 Good afternoon and welcome to Vermont House Judiciary Committee and it is Tuesday April 27th and we are going to be looking at H 145 and act related to amending the standards of use of force for law enforcement and the bill has come back from from the Senate and so the question for us today is whether or not to concur and we have our legislative counsel Bryn Hare with us to explain the differences in what passed the House and the Senate. So good afternoon Bryn, welcome thank you. Thank you good afternoon committee for the record Bryn Hare for legislative counsel and the so I'm here to talk about the Senate amendment to H 145 and it was in instances of amendment so I thought I could just share my screen so you could take a look at the at what they did and I'll just start out by saying that they the Senate only made two changes to the bill so this should be a pretty straightforward walkthrough so can everybody see this draft 2.1 that clear yeah I see nods okay so it's as I mentioned there's just two instances of amendment and I'll start out by saying that they that the Senate didn't amend section one which was the law enforcement standards for use of force they didn't amend anything in that section so if you remember the bill primarily made a few tweaks to the standards for law enforcement use of force and it swapped out that language about prohibited restraint and the definition of prohibited restraint for chokehold and the new definition of chokehold throughout the standards and also the professional misconduct statutes entitled 20 and the senate amendment doesn't change anything about that leaves all of that alone so the first thing that they changed is if you remember the justifiable homicide statute was a part of h145 because we had to correct some cross references after you added some language in the standards for use of force so the justifiable homicide statute appeared in h145 and as the Senate was looking at it I think it was Senator Sears mentioned that subdivision two here which is not about law enforcement this is a justifiable homicide statute that just applies generally says that if a person kills or wounds another in the forceful or violent suppression of a person who's attempting to commit one of these crimes murder sexual assault aggravated sexual assault burglary or robbery shall be guiltless and so the committee engaged in some discussion about what that would mean for a person who killed or wounded somebody who is committing a burglary for example that might not have been a dangerous burglary so they had some conversation about what the jury instructions model Vermont jury instructions look like for self defense and they decided to add some language here that made it clear that this would this justifiable homicide statute would only apply if the person reasonably believed they were an imminent peril and that it was necessary to repel that peril with deadly force so that's the language that they added here to subdivision two right here so although they replaced the whole section four of the justifiable homicide statute that is the only new language that's the only difference between how it appeared in the house version of h145 and the senate version just that so all these changes that you see in subdivision one those were the those were the sort of updating amendments that you made in act 165 and then the changes in subdivision three which is the part that grants immunity to law enforcement who are who kill or wound somebody in accordance with the with the standards for law enforcement use of force no changes there so just to that subdivision two are there questions about that before i um move on to the second instance of amendment uh tom has a has his hand up yeah uh thank you i have a question and but i'm not quite oh sorry i just said um yeah yeah subdivision two uh if the person reasonably believed um that is that a case by case uh situation because uh and i'm gonna ask that's not what a reasonable person would believe right um so the reasonable reasonably believed standard is one that you see in the law enforcement um standards for use of force as well that reasonable person standard yeah really is judged on a case by case basis looking at the facts and circumstances of the individual case um and whether or not it was reasonable for the person to um use that force in that situation okay so uh um so so it's always a case by case yes absolutely it's not okay because i'm i mean i don't know how how i ever thought it would be determined but i kind of looked at it as an as an average there's an average in there some kind no um for a reasonable person i guess but okay no that's great to know that thank you yeah depends on the circumstances yep uh selena oh i mean it's always so hard to um when it's not a strike all to i'm just so i'm trying to understand with this new language um because it seems closely tied to the person's perception in that moment and i do appreciate the standard of reasonably believed but in the work on the underlying policy um i think one of the important things we've done is include you know definitions that essentially require an assessment of the totality of the circumstances and i'm wondering how you see like does this does this then still require that degree of assessment or so i'll just emphasize that this does not apply to the law enforcement standards for use of force this is separate um and and you may have missed when i first started out talking about this they were thinking that what the senate was doing was thinking about scenarios where um where a person kills or wounds somebody who's burglarizing their home for example but perhaps they did not feel like they were in fear for their life and so this is sort of separate because the just faba homicide statute appears in h145 they were kind of taking a look at taking a look at it and how it would apply in other types of cases just regular non-law enforcement cases just civilian cases of um of self-defense so this language of imminent peril and necessary to repel that peril comes directly from the jury instructions the vermont jury instructions for self-defense cases hey i'm sorry i'm so sorry to make you be redundant on that thank you for clarifying that's okay okay i don't see any other hands go ahead thank you i think represent i just saw represent i'm gonna so i'll wait for that okay sorry uh go ahead thank you brand so you keep saying this doesn't apply to the law enforcement section so what you're saying is i don't know how this mirrors this or does not mirror this if the law enforcement individual reason to leave that he or she was imminent peril that is necessary to repel that peril deadly force that won't cover them that won't apply well the what applies for law enforcement is subdivision three and you remember we've talked a lot about this just file a homicide statute in the course of talking about the standards for law enforcement use of force so it's um for if you look at subdivision three in the case of a law enforcement officer if they used force and compliance with the standards that are created in subsection or in section one of the bill then they should be found guiltless um so it refers back to those standards that that um really describe what uh how law enforcement should be using force so they too are engaged by reason on this and prudent yes okay yep it's just a little bit more um there's there's some more guide posts for law enforcement in those standards okay so i'm going to move on to the second instance of amendment and this one's real easy um it just bumps out the effective date for the standards for law enforcement use of force from september to october bumps it out for one more month and that was at the request of dps that is it they didn't touch anything else great thank you so much brinn again i don't see any hands before missing any uh there you go ken i assume that that was bumped out for one month because of training does anybody know i believe so but i do see um den morrison is on so she can probably maybe answer that better than i can yeah okay thanks thanks uh brinn hey good morning okay our afternoon i guess we're in now sorry uh for the record i'm jennifer morrison i'm the policy director for the department of public safety uh yes that was the reason for the ask was to allow time for a second draft of policy allow that to be public facing and receive feedback on the second draft which of course the second draft can't be written until we have the language from h145 and then a final draft and then we have to roll the final policy into training curriculum and deliver it to 1200 law enforcement officers so that extra month it's very hard to train in the summer on a good year uh and and with staff shortages at a lot of pds i think this is going to be a very difficult summer to train so allowing the month of september to actually deliver the training made a lot of sense rather than trying to have to hustle and deliver it during july or august okay thank you you're welcome tom so does that extra month give you enough time then uh yes i know it's better but um yes i mean we're being very careful about process equity to allow a lot of public input and stakeholder group input into the policy and of course the policy is its own entity that then leads to training curriculum we do believe that we can do this by october 1st and we're grateful for the extra month that uh that the senate side inserted so we we can do it all right great i'm happy to hear that because if you didn't have enough time that benefits no one so thank you great thank you and anything else you'd like to since we have you or anything else you wanted to add or um no we're really appreciative of the process uh we've learned a lot during the process where we have some great working relationships with other stakeholder groups going i think we're in a very good place and i guess i would just repeat what the commissioner said the last time he testified on this which is we're happy with the language as it left your committee the first time we have no objection to the senate side changes and justifiable homicide and we appreciate the extra month we would like to drop the placeholder for if in the process of policy development and subsequent training curriculum development and delivery and then roll out in the field if we come across obstacles that just can't be sorted out we would like to be able to come back next session and give you real-life examples of ways that we think it could still be further fine-tuned and improved so i guess just dropping a a placeholder request that this is a work in progress and we would like to feel free to come back and continue our excellent collaboration next session if that is necessary absolutely absolutely so thank you thank you very much okay tom i'm gonna assume that your hand is up from from before great uh martin so uh first of all i really appreciate the uh collaboration that we've had with the department of public safety and appreciate that we will continue that going forward because this is somewhat of an iterative process and i think we're uh doing the right thing with this i think the the change makes a lot of sense that they the change that they have on the justifiable homicide really doesn't have anything to do with the police use of force components of the bill and we actually did make some changes to make the justifiable homicide provision better but i think what they have here definitely improves it as well so i would make a motion that we concur with the senate proposal of amendment thank you and again we'll do this by a show of hands when we do vote to have a second to concur second okay thank you um any discussion okay all those in favor of concurring with the senate show of hands all those opposed barbara you so um feelings now so i didn't see whether uh uh coach uh opposed or supported i seconded the motion and i also voted thank you okay i didn't see your hand uh quote thanks no no i wanted to make sure that i didn't do a double you know okay so i didn't see any uh opposition no okay wonderful thank you so you'll be um prepared martin to report it i i guess we don't have it yet um it should be any day now i assume it will be on notice tomorrow but you know we'll see by the other day okay great wonderful all right well thank you thank you brinn and thank you jennifer marston and the commissioner and thank you okay great great good work everybody and salina thank you for uh uh for h128 that went well it's really very moving to hear from the sponsors so good work folks amazing that uh now it was unanimous on sides of the virtual building that's pretty incredible yeah it is it really is especially when we see what's going on elsewhere um okay great so because we're uh tied up on the floor we've rescheduled our um of siu witnesses for uh for uh i think uh tomorrow or thursday maybe but they will they will be able to join us so that's that's great um so now i was hoping that we could vote on s99 which is next uh relating to repealing the statute of limitations for civil actions based on childhood physical abuse uh we heard very very compelling testimony on friday um nobody has come forward nobody else has come forward asking to testify uh on this bill so i do think that that we are ready to vote uh but before we before i ask for a motion any any questions or anything be uh bob well you just you just answered my first question my scene was it seems like this is uh let me back up it was very compelling uh a very gut wrenching testimony uh and uh you know my heart goes out to those those victims my concern is it appears as though we may be rushing this somewhat but you've already stated and known as come forward to add any additional testimony here and and i was concerned about i realized that the burden of proof still lies within the courtrooms the civil courtrooms and so on so forth as far as if in fact any action is taken but i guess looking forward uh i hope the victims uh get the justification they're looking for but what can we do or what do we do to prevent uh any laws that we pass i'm sorry i i i lost you after what could we do to prevent um i don't know if other people heard you but i didn't hear you so i went it went away for just like about 10 words right but was your very yes thank you i'm having audio problems here i said i mean not to repeat everything but it was very gut wrenching and i certainly support those individuals 110 percent but my concern was because the bill is moving so quickly have we looked at the possibility of of uh and having said that i know that the burden of proof lies within the court systems here but the bill itself is there anything that needs to be addressed as far as preventing uh writers or or copycat individuals uh i guess that won't really apply to the bills that we we we address and push out a committee or did i i'm not sure i understand your question but but this bill only pertains to the statute of limitations and eliminating it uh on physical abuse correct correct exactly yeah yeah okay uh thank you ken i can i'll go right after tom here please thank you tom yeah maxine uh being such a short bell can we just get a quick run through from eric um sure is that eric are you able to to do that yeah sure no problem thank you yeah yeah this is the bill that uh repeals the statute of limitations for uh actions based on childhood physical abuse so remember there's there's a already a statute on the books that you passed two years ago that repealed the statute of limitations for uh actions based on childhood sexual abuse so the two two types of abuse are defined differently in the uh right now for physical abuse the statute of limitations is three years that means if you don't file your lawsuit within three years you're not able to file it at all barring some kind of fraud or some other kind of extenuating circumstance now that that statute of limitations starts ticking when someone reaches the age of majority so in other words it doesn't start while someone is still a minor so the way that's been interpreted the three-year clock begins that when someone turns age 18 which means in generally speaking that someone would have until they turn 21 to file an action for damages based on physical abuse that happened when the person was a child so as what the bill proposes to do is the same way that it did with in the sexual abuse situation is to repeal that statute of limitations so that the person who suffered abuse as a child wouldn't have that three-year limitation anymore and would be able to bring an action in court to recover for the harm that they suffered at any time in the future that that new provision is also retroactive in the bill also the same as the way the legislature had done it with respect to sexual abuse which means that it doesn't apply just from now going forward it's retroactive so if someone had suffered abuse you know pick a date prior to now 1960 1970 1980 whatever it may be some some date upon which the statute the three-year statute of limitations period would ordinarily have run as a result of this bill that limitations period is repealed and the person could bring suit at any time they were ready to do so the last point in the bill is that there's also a higher standard of proof established for these retroactive actions if the if the defendant is an institution so in other words if the defendant is an individual person there's and the person is being sued for abuse it's just the regular standard of proof lack of reasonable care negligence that would apply in any lawsuit for damages but if the defendant is a institutional defendant for example an employer of the person who committed the abuse in that case it's a higher threshold it's a higher burden of proof the the if it's a retroactive action in other words an action that happened 1960 1970 whatever some action that would have been barred by the statute of limitations otherwise then you have to the plaintiff would have to prove gross negligence so not just a lack of reasonable care but a failure to show any care at all any care whatsoever so that was sort of the compromise that was reached within the in the sexual abuse situation in other words you know there was a debate about whether or not these retroactive statute of limitations should be enacted at all to revive lawsuits that have otherwise expired right because this is the what these does is it's called a revival that's the term that's used in the law a reviver and it revives actions that otherwise have been banned by the statute of limitations and so the compromise that was reached was okay if an institutional defendant situation will revive the action but we're going to make the threshold of proof higher and that's why it's gross negligence here as well as in the sexual abuse statute so that may have been a little little lengthier than you wanted but I think that's it in a nutshell thank you thank you Eric sure so Ken are you ready now and then Barbara yeah thank you yeah um so Eric just helped me out quite a bit but I still um I obviously I want to take care of the victims I'm extremely worried about copycats and and maybe what he just said helped me a little bit with that but why does this have to be pushed why can't we just wait I think we're going to get a lot of pushback if we don't wait a little bit to see if somebody else comes comes up to uh to testify and show us another side of this why does this have to be done now uh Felicia did you miss how your hand go right up yeah and this is committee discussion right okay so I'm not sure I have all your answers Ken but to reframe it why should we make anyone wait any longer to hold an abuser accountable I mean it's it's it's always hard to look at a substantial policy and see it moving quickly and not think that we have time to hear from both sides because hearing is important but with something as as fundamentally important as this is holding somebody accountable for damage to their childhoods to to future children to show that we are doing something here why are we making them wait I mean we had testimony that the average person coming forward is 51 years old I mean those are not children that's not somebody who's just out there looking for attention because they want to get a start in life I mean if if you reframe the perspective a bit on your question why should we make them wait any longer I think that that for me at least fully justifies the speed of this bill along with the fact that we've asked for opposition and we found none and there's not a compelling reason to continue to protect those out there that we know are abusers that would fall under this law so I don't know all the answers to questions but that as as a committee member I cannot say that so I thank you Felicia yeah and I yeah and I think Felicia summarized it very well there was not any opposition in the Senate this bill is you know Senate 99 I don't know exactly when it was introduced but the Senate Judiciary Committee took quite a bit of testimony I believe they had a joint hearing on it and we you know it's been on our agenda since Friday this is similar to what happened last time we did we did statute of limitations it's it's it's not unusual not to have opposition and other bills that we've done before as well there you know there have been times where there hasn't been opposition but um Felicia did you want to add something before I okay good so then uh Barbara and Martin um Felicia that was really inspiring and I have been haunted since Friday again like and it's interesting because I was talking to a constituent and their grandfather was at the orphanage I just learned that over the weekend so yeah there are so many people that are affected so Eric I have a question for you and you may have said it when you were just after I raised my hand but my phone rang and it was so I didn't fully hear you so I was under the impression from when we went through the bill last week that you were saying if the person who experienced abuse was suing an organization they had to show a higher standard of proof but now when you were saying it I was getting the impression that you were saying if an organization is suing the employee so I'm a little I'm just wondering which of those two things this bill is addressing like are they yeah okay it's the first one no I I wasn't referring at all to the organization so maybe I misspoke if I did sorry about that um no it's only about the the standard of proof the burden of proof uh on the victim suing an organization why why is it higher against an organization as I say that was the the result of a compromise two years ago and it was because you know there are uh long-standing policies for having statues of limitations at all and to revive revive a an action that has been foreclosed by the statute of limitations is a big step and and it's not something that's done all the time and in fact it's it's only recently has it been done a lot in particular because of all the allegations of childhood sexual abuse that have come to light in recent years so I think that the organizations there's also I know it's I won't be able to repeat the arguments verbatim but insurance companies were concerned about their ability to provide insurance uh and even yeah even yes and that the entities themselves were concerned about their ability to afford insurance because the prices would be so high if they were subject to endless liability you know those calculations for policy costs are based upon as you well know what those things so I think those were where some of the some of the debates were last time and and so where they landed was you know will permit the the revival of suits even against institutional defendants but narrow it somewhat by having that higher higher evidentiary burden um so Eric sorry gosh like it's amazing how much our phones ring um so what I'm wondering is this let's say you're an organism you know and I love the sector but let's say you're a nonprofit organization and you see these coming you're going to start getting rid of your old records if you have no reason to keep them like I just feel like we might have because there's no for certain clients there's no um not there's no sort of standard of how long you keep certain records you have to keep forever but not other types of human services and so I'm wondering I'm just wondering about that like I think this one this this bill certainly would not immunize a defendant from a separate fraud claim if if now from some time from now in the future they engage in the destruction of evidence or or anything else that would subject them to a whole other layer of liability but not before a lawsuit though right like it's only once you know you're going to be sued that you can't get rid of stuff uh in connection with the suit I don't know that that would necessarily mean they couldn't be liable for anything I mean the the uh destruction of documents might support some sort of independent claim and even if they hadn't actually been made a defendant in a suit I think it might be reasonable to conclude that if you know as soon as this law passed an entity started destroying documents you might argue that it was because they were anticipating even if they hadn't been actually served with papers yet that that was the reason they were doing it but again you might see I know one of the big things is making sure you're following your policy so if I were I might say oh we just came up with our policy and we don't keep records more than 10 years but I'm wondering like and I don't know if this is a question but I'm just wondering like how would you see um evidence playing out in court for an organization versus if we're going to sue like could somebody could go find that house mother if she's still alive and sue her as well right or no they're just going to sue the organization they're they're not limited to their defendant they could go for the individual or or um or and and or the institutional defendant yep so there's there's going to be a lower level of proof for the house mother correct and so can you just remind me again what the burden of proof is in each for each of those two categories for the individual it's a negligence which is a lack of reasonable care under the circumstances um so you have not exercised what would be a reasonable level of care that would be expected of somebody in similar circumstances for an institution it would be gross negligence which would be you've exercised no care at all you failed to exercise any care so if they exercise the teeniest bit of care and I don't know if you heard the witnesses like if they're like hey we gave everybody a brochure saying not to have sex with their client or like would that get them off the hook I don't think so that's not the way it works I don't think that a jury would see it that way I mean that's a jury question that's not something I can give you an answer to how one would see that in those circumstances but those are fact questions for the jury and they weigh all the circumstances that have come into play and I think you know a jury that weighs facts that involve you know repeated instances of abuse reports of abuse attempts to report to abuse as we heard you know the institution telling the victims not to report it all those sorts of things having then being able to you know try and make a claim that they exercise some scintilla of care that's certainly not going to automatically immunize somebody from viability okay thank you sure uh more and then coach and tom so I have a lot of thoughts about this particular bill and I'll just start by saying that I think it's very important that we open the court doors for these past abuses mainly to allow individuals who have gone through this to have some sense of closure as well and feel that they can be heard um yeah I have uh I actually sat in on a session with the st. jose the the group I think it was in december maybe it was january I get earlier this year and I explained to them I I felt that this isn't a bill that's that's critical for going forward and preventing future child abuse uh I don't think this is necessarily the deterrence other places are where we should be focusing for that having said that again I absolutely support the bill because it does provide past victims with some sense of closure and it may have some though I just don't think huge deterrence value but it's not going to be easy for an individual to make out these claims and I think that that's probably the way it in fact should be because again statutes of limitation are there because memories fade or change evidence goes away and and so you know that's why a statute of limitations are there and so when you're opening up a statute of limitation you don't want it in my view to be really you know super easy to make a claim and and by no stretch of the imagination is this easy and and maybe this goes to ken's concern as far as you know people bringing claims that really are not supportable uh first of all they they would have the burden of proof the plaintiff would have the burden of proof and it will be difficult to prove something that happened 40 50 years ago it's it's just you know they will be able to testify but but they they have to bear the burden and it's not going to be easy I will also note that this is not just for any kind of an assault this is not for spanking this is not for anything like this this is for physical abuse that would amount or that would be prohibited by aggravated the aggravated assault statute is in and Eric can correct me if I'm wrong but but the aggravated assault statute requires it's an attempt to cause serious bodily injury to another or causes such injury injury purposely knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life from some of the stories we heard last week you know my view if I was on the jury if they're able to prove that up they probably have met that standard but the point is that that is a high standard that is a high standard of not high standard of proof but but a high standard of actual behavior that they would have to prove uh so so I I think that these are high hurdles but the court door is open through this particular statute it does allow some closure for these individuals it does allow them to make their case but it's going to be hard to be it's going to be hard to make their case so so I'm in support of the the bill as it is right now and then I do also think it should be a little bit more difficult as as Eric has already gone over the why we have statutes limitation as far as suing the organization as well so so I do support though thanks okay martin uh coach and then tom thank you um you know I I think um you know there are some very significant points that were made uh an explanation um you know martin and barbara um and uh felicia to uh ken's point about time I just went back and looked at the record the bill's record uh because you can you can track a bill at any given point in time and the bill uh was initiated in february um it hit committee early uh in april and it went through the whole senate process over a period of about um two and a half to three weeks and when you think about uh as visible uh a bill as this particular one is not that they all aren't but um the level of emotion uh as well as uh um you know just um you just got muted uh uh coach you need to unmute yourself again yep sorry about that you know you always have to move the cursor far away from the mic because it will do that to you but um you know what I found interesting was it was in senate discussion for a pretty good period of time so I would think um with that amount of visibility that you know if there were other uh individuals that you know were going to come forward um you know they would have um or groups uh because it seemed that uh the survivors group that that we heard from um you know clearly um you know it it took a while for them to get to that point where they could and then um you know like bob was saying it it was tough you know listening you know to that listening to that testimony um so I would hope that you know anyone that uh felt that they needed to have reached out uh to either body you know you know would have you know with the amount of time that this has been you know let's say open to discussion uh just wanted to to bring that up thank you thank you coach appreciate that uh tom actually your hand just went down tom's what up no I being proactive so will wouldn't give you grief no um actually uh one of the questions I was going to ask eric martin answered and uh I kind of knew the answer anyway about the higher standard with the aggravated um uh um definition on it but uh uh now I gotta go back to the bill so in the uh okay actions based on uh it includes that but it's it's beyond that if you look in this in the language of the bill see sexual abuse uh is also defined and that identifies several sex offenses that would meet the definition and statute so yes that's one of them but there's a few others as well right right and uh again what martin was saying it's a it's a higher higher standard to prove the way I understand it and uh which I think would make it difficult for people to come forward with with false claims but um and coach um was I was going to be lazy and ask eric with the with the timelines were you know and what happened in the senate and uh coach did his homework and and uh and uh and did it but uh so anyway I went to the uh to the bill page and to see what the senate did on it and there's let's see two three four five six seven eight nine ten eleven on the bill page the uh the last one being us the other day which is an incredible amount of amount of work that's been done on this bill um and yeah uh we haven't spent a lot of time on it um but it's um it's a it's a very simple bill I guess as far as the changes go but I mean it's certainly not a simple bill it's an important bill things on it gosh anybody who's in opposition they've had um you know like maxine had evan do to you know to come in and with the work the senate's done and what we've looked at I don't I really don't consider it wrong I'll certainly be supporting it uh not seeing uh Selena there you go I was just going to say if you're looking for this work on that's back in great thank thank you so much that is where I was going so again um we have a um first in a second um any committee okay not seeing any um so so Ken I would like to do a world call on on this please and and you have your hand up thank you know the answer to that question no no I wasn't even trying to be funny I want to make sure that I'm doing because I thought that the senate just passed this right through to us I didn't realize all this is being done and while everybody's talking I'm trying to go back through here I want to take care of the victims I made that perfectly clear I just want to make sure in my mind that I've covered all my uh bases but we can vote now if you want um yeah so if the clerk uh Ken uh can commence to call the roll please yes Donnelly yes can I come back to me while I'm doing this no sorry yeah LaLon yes Lefler yes I didn't hear first yes yes Rachel Sun yes Christy yes Tom yes Madam chair yes thank you thank you and um Felicia are you are you still interested in reporting I am yes okay great thank you thank you so much and um yeah so because we're concurring you know won't be on our the actual language of the bill won't be on our calendar so um I mean before you do this right um just referring the the body to where they can find the language would be helpful when recording it um okay great thank you thank you so much thank you everybody um can I see your is your hand still up from before or are you good okay great okay all right so we are going to uh do it again and go back to s3 folks need a minute to yeah okay so why don't we just take a minute so folks can find what they um find the version of s3 as well as I believe um under Eric for today we have some proposed language is that correct um where's that yes that's right there's a there's a proposed language on section one I believe that's although in fact that language if I remember correctly sorry I haven't posted that under represent the lawn's name yeah so uh that's where that's posted yeah the proposed language is under um Rep LaLon's name um since he was the lead sponsor on it well the person proposing and dealing with the language okay so we're still working on draft um 4.1 in terms of looking at the whole document is correct and then and then the language um proposed language will be I can kind of look at it side by side that I think in terms of if you want to look at just this section which is where the only changes between this draft and the previous one the only need to look at the document under represent the lawn's name you don't need to open anything up right also just look at that document okay great thank you yeah okay so I'll have Eric um explain this language but community if you remember uh we were going we spent quite a bit of time talking about this section and uh in the interim uh Martin has been working with uh all the stakeholders on on language um that has received quite a bit of a feedback um which is what this is a result of so Eric if you can um let us know what this does um and at the same time you know maybe sort of going back a little bit and reminding us about this about this section of the of the bill thank you so we're looking at section one under Martin's name yeah okay okay so uh as the chair mentioned that uh this section has has been the subject of quite a bit of discussion both in the community I'm sorry in the community in the committee perhaps in the community as well but I'm not privy to that yeah in the committee and as well as with the number of other stakeholders who've come back and forth on it at trying to trying to amend and massage the language but the subject is you remember section one has to do with the initial uh psychiatric report that the court orders when a defendant's sanity or competency to stand trial uh is raised as an issue in a case so when that happens the court has to order the psychiatric report and um it's a neutral evaluation and the committee has talked quite a bit about some of the background principles on that for example that uh insanity at the time of the offense is a different thing than competency to competency to stand trial so there are two different topics that the psychiatrist could be analyzing and as well another point to keep in mind is this will help us understand what the proposed language is doing or recall that a person could be found incompetent to stand trial or insane at the time of the offense on the basis of for example a mental illness right it has to turn that the statute uses anyway and if that were the case and the person was then found dangerous the person would be committed to the department of mental health but it also could be that a person could be incompetent to stand trial or insane in connection with an offense on the basis of a developmental disability right doesn't not not a mental illness but a developmental disability and in that case if the person were found dangerous they would be committed to Dale for purposes of custody so you have those two possible tracks and that's important also because i'm going to pull up one statue also just for background here um about maybe i don't need to pull that one up i'll get to it if we need to but but there is a statutory requirement that if um a person's a person who's been had their competency or sanity raised in connection with the criminal proceeding if it's uh if it's thought that they may have a developmental disability right as opposed to the to the mental illness then the and actually i am going to pull it up because it's important to look at the language now that i think of it but i'll keep talking while i do um the uh okay right then the examination that i'm talking about uh has to be has to include not just the examination by a psychiatrist and that's the important part of the language that we'll see in a moment uh but also um you'll see right here it's the language is very simple one sentence and right in the same chapter of law that we're working at that working with it's not just a couple of sections away in 4816 b right in the middle of the page there so the competency evaluation for an individual thought to have a developmental disability shall include a current evaluation by a psychologist skilled in assessing individuals with developmental disabilities so the phrasing of that language you'll see shall include so it's by implication there that that um it's not instead of the evaluation by a psychiatrist it's in addition to that's what that language certainly appears to say shall include doesn't say uh you know that it shall be done by a psychologist skilled in assessing individuals with developmental disabilities instead of the psychiatrist says that says the evaluation has to include that so with that as background uh we're going to turn for a moment and this is one of those situations where because of the importance of the uh wording i'm just going to pull up the amendment for a brief moment and this is it right here uh so this is the section that i was talking about section one this this initial evaluation when a person's competency or sanity has been raised um so you'll see that there was some back and forth about how it was uh most accurate to phrase this language and it's it happens a couple of times but the language is to make the point that this evaluation is going to be remember so now having looked at that statute you can probably understand that this evaluation is going to be either by a psychiatrist if it's a mental illness situation or if it's a developmental disability situation it's going to have to be by a psychiatrist and a psychologist right based on that statute we just looked at so getting that phrasing exactly right was something that folks were going back and forth on should it be and should it be or um you know uh how do we make it clear and that's why you'll see there's a specific cross-reference now to the language we just looked at so the people are clear these were all suggestions that were made by by um the defender general and representative donahue and and uh uh from out legal aid other folks who were involved in this sort of uh shopping back and forth with myself and represent of the lawn so we made suggestions as well so ultimately though I think language was settled on that everyone agreed to which is what you're looking at right here in the third line down in the yellow highlights making clear that this first this first examination uh um is going to be conducted by the examining psychiatrist or if applicable under section 4816b that's what we just looked at the psychiatrist and the psychologist same so there are two possibilities either done by the psychiatrist or if that statute applies then it's the psychiatrist and the psychologist so that uh is something you'll see a couple of more times as we look at this new language but that's the reason for that change um so now we get to the other the other major point that was going on in this uh section which I'm sure folks remember which is the idea that what about uh remember since competency and sanity are two different things uh generally speaking they should be and that's the first sentence you'll see here I just clarified the first highlighted phrase is really just a language change for clarity um but this is pointing out that well if the court orders the examination of both competency and sanity then those opinions are presented in separate reports reports and addressed separately that's consistent with this whole idea that uh the two things are different uh and need to be addressed in separate reports because they're uh different concepts and involve uh different different uh points so that clarifies that in the first sentence so again this whole idea of this subdivision is all about this idea this uh um situation but when there may be uh an examination of both competency and sanity so the first sentence is okay if there's going to be examination of both they have to be separate reports done on each one second sentence goes on to say uh I remember this is the point that folks were talking about the committee has been talking about a lot is uh well what's going to be the sequence of these two reports but first sentence says okay they have to be separate but I remember and then this is the issue that the committee has talked about of well since a person uh is not going to be raising a sanity defense if they never are found competent right because a person can be treated for competency and they may regain competency at some time in the future they may not uh if they never do then there will never be any reason uh that the person would raise an insanity defense and so there would not be any reason to conduct uh an examination and evaluation by a psychiatrist of the person's sanity because it would never come up unless at some point in time they regain competence so uh what that second sentence then makes clear is that the examination of the person's sanity shall only be undertaken and this is now the first line of the next page right here at the top that examination shall only be undertaken if the psychiatrist and again you see that phrase that I just said again this is clarifying the psychiatrist uh and psychologist point so um again so that examination is only undertaken if that psychiatrist or if 48 16 48 16 applies the psychiatrist and the psychologist if they're able to form the opinion that the person is competent to stand track so that's the point the first point that I was just talking about that examination of sanity doesn't happen until uh the person is determined to be competent because sanity wouldn't be raised unless they were found competent uh in the first place so that's that first point then highlighted is the second phrase again so generally that uh principle that I just laid out applies generally the um the competency sorry sanity evaluation isn't done until competency is found unless see that's a highlighted language third line down starts at the end of the line unless the defendant requests that the examinations occur concurrently so remember that's the other concept that the committee had been talking about shouldn't should the defendant have the ability uh if they so choose to request that the examinations occur at the same time and I think that's kind of the direction that committee was moving in that was the the American Bar Association's proposed language that's what this is based on that that that principle that the defendant should have the option to have the examinations occur at the same time if they so choose even though if they don't then then as we see here the fallback if they don't so make that choice is that they're done separately so that language provides the defendant with that option to choose um and then it goes on in the next paragraph to say then if the if the uh and this is the point that that the committee had also spent some time talking about as well if there is that separation in time right if the if let's say the defendant doesn't choose to uh have the examinations occur concurrently and instead uh the sanity examination doesn't occur until some years in the future then it raises that concern that the committee's talked about of loss of evidence of uh people's memories fading of you know this potential that there could be problems with conducting that evaluation five ten fifteen years after the offense so this second sentence here has to do with that situation and uh providing a way for some of the uh uh background even if even if the evaluation of the defendant personally doesn't occur at that time contemporary contemporaneously there's still the ability uh and in fact the requirement that the um evaluator take reasonable steps to preserve other evidence so you'll see that's what the language makes clear so if the evaluation of the defendant's sanity and i'm reading the highlighted language that from the middle of the page on down if the evaluation of the defendant's sanity at the time of the offense to alleged offense does not occur until the defendant is deemed competent so in other words you know that that first sanity um evaluation doesn't happen until later on some years however it is down however much time down the road that the defendant retains competency uh if that happens then the psychiatrist or if applicable under so-and-so the psychiatrist as we just went through and the psychologist shall make a reasonable effort to collect and preserve any evidence necessary to form an opinion as to sanity if the person regains competence um and to make a reasonable effort languages new added out of a concern that if you were making it mandatory if it was to shall collect and preserve any evidence necessary sort of raises the question of you know what what would be the consequences of failure to preserve the evidence that they didn't collect and preserve and if the statute said they shall what does that mean then does that mean there's there's a defense that the person could raise and the person might be able to you know evade the prosecution completely raise a complete defense would it mean that there would be some ability to sue the psychiatrist or psychologist who didn't conduct the examination just raise questions to phrase it that way so it's common to in various circumstances to require reasonable efforts and so that's what the change was here to say that there is a requirement that they take some action but the action is that they make a reasonable effort to collect and preserve the evidence so that they to form that opinion later on down the road when the sanity issue uh comes back so that's uh that's the proposal as I say it's been batted around by a lot of people and I think uh there was some consensus but I'll let uh represent Belan talk about that a little bit more and I can pull down the screen now chair grad unless you want to keep looking at it uh yeah why don't you pull it down um for now please because I want to see if sure members have any have any questions for you so any any questions on the um on the drafting I will say there was quite a bit of um conversation and back and forth and um let's see I know there were at all times 12 people on the email um chain and that included I think myself and Evan so at least um and I guess Eric but a number of stakeholders I think all of the stakeholders were were involved in this so um so can I just jump in real quick before you get to Tom just on that one issue that you mentioned uh under my name is is the email thread so everybody can actually see all the emails that went back and forth on this latest draft there was probably something similar last week when it just didn't work out but uh Matt Valerio of the Defender General's Office and AJ Rubin of the Disability Rights Vermont Judge Brian Grierson representative Van Pugh uh John or Jack McCullough of Vermont Legal Aid and uh let's see I'm looking who else uh Dr. Ravin of the Vermont Medical Society will delight uh Matt Freedom and David Scheer of the Attorney General's Office all of them eventually all landed on this language that was presented and all that all that string is on there for transparency reasons it's it's under my name so people can follow that dialogue themselves thanks Martin you said um Representative Ampute did you do you mean Ann Donahue or oh I'm sorry did I say Ann Pugh Ann Pugh was not part of this it was Representative Ann Donahue I apologize for that slip yeah so so all those interests were weighing in on this okay thank you uh Tom thank you um so I'm not gonna lie this is this is confusing to me um um sometimes things just aren't that easy to understand I guess but so so Maxine we uh there was several of us that got uh that email from Kelly Carol and you had responded to her so I guess my question is is how does this pertain to her uh uh concerns I know she was kind of mistaken in her in her her letter that had been things had been changed already um but I guess you know judging from what she put in her letter in this new language um I mean I know you can't speak for her but um I guess how did how would this uh address her concerns I guess right well I need to go back unless um Eric if if you can help here because uh I would need a moment to look and see um I'm not sure that this was part of her concern okay but Eric can I don't I don't think it was yeah I don't think this is one of the points she identified yeah thank you okay great thank you thanks but uh it it is confusing uh this this whole bill is really um but I wouldn't say absolutely new but it's it's something that we don't do as much as some of the other things that we that we do repeatedly as a committee and and so um so it is confusing and we'll keep having Eric help us understand it uh this was the one uh one piece that there was a lot of discussion on back and forth with the witnesses but it does seem like it everybody you know has landed uh in a uh in agreement when you have that many people involved that's that's uh that's some good work yeah I think so thank you um okay so and again I'm not going for a straw poll I'm not asking for anything this is this is you know a proposal that we're going to continue to look at but that was an outstanding issue um another issue that uh actually um um uh miss carol did address uh is on while I'm looking at 4.1 page 6 and the language that is suggested for which the person has been charged and um Eric is this is this something that you can can speak to my understanding is that this language came from representative donahue and there was question as to whether or not um whether or not this language is is necessary and I hadn't I don't think we had heard any objections from the witnesses about this language has been in here for for quite a while 4.1 page 6 I'm sorry yes yes thank you yeah maxine can I ask a specific question about that language which I think gets to to the issue that uh that miss carol had with it and that is I guess the question I would have is what would happen in a situation Eric uh if the charges are dismissed uh if the person's deemed to not be competent to stand trial and for some reason you know that the prosecutor does have the uh discretion and and does often or I don't know often but canon does uh dismiss the charges does this language for which the person has been charged does that uh make it so it no longer applies to the situation if the charge has been dismissed does that question make sense oh I think so but I wouldn't read it that way I think the person has been charged even if even if subsequently they were dismissed uh the person was charged at one point in time so that the victim still exists and and uh would get notice right all right thank you okay thank you so Eric can you speak to um whether or not this language is uh is needed I guess um as a matter of statutory construction as opposed to and then we can get to policy discussion but in terms of sure yeah thank you well I don't think it's legally necessary I don't think it it changes it's one of those situations where you know it often is the case with uh legislation that sometimes the committee puts language in for for reasons of policy or reasons of uh uh sort of emphasizing a point that may not be legally necessary but sometimes you choose to include it anyway sometimes you don't that's the policy choice but no I don't think that that whether that language is there or not um is going to have any legal implication on whether or not uh one victim gets notice or another victim gets notice so that's not my reading of it it's uh victim of the offences does not imply that uh the person was convicted or that there was some sort of factual finding that the person uh uh had reached that level of finality in a criminal proceeding by person I mean defendant and that um you know that phrase is used all the time by person is charged with an offense for example well well established phrase that doesn't mean that the person was convicted they can be charged with offense you could be convicted of it uh it may mean that it may not but I don't think it necessarily does and so in my view the language isn't necessary but at the same time it doesn't hurt anything so if uh the committee wants to include it for for various reasons it certainly doesn't uh doesn't hurt anything either so thank you Eric Martin so that was of my opinion that was my opinion originally just the way that this language was put in there is I think very early on uh when representative Donahue uh was uh participating in in the in the hearings and such uh this is one of the issues that uh she raised and then she proposed this language uh which we put in here uh at a meeting I think last week or on the 15th or thereabouts uh or maybe it was the day before that actually uh I suggested I didn't think it was really necessary looking at this language along the lines of what Eric is saying right now uh and then uh representative Donahue subsequently sent me an email uh explaining why she thought it was necessary and that was posted so I can point you know to people to hear the other argument for why she wants this it was posted under Anne Donahue's name on uh April 15th uh I can to save time I can read just the last bit of it uh uh chair grad if that's okay um she says that it is more than just technical I think we tend to blur the issue of whether someone has been convicted or not when the person has been committed for lack of competency or sanity but that commitment does not indicate any finding of fact regarding the crime I think this blurring enhances public perception that these are guilty people who are getting off with an insanity plea because the system we have is complex and currently very flawed in that we do not have an effective response for public safety purposes this is not helpful in combating the stigma that wrongly associates mental illness in general with increased risk of dangerousness so you can read that as well if you want to study that a little bit further to decide where you all uh stand um I'm ambivalent because I don't think it I don't think it hurts I don't think it helps I don't think it causes a problem but I also don't think it's really necessary language either I don't think there's a that this is stigma causing because we're just relating this to the offense uh really any event so I just wanted to point that out so people are fully informed of what those arguments are and trying to decide where to fall on this issue okay thank you Martin and and again Eric it doesn't confuse anything to have it in there or have it out right I mean it's really so I don't really know no impact either way it's I don't think in a legal sense no okay thank you sure so any questions on that language okay so I realize we're getting close to time I just want to identify the other section that we have not made a decision on which is regarding the language regarding another another evaluation the language that's on page eight that was requested by the Attorney General's office its language that is in response to Vermont Supreme Court shallow decision and what this language does is it goes back to what was the what was the practice before that that decision and that decision was based on statutory interpretation that the the statute didn't didn't have the language in there and so so that is J on page eight and so that's something that we that we do need to decide as a committee I for speaking for myself do hope that we that we include that and this is important to to the victims so I realize we've had a long day and folks may not want to discuss it right now certainly if you have any questions for Eric this is a good time if not we can certainly come we will be obviously coming back to this bill but there's believe it or not there's not that much I think that's it in terms of decision points we've we've done a lot of work here as well as the other committees so questions feedback they're pretty quiet Barbara go ahead so far I'm it sounds like a reasonable plan to me uh I don't know I'm I don't have any burning uh questions or holes at the moment I don't know thank you so I think what we'll do next time uh is I think it'd be helpful to get a another walkthrough um of the bill so all at all at once because we have been working um on it in different sections and three different committees um so I think it'd be helpful to look at it um the proposed draft uh which um so Eric helped me when we put this language in that we just looked at it will become 5.1 yes that's right okay so so Eric if you could if you could do that please incorporate the language and then we'll we'll look at the look at the document in its entirety we have agreed to to um on a straw poll bring in the other committee's work but nonetheless I think it's important to look at the bill in in its entirety sure and that's going to be mostly a clean copy clean as opposed to highlighting is what you're saying or yes and we can highlight just this new new language I was gonna put my two cents in and ask for some highlighting I know I'm thinking well what are you thinking Tom highlight highlight from the senate version or what what are you thinking I guess I guess kind of like what's highlighted in this 4.1 draft um can we highlight the decision points because I know that that one part in section four is not highlighted but it's one of the three decision points that we have sure the language that allows the prosecutor to also have an examination you know if we highlight those three decision points maybe that's one way to do it Tom what do you think yeah yeah that is that enough Tom I think so yeah okay okay great uh Ken I thanks so um uh representative uh Donahue and Morrissey were both involved in this are they happy with where this is going I I probably missed I know you talked about it but I'm just making sure I'm clear okay well um representative Morrissey is present on the phone um represent Donahue has been part of the um you know discussion so far so I my understanding is that she is um is happy with um you know where we are so um thus far as an individual member as um as well as a member of um house health care committee but representative Morrissey would you like to um comment I would just I would need to have the new draft and with the language in order to say whether I am or not because I don't have that language in front of me okay thank you so if heaven could send if heaven could send me a copy I'll read it over and the changes that would be great thank you great thank you okay and then um thanks and then the administration was heavy on this bill too right are they involved with us now or they back off I don't know they've been you know through the Department of Health and no they've been they've been involved in um sure in these discussions um and um representative Morrissey the sections that we're talking about now um are not sections that your committee took a look at but certainly will make sure that that you have them um there's there isn't any proposal to change um your committee's provisions um we actually um by a straw poll accepted accepted those those provisions those sections right that's fine thank you and really um with what we have um really um has been but the exception of the that one section uh jay where there's a disagreement between the defender general's office and this um and the attorney general's office um I believe everything else in here has been um really um agreed to by the stakeholders consensus so and that includes um the administration victims prosecutors uh really you know all the stakeholders that we've heard from good thank you that's seeing any other hands