 Good morning and welcome to Vermont House Judiciary Committee. It is Thursday, March 26th. Yep. And we are hearing from Representative Lucy Rogers on a proposed amendment to H 183 so welcome. Thank you, Chair grad. My amendment changes an order to an and in the definition of sexual consent. So, as the bill currently reads, it says consent means words or actions by a person indicating a knowing or voluntary agreement to engage in a sexual act and changing consent to the and will require that in order for the definition of consent to have been reached the act must have been both knowing and voluntary instead of one or the other. So I think the confusion here arose because when a prosecutor is prosecuting cases of sexual consent. They're prosecuting to show that there was a lack of consent. And this is so they're prosecuting a lack of consent but we're defining consent. So in defining consent. It needs to be both knowing and voluntary in order for lack of consent to occur if it's either not knowing, or not voluntary. Either one of those will then allow it to not have met the definition of content consent which is both knowing and voluntary. So that is my amendment. Thank you. Committee members any, any questions. Okay, we do have to know what we're going to be hearing from some other witnesses. Yes. Yeah, absolutely I'm going to turn now to to the Attorney General's office I don't know if the state's attorneys are available or not but I believe they have been invited and then. And then we will hear from from victims advocates. David welcome. Good morning. Good morning, Committee David chair for the Attorney General's Office. The Attorney General's Office supports this amendment. The committee will recall a memo that we submitted along with States Attorney Ori Tebow, in which we did, in fact, recommend the or and I'll quote the last line of that recommendation. to elect between a sexual assault being committed by either a lack of a knowing agreement or a voluntary agreement, but requiring both could raise the current burden. We still believe that that is very important, that we should that it would raise the burden if we were required to prove both. We agree with Representative Rogers that upon further reflection thinking about how this is going to play out, thinking about the logical implications of this, it is actually the and that will prevent the raising of the burden. And for that reason, we support the amendment. We think that that enacts our intention correctly. And frankly, we apologize to the committee for not catching that earlier and want to give appreciation to Representative Rogers for catching that now. So for those reasons, we support the amendment. I also just got off the phone with States Attorney Tebow, who gave me permission to represent to this committee that he agrees with this amendment also. And he agrees with the way I just characterized the recommendation memo and the way in which it will be more properly enacted, its intention will be more properly enacted by this amendment. Thank you. Any questions for to Sarah Robinson Network? Good morning. Thank you for having me, Sarah Robinson, Deputy Director at the Vermont Network Against Domestic and Sexual Violence. Our position is that we support the amendment in front of you this morning. And similar to the Attorney General, we want to ensure that the language of the bill doesn't unintentionally create any additional burdens on survivors or on prosecutors seeking to bring sexual assault cases in Vermont. And given what we have heard from the Attorney General's office and the State Attorney's office, we believe that this change will accomplish this goal and in fact be helpful to prosecutors and ensure that survivors do not have an additional additional burden. And I do just want to say that since this change has kind of arisen near the end of the process, we're again very grateful to Representative Rogers for highlighting it and to the Attorney General's office and others for considering the impact in the courtrooms as these cases are being litigated. But we're also taking kind of the broader view and just look forward to continuing to monitor how all the pieces of language in this bill work together in concert as the bill continues to move forward and through the legislative process. So again, we support the amendment in front of you today and look forward to continuing to work on this bill through the legislative process. Thank you. Any questions for Sarah? Okay, so we do need to vote on this amendment. Celia and then Tom. So as you said, I was in discussion with Representative Rogers and Attorney Chair and also spoke with State Attorney Tebow last night and Legislative Council this morning. And I think just one thing I would add is that as State Attorney Tebow pointed out, in most jurisdictions that have adopted these standards, the language is knowing and voluntary. And in fact, that's why Michelle originally drafted things this way. And I think that's helpful in that, you know, this is some of this is new new languages for us in Vermont. And that makes it crystal clear that we can look at case law, federal case law and case law and other jurisdictions that have adopted the same legislation and hopefully, you know, gives us gives us a clear path as we interpret it here in Vermont. So I felt like that that was that that that definitely resonated with me as a no in favor of the MMM. Tom. Thank you, David. I wonder if you could just give a I need another explanation just to get a little better understanding of the difference between the or and the and I guess maybe a hypothetical on you know, if or was the language and how it would be different, maybe with the and in there, something like that? Sure, Representative, let me let me try to do that. And I'm having trouble finding the bill on my too many windows open here. But I think I can just say it here. So let's imagine that a so right now, the the as it as it is right now before this amendment, that the meaning of consent, which is defined in a positive manner, consent means that there is either I'm adding some words, but I think these words are not changing the meaning merely clarifying what this says. Consent means either knowing or voluntary agreement. A prosecutor is going to charge a case under a one of 32 52, which is the basic sex without consent version, the sort of most basic version of a sexual assault charge, which is also I believe the most standard version. So we want to be careful not to raise the burden on that. They're going to charge that they're going to have to say that there was an absence of consent in order to prove the charge. So so let's say that the prosecutor says, well, I can show that there was no knowing agreement. The defense attorney is going to say going to come back or could come back and say, okay, fine, there was no knowing agreement, not even going to bother arguing that. But I can show that there was voluntary agreement because consent means and that's important because consent means either knowing or voluntary. All I have to do is a defense attorney to show one or the other because of the way consent is currently defined. So then the defense attorney comes back and shows, look, I can show voluntariness charges done. I've defeated the charge. So what you've effectively done in order to prevent that from happening under the current language is that you have required that prosecutors in every case will have to plead and prove both knowing and voluntary in order to prevent a defense attorney from making that argument successfully. If you change it to an and, the defense attorney only has to show one or the other because now they're going to say absence of consent, I can show that this person had no knowing agreement. There was no knowing agreement here. Well then a defense attorney can't raise that argument because consent means both knowing and voluntary. So if a prosecutor can show that there is an absence of one of those two, now there's no consent because consent means both of them. Can you say that again? Let me try to say that again. So under the proposal, going forward, consent will mean that there has to be both knowingness and voluntariness in order for there to be an agreement that constitutes consent. A prosecutor then has to show an absence of consent in order to successfully prosecute the charge. And they will, under the proposal, they will only need to show one or the other of those two ways in which agreement may happen, like either knowingness or voluntariness. So let's say they pick, no I'm not saying pick, I'm saying let's say the evidence shows the absence of knowingness. A defense attorney cannot now come and say, well you may show an absence of knowingness, but I can come back and show an absence of voluntariness. Or the defense attorney doesn't even have to show that. They can basically just argue on a motion to dismiss that the case hasn't been been pled properly. Because now with the and, it means that in order for consent to exist, both things have to be present. And if only one of those two is not present, now you've properly pled the case and all you have to do is prove it. So the complexity here is that we define consent in a positive way saying consent means this and then the crime is defined in a negative way. The crime means the absence of consent. So that's where this becomes conceptually really difficult to sort of wrap your head around. It took me a few minutes to sort of fully assimilate what the implications of this are. But basically the and means that both have to be present for there to be consent, which means that a defense in the consequence of that is that it a prosecutor only has to plead and prove the absence of one of them. Because if one of them isn't there, then consent isn't there. Okay, great. Thank you. David, is this positive and negative dynamic that that you're referring to? Is that how other states statutes are drafted as well? I did discuss this with Rory and Michelle briefly. And yes, my understanding is for answers. Yes, this is the typical way to draft statutes like this. Any other questions? I guess I don't really have a question just a quick statement that I mean, the key to me is that further to actually really be consent. It has to be voluntary and it has to be knowing. And that is the bottom line. I mean, I think that that if you're missing one, then it wasn't consent. I think it kind of breaks down to that, that simple. Thanks. Slia, and not to complicate things further, but I think in the examples that David was using, I mean, it's a little tricky because I think knowing is especially in all of the other work we've done in these sections is now kind of intrinsically tied to voluntary. But you could have someone, but by the same token, so David used the example of where you could prove that it was voluntary, but not knowing. But I think the more likely scenario might be that you could be like, well, the person knew what was happening. You know what I mean, even though it wasn't it wasn't it was arguably not voluntary under other aspects of the statute. And that I think is what we're trying to I don't want to put words in representative Rogers mouth, but I think that that's the more likely scenario that we would be trying to avoid here. All right. Okay. I'd entertain a motion. I would move to find the motion favorable. All second. Just any more discussion? Okay, so why don't we do this by a show of hands. All those okay. And lower hands. All those. Okay, great. All those opposed. Okay. Great. Thank you. So Selena, you will report the vote for the committee. Yes. And I counted 803. Does that sound right? Yeah. Barbara. Barbara. Coach. Coach and Bob. Right. Okay. Okay. Great. Well, thank you. Thanks everybody for coming back and thank you Lucy. Yeah, thanks. Thanks to the committee for your time this morning as well. Yeah.