 Good afternoon and welcome to Vermont House Judiciary Committee. It is Thursday, February 25th and we are working on a proposed committee bill. Regarding hate motivated crimes. This is something that actually this committee talked about. I think it's been for a few years we've been, we've been discussing this and so I'm going to turn over this over to representative. You can give us some background in absence of counsel. Thank you. Yeah, thank you, Madam chair that it's a fairly straightforward bill and in past. Ryanium's we've looked at this particular crime it's actually it's actually an enhancement. It's not an individual crime itself, but leads to an enhancement of an underlying crime. But there we did look at some various things that we were trying to do and never really quite across the finish line because we were trying to do much more than what this simple amendment really accomplishes. And this is an area that I think that we've already learned a little bit, we have to be very careful. Because of First Amendment concerns and such but the the the amendment that is proposed in this committee bill. From what I understand we can hear from various witnesses does not does not raise a First Amendment concern it's consistent with what other states have done. And basically it's removing one word and that's maliciously. And so for hate motivated crime. It provides that a person who commits causes to be committed or attempts to commit any crime and whose conduct is maliciously motivated by the victims actual or perceived race color, religion, national origin, sex, ancestry, age, service in the US armed forces disability, sexual orientation or gender identity shall be subject to the following penalties and then the, the part that's not in front of you right now is what those additional penalties will be. If the underlying crime was motivated by hate. The bottom line is that maliciously is just really not needed. It also sets the bar higher than necessary. If one's conduct, if an assault, for instance, is motivated by one of these factors of a victim. Really the idea is that you do not need to go to the next step of trying to prove that somehow it was also malicious. I think he almost by definition. If, if a conduct that leads to an offense such as an assault, for instance, if it's motivated by one of those factors, it by almost by definition is certainly could be considered malicious, but it's not it's just simply a word that potentially adds an extra heightened element that is really not necessary at least that's the thought behind this and it's really the same concept for the second section that also strikes the word maliciously relating to the burning of cross or other religious symbols. Once again if somebody intentionally sets fire to or burns causes to be burned, etc, across our religious symbol with the intention of terrorizing or harassing a particular person or persons, shall be subject to imprisonment of not more than two years or a fine of not more than $5,000 so that's not even it's not enhancement that's an actual offense itself, but once again, adding an extra element of having to try to prove not only intentionality, maliciousness, particularly when you further out in that crime, it talks about an intention of terrorizing or harassing. Why, why does one need to have that additional term of maliciously. So, that's what it does fairly fairly straightforward, at least on its face but we'll see what witnesses think. Great. Thank you so much. Appreciate you doing that. Questions. Ken. I probably missed this but why is that word still in line six. Or is that where it's supposed to be that well that that's just an explanation of what the bill does. It's saying the bill proposes to amend the hate motivated crime stat. Okay, eliminate that word. Gotcha. Just thank you. Okay. Okay. I'm not, not seeing any other hands. So, like to welcome, Susana Davis. Good afternoon. Good afternoon. There. Thank you. Thank you so much for joining us. Yes. Thank you all for having me. Susana Davis racial equity director for the state. And I don't have a whole lot to add here. I suppose I'll say, very, just to summarize, this is a move that the racial equity task force has put forth as a recommendation in the report. This is something that certainly the task force stand by. Actually, I'm going to be adding into the chat now the list of related recommendations that the task force has made regarding hate crimes and bias motivated behaviors. I'll also just read them out loud quickly for those unable to access the chat members or viewers. We are declaring racism of public health epidemic supporting legislation to mandate hate crimes reporting and uniformity in that reporting across agencies. Supporting legislation to add confidentiality provisions for complainants in attorney general's office civil investigation. Supporting legislation to allow the attorney general's office to seek compensatory damages on behalf of victims. And to review the malicious motivation standard for hate crimes. That's the one that you all are proposing and increasing funding for the human rights commission to add capacity so that the commission can receive and address complaints more and more effectively. So this proposed bill is certainly one that the task force has deliberated on and does support the backstory and I think the representative summarize it very well so I don't want to. Oh dear, I seem to have gotten kicked off the call but I think you can. Yeah, we hear you. Okay, sorry about that. I think the representative from right that well so I don't want to be redundant but the thing about the malicious motivation standard is that it is a high burden to reach. And oftentimes we have bad actors who know exactly the level of condoms you can allow to get away with if you will, so that they don't trigger the enhancement of hate crime or bias motivated crime in their behavior. This allows people to fly under the radar and feel involved in to behave in ways that we consider socially morally and ethically reprehensible, but which unfortunately don't rise to the level that we can actually do something about it. In some cases, we have entities in the state like the AGO who are empowered to investigate certain kinds of complaints, but that power is limited in ways that we could consider expanding. For example, we know that the HRC is empowered does have the authority to seek compensatory damages on behalf of people who are discriminated against based on their membership of one or more protected categories. Seriously, AGO's office does not. Well, AGO does not have similar authority to seek compensatory damages on behalf of victims, which sometimes contributes to cases behaviors or just general incidents going unanswered effectively, or at least folks not being made whole or as close to whole as they can be because of that limitation. There are other issues the task force also raised in its September, excuse me, in its January report around this issue, things that we didn't quite come to consensus on or that we still had open questions about that are related to this topic that includes the peanut power. It includes certain elements of discovery during civil investigations for hate crimes, etc. These are things that if reviewed could give us more opportunity to discover information. There are things that we need to identify actors who are engaging in hate or bias motivated behaviors. But again, these are things that we need a little bit further discussion and of course I don't want to swim in AGO's lane on this one because they're much more diverse on this than we are. So I think I'll just close by saying that generally this is a bill that we support. It is also in line with other recommendations that we've made about revising the standard of severe and pervasive when it comes to harassment, bullying in schools and in places of public accommodation. The link between those recommendations are is that we have acknowledged that the burdens of proof remain very high, and yet the conduct does not appear to be laning. And part of the reason for that is because there are a lot of types of behavior that are still permissible under the law, though we find them abhorrent. And so bringing policy and bringing law more in line with the values that we are continuing to evolve as a society will allow us to have a better ability to tackle some of these issues. I do also want to say that I don't think this is necessarily the end all be all. I don't think that creating or prosecuting more hate crimes is the goal. It's certainly a tool in our toolbox that we can use, but of course the goal is reducing the incidence of these kinds of behaviors and also empowering people to come forward and be able to report. And that's going to require a lot more of us than the technical changes like the ones we're proposing. It's also going to require that we create an environment where people feel safe being able to approach us. And oftentimes that happens primarily at the local level where people go to a local police station. And so in many ways this certainly is statewide but also is going to require that we engage with many fatalities more, particularly in policing and investigation, so that they understand that they play a huge, huge role in the intake for complainants or potential complainants on these issues. Not only that, it also requires that we follow through when we do receive complaints or when we do take up cases. There are sometimes that people really experience a chilling effect not wanting to bring a case because even if a case is acknowledged as a hate crime or a bias-motivated incident, and even if it's taken up, if they feel that they're not going to get a fair shot at justice, then that can be enough to deter people just to see themselves flattered across the headlines for a few months, get more backlash and retribution, and then nothing. So it requires a lot more real change from us as a state and as a collection of municipalities. But I do think, I'm just speaking on behalf of the task force here, that this is a good start and that it can be very useful in helping to expand the protections that we offer for people who currently fall between the cracks based on the wording of law. Thank you. Great. Thank you very much. I appreciate your testimony. That was very helpful. And I also appreciate you putting up in the chat the recommendations. And I'm hoping on this committee bill, we talked about this yesterday, that we do have something regarding reporting of crimes. We know that that is a big issue. So thank you so much. Appreciate it. I see Martin's hand is up. Yeah, I did have one question, but just also just one quick comment. Really appreciate your testimony and appreciate the task force's reports as well. I'll ask my question first and that is, I assume that these these the list that you just provide us are from both the September in the January task force reports is that correct. That's why I make sure I know where to find it. Yeah, these actually and I'll put links to both reports in the chat, but these actually only appear in the January report. All right, so the other thing is that we talk about vehicles for getting good policy through in and this particular bill seem to be kind of low hanging fruit and as I mentioned before I've worked on a more expansive version in the past and managed to get it moving. But I think the idea is certainly to keep this one pretty straightforward. And I do know that there's going to be a bill coming out that includes a number of the governor's recommendations on the social racial equity front. And that may be a vehicle for some of these additional issues or additional recommendations. That's one thing. The others I really do appreciate the emphasis on education and those kind of things that were in the report because I think you're right. Changing it to malicious is an important step, but that's not really where we should be focusing our efforts to prevent these kinds of situations so I appreciate your testimony. And I guess I just have one more thing to add. You know, this is a difficult topic I think for a lot of us, because there are certain policies that we identify that we think could substantially move the needle on on equity and on hate incidents. And yet, we also are limited by for one thing constitutional protection. And it's difficult and I know I mean on the task force we have three attorneys and so it's there's something that feels very wrong about saying let curtail people's behavior and that's not really where we're trying to go with this right because of the deep reverence and respect for these kinds of liberties. So it really is so much about finding a balance between protecting people who are vulnerable to being attacked versus, you know, also preserving very important, but often misused legal guarantees and I don't I don't pretend that we've gotten it 100% perfect but I think that it's just really important to keep all of that in mind that none of these recommendations I think, come lightly. Thank you very much. So I appreciate your testimony. Thank you. Okay, nice seeing other hands. Okay, great. Rebecca Turner, defender general's office please. Hi, good afternoon everyone for the record Rebecca Turner head of the appellate division of the Office of Defender General. So, and I miss the draft number but for the record, I wanted to share that the defender general's office does not support this bill. But more importantly to share the reasons why we cannot support and there are two primary reasons why we can't support it. The first are the constitutional problems that come up and I, and I'll do respect to representative LaLonde, talking about how the language of 1455 the hate crimes statute does not violate the First Amendment. Recently as 2018, I litigated a case before the Vermont Supreme Court, state v shank, challenging the facial validity and as applied of this statute, even without the proposed amendment, which as the intro walkthrough confirmed makes it easier and therefore broadens the potential protected speech captured, therefore just exacerbating the First Amendment problems. I wanted to put that on the committee's radar. When I looked at the second part of this bill. I actually didn't realize we had a statute on the books relating to burning of crosses 1456. Again, the problem there is that the statute already violates the First Amendment. It already falls below the US Supreme Court standard set out in Virginia v black in 2003, the removal of yet another requirement maliciously doesn't help that situation so that is the first and primary reasons why this proposal is, is a problem moving to the second reason why we don't support this bill concerns sentencing goal problems. Now as representative LaLonde highlighted this is not a hate crime offense in of itself. Right, it is a statute that permits enhancement sentencing enhancement, where the underlying elements are proven. And what that means is that every underlying offense, where there is an alleged hateful act is already subject to criminal penalties. Right, so this is not escaping any criminal offense. It's just whether or not, and effectively by dropping out the word maliciously. It widens the road, right, to make it easier to impose longer, incarcerative sentences. This, this essentially establishes that longer sentences to imprisonment may be imposed. And I think then the question comes back to this committee is what is the goal that is trying to be achieved by that by making it easier to impose longer sentences to imprisonment. As I heard from Susanna Davis, I certainly think that's a very valid reason to try to craft legislation which is presumably one of the purposes to protect particular communities from being targeted from hate motivated crimes. And if that is the goal to protect particular communities from hate based crimes. What we know when we discussed this earlier this week in the context of 87, and the proposal of increasing fines. The studies clearly show that deterrence and rehabilitation are not achieved by increasing the severity of penalties. It, that is not in question what we know that the certainty of punishment does that. So again, does increasing penalties to imprisonment solve this does it deter people from committing these crimes. If it doesn't, and that's what the study show again it doesn't matter whether it's punishment relating to hate. If the severity of the penalties increase, will it deter. I think the studies show us that no it will not. So then the question is, well, can someone who commits these if proven hateful based motivated crimes, can they be rehabilitated while sitting in jail. Will they come out less racist less bigoted less homophobic. I think that I haven't seen any studies that that support that. Again, I question what are the goals. Being achieved by this. And, again, it complements what's what Susana Davis shared, and certainly from my experience on the racial disparities advisory panel and I've been a member of that panel since its exception. And then through the reports the 2019 report that was submitted to the legislature from our debt. And in that report, and in subsequent reports way into data, it does not include a recommendation that the legislature take on broaden the hate crime statute. And there is a reason for that. And I share just now, and I think that there's been a recognition that there are more effective means to address this problem. And what are those other means I defer to our DAPs 2019 report word laid it out. So, I think that that is all I wanted to share with committee this afternoon through any questions. I'll pause here. Thank you. Questions. Martin. Just a couple question. Yeah. The state the shank case, I know. I'm not, I'm not in a position to or wouldn't want to argue about what it means one way or another, but it's just that I know that when I looked at this a couple years ago, I'm pretty sure that that case was already out, but I'm trying to. What was the data that case is a 2018 decision. I don't have the exact site. Actually, I'm looking to download anyway, but, but, but at that time, at least we didn't, you know, when I was this. When I was working on this bill, or a version of this a couple years ago, and I thought it was after state V shank. The issue of removing maliciousness. And I was talking to the AG's office and we'll have them testify and such. But that that wasn't the issue removing maliciousness wasn't an issue that that they didn't think that was problematic, but maybe I'm misremembering and we'll have to revisit it but I guess it wasn't really a question that main question was what was the data on that, but I, but I appreciate your testimony I appreciate what you're saying as far as, you know, what is the purpose of the underlying purpose. I think it's certainly making a state statement of far as where our morals are and what we think is really reprehensible behavior. Yeah, that's you make very good points and we certainly have to take that into consideration as we're looking at this so I appreciate your testimony Rebecca thanks. Thank you. Thank you. I'm not seeing any other hands. Yeah. Thank you. Okay, James Pepper. Good afternoon. Thank you for having me. James Pepper from the Department of State's attorneys and sheriffs. The department is in support of this legislation. We have held in the past and continue to believe that the word maliciously is not necessary. We're actually in a minority of states that require showing a maliciousness or malice. Malice and others, a much more common approach is to show that a crime was motivated by racial animus or because of or by reason of a victim's characteristic so no requirement of malice or maliciousness. approach as the U.S. Supreme Court has noted victim selection based on bias, whether it's by malice or just because of or any other modifier, none none at all, inflicts a greater harm on society than non-bias motivated crimes. You know, it can cause marginalized communities to feel targeted and intimidated. It can provoke retaliatory crimes and it can incite community unrest. Do we really care that a defendant had a specific ill will or malice against a particular group when they selected a victim based on that characteristic? I mean, you could imagine a defense that focuses on attacking malice where a defendant would argue that he or she committed this crime not because of any sort of malice against a marginalized community but because of a genuinely held belief that, for instance, white people are superior to black people and they can do whatever they want. That would be an attack on a defense based on trying to undermine malice. So it doesn't, it's not necessary. The shank case did, I don't believe, change that. I know Rebecca argued it but the the ruling there never reached the question of the first or 14th Amendment challenges to the hate crime statute and we've supported this in the past and we think that it's an important piece of legislation. Great, thank you. Appreciate it. Questions? No, I'm not seeing any hands at this point. Okay, great. Thank you so much, Pepper. Great. You're welcome. Thank you. Great. All right. So we have Amanda. I'm not sure how to pronounce your last name. Garces. Garces. Great. Welcome. Thank you. Thank you so much for having us today. I'm going to be really brief because Susana already shared a lot about what some of the report and some of what we see but we do want to just make sure that I wanted to introduce me first because it's my first time here and so my name is Amanda Garces. I am the Director of Policy Education and Outreach for the Vermont Human Rights Commission and our mission is to promote full civil rights in Vermont. The commission protects people from all of full discrimination in housing, state government employment, and places of public accommodation and we do that through investigations, conciliations, and litigation. We provide education and outreach that's part of my job to work with the communities on the ground for their needs and our protected categories are women, children, people who are Black or different people of color, new Americans, persons with disabilities and members from the LGBTQA community. So we are here to support this statute change but we want to echo some of what Susana said but also we are just knowing that this is not a jurisdiction. This is really the Attorney General's office and we would like to defer to them since they are the ones that investigate this type of crimes. So I just wanted to say that I believe any changes we believe at the HRC that we support this and giving the rise on hate and bias in our country these days, you know, we've seen the rise of xenophobia and racism against Asian Americans and we really want to see to make sure that, you know, things are strengthened to give the people's the voice that they need. So I just wanted to be short and make you listen to me because I'm echoing what Susana already told you in her brilliant ways. Well, thank you and you can take as much time as you like. Please don't feel like you have to rush or be short. It's always good to hear from many voices. So thank you. Appreciate it. Thank you. Thank you. So make sure there are any questions. I'm not seeing any hands. Okay. Great. Well, thank you. So that is our testimony on the committee bill. So I'm going to put this aside for now and we have a little bit of time. Well, I'm sorry, Kate, I see your your hand is up. Great. And I'm on mute. Thank you. Sorry. This is the last minute question. So we just heard testimony and I don't know who exactly this would be directed to, but maybe Amanda or Susana if she's still here. But so we just heard testimony from the Defender General's office expressing some concern that making this kind of change would actually potentially sort of perpetuate inequitable outcomes in the criminal justice system. And I guess I'm just curious to hear from those who are testifying in support who tend to represent folks who are within more marginalized communities, just what your perspective is on that take. Susana, sure. Actually, we can certainly hear from more than more than one person. Susana, do you want to start or then we can hear from Amanda? Can't hear you. How about now? Yeah, I can start and say a little bit about that. I'm glad that that was raised because I don't think that these concerns are mutually exclusive. We know, for example, that people of color, people experiencing poverty, people from other marginalized communities are often overcharged, over incarcerated and treated more harshly in general by the justice system. And so enhancements and crime enhancements tend to be things that justice advocates tend to oppose for precisely those reasons. They're often used much more heavy-handed than against the kinds of populations who we're trying to protect. So yeah, I think that that is an important concern and it's one that we should be tackling simultaneously with the rise in hate crimes and bias-motivated incidents. I think that there's a lot of focus and I have these conversations in my personal life as well with folks close to me. There's a lot of conversations about how can we punish more? How can we enhance more? And again, I came here speaking on behalf of the Taft Force and this is something that we support, but I do just want to stress again that this shouldn't be the only tool in our to luck because it relies, first of all, on a downstream process, which is punishment after something has happened or investigation after something has happened and because it doesn't really get at the upstream factor, which is a person's motivation to act in this way. I also note that our society is changing rapidly and so our definitions of bias have also changed rapidly and I want to make sure that our law is not overly heavy handed. So yeah, I would say that I share those concerns precisely because outcomes for criminal defendants tend to be worse for people of color and other marginalized groups, but I think we can do our best to address both sides of that. Yeah, I'll leave it there. All right. Thank you. Thank you very much. Amanda, did you want to? Yeah, I mean, I think that I think we do want to make sure that we're deferring to the Attorney General because they are the ones investigating and they are the ones that see the full scope. So on that front, I don't think I have any further comments than that. Thank you. Any of our other witnesses wanted to weigh in? Okay, great. All right. Thank you. Thank you very much. I am going to turn now to the request from the House Corrections Committee. I realize we are going over time. I'm sorry, I didn't realize we'd be on the floor so long, but let's see. Let's go until four o'clock and see where we are. I know we have some witnesses that are not coming. So Sarah Robinson, let's start with you. Good afternoon. Hello. Good afternoon. It's good to see you all. So thank you for the invitation to testify today on the Section 8 of the House Corrections and Institutions Committee Bill that they are currently working on. We testified over there this morning, but because corrections related issues tend to happen in the House Corrections and Institutions Committee, I just wanted to take one moment to share why the network has a long-standing commitment to incarcerated and formerly incarcerated women in Vermont. For nearly two decades, we have operated the DEVA's program. It's an acronym that stands for Discussing Intimate Violence and Accessing Support, and that operates out of the Women's Correctional Facility, both in the current location and in previous locations where the women's facility was located. And DEVA's provides in-person trauma-informed advocacy to women at CRCF who identify themselves as victims of domestic and sexual violence. I would just note that the overwhelming majority of incarcerated women have experienced some form of abuse, often sexual violence or domestic violence, which really links the violence in women's lives to their entry into the criminal justice system as defendants. And we were closely involved with the Downs-Rackland-Martin investigation and provided several interviews to the investigators, our on-the-ground team and our organizational team. And we also organized a focus group for the investigators with other organizations that are contracted to provide services at CRCF. We were not surprised by the report findings. They largely mirror our observation that there is a deep and long-standing cultural problem with sexual misconduct at the Chittenden Regional Correctional Facility, and that will require a long-term and multifaceted solution, not just one thing. But in regards to Section 8 that this committee is looking at today, the seven-day story that began this conversation or renewed this conversation again highlighted recent sexual misconduct at CRCF with people who were or are incarcerated there and among those recently released. And it really highlighted the importance of this proposed change that you're looking at today. Even if an inmate, parolee, or probationer is not under the current direct supervision of a Department of Corrections employee or contractor, a sexual relationship between a person that was formerly incarcerated or supervised and a DOC employee or contractor in our estimation is still defined by an insurmountable power differential that often involves coercion. And while we believe that the cultural issues highlighted in the Downs-Rackland-Martin report certainly require multiple strategies to address sexual misconduct, this is one important step, this expansion, and we support the proposal. Great. Thank you. Thank you very much. Kate, is your hand up from before, or do you have a question for Sarah? Okay. I'm off. Thank you. Thanks. Okay. Tom. Yeah. I guess I'd like to hear that explanation again, Sarah. So I think I'm pretty sure what I heard was that once somebody is say released from prison and out on their own and back to their life that this could still apply? So the the proposal is that the individual does not need to be under the direct supervision of the Department of Corrections employee for there to be a criminal act and that a Department of Corrections employee does not need to be directly supervising that individual for that to be a problematic behavior. And in some of the cases that were highlighted in the Seven Days article, for example, individuals were former correctional officers who had supervised inmates while they were in the facility and then those inmates were released. They were being supervised by a different DOC employee, but those correctional officers were engaging in sexual misconduct with the released inmates. So they didn't have a formal supervision relationship, but they had formerly overseen them at the facility. And so this proposal will would expand the prohibition on sexual relationships between DOC employees and contractors and individuals under DOC supervision. Okay. I can appreciate that. But it wouldn't for somebody who's been released and they weren't under any kind of supervision, it wouldn't apply to them, though, would it? That is my understanding, correct? Okay. Okay, that was that was my fear. Thank you. Thank you. Anybody else? Great. Thank you so much, Sarah. Thank you. Okay. A.J. Rubin. I know you're juggling. Is it a good time for you? Yes. Thank you so much. Yeah, thank you. Welcome. Well, thank you so much for inviting me to speak today. My name is A.J. Rubin from Disability Rights for Montenegro, I'm a supervising attorney there. We do a substantial amount of work within the prisons, being the federally authorized protection and advocacy system for people with disabilities, as well as the state's mental health ombudsman. My staff are some of the few people who have federal authority to go inside of prisons and and talk to prisoners with disabilities, which is a lot of the prison population. So on section eight, I've pulled my staff about the impact of this on our clients. And we do not see any negative impact on our clients from going forward with expanding the prohibition to, as Sarah said, folks who are still under the supervision of the department, but not necessarily under the supervision of a specific individual. And so we have no objection to that. And we think that these are all very important steps to take to protect prisoners and the community at large. If you have any questions, I'm happy to answer them. And thank you for inviting me to speak. Great. Thank you. That's helpful. That's great. Let me just give committee members the opportunity to raise their hands. Not seeing any. Great. Well, thank you. Thank you for being available. Appreciate it. Good luck with all you're doing. Thank you. Thank you. Okay. Ashley, she's here. Great. So thank you. Thank you for inviting me and having me appreciate the time and the attention to this matter in regards to section eight of the draft bill. First of all, let me introduce myself in my organization. I'm currently the executive director of the women's justice and freedom initiative, which was really a nonprofit that we founded to lift up the voices of directly impacted folks. We've done a lot of work as well as Sarah Robinson mentioned with the folks at CRCF. I spent a month on the ground in that facility with the staff and the incarcerated folks at CRCF in the aftermath of the article that Paul Hines wrote in December of 2019. We myself was involved in almost every aspect of the independent investigation and since the work around the recommendations and the report itself. I am also a formerly incarcerated woman at that facility and hold many relationships with the people still there and formerly incarcerated there. My comments about section eight is while I as well support the intention, I do have concerns about the impact for more in section two where it talks about for people being supervised in the community. I think that this language is incredibly vague. It simply says if you are a contractor, employee, contractor or other person providing services to offenders on behalf of the Department of Corrections or pursuant to a court order and it lists out the different levels of community supervision. It essentially just says shelling age in a sexual act with a person is prohibited. My concern becomes I'm going to take my own personal example so I'm currently married to someone who is on parole. So community supervision sentences can be many years. They can look very different. They can be for many different charge types. So my concern becomes if I were to then be a contractor of corrections, I'm currently not, but I do an immense amount of work with them and I am then married to someone who is under supervision. I think this language is too big. I think this language is trying, I think this section is trying to address that power differential that you heard Sarah speak about. I think that the intention is good and I also can see from someone who's been on supervision, someone who is married to a person who is on supervision and does work with corrections, how there is a piece of this that we're not addressing. And so I have some concerns about being more intentional and specific with the language to address a situation like my own marriage. Thank you. Happy to take any questions. Okay. Thank you. Thank you and thank you for your work. Appreciate it. Okay. Ken. What section did you, did you say that paragraph number two, is that what you were talking about or section two I should say? So under section eight, it says A, no correctional employee contractor or other person providing services to offenders on behalf of the Department of Correction or pursuant to a court order in accordance with a condition of parole probation supervised community sentence or furlough shall engage in a sexual act with a person who the employee contractor or other person providing services knows and then their section one is combined to a correctional facility or underneath that there's subcategory two, which says is being supervised by the Department of Corrections while on parole probation supervised community sentence or furlough. And that you were focusing mainly on the section two part or the whole thing? Well, I'm concerned that it simply says shall engage in a sexual act and I'm concerned with folks who are on supervision. So we're talking about 5,000 people who are under supervision of corrections at any given time. And then we're thinking about corrections and contractors and folks that do work with correction supervised people being it's one of the largest employers in some communities, right? And so I'm thinking about the relationships that are not part of the coercion that we're talking about in the report that we're talking about in the recommendations, the exploitation, the harassment, the sexual assault. But what about the people like I use my own example? I could become a contractor of corrections. My organization very well could we work with them every single day. So someday we might, but I'm also married to somebody who is currently under supervision of corrections. So this would make me subject to this language. It does not address at all any sort of like healthy successful safe relationships either. That is my concern. Yeah, I was fine. I was just trying to I thought you went right to two and I went to two and then I was backing up. So it's we're good. Thank you. Thank you. Okay, Barbara, coach and Kate, and I'm sorry if I'm not calling on you and and then Selena in the order that you that your hands went up. Hi, Ashley. I have a feel. Oh, I'm not on mute. Okay. I thought it was. I have a feeling that you may have just addressed my question with the answer you gave to Ken. But I was concerned to make sure contractors were in there because I was thinking in some cases contractors have a ton of power differential over people and you wouldn't want them to be taking advantage. I see your point and I'm just wondering about some some process that's built in for like a disclosure that would not make you subject to this like I'm married to somebody and I I mean one they obviously wouldn't put you in any kind of role related to your partner but but having that be an option rather than do away with and maybe you weren't saying do away with um but I was worried about people out in the community too somehow being pressure to do stuff because they were still under pressure from corrections and not wanting to ignore their protection. Yeah, I hello. I appreciate and I appreciate the intention and I I agree with you right if we we think about this it's it would be very easy to say even as a contractor do what I want you to do or I'm going to tell your PO right I'm going to tell the person supervising you I'm going to create a narrative so you are re-incarcerated right that's the power differential we're talking about and I think the piece that's missed often and it's a lot of to what I testified yesterday in house corrections is really about we're doing a lot of employee heavy addressing these recommendations we're doing a lot of focus on the staff the employees the contractors and my viewpoint is always to talk about the unintended consequences for the very folks we're trying to protect right like that's something we just heard in testimony about hate crime work is around how do we also not further harm the very people we are trying to protect right and so I think that whether we build in a mechanism somehow to address this it has to be addressed that's a lot of people that is thousands of people who could start a new relationship you might be a contractor in a male identified facility a new port and start dating someone who's under supervision in Burlington but it's you guys met at like a coffee shop right that we're trying to address coercion exploitation power and control but we have to have this there is no language in here that addresses sort of any of the consensual piece or healthy pieces or folks like myself and if this were a client centric bill would you see it looking different and by client maybe that's not the right word but I prefer to use that then yeah inmate or you know I appreciate the use of language I tried to not to use the word inmate as well so I would say again I I think there would be language in here specific to some of those there are so many barriers for those of us trying to reintegrate into society there I mean and and in building relationships and I just think about all of the contractors corrections works with and that the courts work with and then I think of all of you know to say that you can never engage in a relationship with someone and having no specific language to address the other side of that I think we'll end up being more problematic for the very people we're trying to protect right like you raise a great point yeah thank you thank you uh coach and Kate and Selena mute here Ashley thank you so much for for testifying as always my question is has your group considered any language in regards to that section that you'd like to have us at least look at I think we would be happy to provide some thoughts on language and and work with um the committee or or house corrections if that's more appropriate to to work through how to how to think this through in a more incarcerated person point of view or supervised person point of view I just really see this as creating another barrier yeah well I can it it only makes sense you know we have a very large community in our in the upper valley and I see that potentiality so I would be interested personally and at least offering that consideration to madam chair but thank you yeah thank you yeah thank you coach and that would be helpful thank you uh mute your hand is down yeah I lowered my hand coach coach just um through ask the question great okay thank you um Selena you're muted oh my goodness I'm so sorry um coach I actually have the same question as coach and Kate um so really just wanted to to thank you Ashley because I've this question has been kind of forming in the back of my mind every time I have looked at this language I haven't I have unfortunately missed some of the the previous committee discussion on it but um yeah we would really appreciate the opportunity to work on just getting us closer to our actual intent here with your collaboration great thank you and uh coach I do see your hand is still up I just want to make sure that it's you're good okay great okay well Ashley yeah thank you very much and and do look forward to working with you more in this thank you appreciate it thanks thank you uh okay well and said four o'clock we have two minutes and we have Matt Valerio here so if we could hear from Matt since you are here now we complete our testimony at least for today thank you good to see you Matt um it's good to be here I will tell you that uh my testimony in no way will uh be complete in two minutes um I know I'm giving you more than two minutes absolutely but what I meant to say was you're here so let's let's let's hear from you please I'm Matt Valerio and I'm the defender general and I need to give you some background on this so you understand how this came to be uh there was no specific statute on sexual sexual exploitation of an inmate prior to 2005 and I was defender general during that period of time and this statute was developed um and written to comply with United States Supreme Court restrictions on constitutional restrictions on state interference with personal relationships um and just so that you know a little bit about my background before I was defender general I was in private practice from the late 80s until uh I became defender general in 2001 and during that period of time um I represented many people who were charged with sex crimes um as a private attorney but I also represented um many corrections officers who were charged uh in either with uh having sexual relationships with inmates um from a uh in their employment cases that were brought by the Department of Corrections and I also represented victims of sexual assault who had been forcibly assaulted by corrections officers um bring civil lawsuits against the Department of Corrections to uh to get them made whole as best as you could under those kind of terrible circumstances so as a practical matter at one time or another prior to becoming defender general I had represented all sides of this issue in different venues I've seen this for a very long time in a lot of different areas um prior to 2005 if there was a criminal case brought against a corrections officer it would be under the same standard as any sort of sexual assault or sexual misconduct um so you know lewd and lascivious conduct um or um sexual assault uh you know forcible or otherwise um and uh and that's how and that's how it was handled uh there came a point however um where there was a recognition as we did with other professions um that have a power imbalance that it was necessary to do a statute create a statute that recognized that that power imbalance um was real and needed a criminal response that having been said so if there you have to look at the circumstances where these things arise obviously within a correctional facility there couldn't be a probably larger power imbalance between an individual and a corrections officer that you could possibly imagine they control 24 seven pretty much everything that you possibly can do but here's where the rub came in and it was with subsection two people who were on supervision no matter what you call it whether it's probation parole supervised community sentence furlough or whatever we might call it in the future we go but all the way back to there's a famous case griswold versus connecticut um which was one of the early contraception cases um that for you know those of you who have paid attention to that and one of the precursors to the row versus wade case which recognized that that uh americans have a protected liberty entrance a constitutional liberty interest in a right to association and particularly in their right to intimate relationships with whoever they want to have intimate relationships with and that the government can't get into your intimate relationships and tell you what is right or wrong whether it has to do with contraception or um same sex relationships or the like as it's developed over the years um so for the state to impair your right to have um this right of association this right of an intimate relationship the state has to have a compelling interest not just a rational basis or or a a reason that's sort of good it has to be a compelling interest and when the state acts in that area whatever limitation they put on it has to be the least restrictive means available to satisfy that compelling state interest so the state has no interest in regulating regular set sexual relationships you know between consulted consenting adults does it have an interest in regulating sexual um conduct between inmates and corrections officers of course it does it has a heightened interest when somebody is actually incarcerated does it have an interest in relationships where the person is under supervision but and so the i think the answer to that is yes it has an interest but if that person is not under the direct supervision of an individual we have to make sure that we tailor the state intervention in a way that is the least restrictive possible that still gets at the issue and so what the statute was drafted about was to get at the supervisor supervising relationship as you can say and and understand that there are relationships that are going to exist as the prior witness talked about where it's husband and wife where you're going to have somebody who works for the department of corrections and somebody who is under supervision um that uh would not be we wouldn't want to term them as criminal and the state wouldn't have an interest in terming them as criminal um as a result of that relationship let me go a little bit further and recall for you some of the testimony that went on in 2005 when this was passed um at that time we were coming out of a period of time when one in five males under the age of 25 years old were under the supervision in vermont of the department of corrections um and they were basically on probation the vast majority of them for uh possession of beverage crimes that occurred when they were 16 years old of age or older and they had failed to complete the crash course so they ended up on probation pretty much indefinitely now at that time this was prior to justice reinvestment one we had almost 20,000 people either incarcerated or under the supervision of the department of corrections and we reduced that number after that but in the in context you almost couldn't go anywhere and and where there was a group of males and not find somebody who wasn't under the supervision of the department of corrections um so it would not be unusual to have somebody who came up from uh bennington and uh you know perhaps got a dui and ended up under supervision for uh for that offense um being related to somebody who was working for the department of corrections in some capacity uh at that time we had a number of people come and testify and talk about like how can this is untenable and it's not a matter of whether you're married or not married the whole constitutional issue of the right of association and the right to a relationship is not based upon marriage so it could be a you know boyfriend-girlfriend relationship or dating relationship of any variety and as a result this was crafted at the time to try to best as it could take into account individuals who we know exist in society who would be subject to a five-year felony criminal offense only by virtue of their status as opposed to any kind of power imbalance because this is not a this is a what we would call a strict liability crime um if you fit the status you are um subject to a five-year felony so this portion was which is sought to be struck was carefully crafted to make sure that it met constitutional muster and it in court and it recognized that there are going to be a lot of individuals who have relationships with people who work for the Department of Corrections who may be under the supervision of the Department of Corrections and at the time VSEA came in and individuals from the Department of Corrections and testified very similarly to the prior witness that it would be problematic if this were a mere strict liability offense for somebody being on probation or in supervision of the Department of Corrections engaging in a sexual act or sexual relationship with somebody who worked for corrections it so we don't support the bill because we I know where it came from number one and while the you turned up and it was turned up during the seven days uh articles and in the Downs Rackland Martin report that there was clearly um inappropriate relationships with people who were on who had been released either on furlough or on probation or at parole um to me the issue was not this statute the issue was the lack of enforcement prior to you know during that period of period of time because they were exercising a coercion to gain a sexual advantage and it's so the the statute itself to me was not the biggest problem I also just as a caveat let you know how extensive this protection under the First Amendment liberty interest is this right of association now we all know about you know we're much more knowledgeable about sexual relationships in the workplace sexual harassment and and in general sexual relationships one of the most protected areas of employment law and I've come across this many times as Defender General with individuals who work for the Defender General's office both as contractors and as employees if some if I have individuals in an office who are engaging in a sexual relationships contrary even to the policy I can't fire those people but but what I can't do is leave them in a position where you have a supervisor and a supervisee so to speak I can't leave them in that so I have to transfer one of them out to another office so they're not subject to the control or the potential control um of of a supervisor or the like it is not that I would want to fire people generally under those circumstances but it can clearly cause problems in an office environment but but just so that you understand on the civil side of it those are folks that we have I have to make accommodations for who are not um engaging in anything criminal or even against a statute in in Vermont they but they have protection of their employment rights under this concept you don't go the next step and say is that kind of conduct criminal um and you you get to an even heightened level of scrutiny um where you have to be very careful about what you are prohibiting so as not to sweep in and I and I think the prior witness um maybe use the wrong you know the wrong term this isn't vague what this is is overly broad if you are going to um eliminate this section what this section does is focus it down to the group that you're really trying to get at understanding that there's nothing that is going to be a hundred percent perfect um to to satisfy every situation and I think that's about all that I can I would hope to tell you right now um and I'm happy to take any questions okay thank you thank you Matt uh Kate yeah thanks um I guess I'm just curious like so I'm looking at the language of the bill um I guess it is currently and it refers to um being on someone's caseload sort of as the way of like narrowing the focus and I'm just trying to imagine a scenario that seems like relatively likely to me where you might have someone on probation or parole and there's a they are having um another probation officer within the office that they're receiving probation from um starts to make sexual advances on that person so it's not it's not their probation officer they're not on this person's caseload but it's someone within the office that manages their probation and and so it seems like the current language would not provide any protection for that person and I'm just sort of I guess I'm trying to sort of work out someone at the conversation we were having with the witness before just how to to me it's not about whose caseload you're on it's about consent and the app that the sort of act itself and I don't know how you carve language out around that but and I don't know if I'm formulating a question exactly I guess I'm just saying like in the scenario I'm describing would not that would would that person receive protection under the law as it's currently written I guess is the question I don't I don't think they would under this but I think they could under our regular sexual assault statutes and um and you would deal with the the proof of the proof of coercion by virtue of their position the remember that there is there are a number of ways to the skin is cat so to speak you can someone as they did in the past could always be charged under other sexual assault or sexual misconduct statutes the other thing about this is that it doesn't just because it's not a crime doesn't mean there's not a consequence so you may lose your job and that was part of what you know back in you know 25 years ago when I was doing that kind of work representing individuals in the department of corrections who would have relationships with inmates or offenders who were out on probation or parole um and you know there was a there was a job consequence as well to that even if it was a completely consensual situation so you know sometimes it's not the criminal law that is going to solve your problems but but other statutes and even the collective bargaining agreement that is where it has been worked out between the department and its employees you know I I don't I just don't know that the the five-year given the amount of this that had had gone on even with this statute in place I don't see there being a deterrent effect it's more about what happens after the fact um okay thank you anybody else okay all right thank you thanks Matt no problem thanks for having me yeah sure okay everybody so thank you for hanging in there uh adjourn and uh go off