 Great. Good morning. And welcome to Vermont House Judiciary Committee. It is Friday, February 26. And we're going to start with a quick walkthrough of H 195 use of facial recognition technology by law enforcement in cases involving sexual exploitation of children and attorney Michelle Charles is going to do a very quick walk through of the changes that we will be voting on. However, I will wait for the committee discussion and vote until later, most likely this afternoon, given I want to be able to get to H 183, and, and have attorney Charles walk us through that before, before she needs to go. So, good morning. Welcome. Thank you. Good morning. Thanks. So, can everybody see my screen, the draft up there. Okay, so it is 3.1. And the two substantive changes here are it adds the word identified online 19. So that was something that witnesses Scott last hearing saying that they're more comfortable if when it refers to the suspect that you're talking about an identified suspect. And then the other change is that this only applies to cases involving investigations of sexual exploitation of children. So those other crimes, and you around with the concept of encompassing other crimes as long as the those other times were put through an initial investigation to sexual child sexual exploitation and so that's been removed. But the other elements of the proposal are the same as before so it's creating a carve out to the moratorium that was passed last year. Specifically, use of this technology in cases where there's an investigation into sexual education of children. The search has to be solely confined to locating images including videos of that individual within electronic media, legally seized by law enforcement in relationship to specific investigation. And you'll see also that I had changed the title there so after passage it will change to show that it's more limited than was introduced. Thank you. Thank you so much Michelle. Any questions for Michelle about the language. It's hard for me to see hands. Imagine that mindset. Yeah, Michelle. Again, it's one of those questions I know the answer to. So, with the new language. Of course, facial recognition can be used only with exploitation of children, but can a crime, another crime that is discovered while doing this can still be investigated. So that they're investigating it, they're investigating child sexual exploitation and then they find another crime. Yes. Want to explore. Yeah, but I would I would say I would talk to the, to the folks who are the prosecutors who are working with us to see how they would handle that with regard to evidence discovered through the use of the technology. Okay, and say if that is permissible. So investigating that crime going forward facial recognition cannot be used. Yes, correct. Okay. Great. Thank you. Okay, I'm going to switch over to the other draft if that's okay with y'all because I have just do you have 1130 but I can try to communicate with the chair and I'm in another committee this afternoon but I can maybe pop back and forth. If that works. So, look at the amendment to age 183. And, and a lot of these changes were made based on listening to the, to the discussion and the, the testimony last time and then also some discussion amongst prosecutors about potential refinement of some of the language. This is an individual instance of amendment, depending on where you want to go next time I could do a strike off it's easier for you but so we just start off with the first instance of amendment and it is amending the first three sections of the bill. The first one is in section one the definition section so you see the definition of consent. So the previous version said it added the word knowing, and it added the word and so it would be a knowing and voluntary agreement. So that has been changed to an or at the request of the state's attorneys and they general's and so, because I'm limited time are issues that they're going to discuss if we can just, they can, they're going to testify and so they can talk to you about why they would prefer this. That's okay. 183 is not. Yeah, yeah, it's not up what is that 195. Because I see 183 on my. Okay. Stop chair and then share again. Okay. I shall try that. It was a nice discussion. Well thanks for stopping me. I think I have it. Do you see it now. Yes, yes. Great. I think that's the thing is I think you have to stop she can't just switch document, you have to get out and share and start again. Thank you. Sorry about that. So we're looking at page one of the amendment draft 1.2. And so you'll see there on line 13 changing that to an or then on lines 15 through 18 I've added the definition of incapable of consenting and so when we go down to the other section I'll show you where that's used as an element of the crime. This definition is from type 10 the military, the federal military code that we discussed at the last meeting about a lot of this language is taken from there so incapable of consenting means that the person is using the nature of the conduct at issue, or physically incapable of declining participation in or communicating unwillingness to engage in the sexual act at issue. So again that's taken directly from federal law. And then page two, the amendment here up section be. And so the subdivision be one of us is the issue that is in current law, which is in a situation where someone administers and a top and intoxicant to someone without their knowledge or consent and then engages in the sexual act, that's not changed subdivision subdivision to address as a circumstance where it's prohibiting a person from engaging in a sexual act with another person when the other person and here's the term and that was in the previous version in consenting so we go back up to that definition to the sexual act due to and we added the word substantial to the two impairment by alcohol drugs or other intoxicants. And that condition is known or reasonably should be known by the person. So here we're adding the word substantial. There were concerns at the last hearing about what I by not have word substantial did could, could it be argued that if you engage in sex with someone who's, you know, had had a bit to drink but isn't necessarily incapable of consenting is it is it difficult to ascertain in those circumstances and so I think there were comfortable with adding the word substantial, and you'll see that up in the current law on be in the B words about impairment is that they do use the under current law substantial to define intonation, but that's been removed in the situation where you have somebody administering drugs to someone without their consent. The substantial is taken out there but then it's added in to subdivision be to something that's not here is there was in the bill is introduced a privilege here around engaging in a sexual act with someone who has a psychological or disability that has been taken out. And I think all the prosecutors will talk to you about why they would prefer that but is there after entitled 13, the provision of, of, of penalties for sexual crimes, vulnerable adults, and thought it might be a little too confusing to have those two there so they recommended that eliminating it here under subsection. So that is out for now. Section three, the change here is where section three is dealing with with what constitutes and doesn't constitute consent. So subdivision for the language that was addressed issues of that previous dating or sexual relationship or the way that the victim was done in a way affects the issue of consent. We have a provision we have a rape shield law and existing. And so I did include the previous language and subdivision for just kind of as belts and suspenders. But again, prosecutors felt as though they would prefer there just to be a reference back to the rape shield law so that's what we did here. So consent shown by evidence prohibited under section 35. And it for the criminal offenses. The last change is in section five and this is in the intercollegiate study, the intercollegiate sexual violence Council. And there was a recommendation that you add two more members to that council so one being a sexual assault nurse examiner appointed by the network. And then the other recommendation was that a prosecutor sit on the council and it could either be from the Department of State's attorney or the office of the attorney general but I wasn't sure who would necessarily be the appointing authority because as you know normally will say, you know a state's attorney appointed by the D or someone from the attorney general's office appointed by the attorney general so you'll have to think about who you would want to appoint since it's two different departments. And those are the only changes for now. Thank you. Thank you, Michelle. So committee members. And I also see we have lead sponsor representative Sarah Copeland Hans is here so Sarah. Looking to you also as a honorary committee member today for purposes of questions. And it's hard for me to see because of a screen sharing so if I don't see your. Jumping to stop sharing. Okay, all right. Great. So, Tom your hand is up but I think that's probably from before. Bob. Yes, one quick question as I'm learning word or words seem to be very important as we go through our review of these things online 21 Michelle. Is there not the cloud issue under substantial. Is there a definition for that or is that just common sense substantial or what are we referring to. There is not a definition you would use a cop plane plain language meaning for substantial. And obviously there is some subjectivity built into that. Okay, thank you. Any other questions for Michelle. I just had a further question on the building off of representative Norse's question on the addition of substantial is that something that has is that language that's been interpreted by courts that you're aware of in the in relationship to this particular provision. I want to look because it is used in the existing law with regard to drugging someone and then having sex with them I could look and see whether or not that was addressed but I think, you know, some of the practitioners might have some insight into that. Thank you. Martin. Yeah, that issue of substantial it. It seems like it's defined within that provision itself it's substantial if that leads to the person being incapable of consent right don't you have a whole provision there in its entirety. Right, right. So you're saying you wouldn't buy by requiring that the person be incapable of consenting that that implies substantial. Right, right. Certainly see your point I was trying to incorporate the recommendations of the state's attorneys and the Attorney General's office and so in terms of why they think it would be better to be in there I would direct that question to them. Thank you. Any other hands. That's seeing it. Okay, Michelle before I let you go Sarah make sure you don't have any questions or anything for Michelle before we let her go. Thank you so much for sharing the draft and thank you all to the committee for your great work on this bill. Appreciate it. Thank you. Okay, great. Well thanks Michelle. Let's turn to states attorney Rory Tico. Good morning. Welcome. Good morning. Thank you for having me. It's a beautiful day here in barrier. I wish everyone could be outside and seven committee work but here we are. But it's an important topic and I appreciate Michelle flexibility and responding incredibly rapidly to some changes unfortunately. I know I had some issues with the board and I couldn't get together until later in the week to do a deep dive into what were some. None of the concerns but just ways that that we felt that would improve the overall bill. So I'll start right away and acknowledging that I think was represented not who raised the question about what's the distinction between two people who are drunk and having intercourse is that you know going to be illegal that be captured in the statute. the answer to that is no. And I think that's part of the reason why there's a rationale to include the term substantial. I agree with Representative Lalonde that it is to be read in the entirety of the statutory text and what that means. But I think the main effort is to ensure that courts and prosecutors who are applying this law to a particular charge are cognizant that it isn't elevated in a very high level of intoxication or impact from a drug or something else that really does impair or inhibit the ability to make a free conscious or voluntary choice. So that's reflective of the necessarily high standard that needs to be there. With that said, the incorporation of the additional definition section about including the term incapable of consenting also tends to clarify that as to what is implied or meant by that degree of impairment or incapacity in that circumstance. So I think that hopefully answers the question and one of our concerns of course is this. While we want to have a good solid statute that captures the right amount of criminal conduct, we also want to make sure that there is clarity and that we're not overreaching or creating an issue where the statute's overly broad and capturing people who should not be subject to criminal liability. I think that's paramount to confidence in the system that we strike the right balance in those definitions. So the next, let's go through the next change on page two in lines nine to ten. Initially consent had been the conjunctive knowing and voluntary. We recommended an or there instead based upon the statute now including distinct theories based upon someone being asleep or unconscious and not being able to consent. We felt that knowing and voluntary in that context could be a little bit confusing where volunteering is probably impossible when someone's asleep or unconscious. So it'd be somewhat surplus in that context and then of course someone can't know if there's proof that they're asleep or unconscious. So we felt that it was better to be able to have the charging document make an election between demonstrating a lack of knowing consent or lack of voluntary consent. Although those are two very closely related principles and David Chair might be able to speak to that as well as that was one of the issues that he flagged and we worked through. Next, sort of a big one. Recommendation two on the doctrine stops. This is a page two lines 12 to 14 and then page three lines 18 to 19 dealing with individuals who are suffering from a psychiatric or developmental disability. First, all three of us when we spoke recognize that this is an incredibly important protected class of people who are unduly exploited when it comes to sexual conduct and are particularly high risk group. However, the legislature several years ago when revising the vulnerable adult statutes, I think did a really good job of squaring up section 1379 when it discusses sexual exploitation of a vulnerable adult. Our concern was by the slight variation and difference in definitions that there'd really be two ways to charge the same conduct. The existing statute already accounts for both sexual acts which include an active penetration as well as sexual contact or conduct that is not penetrative. So groping, touching, things of that nature. So since that statute is already we think in good shape and captures what's necessary didn't necessarily make sense to embed that here. The military and federal laws from which this was derived don't have an analogous vulnerable adult statute in that way. So we felt that. I don't need to interrupt. I don't know where you are exactly. You said where you were and I can't seem to find where you are on that document. I apologize. Yeah, thank you. Are you working off of your recommended revisions, the summary as opposed to the actual amendment? Maybe. Yes, I was. I'm sorry. It was the original document that has the page lined up. I'll tell you right now where it is. Yeah, thank you, Martin. It would have been in the bill as introduced. It would have been under subsection B subdivision 2B. Is it not in this amendment? No, it was eliminated. That's why I can't find it in the amendment. That is true. When I submitted it, it was late last night when I submitted it and I had it highlighted and struck and then I sent it to editing and they took all that out, rightly so, because I didn't tell them not to. So for everyone's purposes, what used to be the subpart B said, quote, psychiatric or developmental disability and that condition is known or reasonably should be known by the person. And then the other impacted portion was Yeah, I mean, I see it now as introduced. That's page two, line 12 to 14, right? Correct. It was just the definitions which then cross-reference to the same definitions used under title 13, section 1375 with the treatment of vulnerable adults. Before I proceed on that, any other questions on that? The next recommendation, recommendation number four is in the new document. I apologize again, Rory. I'm a little slow in the uptake today. Just to summarize or confirm, you're fine with taking that out and you just gave us the rationale for why you're fine with taking that out, right? Correct. Okay, that's fine. You don't have to repeat yourself. I can go back and look at the YouTube if I need to hear it again. Thanks. No problem. Thank you. All right. So then turning to the fourth recommendation, which is under section three dealing with trial procedure consent, that's on page three, lines 20 to 21. Formally, it included a more robust definition that was described as such a current or previous dating, social or sexual relationship by itself or the manner addressed to the person involved with the accused in the conduct at issue does not constitute consent. In speaking with both David and Domenica, that is well established in existing case law under the Rape Shield statute. And our concern was the legislature in the future may desire to add or modify Rape Shield in terms of what evidence is or is not allowed. This is maybe more of a construction and just keeping everything in one place argument for lack of a better way to put it. It would make sense to spell out things within the Rape Shield statute rather than having it laid out both in the consent definition itself for in trial procedure and then in the Rape Shield statute. So we felt comfortable that just direct cross reference to remind that evidence that is prohibited under the Rape Shield cannot be used for purposes of demonstrating consent. And so nothing too radical there is just a function that it would make sense if the legislature intends to modify or clarify Rape Shield evidence that should probably be done under section 3255, the Rape Shield statute itself. And the final recommendation we made was with respect to the advisory committee concerning Title IX and campus sexual assault issues. And in that sense, we did feel that both for the technical expertise that a sexual assault nurse examiner would be helpful to contribute to that. My personal experience with the multidisciplinary team of our special investigative unit in Washington County is that the same nurse contributes a really great voice about what is being seen on the front line of an emergent sex assault crisis and evidence collection issues. And then we also felt that a prosecutor either drawn from the Department of State's attorneys to chair us or representative from the Attorney General's office would be appropriate. And I say that just to characterize there are some things that are concerning, particularly about college sex assault. So we have from an investigative standpoint, really two standards, if you will, public universities and state colleges. Incidents that occur on campus are investigated exclusively by the Vermont State Police. That's not the same for private institutions where it's typically the local department or whoever has jurisdiction. So in some cases that may be Vermont State Police and others, it's going to be a municipal department. That said, from my standpoint in Washington County, there's sometimes a little bit of difference in communication flow and the formality of reporting. And we have concerns that sometimes I'll just be direct. There have been several occasions where victims who have made delayed reports to law enforcement made a near or contemporaneous report to Title IX and were under the mistaken belief that law enforcement would be informed, would be involved and was part of that process. Ultimately, cases such as sex assault become increasingly difficult to prove at trial as physical evidence is lost or as individuals outside the criminal justice system begin questioning, speaking with or contacting witnesses or even directly the alleged offender. So from that standpoint, we view that there's a role to be had of a prosecutor's voice in that going forward to identify some of the ways in which cooperation can be approved and ultimately a better, better investigative services and better services to victims offered up front and early. Thank you. Any questions? Not seeing any. Michelle, do you want to add anything before you go? Can you? I just emailed everybody the link to the sexual abuse of a vulnerable adult statute. So you could see what is in current law. And then I sent you the language that was removed at the recommendation of prosecutors because of that existing statute. So you can kind of see that language. And then I think the rape shield one is pretty explanatory. I think they feel as though that's already covered and you don't need to necessarily restate it and you just reference back. I think Rory did a good job of explaining the or instead of the and, specifically as it applies to folks who may be asleep or unconscious. And I don't know were there a question or just confusion about any of the other provisions or a question. You have your hand up, right? Yes. Yes, I do this time. And I don't know if it's for Michelle if she has to go. I'm sure Rory could answer it. But so in a situation where somebody's drug and say they're they don't rise to the level of a substantial impairment that they there would still be a charge available under drugging somebody. Yes, and that's actually an important distinction is the language in subpart B one remains just simple impairment versus substantial impairment. And that's premised on one that's existing law and two it's premised on the notion that you know intentionally trying to drug someone in order to advance a sexual act is somewhat different. That's a specific design to achieve that versus the second theory which is taking advantage of someone who on their own accord has potentially become intoxicated or in that vulnerable state. Right. Great. Thank you. Okay. Great. Not seeing any other hands. Thank you so much Rory. I'll check back in. Okay. Great. Appreciate your work on this. Thank you. David Chair, Attorney General's Office please. Thank you. Good morning, Madam Chair and Committee for the record David Chair with the Attorney General's Office. I don't have a lot to add to what States Attorney Tebow just testified about. I think you did a very nice job summarizing the changes in the intention behind them. I'll add really only one small point around the or versus the and on page one around the definition of consent. One of the concerns coming from our criminal division there was that when you add a term to a definition it may require a prosecutor to plead and prove another set of facts or another fact. And this would specifically be relevant when a prosecutor is trying to show in a sexual assault case say one that's just charged under A1 meaning just simply a sexual assault without the consent of another person to take the to take an example. Prosecutor may now have to prove under the prior proposal that that there was you know there was some that they had indicated that there was both not only was there not in voluntariness there was also not knowingness. And so there is a concern that all of a sudden instead of having to show one of these levels of intention or states of mind the prosecutor would have to plead and prove that there was the absence of both of these states of mind. And it was not entirely clear what that would mean. It's not entirely clear that that would happen. I acknowledge but it was a concern that our criminal division had in terms of unintentionally making a prosecution more difficult than it is currently. So that was just a technical aspect and we certainly agree with changing the and to and or because of that concern. And that was the only addition I had again I think since Tony Tebow did a nice job summarizing the changes and the reasons for them and happy to answer any questions. Thank you. Any questions? No? Okay. Not seeing any at this point. All right. Great. Thank you David. Thank you so much. Sarah Robinson from the network please. Good morning. Sarah Robinson deputy director at the Vermont network. Thank you again for taking up this very important bill. I just want to say that largely we are supportive of the recommendations that were brought forth by the state's attorneys association and the attorney general's office this morning. Certainly very supportive of the language to in section one lines nine to ten to move to knowing or voluntary agree that we don't want to raise the current burden that the prosecutors face regarding the suggestion to remove the language related to psychiatric or developmental disabilities because the vulnerable adult statute fulfills the intended purpose of that section. We don't have any significant concerns based on what we've heard in witness testimony this morning but I would also say that I would defer to the disability and mental health rights community to possibly weigh in on that suggestion and whether the vulnerable adult statute is currently sufficient and that the language ought to be in fact removed. And on the proposed modification to section three to reference Vermont's existing rape shield law we support this change and recognize that the rape shield statute is the product of many years of careful crafting and so we certainly agree that it makes sense to reference that there. And finally supportive of the recommended additions to section five regarding the composition of the higher education sexual violence prevention council and we're what those are welcome additions and happy to have those those folks participate in that process. The last item I just wanted to note for the committee I just want to respond briefly to some of the testimony that was received the last time the committee discussed this bill regarding section four on data requirements. Just wanted to highlight why this section is of particular importance to the network. What is abundantly clear in hearing from sexual violence victims is that despite some good outcomes the criminal legal system often does not meet the needs or contribute to a sense of justice nevermind healing or resolution for many victims and this data will really help us understand how cases are moving through that system not simply to point to future reforms which are important but also to potentially help us consider where alternatives to the traditional criminal legal response most might be most useful to victims of crime and I know that there was some witness testimony that you all heard about whether there needed to be additional clarity in section four about the data requirements. I just wanted to note that I'd be happy to discuss these concerns with the other witnesses and determine whether there ought to be any language recommendations that we could potentially make to the committee together. Thank you. Appreciate that. Thank you. Tom. Is section four listed as section five in this bill? Sorry I was looking at the as because I'm going as I was scrolling through I went by section three and then and then on page five it came this says in section five. It is let me I'm just pulling up that draft is introduced where. Yeah yeah I'm looking at draft 1.2. Yeah I know 1.2 are instances of amendment and so it's a little tricky going back and forth so I I wonder if next time we should do a strike all and with highlighting or something because then have it all in one yeah yeah I appreciate that yeah section four in the bill as introduced right all right thanks okay thank you I I think this was a people were working as quickly as as they could and Michelle wanted to get us get us something and get something to the editors and so I do appreciate what we have here but I think next time around it would be helpful to do a strike all. Any other questions for Sarah? Okay great thank you so much Sarah. Appreciate it. Rebecca Turner from the Defender General's Office. Good morning. Good morning. Thank you for having me back on this bill. I previously testified about the for the record Rebecca Turner from the Office of the Defender General's Office. So I previously testified about the Office of the Defender General's objections to an earlier draft of this bill. The current draft that I've looked through today doesn't address the concerns that I raised at the earlier testimony and therefore we continue to object and I just want to highlight for this committee this morning again the two primary areas where our concerns lie with this bill. First and again we I raised this earlier the concern here with this bill is that removes the mens rea requirement from a life imprisonment offense and I just want to pause there because I just want this committee to realize that in the in this bill it has removed the mens rea from a life imprisonment offense. I'll go into that more in a second. The second area of concern is the definition of consent and how this bill effectively establishes a standard for proving consent by requiring an affirmative yes burden and I'll go into that a little bit more. So first removal of the mens rea requirement I am looking specifically at every section of this draft which uses the word should have known reasonably should have known and I can go through that now so that you can highlight it with this current latest draft five pages and starting with page two line 10 we see our first reasonably should have known and in line 10 section four it's established no person shall engage in a sex sexual act with another person when the person knows there's your mens rea followed by the disjunctive or or reasonably should have known that the other person on and on and on so by establishing the disjunctive or reasonably should have known you have left it to the optional discretion of law enforcement to charge a life imprisonment offense based on not whether an accused actually knows there was no consent but whether a reasonable person should have known and so I just want to highlight there because it's not just page two line 10 it's also occurring page four and this is subsection six and this is where it outlines through a through he all of the situations when a person shall be deemed to have acted without the consent of the other person new or there's your mens rea but or writes it out effectively or the least amount of conduct required the least amount of proof that the law enforcement has to show a reasonable person should have known so again it doesn't matter whether an accused knows now why this is a concern not just that it effectively makes it removes a burden on the prosecution it's a fundamental principle and criminal law that we punish based on the criminal culpability of the person who stands charged particularly when the penalty here is is an extreme one life imprisonment we do not have effectively strict liability offenses with life imprisonment and that's what's happened here and in this situation I think that if the legislature would have passed this legislation it would be an excessive exercise of this legislature's policing powers to create offenses it would be an access to the violation of due process the second basis and turning to the definition of consent concerns and how and what that translates to I'm looking at page three and let me get there because I've just flipped through my page three lines 1415 we can start there this is about defining consent and the definition of what we understand consent is now presented in the negative and there are lots and lots of lines describing in the negative what consent cannot be and 1415 establishes lack of verbal or physical resistance does not constitute consent so it's just pausing there under this bill a sex partner's silence is not enough for consent a person merely reading the moment and believing knowing believing your partner is actually consenting to having sex is not enough for consent instead how I read this bill and and I don't see how you can read it any other way the it would establish an affirmative continuous yes requirement all the way through the sexual act and then if the complainant were to later claim that there was actually no consent the charge would be filed and at trial the defendant the person accused would have to prove that there was actually consent now what I've just described as is set up for in this bill is an effective burden shifting and criminal trial where they're accused who's otherwise presumed innocent where the state otherwise has the burden approving beyond a reasonable doubt of lack of consent that this sets up a flip of those fundamental presumptions and again that's a violation of due process third staying with this understanding and this requirement of consent is requiring affirmative yes in real life I'm not sure how we can ever be completely sure under this bill whether the consent was sufficiently affirmatively yes yes now is still yes now is still yes now and this is why in our criminal law it's been required to have some affirmative evidence of a lack of consent no means no clear when the spill which flips those evidence to be proving yes means yes now we've turned every encounter and to sort of this forced situation where a person has to be detached thinking with a lawyerly lens right whether or not this moment is is is clearly unequivocally a yes and then continuing on so and so I think that where the stakes are life imprisonment where we cannot understand what an affirmative yes means under this what is this efficiently affirmative yes under these consist in these circumstances it's insufficiently providing notice to a person who stands accused and overbroad and vague so putting this context then in what we know about how and the problems of overly vague overbroad laws is that we give too much discretion to the prosecution to the police to enforce this law when we give too much discretion to law enforcement to interpret these otherwise vague vague terms what do we do we exacerbate exactly what we already know is a problem in our trying to fix xs elsewhere disparities in our criminal juvenile justice system we know that black men black boys stand particularly vulnerable to being subject to prosecution and when you throw on these labels that are just open to interpretation by police by prosecutors I think the changes here while I understand the underlying good motive behind this bill doesn't actually help the situation finally turning to the last part of this bill which is the creation of a council I'm just saying I oops Martin your hand went I'll wait until that goes on okay thank you um and my final comments as to the council the latest draft has made changes to the membership of that council my previous testimony raised concerns that the membership failed to provide fair and balanced membership by the suggested addition of just a prosecutor and and of course the nurse the expert examiner that doesn't solve or address even a token gesture of a single seat towards someone who could represent the interest perspectives of someone who stands accused the black men black boys who are disproportionately accused of these offenses these circumstances newly arrived Americans or immigrants and so again just stress the recommendation that there be if there is a council to be created that representation from these BIPOC communities public defenders others who would represent these these people's interests should be included thank you thank you Martin so so going going back to your issue page three line 1415 was the language as it was previously any better it seems a little bit different it seems like it's gone a little further with the change from the lack of consent may be shown without proof of resistance that that language seems that there's has to be something more than just a lack of verbal verbal or physical resistance or is it not really any different in your view representative along I'm going through my my pages will you tell me again I'm sorry page three line 14 to 15 page three line the amendment of the current bill yeah of the amendment right yes it was the bar it was a part about lack of verbal or physical resistance does not constitute consent that that seems a little different than the language that was struck out and and do you have the same issue or different issue with the language that was struck out uh no I it's it is the same issue it's does it's not a substantively significant improvement after I don't think it's any improvement if I'm seeing the rate drops no I was and I'm saying that the language that was struck is that an improvement over the language that we have that this new language in your view or or is it yes no I think this right yes I'm striking lack of consent to be shown without proof of resistance yes I think that that is still sorry that I do think that the addition of clarifying physical lack of verbal or physical resistance it's it's they're both problematic right again again it's going back to this this definition of consent resting on an affirmative yes versus evidence of no right and the negative of consent being proven and again I understand like there's there's the public policies and interests in terms of avoiding non-consensual circumstances and sexual encounters I'm coming from the perspective of the criminal system where we're facing and this is about life imprisonment and so the the level of of of notice that is required so that we do not inadvertently commit these these this most serious offense uh is why we need to change and be detailed so no I don't think it's it it it substantively addresses either the original version or this new the concerns I appreciate that um I guess the other questions I have probably are for the witnesses we've already heard from rory and david I appreciate what you were saying about the reasonably should have known that does seem to put it into a a different category that's not your normal criminal offense but but I'll save that question for rory and david shear if we can if if uh madam chair we can go back to them after yes okay uh Barbara thanks uh so rebecca I'm wondering um two things one is what if it weren't a life imprisonment a guaranteed life imprisonment sentence it you know I was in preparing for my remarks this morning I was reading a case that just came out of the washington supreme court I think yesterday where they invalidated a statute a felony statute involving uh drug possession yeah and and the reason they invalidated was because there was an amends reya requirement and the reason the basis was a due process excessive exercise of policing powers because they're the lack of amends reya for I think it was a five-year maximum felony was was found uh unacceptable and an excessive exercise so there's an example uh even if the sexual assault statute had a maximum uh sentence of five years not life imprisonment that wouldn't have been enough and have you seen another state statute that you've thought was um sort of well put together I haven't done a survey and and come up with that uh from that perspective um but I appreciate the the question and I am sure I and I don't have the numbers in terms of how uh how many how few jurisdictions are an affirmative yes uh are proposing that I I do have a sense that we that's in the minority that that's the general the majority and again I hesitate but I do think uh it requires an affirmative evidence of no right no means no versus for pina to yes means yes right well you you raised some interesting points so I appreciate that thank you okay I realize that um it's noon and I know there are other things going on I do just want to um I don't see pepper here so I'm going to ask if uh Rory if you wanted to um to respond please sure so I'll keep the comments brief knowing uh stand between you and the lunch hour again for the record this is Rory Teeba Washington County State's attorney um I'll start with this just general premise so I think why there's a lot of friction with the issue of affirmative consent versus um the more traditional view if there needs to be some sort of active no uh on the part of somebody I think recognition is this in human nature there are several responses to a traumatic event we all know the probably from kids were taught that there's a flight fight or flight response so try to evade or or fight back but more commonly I think we see the third one that is West frequently spoken about which is freeze some people will stop and be unable to react in a highly stressful or traumatic situation and that is been one of the issues that is continually bedeviled successful prosecution of these cases um and that it's particularly exacerbated when someone's under the influence uh war is incapacitated by a drug or an intoxicant so to that end um I would also note I don't share the same due process concerns um that Ms. Turner does and I would note that both federal and military jurisdictions have used the standard for upwards of 10 years without it being challenged or overturned by either the court of appeals for the armed forces which is the equivalent and has equal standing to a circuit court in federal system supreme court has not taken opportunity to overturn these uh the minimum standard we're dealing with here of reasonably should have known with respect to intoxication is really equivalent to deliberate ignorance or willful blindness courts routinely and especially in the federal realm have continually found this to be the equivalent to a willful decision when someone outright ignores what would be obvious to a similarly situated person in the circumstance there is criminal liability for that and it is in excess of what we consider reckless or wanton disregard which is underpins our second degree murder statutes underpins reckless endangerment and recklessness is already embedded as a mens rea and things such as domestic assault or other other crimes so that said one of the materials that I provided to the committee was the set of what effectively is jury instructions used by the military it answers a lot of questions about how these things are actually applied I think it's important to note that the statute is the starting point every single criminal statute we have is backed by the Vermont criminal jury instruction committee generating pattern instructions for courts to apply that's a combination of both the statutory language and definitions and also existing case law so I trust that the professionals on those committees which includes representation from the defense bar prosecutors and is chaired by a judge will work through these issues successfully and adopt definitions that ensure the due process rights of offenders while also meeting the intent of the legislature to ensure we have an effective statutory regiment to respond decisively to instances of sexual assault final point that I would make today there is no direct burdenship here rather in existing cases and in future cases it's a defendant's option if they want to assert a mistake of fact as to consent defense that's at their discretion and we'll say from a prosecutor standpoint we don't just blindly go forward on these cases the last hearing we began with the sobering statistics of how many sexual assaults there are how many are investigated how many are ultimately prosecuted and how many actually result in conviction there's this significant significant drop off between the cases that are investigated and those that are prosecuted and therein lies the art if not exact science of prosecutorial discretion we often have to have incredibly difficult conversations with victims that assure that we believe them and yet highlight all the different reasons why we believe the evidence will not be sufficient to prove the case beyond a reasonable doubt we do take into account what would appear to be reasonable or honest mistakes of fact we do take into account considerations of past history past relationship this is again why cases involving intimate partners who've been together for years including married partners are often incredibly difficult to prove at trial that said the marginal and incremental changes made to both consent and other definitions here i think are a more accurate reflection of the modern values about body autonomy and the rights of individuals in a sexual setting so i'd encourage the committee to adopt h183 thank you thank you i see martin has his hand up yeah a couple of questions on the issue of the reasonably should have known are there other criminal statutes that use that terminology that you're able to point to uh that that still concerns me frankly it seems to be going more towards a negligent standard and i think it's different than willful or reckless disregard which i know that we have criminal offenses that look at that as a sufficient mens rea and following up with that you don't have to identify that right now but if you can get back to me i'd like to understand where else we've used that that standard the other question i have is why can't this be put in the terminology of willful or reckless disregard uh and you don't necessarily have to answer that right at this moment either but this does this does concern me i don't like strict liability offenses or negligence offenses criminal law at least it's not it doesn't matter what i like or not but it's disfavored generally on a broader broader extent and and the other issue that i i also do see the trouble with the lack of verbal or physical resistance does not constitute consent i i think that we that's still a little broad for my liking and i think that there probably could be narrowed to really get at where you are where we want to be with this but i do respect where uh rebecca turner was raising that as as as being awfully broad i don't know if you have comments on either that i'm just i guess highlighting a couple places where i think that there's some certainly legitimate concerns here so uh the most immediate answer to reason we should have known i believe that both um of our stocking statutes include an element that the individual should reasonably have known that it would cause the individual fear so that is an existing standard uh in vermont i'll look that up right now to give you a solid answer on that um right in terms of you know in terms of the second part i don't i won't take away that there is a significant policy question about where the legislature desires the line for consent to be um you know but i guess putting this in terms of a medical uh procedure if you were to stay silent and a doctor comes and performs a procedure on you did you consent to that procedure being done is silence the silence equal acquiescence i think that's a fundamental question that's driven a lot of uh policy here and um i think what's incredibly important about the lack of physical resistance is this statute new statute or new proposed language uh directly counts for circumstances where someone is unable or incapable of offering such resistance and you know flipping it the other way around is foreseeable and it could happen even under the existing statute that someone would use the defense of someone who's intoxicated and just laying there motionless unable to verbalize well she was asking for it she didn't say no and that we have seen and heard that in cases in the past and whether that's a you know certainly from a moral standpoint that's probably inappropriate and i guess it's really for the legislature to determine whether that is a point where there should be criminal you know criminal liability my personal viewpoint would be yes that those are uh circumstances and there's not much that needs to be demonstrated to show some affirmation uh what we'll typically hear is you know the person responds positively to some sort of of touch either wrapping a leg or caressing somebody you know i want to get too graphic and community testimony but there's often something but the total lack of any affirmation it is troubling to suggest that there's um agreement to go forward with that action right but in this but the scenario you just threw into that discussion was an individual being intoxicated in some manner and that that's a separate separate situation that's a burden of proof that uh one has to show that the individual you know was a diminished capacity really to be able to consent which is a little bit different um i don't know i i i just i'm a little bit troubled by that but by that particular provision so i can give one anecdote from a pending case in washington county we had a 16 year old who was victim of a sexual assault and the main defense being offered is that she never said no um this young girl reports in her statement being effectively terrified and freezing while in the car with this individual and just basically sat there one because she was isolated from family friends and in a somewhat remote location it felt that she had no choice but to acquiesce and i think that that's but isn't that a situation i'm sorry isn't that a similar situation of some sort of diminished capacity but in that case it's because the individual's terrorized is freezing that's again is that something that can be captured in in the language in in here all right because yeah i'd like to capture that as well the problem is that this goes beyond that i think and you know maybe it's just going to take some more more thought or i'm just going to have to come around to this but sure the one thing i'll just add as a to close the loop where i started uh so 13 bsa section 1061 which defines what constitutes a course of conduct sufficient for stalking does include reference to reason on this and specifically stalk means to engage your purposely engage or engage purposely in a course of conduct directed at a specific person that the person engaging in the conduct knows or should know would cause a reasonable person to fear for his or her safety or the safety of another or would cause a reasonable person substantial emotional distress that i'm going to ponder that somehow different scenario or situation but i it just doesn't seem to be exactly comparable to what we're talking about here but i can't really articulate that right the moment i have to ponder that a little bit more and maybe rebecca turner can also kind of ponder why this is different okay i uh see david you've just uh come on did you want to uh add anything at this point sure i'll be brief again i know we're into lunch and and uh attorney turner may have a quick response also but i did want to just address the issues around the burden in 3254 which in the latest draft is pages three and four um my read of the changes there uh second half of pages three in particular is that it's not a real change from current law current law already says that lack of consent may be shown without proof of resistance and i view the the first three additions in particular there as basically elucidating that concept uh naming more specifically scenarios that are encompassed by the idea that lack of consent may be shown without proof of resistance so i don't actually view this as a a substantive change from current law i view it as a clarification of current law and i don't think that it switches a burden to a yes means yes requirement the saying that lack of verbal or physical resistance does not constitute consent um it does not follow logically that the only way to demonstrate consent is through an affirmative statement it certainly leaves plenty of room for other types of affirmation to be brought forward and to be um potentially litigated if if if it becomes a criminal case uh so i don't think that we are moving to a yes means yes standard i think we're basically staying at the current consent standard under current law um and i think that there is room to um allow for a variety of types of consent to be or evative ways for consent to be demonstrated while also encompassing scenarios like the one that uh attorney tebow talked about in terms of scenarios where uh things like silence should not be considered consent and i think the that balance is in the current law and i think that balance remains in the proposal and i'm sure may i ask a question because my hand didn't go down and i i can put it down and put it back up again but um go ahead quickly yeah so so on that language again and um page three line 14 to 15 it still seems to me and maybe i'm just maybe it's late in the week but it still seems to me that the language that struck uh is different than than this new proposed language that lack of consent may be shown without proof of resistance that tells me still that that prosecutors still have to show lack of consent whereas the lack of verbal or physical resistance does not constitute consent that almost invites a situation where it's a lot easier for prosecution maybe it maybe it is no significant difference between the two but the way that i read the struck language is again i still think there's a burden to show lack of consent it's not enough to say that this person just didn't resist uh representative again i i would view that differently i don't think that you are significantly changing the current statute i think that um it certainly is the case that lack of consent will still need to be proven just as it is currently and that is going to be a burden that remains on the prosecution all it's saying is that the lack of verbal or physical resistance does not uh disprove uh consent automatically um it's basically saying that the lack of that resistance does not uh make the person you know make the accused innocent but it still leaves i think that's basically the same standard we have currently so so is that is that kind of essentially what we just dealt with in the um gay panic defense bill that we dealt with that we're essentially taking away a defense we're saying no you can't use that as a defense is that kind of the equivalent again representative i it's my position here that we're not actually effectively changing the current burden that we are elucidating it and describing more specific scenarios but that uh lack of consent still needs to be proven um and lack of you know verbal or physical resistance is they're simply noting that that is not that by itself does not constitute consent that showing that is not enough to show that an alleged perpetrator is innocent something more needs to be shown and i think that that is essentially the same as the current language i appreciate that probably everybody else got that and i just needed to have that pointed into my head a little bit more i still have issues with the reason we should have known part and you know you can circle back around to that some other time yeah thank you thank you everybody so i am going to um stop here because uh we are coming back in less than an hour um and i want to give folks a chance to uh get some lunch or have a break whatever uh okay so thank you everybody um actually before we adjourn sarah do you have anything that you want to to say or anything or or ask just want to sarah cupin has a thing just there's always more than one sarah in the room right um no i i appreciate being able to listen in on the discussion this morning um and thank you for working through these issues um and for getting this right yeah well thank you and definitely needs needs some more discussion okay well thank you everybody uh let's uh recess adjourn for the morning