 Good afternoon and welcome to Vermont House Judiciary Committee. It is Tuesday, March 16th, and we are starting with an amendment to H 183, which is a bill regarding sexual assault. We did vote on the bill last week on Friday and today it has been referred to the appropriations committee because there are two appropriations in it. However, as we discussed on Friday, I did receive an email from Will de White expressing concerns about about the bill, and we wanted to make sure that we were able to hear from Will de in quote unquote person about her concerns in anticipation of today's testimony. A few of us met with Will de so let me make sure I get this right. Kate Selena, me, Martin, Michelle and States Attorney Rory Tivo, I hope, and Martin I hope I didn't forget anybody met with Will de yesterday to understand her concerns and try to reach a resolution. And what you see in the amendment is, is what I hope, and I do think is acceptable so, but we will be getting direct testimony from witnesses today. So, I will turn it over to Selena, not seeing any questions. Great. Thank you. Thank you everybody. Sure. And I may not do my best to describe the changes that were made and and a little bit of the reasoning behind them but I would encourage Maxine, Martin, Kate, Will de Rory to get free to jump in. I guess a lot of this came from some of you and from our discussion would people like me to share my screen so I can just project it and show you the or are people able to follow along actually that might be better because then we can toggle between the two without me having to like constantly change what I'm showing you. So if everybody is able to pull it up the proposed amendment. You will find again under today. So if you want to look at the bill as past, that's what's posted under Michelle child's bill is recommended by House Committee on judiciary. You can read about each 183 and if you want to follow along with the amendment. That's posted under my name, Selena Colburn, each 183 draft 1.2. So, as you'll recall, I think we were trying to thread the needle here about in this bill being able to capture issues. These were someone clearly was not consenting to sexual activity without taking away agency or from folks in in certain situations or especially based on the I guess so called disability as we were calling things in the previous statute. So, we, you'll see the first proposal of amendment is in section one in the definitions. That previously said incapable of consenting means the person is incapable of appraising the nature of the conduct at issue. We're changing here to the word appraising to under. This is just some of these edits are just that this has been so constructed in a slightly different way but then we're adding. Excuse me Selena Michelle just joined so. Oh great. You're doing great. You're doing fine. I figured it'd be a rehearsal for a good practice. No, that's great. Okay, I will turn things over to Michelle so Michelle I was just trying to walk through the amendment and getting us started. Thank you. Okay. Perfect. So, I don't so the draft that you have the amendment I did for representative Colburn because the bills out of your committee so it has to be an individual instance of amendment offered by a house member on the floor. And I also drafted in a way so you could see the changes I'll have to go back and clean up once you've kind of decided on the language here so the first changes in the definition of of and capable of consenting and you'll see I just had to change the structure and subdivisions 10 a and 10 be the word online 14 the word appraising was changed to understanding. And then there was a new subdivision see added. So it's that the person lacks the mental ability to make or communicate a decision about whether to engage in the conduct that issue. Other changes in the definition section are striking the cross references to developmental disability and psychiatric disability. So the second instance of amendment goes to section 3254. And that is the section where it goes through and enumerates what does not consider constitute consent. And so this is just amending subdivision six. So amendment on lines five through seven on subdivision six a is just changing it so that the person was mentally incapable of consenting so we're tying it back up into that language in the definition section and taking out understanding the nature of because that's part of the definition of incapable of consenting. And then the bigger changes on starting online 14. And so you'll see the language that struck there is the language that's currently in subdivision D and then the bill is introduced and then the and then the amendment that was voted out of committee just reconfigured that a little bit but kept it in essence the same but just updated the language. And then the light the new language that's online 17 through 20 was previously a subdivision E. And so, after the meeting with some of the mental health advocates members in that working group decided to eliminate the existing subdivision D and so I just moved that E language from the previous draft up into subdivision D. Thank you. Thank you, Michelle. Tom. Thank you, Michelle. I mean, I'm only parodying what I've heard kind of you know that type of thing. I certainly don't have an understanding of, you know, of being sexually abused and but what's going to my mind is see where we added see lacks the mental ability to make or communicated decision. You know, I've read and heard, you know, different situations, whether it's whether it's kids or women or whoever that at some point that they will freeze, you know, in a situation. You know, and really not communicate anything. And just wondering if that would cover that. Well, you have already an existing law. And also in the bill that you sent at the amendment you sent out says that lack of either verbal or physical resistance does not constitute consent. And so that's pretty straightforward right there. Okay, so that would cover what I'm talking about then. Well, I think in the case of if they're trying to say well there was a discrepancy about whether or not there was consent in between the parties that the fact that somebody didn't verbally object or physically object doesn't indicate that that means consent. Okay, so so so they so that's a part of I think that kind of gets to what you're talking about. Yeah, it's kind of fresh in my mind I just started watching a movie with Michael Keaton about the sexual abuse in Boston in the 70s so they hit on that a little bit but thank you. I'm thinking that probably falls under a lot of these provisions. That kind of you know there's a lot of different things that can fit under different ones and certainly when it comes to under 16, under 16 can consent period. So, well, right, right. Yeah. Great, thank you. Anybody else I'm not seeing any hands but just want to make sure I'm not missing anybody. Great. Thank you. Thank you so much Michelle. So, we'll go white welcome. Thank you. Good afternoon. Good afternoon. For the record my name is will the white and I am the founder of mad freedom mad freedom is frequently misidentified as a mental health advocacy organization and I want to be clear that mad freedom does not advocate on behalf of mental health. Mad freedom advocates on behalf of people who are perceived as having a mental illness. Pardon me. I'm going to be probably turning my camera on and off because I see it's beginning to freeze. But mad freedom advocates on behalf of people who are perceived as having mental illnesses are just are discriminated against on the basis of that. The reason I think it is important to bring that to the committee's attention is because that is how we enter into this bill. Mad freedom was troubled by the language in the bill that took away the agency and dignity of people who had a mental condition or psychiatric disability or even a developmental disability, simply on the basis of that disability. And the definitions that you included in the bill for psychiatric disability really captured it was you really borrowed those definitions from other areas of law. The reason those definitions existed in those areas of the law are very different from whether someone has the capability of consenting to sexual act. So there were two things specifically that we felt kind of perpetuated this prevailing social attitudes towards people with perceived as mentally ill that were based upon this kind of stereotype and myth and superstition and individualization that we wanted this committee to address. The first is just simply putting in the bill, those words psychiatric disability and developmental disability and deeming those deeming that as a reason that someone couldn't consent to sex. The second one was your definition of incapable of consenting, because when I did legal research on how other courts have interpreted incapable of consenting. They interpret that as meaning a person has to know both the nature of the sexual act that it is sex. Secondly, that they have the right to refuse. And that they know the risk and consequences for example that you can get pregnant or you can contract of socially transmitted disease. And also that you'd be able to weigh the morality of the conduct, whether it's good or bad, or whether there are social taboos about it and how you might be viewed by society based on those taboos. And that's the definition that this this committee adopted when it passed the version of h183 that you just passed. But in doing research, you know, this definition of incapable of consenting is not uniform across the 50 states and the Washington in Washington DC. What I had advocated for in the letter I wrote last week is for a disability neutral statute. That is a statute that does not mention disability in either the substantive offenses or any separate statutory definitions. Incapacity to consent is really defined based on an inability to understand the nature and or consequences of one's conduct, regardless of the underlying cause, and regardless of the temporal nature of that incapacity. In doing research, I realized there are there are five states and the District of Columbia, who sexual assault laws are disability neutral and actually do what I wanted this committee to do. And the final thing I'll say about this is that you might think that and I think the state's attorney made the argument that he's not interested in prosecuting people who are you know, for consensual sex and the danger is in the court in New Jersey said that the danger of the definition that this committee adopted was that it criminalizes consensual sex, because it's the it's too restrictive in terms of who can consent and what you need to know to consent. So I understand prosecutors aren't interested in necessarily, you know, criminalizing consensual sex and wouldn't bring those kinds of cases. What I did see happening in the case law that I reviewed was that that definition that's in the criminal statute is being in civil litigation. So in some cases where a parent was upset that their child who has a disability had engaged in a sexual relationship. They were suing the defendant for some kind of a tort some kind of some kind of kind of civil civil law and they were borrowing that definition that they found in the criminal law to try to hold the defendant guilty based on their daughters usually all the cases I found darters disability. So what you do in the criminal law does not just stand the criminal law, it can, it can affect what happens in civil law and definitely in civil society so taking away the dignity and agency of people in this criminal law infects all areas of our lives and that's kind of what I wanted this committee to address. So what we hit upon in this, the amendment that you see before you is something that we think is a much stronger law. I think it, it, it accomplishes the intent of a sexual assault law, and at the same time respects the dignity and agency of people, regardless of their disability, and protects people who might need protection and certain obligations. And so we, we support that law, we support that amendment and we think it addresses our concerns. I did have a conversation with Zach Hosead this morning about the amendment and he pointed out two things that I thought were would be good amendments to the amendments if you will. And, and the first was in your definition of I guess it's, it's on page two of the amendment in its line six. Well that, that subdivision begins new or reasonably should have known that the other person was mentally incapable of consenting to the sexual act. He suggested or wondered why did we have the word mentally there and I think that's a good question I think in fact it's confusing because you've defined incapable of consenting in a way that takes account of the mentally so I don't think we need it and I think that it's a better if it's removed so I would, I agree with Mr. Hosead there. The other question he raised was on something that also I think represented verdict raise and that was not, you pointed to the same section but you haven't, you had a different but it's on page one of the amendment numbered the definition of incapable of consenting that paragraph C, where you say lacks the mental ability to make or communicate a decision about whether to engage in the conducted issue. Mr. Hosead thought that was confusing using the putting the word mental there and he actually suggested that it didn't need to be there at all. He thought in response to him that I think C is is is good to include if you eliminate the word mental. So basically lacks the ability to make a communicated decision about whether to engage in the conducted issue, because I think then see operates almost as a catch all way of understanding how someone might be incapable of understanding that we just right now may not be able to foresee. So, you've covered somebody who doesn't have the understanding of the sexual of the of the contact issue and a and be you've covered someone who's physically incapable of declining C if you remove mental is somebody who just doesn't have the ability for whatever reason that we may not be able to foresee right now. They don't have the ability to make or communicate a decision about whether to engage in the conducted issue so I think that makes it. I think it eliminates Mr. Hosead said it definitely satisfied him that he felt like it was less confusing and more clear. And I think it covers the universe of people who maybe this protection, who are incapable of consenting. So I will conclude there. I appreciate your, your inviting me to testify in your open mindedness to this amendment. Thank you so much willed and I really, really appreciate you working with us and bringing bringing your viewpoint and expertise and I wish we had gotten there gotten there. Any questions committee members. Michelle. Yeah, thank you. Just a question for willed on that on that sea and removing mental which I think is a good idea because I think with it gone it kind of goes without saying in some way. So is it concerned there by having mental in there it kind of, and you may have said it defines it almost and doesn't make it as broad as it is it could or should be. Exactly my point. Yes, I think it needs to be broader because their way they're people can have the inability to to make a communicated decision about whether to engage in sex that's broader than just the mental ability. Yeah, great. Thank you. Ken, I know. Question was just Tom just answered and we'll do just answered. Thank you. Okay. All right. Great. Thank you. Any else. Okay. Great. Thank you so much. I do want to note that representative and Donahue was invited to testify and was all set to testify before we draft this amendment and then she did review the amendment and felt that she was quote unquote, all good, and is is not is not coming to testify and is not going to make sure folks knew that Rory Tebow states attorney, please. Good afternoon. Good afternoon thank you for inviting me back to for the record Rory Tebow Washington County States Attorney. I'll first start by saying it was nice to make acquaintance with will the estrange the first time we had the opportunity to meet virtually and we had a good discussion. The Department of State's attorneys in sheriffs I can represent. You know our goal is to have a workable sex assault statute that gives credit, I think to everybody including those who were seeking to protect under the law. I think that was a good point from Matt freedom, and also from prior previously from Zachary Hosead of disability rights Vermont, I think was well taken, and in the changes proposed on the most recent draft include transitioning of the word appraise to the word and the recommendation made by Zachary previously, and then will to give some I think important context to that and if I can I want to read, I want to go back over a little bit of the discussion we had yesterday for some further context of how we arrived at some of that language. It is critically important and I don't believe that the prior draft did in fact in any way over extend or attempt to criminalize a status or class based basis of prosecution on the mirror diagnosis of either psychiatric disability or developmental disability as provided for under statute. That said, we are sensitive and recognize that that could be perceived as taking away agency but in a practical term I think it's important to understand that when we prosecute a case, it's either on the basis of a complaint from a victim. Him or herself or alternatively from a caretaker, which is more commonly seen in circumstances where someone is developmentally disabled. Some of the cases we reviewed are discussed in terms of examples included a individual with dementia who was sexually assaulted, along with someone with a traumatic brain injury, who was receiving services from Dale. So that's the context there, but that said, I think it is important to note that we don't want to be overly paternalistic, and at the same time, need to ensure that the final law reads in a manner that is acceptable and appropriate to all stakeholders involved. In terms of the specific discussion today, I would recommend against further changes to the language, particularly looking at the newly revised subpart C of section one, which states lacks the mental ability to make or communicate a decision about whether to engage in the conductive issue. So first, just to cover at the base level the concept of consent, it's centered around the mental state of the alleged victim. So we really can't separate out that state. Other jurisdictions that have gone in greater depth I think have other definitions that we are not using and are not currently provided for. In the absence of that reference to mental other states have used things such as cognitive ability, or tried to define whether someone is competent or incompetent to engage in a sexual relationship. These are definitions that are not present in Vermont statute, but are in some of the other states that have been referenced and I appreciate will does research particularly into looking at those other jurisdictions which was helpful to understand how the term understand and appraise looked at differently in jurisdictions. For the record the model that we would be adopting or supporting is the one utilized in New Jersey, also in federal law under interpretation of 18 USC 2422, which criminalizes sexual abuse at the federal level and also the title 10 definition. So with that said, I think we always are looking at the mental state of a victim and including the express reference to mental I think is helpful when you are dealing with. If you recall from last time or one of the prior times I testified was the fight flight or freeze sort of analysis of how people respond, particularly the freeze. Mental state, when someone is an additional dissociative stated from PTSD or some other condition is something that we see in deal with the prosecutions where someone just shuts down. So while they're not suffering a psychic psychiatric disability or potentially dealing with the TV I, they're then existing mental state precludes the ability to respond. And these circumstances are not physically incapable of doing so and they may actually appreciate or understand what is happening to them but are not able to to verbalize sometimes that's out of fear sometimes it's out of a shock response. So I think direct reference to the mental state is important because ultimately what the fact finder is looking at is the mental state of defendant in certain circumstances someone is unconscious can't form a mental state because they're not awake. So we're able to do so, but there are a wide range of circumstances where that is relevant so in that sense in the proposal for sub part 10 of 3251 see I would recommend recommend against the committee making further modification. In so far as the definition set forth under in this bill and the revision, the sub part six a in section three, this is page two or three of the amendment. In terms of removing the term mentally incapable and just having it begin with was incapable. That's not as a big of a change but I think it is an emphasis point that the mental state of the victim is important and would tend to mirror and differentiate sub part a from sub part B, which is premised upon an individual who's physically incapable of resisting. And again, the general consent definition is used, not only in the context of sex assault under this part of title 13 but also has a responsibility to the vulnerable adult statute, and also to lute and lascivious conduct, and I also believe that consent is a relevant consideration when we're looking at human trafficking offenses. So this definition of consent has utility outside of just the direct context of sex assault So with that said, I think that the modifications made on any amendment are appropriate and strike the balance between crediting the agencies of individuals who have really making this a neutral in terms of its language of anyone who would in fact have a psychiatric or developmental disabilities defined by statute, and yet ensures that we're properly crediting and providing guidance to the fact finder about mental state and its critical nature when it comes to these cases. Thank you. Martin. Yeah. This may may be a question for will I'm not sure maybe Rory. It seems to me that six a on page two that getting rid of mentally there makes a lot of sense because it's referring back to the definition, and it allows us to also consider the physically inability the incapable of understanding the mental ability. I think that that part definitely is clear to me. But with respect to the definition I guess it seems to me that I'm not bothered by saying mental ability there because we have physical in capability essentially on one and we have mental ability on the other and I'm not sure how we wouldn't be covering the field really essentially and I guess that is more of a question for for will the white than for Rory. You know when I hear Mr. Tebow's explanation about how how mental state is so fundamental to the laws of consent I don't disagree with that I don't think though that the word ability conveys. I think there's a dictionary difference. There's a death. There's a definition difference between ability and state state is more temporal it's like that that can vary but once mental ability is more fixed I think. So, I don't know if by leaving the phrase mental ability and they're actually you're accomplishing the state what the state's attorney wants to accomplish. And I was also in, I was also responding to Mr. Hosid who was reading this fresh he wasn't in the room yesterday when we were constructing this and it was confusing to him. I think that that's something to pay attention to. I have to say I've also lost a little bit of track of your question representative alone so if I haven't asked you to let me know. Well, I think I just I'm just, it seems to me that if if we're covering physical and one sub paragraph mental and the other paragraph that we have all the bases covered that that was my question. That's the way of reading that that's. But I'm also concerned that those cases that we can't foresee, you know, where a person hasn't been you can get into some really bizarre scenarios that you see on TV that I'm not really that interested in recounting for this committee right now. But you would need to see that didn't have the word mental to I think to really fully protect that person. But you know, Mr T vote is the prosecutor. And if if I in the spirit of compromise if that's what he feels he needs. Then I'm not going to say don't support the bill and the basis of that, but I can see the other side that it is confusing, and that there are benefits to removing it. Thank you. Anybody else. So, I'm trying to understand this and I'm having a hard time doing this is is the problem with this is, is the mental, the word mental being used too much and narrowing this too much for you will that is that what you're thinking. Okay, are we talking just now about 10 C, are we also talking about six. Hey, well, we could start with, we could start with C. Okay, so in 10 C, I think it's too narrow and doesn't cover all the situations where somebody might not have the ability to make or communicate a decision. If you remove mental from that, you expand. You cover more people, I think. So I don't think the word mental there is like discriminatory or offensive or perpetuate stereotypes it's not that at all. It's just that I don't think it covers the universe. So we moved over to six a. I think the word mentally in front of incapable of consenting. I think it actually, you don't need the word mentally there because you, because you've put you defined incapable of consenting. And if you were trying to give meaning to every word as judges do in statutory interpretation. I think the word there is would be confusing and the court would make up a reason why that word is there that might undermine the definition of incapable of consenting so I just think it's unnecessary in six. I think they may confuse a judge because you've already defined incapable of consenting that incorporates in the definition, the mental element of it because you've said understanding. So when a judge is looking at this and saying okay the legislature legislation says incapable of consenting includes incapable of understanding. I wonder what they meant by being mentally incapable of understanding. That's just confusing. Am I am I confusing you a bit but now now I'll ask a state's attorney to help me out. How he's looking at prosecuting this maybe maybe that'll fix my state of mind. Please. So I think that I think what representable on indicated is probably the right path which is retaining the word mentally in 10 C, as it is and then moving the word mentally from 6D, I think that would appropriately capture this and just that standpoint there. I wanted to show at trial that there was not there's a lack of consent otherwise we're not dealing with a sex assault when we can't sustain our burden of proof of trial and incapable of consenting gives us under this definition really three paths to get there. One the person could not demonstrate or make communicate an unwillingness that they are physically incapable that's easy you know someone who's asleep unconscious or you know restrained. And then noting that this definition applies across the spectrum of activities and then finally lacks the mental ability to make a communicated decision about whether to engage in the conduct of the issue and so that's sort of then existing mental state and the easiest example to think of is, let's say you have somebody who is suffering from post traumatic stress disorder, and maybe had been subject to prior sexual trauma and when faced with that situation. So that person may again realize what's going on they may physically, you know their vocal cords aren't immobilized are not tied up there isn't this physical inability to communicate rather it is a mental condition that is precluded their ability to decline consent. So I think that to be honest representable bond I think summarized it better than I could have under the circumstances of indicating that we have effectively in that section gone through the three different possibilities and having a clear clear reference to mentally and physically is clear and in late terms I think it's something that jurors would understand it being instructed upon. Okay, thank you. Any, any other questions, Rory. Great. Thank you. Thank you, Rory. Thank you so much. Sure. And actually, which is to Zachary now. Great. Thank you. Good afternoon. Good afternoon. Thank you. I'm Rory Hoza disability rights for month. I looked at the proposed amendment that we're going over this morning. And as will the point out, I had some questions about it and talked about it and I really don't have much to add at this point I think where the amendment is good I had those two, those two suggestions that sounds like, you know, I'm in agreement with what others have said about, you know, particularly on on six a about it being confusing to have mentally there and then going on to the definition of incapable of consenting. And as will the point out in, in the definition in 10, 10 C. I just, I think it is a little bit limiting but I do also see the argument that you know, mental state is a factor and that sort of clarifies that and you do also have the other two other definitions so that that could capture everything. So, that's really all I have but I'm happy to answer any questions. Thank you so much. Any questions. Okay. Great. So, about Attorney General's office please. Thank you. Thank you madam chair for the record David share with the Attorney General's office. This has had a brief chance to review the proposals. We have no objection to them they are in line with some of the issues and considerations we discussed briefly and prior testimony and in prior discussions with respect to the issue that was just brought up today around the management of mentally I do agree with the direction it seems to be moving in with retaining it in the first part and excising it in the second part if I got that backwards I apologize but what representative alone was moving towards I think makes sense. And hopefully I restated it in the same way. And with that that's that's our testimony happy to answer questions. Thank you. Questions. Not that's seeing any at this point. Okay, look to the defender general's office please. Good afternoon everyone. Rebecca Turner from the defender general's office for the record. This is heading that I may be the lone opposing voice to the current draft of H 183 and I want to just share what I understand has between what is past and what is being currently proposed with this bill does is criminalize as a sex for sexual assault to adults, where at least one adult has disabilities, and where they both engage what they both think to be consensual sex. And I'll take you how I understand that and even though the language here as I understand it. Okay, so page one three. I guess it's 10 the language that's being discussed in terms of how to characterize the groups of people who are deemed per se incapable of consenting. And today is about talking about expanding those groups, even more. So I just want this committee to understand what is going on here and what the trend is, which is that you're increasing your proposing increasing per se categorically groups of people who will not be deemed able to consent, even when they do. And that to me is going against what the concerns in terms of agency of individuals adults otherwise seeking and wanting to engage in consensual sex, removing that from them on the basis of undefined vague terms, physically incapable of declining at mine 1510 be physically incapable. Does that include people who are in wheelchairs, people who can't walk, people who somehow can't walk faster than someone doesn't I don't understand who these are who these people are. And even though they want to engage in sex with sense have sex with a person. They are deemed physically incapable because of some disability. I don't see that merely removing the word disability from the statute addresses the concerns that I understood. I don't see that being able to wait as raising previously. I think that the concerns are just remain and even expanded upon. So, between the discriminate discriminating against people who are physically incapable of declining participation, discriminating against people who are mentally unable to communicate. But now you have, you are proposing a law that violates equal protection clause, common benefits clause and I don't know if there's been considerations of whether or not the ADA has is this is consistent with the ADA. I would urge this committee to invite more witnesses who represent the perspectives of adults with disabilities to testify. I think that there is a group that this committee could benefit from listening to disabled parenting project Robin Powell, where she represents the rights of parents or prospective parents with disabilities, pushing their rights forward in terms of their ability to not be discriminated against by by state laws and treating them as equal. This bill does not treat people with physical disabilities and mental disabilities equally. And, and I, and I don't see how the, how that is served. So there is, there is that problem. Now I've talked separately on the issue of the lack of mens rea. But here, what what what this, the law still has to do is draw clear lines as to what counts as legal consent between the expansive and constantly expand spanning definition of what it means or what it doesn't mean to be able to consent. But this line is just increasingly being blurred. So, so this goes to the issue of notice requirements. Now we've heard the state's attorney testify today about what he will or will not prosecute how he will or will not interpret the statute to be but notice requirements don't turn on what one elected prosecutor of one county testifies before committing with how they'll interpret it. Of course, it was, it's what we can understand this language in the bill to me. And as I've testified before and I think that here where the proposals now are just to to expand the terms even more. Problems with vagueness problems of overbreath are just exacerbated. I don't have any further comment. But if there are any questions, I'll pause now. Martin. I guess I'm not sure that this is a question but I just find the reading that you just gave us really doesn't comport with the language that we have here we're not talking about physical disabilities. I don't see how this particular provision applies to the sample example that you gave. Somebody in a wheelchair, somebody in a wheelchair, it could be completely physical physically capable and mentally capable of agreeing to participate or declining to participate. That that's that doesn't seem to be what this is getting at it's whether the individual is able be it physically or mentally able to decline. And I don't see how I mean it's and it's not necessarily wrapped up in whether there's a developmental a psychiatric or a physical disability. It's just that you know it's so I guess I'm just not not seeing your point on that and maybe there's not a question there I'm just not concerned. I could respond I mean just looking at me. Physically incapable of declining participation admittedly doesn't use the words physical disabilities, but physical in in, physically incapable of declining participation. So this person could want to have sex with a person, but cannot physically decline what does that mean does that mean that they can't remove themselves physically from the situation. How is that not separate or distinct from a physical disability. It's it this. I think that the language in 10 B is broader than physical disabilities. But I don't think it excludes it. And that's the problem. I think that the same issue arises with 10 C. It's broader lacks the mental ability to make a communicated decision doesn't isn't limited to people with mental disabilities that prevent them from making or communicating a decision. It's broader. Right. So this language is broader but includes people with mental and physical disabilities, and therefore under 10 by definition, these broad groups groups that incorporate people with disabilities. Are per se incapable of consenting. If I can just to make sure I understand where you're coming from on that, that essentially somebody who is unable to say yes, and is unable to say no, the default is no consent. Is that kind of what you're getting at whether it's physical or mental ability. That's right. I read 10 is incapable of consenting means that they cannot that they want, they even if they wanted their physical disability overrides their agency, their will of wanting to have sex. Right. Thank you know that that clarifies, clarifies that I guess, I mean I would like if any prosecutor has kind of response as far as that, but I think that, or I see that will the white one of the other witnesses that'd be interesting to hear from them. Right. Thank you. Thank you, Rebecca. Let's start with will then and then go to Rory. If you'd like. When I hear Rebecca attorney Turner's testimony, I feel like she's reading 10 without the context of the sexual assault law, because this is only in the context where someone is has been accused of sexually assaulting someone. Alleged victim has said, I didn't consent. And the reason I did it consent was because of this so this is this is your, your only reading when I don't know what I can understand what you're saying is if you're only reading it without that context. And so I don't understand why you think I don't agree and I don't understand how you can read the whole bill and think that this is saying that someone with the physical physical disability cannot consent to tech to sex. And the whole United States has read this bill or this language because this is not new language this is this is language that's shared by many states. And the other thing is when you say that you want this committee to stop and hear from people who have disabilities well that's who they're hearing from from me, I have been labeled with a severe disability. I have spent years of my life in a psychotic manic state, and I can tell you that I have the right to have sex and I have and I know that when I am psychotic or manic, I still incapable of consenting to sex. I also in the course of advocating this position reached out to Green Mountain self advocates and Sarah Laundeville at the Center for independent living. And they don't. You know so they had an opportunity to come here so it's not like this committee has not heard from people who would be affected by it and I'm also a sexual survival, sexual assault survivor so I bring that perspective to it and I don't read this bill in any way. I'm not here saying you read it. And I also don't think the parents of people who might have a disability is the right person to advocate on behalf of people who have disabilities that is also taking away the dignity and agency of adults to advocate on behalf of themselves. And so that would be my response. Thank you. Thank you so much. Sorry. If you if you'd like. Sure, I don't have much more to add but I would disagree with Mr. Turner's assessment of that and the important thing to note is the standard here is at the moment in time that a sexual act is occurring so will this absolutely correct that this really is part of an alleged sex assault. And we don't case it about state police or local municipal departments are not running around in, you know, looking into people's bedrooms or private activities they respond to complaints that are made when there's belief that there has been a sexual assault committed. And the definition here is neutral and is limited to that period of time, none of this is class or status based there's not some sort of categorical prohibition that says because of a diagnosis or because of physical limitation there's an inherent inability to consent quite the contrary. The analysis in court, the corresponding jury instructions I anticipate would be adopted in the existing jury's instructions we have to deal with this are all centered around the attendant facts and circumstances of the incident. And again, part of this language ties back into whether you know someone's degree of intoxication and whether that has rented them physically unable to participate or or satisfy the other definition so it is circumstantially based in that moment and to put it in this way, you can have someone who is fully able bodied who does not have any diagnosis or physical limitations that can meet this definition at some point in time because of impairment because of injury because of infirmity. And likewise you can have somebody with a developmental or physical or psychiatric disability as was previously defined as a statute, who can consent fully freely and intelligently under the circumstances irrespective of the fact that they have a label or a diagnosis attached to them. That's the reality of the state of the law and again I agree with Will did that there are many other jurisdictions that have adopted this successfully and this is not a definition or a structure that runs a foul of due process at either under federal law or the Vermont Constitution, I think quite the contrary this has been a thing carefully worded to ensure that we're only dealing with what is occurring at that moment and in the particular circumstance. Madam chair may I respond and clarify. Sure. Thank you. So first, when I referenced the perspectives of others having disabilities, I did mean, and I want to make sure I recognize that those that some that there have been witnesses here to share perspectives from that community. I suggested a particular community that I'm aware of that's not parents of disabled children so I want to clarify its parents or prospective parents with disabilities and that group is called disability disabled parenting project. Robin Powell. And I think just hearing as many different voices who speak from the, from that perspective would be beneficial. So one, two, there was some suggestion that I am, I am reading the definition section out of context and not within the whole. And actually, I am reading the entirety of each 183 and particularly the parts that have already passed page three. There is a section on 354 trial procedure and consent. Confusingly, of course the sexual assault bill defines and establishes what is and what is in consent who and who cannot consent. And many different parts. It's not just under page one of the definition section. So what I have done is trying to understand reading this in its entirety, what it means, how we can understand what it means to have lawful consent. And particularly when you look at the, the language in 3254 new language not previously adopted where prosecution of sexual assault now that lack of verbal or physical resistance does not constitute consent and it goes on to list other things about what does not constitute consent. So if there's lack of verbal or physical resistance that does not constitute consent. I've testified previously with questions as to what would constitute lawful consent after this bill is passed. And I still don't understand what would constitute lawful consent. And I think that is again where this new language adds to the problem of what providing sufficient notice of where that line is drawn because here I think you can have to consenting to sexual assaults who are otherwise one of them falls within this broad, really broad and undefined, undefined language in 10 a B and C, but otherwise consenting. And now we are in the category of sexual assault. So here I have the final question which is what is the community committees justification for punishing with life imprisonment for which there is no culpability on the issue of consent, where there is in fact to consenting adults and no notice of what is and what is lawful sex. I don't think that criminal that American criminal law supports criminalizing with with life imprisonment, where there is no culpability required on consent, or there cannot be notice what is lawful consent. And so I, again, just restate my strong opposition to this bill and this latest draft. Thank you. Thank you. Thank you very much. Okay. So committee let's take a, let's take a 15 minute break. We'll come back.