trying to think of a specific example where you've put in affirmative defense, but that's when you're putting a specific affirmative defense to a crime. That where you're saying, essentially, this is conduct that the General Assembly considers criminal and worthy of punishment, but it may be excused or considered less blame worthy under these circumstances and that's the affirmative defense. So if you think about it that way, how the legislature has that authority to kind of define when, when there is culpability is reduced, it's kind of similar to similar to to that thinking. The states really have the authority to define what are the elements of a crime, what does the prosecution have to prove beyond a reasonable doubt, in order to convict a person of an offense. And I'm going to talk, there's also a Supreme Court case that I think is worthy of mentioning at this point. US Supreme Court case from I think it's 1996, and it's called Montana versus Egelhoff. And I'll try and I know I'm not sure how much time you have remaining so I won't, I won't dive in too deep but I'll just tell you kind of briefly the circumstances of that case. There was a Montana law on the books that provided that voluntary intoxication couldn't be taken into consideration in determining the existence of a mental state which is the element of a crime. So a person, an intoxicated person was found in a car with two victims in the car that had both been shot. And essentially, the person was convicted of murder and not involuntary manslaughter and evidence of that intoxication was not able to be introduced in that case. So, the Montana Supreme Court overturned that and said that that statute that barred that evidence from being introduced was unconstitutional. And it went up to the United States Supreme Court, and they upheld the statute and said it was really within the broad discretion of state legislatures to define what are the elements of a criminal offense. And it and in, in making that finding the court said due process, the due process clause of the Constitution does not offer absolute the absolute right to every defendant to introduce any evidence that's relevant to their case. And it reviewed the many like well established rules of evidence that exist that precludes certain evidence from being introduced like think about the hearsay rule for example. You know there's lots of procedural requirements that need to be met in order for certain evidence to be introduced and these are the area that states have pretty broad latitude and making these kinds of determinations, especially based on what a state finds should be an element of a crime. So, based on based on that case, I, I find it hard to imagine that that this that this particular prohibition on this type of evidence for the specific reasons provided in the bill could be held unconstitutional for those reasons. Yes, that's really helpful and if you could send the case to be posted or if you could post it whatever that be great. Sure, I'll send it to them. Yeah, okay. Thank you. Questions for Bryn. Kate. Yeah, thanks. I guess I think you're speaking to one of the questions that I had, and I wonder if you might be able to give some more examples of thinking about this notion of sort of. Like guardrails around what can be considered in a defense and I think what so what I'm hearing you say is that versions of that do exist currently and in statute and I'm wondering if you can give any examples of that in Vermont. Yeah, sure. So I'm, I was thinking specifically of the rules of evidence. So, there, and you'll forgive me for not remembering the numbers of the rules of evidence. But I will forgive you for that. But we do, but we have a hearsay rule that prohibits the introduction of testimony that is like essentially insufficiently reliable. And then evidence is, and again I can't remember the number here but I know it's the federal rule of evidence is 403. That provides that evidence can be excluded if it's probative value is substantially outweighed by unfair prejudice or confusion of the issues or misleading the jury. So, those are just two examples of evidence that can be excluded, either because it's substantially unfair or because some procedural, some procedural hurdle was not met which makes it unfair. Thank you. I think something else to mention is that in that court case that I talked about earlier. The majority opinion said that in order for a rule of evidence, or an exclusion of evidence to be found unconstitutional it has to violate some fundamental principle of fairness. Thank you, Bob. I understand the content and the purpose of the bill and clearly I support that. However, when you refer to the elements of a crime versus looking at what's written in this bill here, are we really talking about the elements of a crime or potential lack of defense for the so called defendant here are the elements that crime actually listed in this bill. We're looking at it from the other angle. And this is when I was talking about the diminished capacity that's when really when we get into the elements of the crime. Because as I mentioned earlier diminished capacity is sort of putting an obstacle on the way of the process of the of the prosecutor to prove an element of the offense. If you're thinking about murder, for example, there's that there's a mental state that's required that the prosecutor has to prove beyond a reasonable doubt that the person intended to commit this murder. And if diminished capacity defense is raised successfully, then a person could that that charge could potentially go down to an involuntary manslaughter, if the prosecution isn't able to successfully prove beyond a reasonable doubt that the person intended to kill another person. Because that's where the, the elements of the of criminal offenses come in, what's allowed, was allowed into a into to a jury is the evidence. And so this is kind of looking at the opposite side, not the, not what the prosecution has to prove but how the defendant can introduce evidence that may stand in the way of the prosecutor being able to prove all the elements beyond reasonable doubt. Thank you. Questions. Great. Well, thank you. Thank you, everybody. And I would like to get back to this and we can next week and hear from the, from the prosecutors and then from, from board at the Human Rights Commission, if she is available. So, all right, we are adjourning early. Thank you.