 Good morning. This is Friday, December, March 26, 2021. We're taking up today S99. It's actually a fairly simple concept, which would be to lift the current statute of limitations on child abuse. Years ago, a couple of years ago, I don't remember exactly when we eliminated the statute of limitations on child sexual abuse. But I believe that currently, and Eric will correct us, there is a statute of limitations on child abuse of three to six years from the time that it's discovered. Is that correct? That's right, Senator Sears. It's three years exactly. Three years. Yeah. So anyway, S99 would do what we did several years ago. It has come up. And I wasn't involved in the drafting of it, but drafting was in a response to issues at the St. Joseph's orphanage in Berlin. And then the work, and then we recently discovered allegations of child abuse at the current Hatten School in Westminster. Anyhow, some of our witnesses speak to those and others will speak to the law. So I'm going to start off with Eric Fitzpatrick walk us through the bill. And then it was good. All right, thank you. Senator Baruth is a sponsor of the bill. And they want to speak to that if you wish. No, I will just say that the St. Joseph's case was was big news here and there's been an ongoing effort to do restorative justice at the site and with the players. And this came out of that effort. So I'm approaching it in the same way we did the previous work we did on the statute of limitations on sexual abuse, but interested to hear the witnesses today. Go ahead. Eric. Yes. Yeah, thank you. This is for the record Eric Fitzpatrick with the Office of Legislative Council here to do a walkthrough of the committee on Senate bill number 99, which is an act relating to repealing the statute of limitations for civil actions based on childhood physical abuse. As Senator Sears and Senator Baruth were both just alluding to this bill should seem conceptually very similar to members of the committee. It was only two years ago. In 2019 in fact that this committee passed and then the entire legislature passed act number 37, which was H 330 at the time that that repealed the statute of limitations on childhood sexual abuse. You'll see that as we look at the bill at a moment, really, as you mentioned, Senator Sears conceptually, it's pretty straightforward. It's the same thing that you did in act 37 a couple of years ago with respect to civil actions based on childhood sexual abuse. The proposal in S 99 is to take that same measure with respect to actions based on childhood physical abuse. So, the couple of key features of that we'll look at when we when we look at the language of the bill but that's the big picture. It's pretty straightforward the current statute of limitations for physical abuse that would apply would be three years. Right now under current law for these actions that would be based on physical not sexual abuse but physical abuse. The statute of limitations parade would be, excuse me three years that means three years from the time that a person discovered the injured or they discovered that how the injury was caused that they they had that moment of understanding where the injury came from the three year clock would start ticking and the limitations period you may recall for actions based on childhood sexual abuse before you passed act 37 was six years. So that one had a six year limitations period after consideration and committee and on the legislative in the legislature you remove that six year period so that actions could be brought at any time. And that's the basically the same concept that is being proposed for physical abuse actions here. So, having said that a couple of related features to that we want to look at you know primarily what how do you define what's the proposal about defining physical abuse so that'll be one thing you want to look we look at when we look at the language and also remember the concept of retroactive. That was a big point back in the sexual abuse stat act that you passed as well this idea that okay well, going forward, you know ordinarily, when the legislature passes laws they apply prospectively, they apply going forward. That's not to say the legislature doesn't have the authority to apply laws retroactively you do, but you have to be specific about you have to expressly say that the intent is to apply the law retroactively and then you did with. Act 37 with respect to sexual childhood sexual abuse actions you said this is going to apply retroactively to any action in based on childhood sexual abuse whenever it occurred anytime in the past. So it wasn't just going to be based on actions in the future going forward. It would also be retroactive to actions that happened in the past. You made a distinction on that I'm just telling you now because you're going to see this exact same thing. Senator Bruce, can you take over for a few minutes please. Sure. Keep going. Yeah, sorry. Yep, thank you. So yeah the point about retroactivity which is in law with respect to childhood sexual abuse actions and also is proposed to be included in S99 as well. But when it's an action that took place that would have been barred by the statute of limitations. In other words, if it had happened so long ago that were it not for this law the statute of limitations would bar would prohibit that were the case, then you have a higher threshold. If the action is against an institutional defendant and higher evidentiary threshold that was with the decision that you made, and that. In other words, as opposed to against the individual who committed the abuse. No difference there that applies retroactively just as the same as applied going forward to standard of negligence. But if it's an action against an institutional defend now remember the institution isn't the one who's an individual person who committed the abuse so the only way you could bring an action against that institutional defendant is either on it. There's two ways primarily one would one would be negligent supervision, right, they knew about it and they negligently supervised their employee. Another way would be on it, what's called vicarious liability, the sort of Latin term that we learn in Laska was responding at superior that means that an employer is typically responsible for the actions of their employee that are carried out during the course of their employment. As a matter of law, and so they're automatically responsible for what am I when I say responsible I mean liable, right, they can be sued for the actions of their employees as long as they were carried out during the ordinary course of their job and their responsibility. So what you did was said okay since given the the change in law of essentially and this is also a term that's often used in the sorts of case you're reviving actions right it's a revival of an action that has been barred by the statute of limitations right the legislature is deciding retroactively to revive this action, because it's as of today, or as of, say the effective date of the act, it's an action that would otherwise be barred, because the statute of limitations period has run out, it's past. So, there you may recall that long discussion and committee about sort of balancing interests when retroactively reviving actions that otherwise would have expired and when the legislature came down and say okay for institutional defendants, given that they're not the actual person who committed the abuse they're not the, the individual person, if it's an action based on this idea of vicarious liability they're only liable because they employed the person. Then it's a higher threshold of evidence not going to be negligence going to be gross negligence. So you have to find that that institution was grossly negligent before they could be held liable. So, that's the distinction sort of policy policy grounds that you came down on back then and that's the exact same proposal that you'll see an S 99. Very quick, quick question Eric. In terms of, you know, in, in these cases, one of the things that we've seen, you know, in the Catholic church issue, and others is kind of active covering up of evidence. Is that in a civil proceeding is that considered along the lines of negligence or is that a separate category. I think, I think that, in other words that they could be liable. I'm just wondering under the two possibilities that you mentioned it didn't seem like that was covered. I wonder if that might be a separate toward actually the fraudulent concealment of evidence like a fraud might even be separate, a separate claim. Okay. Certainly not solely based on their employment of the person who worked there. But it might be a separate ground for an action there based on some sort of fraud and concealment of evidence as well. Okay. So that's the big picture. At this point it might be useful to take a few minutes to look at the language and hopefully it'll be consistent with what what I've just been talking about but then we can see the committee can see the language itself. Before hearing from the witnesses is that makes sense to go go to next. Sounds good. Okay, I'll pull up the screen. So everybody see the bill. Great. So as I mentioned, as 99 activating to repealing the statute of limitations for civil actions based on childhood physical abuse I should have mentioned at the beginning this is obviously nothing to do with criminal law on not criminal actions by the state but rather civil actions by an individual by a person who's been injured bringing in action for damages so that's what what these sort of actions are referring to. And you'll see what's done here quite simply pretty straightforward. This is the statute that you passed two years ago. In 2019 12 BSA 522, or I should say, sorry, that statute was on the books at the time, but it had a six year limitations period as I mentioned for actions based on childhood sexual abuse so what you did was amended to make that limitations essentially go forward indefinitely so that there would be repeal the the six year period, so that there no longer would be any, any time limit and those actions could be brought at any time. So all the proposal is in S 99 quite straightforward, just changing or adding I should say, or physical abuse to the existing statute so now the existing statute has no limitations period and if you add in physical abuse and that wouldn't have a limitations period so very straightforward so you see the language the operative language really is in subsection a basic was saying that an action brought by any person for recovery of damages for injuries suffered as a result of childhood sexual or physical that's why 18 abuse maybe commenced at any time. So, again, no limitations period at any time after the act alleged to have caused the injury or condition. The language is really doing the precisely the same thing just adding the idea that these actions based on physical abuse will similarly have no limitations period, just as the sexual abuse actions do under the statute so if you look further down. This is a subsection be this is an existing procedure that you may recall in law that if one of these sorts of actions is filed, the complaint is sealed by the clerk, and it remains sealed until the answer or the defendant files a motion to dismiss I think this is a particular procedure having to do with privacy of the parties involved because these are maybe actions are often will be actions that involve, you know, conduct that occurred a long time ago and sense of a sensitive nature that's why I think the legislature included these specific provisions about keeping the record sealed temporarily in the beginning and then as you see in line seven and eight that the coin is ultimately dismissed. Then the, then the papers the complaint other papers remain sealed. So that isn't changed other than again, making clear that it applies to physical as well as sexual abuse. Again, as I mentioned in the beginning, a key point here is to define what you mean by child physical abuse. So, it's done in the same manner that you did with the childhood sexual abuse provision you see the sort of concept was to say that it means any act committed would have been and then you list several crimes that would have constituted, and I'm looking at lines 13 through 17 for the sexual abuse provision, any any act that would have constituted lumen lascivious conduct Eleanor with a child family sexual exploitation of a minor sexual assault aggravated sexual assault so if the conduct would have constituted one of those criminal offenses. How you define childhood sexual abuse so the approach for childhood physical abuse is similar. Basically says any act committed by the complainant who, again, against a complaint and sorry not by the complainant against the complainant, when they were under 18 years of age at the time of the act, and the act would have constituted a violation of the statute prohibiting aggravated assault. So that was the, the, the parallel to the physical abuse situation to say the act the conduct would have had to have constituted aggravated assault. So what I'm going to do here is take us right over to that statute so that you can see the aggravated assault statute see here is 13 BSA 1024. So that's definitely the one that would be most applicable definition of aggravated assault is going to be right at the beginning in a one. So a person is person is guilty of aggravated assault at the person attempts to cause serious bodily injury to another. So any attempt to cause serious serious body injury, or causes such injury purposefully or sorry purposefully knowingly or recklessly under circumstances, excuse me, manifesting extreme indifference to the value of human life. That's the current definition of aggravated assault. The advantage you have of, of referencing aggravated assault is that it's been on the books for a long time courts are familiar with it they're familiar with, you know the interpretation of the language and case law so you've kind of have that as as your background of understanding for cross referencing it and in this 99. If I could ask you a question there on. So an individual works at a residential treatment center in 1971 is in working there. Physically restrains a kid was under the age of 18. We don't know that there was any damage done back then there wasn't there aren't good records of restraints there aren't much to go back on to. How does one prove number one that the act was reckless or screaming difference to the value of the human life when they were trying to restrain him because he was completely out of control and was a danger to himself. And now 40 years 50 years later. I guess 40 years 50 years later, somebody comes and soothes that program or that individual. But was there their attempt to cause bodily harm. Well that's the, but I guess the issue is, how do, how does one defend oneself in cases that are 50 years old. I think I got my math right. Yeah, I think that was 50 exactly seven years. Yeah. But yeah I think you've hit on, on, you know what is the, an issue that is very relevant to these situations when the same thing was discussed last time when you when you revive an action that would otherwise have been extinguished by a statute of limitations. And you run into that quite a ways and you, and you run into proof problem. And I don't think there's any way, well, around that send and it becomes sort of a policy decision for the legislature as as it is with the limit statute of limitations generally is that one of the main reasons for even having them at all is exactly that that. The policy justifications for statute of limitations in general is that people's memories fade proof disappears over time access to evidence is harder to get. So, those are facts that I think you're right to you have to take into consideration when when you when you balance that with the with the nature of the harm particular case. I think, you know, that's, well, later on in three it says purpose other than lawful medical or therapeutic treatment. That's a drug. That's not not a physical restraint. Correct. You know, I only did three of them but I don't believe anybody got injured. But some programs were doing lots back in the day. And there may, you know, that may have been something that I just I fully support the ability of somebody to do. I don't know how one defends oneself or how one proves there's been physical abuse other than if there was a medical record. And, importantly, though, Senator I think is the question of how do you defend in such a situation with the phrase attempts to cause serious bodily injury to another that's a perception situation if there's no record of it. So someone could come back and bring an action if I'm reading this correctly, after 40 years. And how does one defend oneself, given the lack of any kind of evidence other than the allegation. Because aggravated and solved involves the attempts. Whereas, causing such industry injury probably there would be some medical record or some other way. Anyhow, Senator Bruce. You can correct me if I'm wrong, but isn't the burden of proof on the person who's suing. Yeah, but it's by a component to the evidence. No I get that but what I mean is, if anybody's disadvantaged by the extreme amount of time and the example you gave it's, it's more the person who's suing runs up against that. Obviously the defendant does too but to a lesser degree. I remember this discussion from the last time, right, where we were talking about it and, and at least my memory is that we were, we were acknowledging that there was problems in both sides launching either a prosecution or a, not a prosecution but a civil suit or defending against it, but it was more on the person who had the burden of proof. That was why I, I thought it wasn't, it wasn't unfair to the people who might be sued. I'm all, you know, just perhaps witnesses will respond to that concern. I'm more concerned with the attempts language that I am with the actual causes. I was attempting to restrain the individual because he was completely drunk and if I hadn't restrained him, he could have died from, you know, his own vomit. Yeah. You know, I understand your history dick with tool on Depot, but I'm thinking now I served as a camp counselor for kids who were mentally challenged. And there were oftentimes some of the more seriously challenged were acting in such a way that if you didn't attempt to restrain them they would have had injured themselves or others. And as a teenager in that situation. You do what you can, and hopefully have enough training to understand the difference between acting in a way that would cause somebody injury but it's the perception of the plaintiff in this case, that somebody attempted to seriously bodily injury that has me a little easier. I think it's the attempts that bother me more than clauses. Eric just kind of keep going. Yeah, but I'll flag that point center serious thanks. Just about done with the walkthrough anyway but so that was the definition will return ourselves to the language of the bill now again that that definition was help was important to look at because that's how you define what childhood physical abuse is. And the last point is really the point that I mentioned also the retro activity point that I mentioned at the beginning. And the idea that, again, this doesn't generally speaking when the legislature passes a lot. It applies prospectively going forward. One vsa 214 which is the statute you see referenced in existing law there on line one and in f 99 online nine is the Vermont statute that says exactly that that generally laws don't affect rights that were accrued prior to the effective act they only apply prospectively in the Vermont Supreme Court is held squarely that one vsa 214 means that applies that laws generally apply prospectively. So if you want to apply laws retroactively, the legislature can do that, but it has to be explicit has to be expressed and that's why you have to not withstand one vsa 214 the same way you did in the language above so what you say is not the standing 214 in other words notwithstanding the fact that laws generally apply prospectively. In this case, it's applying retroactive to say that expressly online nine, and it applies retroactively to the statute of limitations in effect at the time the abuse occurred. And again this is just exactly the same language that you have in the subsection above with respect to actions based on childhood sexual abuse. And again, second point is the one I also mentioned earlier but if the actions is that would have been barred by a statute of limitations in effect on June 30 2021. I'm online 13 now. The images may be awarded against an entity. Remember this is the institutional defendant point that I made against an entity that employed supervisor had responsibility for the person allegedly committing then there's a typo by the 15, that sexual in line 15 should be physical. So, leftover from tracking the other language so that should be physical abuse. So, the damages maybe a word against the entity committing the physical abuse, only if there's a finding of gross negligence on the part of the entity so in other words there's a higher evidentiary threshold. Against when the one the entity is defendant as opposed to the individual person it's not just negligence, it's gross negligence. And again, effective date of joy first 2021. And I think that's it for the walkthrough. Can I just read flag something could you scroll back up to the portion that had ceiling of the documents until either an answer was filed or a motion to dismiss was heard. Sure. Yeah, right there I think center series I'm not familiar enough yet with the new e filing system. And it's only because my area of Vermont is brand new to it literally two weeks ago. And we have Jerry O'Neill here that may he may be able to answer this question but in order for me to file a response to something. And in this case it's either a motion to dismiss or an answer. There has to be a document on file at the courthouse that has been entered in through the Odyssey system. And in order for me to find the place where I need to make a file response. I have to go into what I'm assuming right now is a public document. In other words, a portal that gives me the ability to locate a case that's been filed and respond to it. I've never done it in a civil proceeding yet. But I would like to get the answer to the question, are we capable of doing what this is actually calling for in the new Odyssey system I just want to make sure. There's some problems with items that are going to be sealed. Yeah, I just, I want to make sure I have some peace of mind that we can actually accomplish where the information that the defense has used. Right. I don't know. That's a good question. I thought, I thought John Campbell told me that they had solved that problem. We're going to have or not I know there was information that was out, you know, the normal. Yeah, I just heard yesterday that the defendant tried to get into the system. But couldn't find what the prosecutor had already found. And so there's, there's something there that I don't quite understand yet. Yeah, the point of all this is we're trying to make sure something remains confidential until either an answer or emotion to dismiss has been filed and heard. I hear you. It just went on live up in Chittenden too so they may not know, but we can find out. Wyndham County's had it for quite a while. We can find out. Eric, maybe. Do you want me to check with judge Grayson or something. Yeah, you can check with grace. Other issues for Eric before we go to our first witness. Our first witness is Jerry O'Neill an attorney with gravel and Shay and who testified back when we did two years ago when we did the statute of limitations on child sexual abuse. Welcome Jerry. Good morning. Thank you very much for the opportunity to appear before you. I'm always grateful to appear before the committees because I find, particularly with the Judiciary Committee. There are genuine real questions trying to find answers to problems and I'm very appreciative of the opportunity to be a part of it. Just a quick bit of history. I have represented survivors of sexual abuse since the late 1980s, child sexual abuse since the mid 1990s. I have pursued cases against Burlington diocese since the mid 1990s, and just at full disclosure with respect to it. I have right now pending eight cases against the diocese. I don't think that affects in any way what I'm saying here, but there isn't ultimately a limited amount of money there. And I recognize the existence of implicit bias. And so I simply want you to be aware of that as I go forward with respect to it. I wanted just if I could briefly looking at my notes here try to address just a few of the technical issues that have been brought up. Eric has done his usual masterful job of going through the bill, explaining it. I learned some things as he went through and did it. If I could just add a few quick points. The statute of limitations is exactly as he said for physical abuse aggravated assault physical assault in any respect three years. That would mean that someone who was abused as a child under current law, what have until the age of 21, because they have three years from the date they achieve their majority in Vermont majority is currently 18 so therefore that makes it 21 to the issue that Senator Benning raised with respect to ceiling. Timing is this perfect on this because yesterday afternoon I filed a civil case involving an entity and an individual who we were alleging negligent and thereby permitted the sexual abuse of one of our client. And we had difficulty getting it filed in the Odyssey system, my legal assistant called and said, under the statute, this has to be sealed we didn't care if it was sealed or not it's, it's filed as a Jane Doe, but we wanted to make sure that the court clerks office was aware of what the statutory requirement was, because they could easily miss it. There's no way that they could figure out how we could file it through Odyssey and accomplish that. Ultimately, we filed a letter we put a letter on top of the pleading, just simply explaining what the statute was and what was required, which we think will in fact take place. I think the history of the ceiling is in substantial part to protect a person or entity, so that if the case is filed, there isn't suddenly a headline somewhere that some person or entity has been sued for child sexual abuse, but rather there is a piece, which is to say a decision as to whether or not there is a motion to dismiss is granted, then it's forever sealed so it's for the protection of the entity being sued in connection with I believe that's the, the part of it. Also a question Senator Bruce raised the question if there was a cover up, would that be a separate claim. The cover up from the perspective of one who has tried eight cases against various entities five of them against the diocese here. The cover up is very strong evidence of the underlying actions of course. It could be a separate claim but fundamentally it's in my experience is invariably going to be strong evidence of the events themselves. It could depending upon what was done, it could told the statute of limitations, if the information was hidden in some respect. I want to talk briefly about the issues Senator Sears has raised. Those are thoughtful issues. I think if I read is I read the statute. The key piece with respect to it is that it has to be for example I think that the issue of the restraints. I don't see how anyone can make a claim work on the basis of that, because it has to be an intention to cause an injury, or recklessly acting recklessly under the circumstances manifesting extreme indifference to the value of human life. Those are really high standards. And so to go back and say that either in the context that Senator Benning was talking about or Senator Sears that the conduct they described would fit within this legislation. I don't see how it could. And ultimately, the burden of proof is on the person bringing the case. I have. I've probably talked to over 100 survivors of childhood sexual abuse on my attitude is I'll talk to any crime victim, see if I can help them spend time with them point them in the right direction, whatever it is whether I can actually do something for them or not. In a lot of the times, I say to them I believe every word you're saying I have no doubt about it, but the proof, we can't prove it. Because you do need to prove it a jury is not in my experience going to come through just because someone makes the allegation, find in favor of someone they have to have some level of proof. It may be corroboration through other witnesses it may be documents, but it's not going to be simply because the claim was made that they're able to succeed with respect to it. And talking about the restraints issue again for just a moment. If we think about it and I know each of you who has paid attention to these is fully aware of these, which is that if you bring a claim for civil damages, you need to prove fundamentally three things. You have to have a duty. You have to have breach of the duty. And you have to have damages proximate causes it's called fits in there somewhere between the breach of the duty and the damages. This is to say the breach caused the damages. But in the instances that you're talking about. I would find it very hard to believe, even if someone could meet the very high threshold of the statute that they would ever be able to show that they were damaged in some respect. I mean, I know of people who have come to me I spoke with somebody day before yesterday and not this context but another one where the person has a breach of duty, a duty a breach of duty, but the damages are minimal. And unless that person's physical condition gets worse. That will not be a claim that will go forward. So there's a lot of screening of cases. I mean there's a lot of time and effort on it. So that lawyers, particularly here in Vermont, don't bring haphazardly cases. The statute has written where the proposed statute has written is such that it's not an easy proof with respect to it will be a challenge to bring cases under this statute. In most instances, I am not aware of any case I have ever seen that I think could succeed under the statute. This brings me to a matter of some concern. I have spoken with the survivors of abuse at St. Joseph's child center since the mid 1990s. I've spoken with them as recently as this year. Individuals groups. This is a group of people who were very poorly treated in an atmosphere for which there is no excuse. My concern with respect to it is that if his legislation goes forward, not to give false hope that the statute or the proposed statute as it's written would permit recovery for them. Because it's a practical matter I don't think it would. The primary drivers of the abuse, as I understand it, were an order of nuns who decamped back to Montreal in 1975. And so if there's a claim against the diocese that would be somewhat different. I guess those nuns and my judgment is not going to very unlikely to be successful absence of witnesses at this point but also you have to get a judgment get a Canadian judgment collect on it. I have a $30 million verdict judgment against a father for the sexual abuse of his daughter. I tried that case over three days. I'll never collect a nickel on it, because the person's judgment proof. And so, in the same circumstance here, if someone wanted to make a claim for the abuse that took place with those nuns. I don't think it's collectible if they succeed and they can collect on it that would be a wonderful thing. As you look at the legislation. One of the things I think to have in mind is that many of those to perpetrate abuse of children. This percentage of them personally, people who do it individually are people against whom you'll never collect. I have collected against some of those individuals, but that's the exception in child sex abuse cases, exception rather than the rule. And if we look at what aggravated sexual excuse me aggregate aggravated assault is. I mean that is a very high level of abuse of a person. I think it's just to the people who commit that type of offense. Hopefully we'll go to jail. But secondly, I don't have anything in the way of assets. So there's not anything to collect about so I simply suggest that is a sense of perspective with respect to it. Anything you can do. Yes, Senator Bruce. Did you. Yes, sir. Sorry to interrupt. I did want to ask about. I think it would be very difficult to collect against that group of nuns. What would be your sense of the gross negligence standard and a suit against the diocese. Well, the question will be, I don't have a full grasp of the inner relationship between the diocese in the order of nuns. The question is that the diocese was the entity through Vermont Catholic Charities that was responsible for the orphanage. And the question would be whether or not first of all let's assume that there was physical abuse that would meet the language of the statute by some of the nuns or. So let's keep it at the nuns just for a moment. And in that case, the question would be whether or not the diocese had a duty, given the fact that it was a part of the diocese to make sure this didn't happen, put it non legal terms. The answer I think that will be yes. The question is whether or not the diocese was grossly negligent in its supervision of the operation of the diocese, excuse me, of the orphanage. It was possible for a survivor to show that they met this physical abuse standard that is set out here in the proposed legislation, and that the diocese was grossly negligent in its supervision of the operations of the orphanage. I think the answer that's yes. It's pretty clear to me. Okay, those are the steps that you have to take. You have to show that there was a breach of the duty of supervision with respect to it. It helps to have notice, but it wouldn't necessarily be a requirement because the diocese has a duty to supervise its own operations. Did I ask you a question you did thank you. Thank you. Go ahead please. Anything that that you can do. My goals is pretty simple, which is same as yours. Any child from ever being physically or sexually abused. And so this legislation has the possibility of permitting individuals who have been physically abused to collect damages but was done to them. It's a really high standard in the bill and I think it will be really hard and unlikely someone will. If it creates a further deterrent effect. That's great. I think that the criminal statutes we have in place already. Are the strongest deterrent we can have for that. I'm totally unfamiliar with the circumstance or I shouldn't say totally only in passing familiar with the situation of the current hat and home. I don't know whether or not there's this bill would permit any recovery there or not and simply. We have our next witness can specifically about. Good. Good. Excellent. So I hope I have answered the questions that you may have with respect to it. I think there's. When trying to prove an attempt when that I guess I'm kind of hung up on the attempt language there. Wouldn't that be difficult in a civil case to prove attempt. There wouldn't be any damages right. Well first of all, you have to show attempt to cause serious bodily injury. Or alternatively acted causes injury recklessly under circumstances manifesting extreme and difference to the value of human life. I mean any of the scenarios that I have heard so far. Don't come anywhere near this. Because, for example, let's assume it's a restraint situation, and it turns out that the individual suffered some damage or injuries a consequence of that restraint. Well, they're going to be able to show that this was an attempt to cause serious bodily injury. These restraints with the purposes of protecting the individual. Was it done recklessly under circumstances manifesting extreme and difference to the value of human life. No, and I'll never be able to prove that. So I don't think the situation involving restraints at least in the ones that I've heard here, which are done in a good faith effort to try to assist someone committing when you're close to anything that will permit a recovery under the statute. And if there's already been a recovery from physical damages that preclude a different suit. And all likelihood yes, because it could be either that the person assigned to release and getting out from behind a release is quite complicated and won't go into it here but very unlikely. Years ago when we used to split and sell firewood a young man lost the finger in a splitter accident. He was able to sue and our insurance company gave the damages. I'm just curious if he would now be able to see it already collected. Well, I think there's I mean I think you deserve to get. I'm sure that was a just this ordinary negligence case which is some allegation negligence connection with the operation of the splitter. I don't see anything under, first, I don't see anything under this statute. It would come anywhere close to permitting a recovery because this is all intentional or highly reckless acts one and two, to the extent that he recovered for that particular incident he sued and recovered for it. I don't see any chance that he could bring another action. Thank you. Those are my questions. Jerry, thanks. Thanks so much for joining us again this year. To you. Thank you. Thank you. Think about the things as the hearing goes on or later on, bring them to our attention. When we do the markup of the bill. The passage of the of the of the statute of limitations abolition with respect to child sexual abuse claims was a wonderful thing for the people who claims probably would have expired. If there is a way in which you can bring this legislation forward that will permit people like the survivors of St. Joseph's orphanage, or those who may be involved with the current hat and homes. It's a wonderful thing because it really changes their lives and I don't mean it in terms of money, but I mean it in terms of how they see the opportunity to achieve some level of justice. Thank you very much. Yep. And we will invite you when we do markup bill if you join us great. Thank you. Our next witness is Kim Doherty, who is co founder of the partner and the justice law. W. Master himself. Kim welcome once again. Good morning. Thank you so much, Senator Sears and everyone for the opportunity to speak with you all today. I have a brief presentation that I will attempt to share. I just wanted to thank thank you all for leading the country at least with respect to the sexual assault changes. You know I in the past was a social worker involved in New York back in the late 1990s working on child abuse cases involving child abuse and went on to get my law degree and continue to advocate in these types of cases moving forward and have represented gymnasts who had claims involving Larry Nasser. You know, unfortunately, other states have not done as well of a job in terms of opening the ability to bring lawsuits retroactive retroactively and many of the other states are simply opening windows. We provide some opportunity for people to get justice but certainly does not come near what you all are doing for sexual assault survivors and what I see you attempting to do here now for people who have suffered from physical abuse so I thank you for being a leader across the nation and in these types of actions. I share the same philosophy as attorney O'Neill in terms of any concerns that you may have over bringing, you know, attempted causes of action, attempted injuries because, you know, as you all know, we do listen to every one of our clients and we do want to try to get justice for every single one of them but you know we also understand we have the burden of proof and if we can't prove a case, we're not going to be able to bring it. And it's unfortunate and you want to help everybody but you know it doesn't make good business sense from a law firm to take on a case that ultimately will not not succeed. So really ends up not being a great use of our time. So I have the same sentiment that I don't believe there will be, you know lawsuits brought that aren't provable under the the sort of attempted aggregated, aggregated assaults. So I am going to see if I can share my screen now. Let's see share screen. Can you all see the screen now. Yes. Okay, great. Thank you. So, oftentimes when these discussions come up across the nation, the general public believe that physical abuse child childhood physical abuse is the thing of the past. Unfortunately, that's, as you all know just not true, particularly with the environmental factors that have come into play over the past few years. It has actually been on on the increase here. This is a slide that shows the visits to the emergency room in 2020. As a result of COVID, the way that they were tracking abuse had to change. And so the studies that the experts were looking at is how many people were going to the emergency room with issues of potential child abuse. And so the bottom part of the screen shows the increase between 2020 with respect to emergency room visits and you can see that it's, it's a drastic increase. When you look at the emergency visits for that were related to suspected or confirmed child abuse and neglect versus other types of emergency room visits that were taking place in 2020. There's also a statistic here from 2018 that is establishing how this has been a problem as recently as 2018 with 3.5 million children being involved in maltreatment and 700,000 determined to be created. So if there's any doubt that this is a timely bill. You can see that it is. So the, the other issue as it relates to to COVID is that there were significant decrease in the number of reported cases. And as you all can imagine, that's because now these children are no longer in schools, they're no longer in schools where there are mandated reporters who are able to come forward and make a report on behalf of the child. So that resulted in less reporting. There was also less oversight by these state agencies who are now stuck in their homes doing their jobs. And so, you know, the, the studies we believe are going to show in that the lack of oversight also has allowed the increase of child abuse to take, to take place across the country. In addition to that, where people who lost their jobs were now home, a lot of them turned to substance abuse. Again, another way of increasing the abuse within the family, and the issues that took place, including domestic abuse. So I think what we're about to see in the future as these studies get completed is a significant increase in abuse that has taken place in this past year. The emergency room visits alone on the prior slide have already borne that out. The sad part of this is that these environmental issues often won't show themselves for many years or decades. The effect of it, if there isn't reporting, is that, is that the people who are abused go on in later in their life and attempt to self-medicate, and that's where their life starts to go downhill. If they don't have an ability to come back and right the wrongs that have happened in these cases, you know, their lives can just very well go downhill quickly. Another environmental factor that we have prior to COVID was the opioid pandemic that we have across the nation. The studies that they that have been reviewed show that there is elevated rates of child maltreatment and child welfare related primarily just to the opioid misuse. Sometimes it goes undocumented, just like with COVID, but these are real issues that establish that childhood abuse is not a thing of the past, and we are going to see the effects of it. Vermont is not spared from the nationwide statistics that show that child abuse continues to rise. This is another slide that shows from 2018 that 1200 claims were substantiated. These are the reports from 2019. Again, pre-COVID, there was more reporting, but over 20,000 reports were made. 25% of those, over 4,000, resulted in child safety intervention, and then 5% resulted in opening and ongoing services. This next slide shows something similar in terms of the 25% being investigated or assessed, and the low rate of 5% actually resulting in any type of oversight and substantiation of the claim. Part of the issue is that the workers within the Department of Children and Family Services are really spread too thin to evaluate those other 75% of investigations. So when they're deciding between which ones to investigate and resulting in only 25%, it's because there's just not an ability to investigate every single claim. In Vermont alone, the department workers take on an average of 6.2 cases each when the national practice and the best practice is 12 cases. Part of the issue here too in reporting is mandatory reporters can be the ones abusing. I think we've seen that in the institutional cases. They don't have an interest in reporting the abuse that they see or that is brought to their attention. And children are obviously not in the position oftentimes to report themselves. Part of the initiative that I understand of the Senate bill 99 was this epidemic of institutional abuse within the state of Vermont. I think everybody understands what that's like. Joseph's orphanage has already been discussed. You know, 120 years of abuse, mutations, murder of children is a serious issue. And I share Attorney O'Neill's concerns on collectability in that case. And, you know, you have to really look closely at whether this bill will allow for any diocese potential collectability. But for me, I believe that this is just one example, among many others, including the Catholic Church, where 40 priests were credibly accused of physical abuse and sexual abuse, and now as recently as today with current These are just examples that have made it to the public. And as Attorney O'Neill will tell you, many of our cases never see the light of, you know, the news. Oftentimes, these cases are filed or are settled or resolved prior to filing and they don't get the news attention. I'm talking about the ones that are on people's minds now today, because these are things that are in the public knowledge, but this bill, I'm optimistic will also allow for other claims outside of these institutions that are well known to the public right now. There are certainly other areas of abuse that are taking place that are not within the news realm. And so in terms of the examples of the institutional abuse that we've seen, you know, it's well documented throughout these cases, you know, forcing children to stand for hours, leaving them outside in the snow, hanging them outside of windows upside down, locking them in cabinets for days, you know, raping and forcing abortion, cruel and inhumane exercise routines forcing them to re eat their own vomit punching and beating them kicking them downstairs. I mean, it goes on and on. And when I think about this type of abuse. I would love to see this Senate bill 99 as broad as possible to ensure that every single person who suffered something like this will have an opportunity to bring their case forward. You know, it is a high standard. I share that concern. Gross negligence is a high standard. So to is recklessness. I'd be one to take on the cause and some of these certain situations and say, you know, we can meet that standard, but anything that we can do to ensure that survivors have an ability to bring claims and aren't faced with the challenges that you know we are have been discussing today is something that we should think about. I just want to push back a little bit about the idea that all institutions and all institutions and collecting an epidemic of child abuse. I think that's an act necessarily accurate statement any more than my saying all this particular. Cause trouble in the past. Anything else. I think it's. Yes, you have, you know, St. Joseph's Orphanage you have these others that have come to light there may be others. But to suggest that every institution in Vermont's history has that history. You know, the week school was in operation for years and years and years and years and maybe a record there. I don't know. I was operated by the state of Vermont. But nothing has come forward that I'm aware of recently. And so I am a little bit troubled by that. You know that. Yes, and I apologize if I misstated that I certainly don't believe every institution in Vermont or nationwide has these issues that's, that's, that's clear. It is a small percentage of the institutions that do. There are many that do quite good work for people many schools there that have no problems at all. My, my only point is that there may be some that are not within their. I don't disagree with that I just that I'm talking about the epidemic of child abuse in Vermont institutional care that that's why I don't know which. That's fine. Please go ahead. I just needed to say that. Understood Senator and I want to be clear that I don't believe that every institution has those issues. It is a small number. Some that might not be, you know, in the public realm. So this next slide is just sort of a comparison of some of the issues that had happened at current Hatten. Obviously there's there's been great work that's been done on the sexual abuse sides of claims. But if you look at, you know, there could be another person who suffered the serious physical abuse, you know, in terms of being kicked repeatedly in a box and having his head smashed into a toilet. The results of these, these, these clients of ours have been shockingly similar, despite the fact that there are different types of abuse. They've led to addiction, alcohol and things like that. So this bill, I believe, would actually have a positive impact, at least with respect to some of the current Hatten cases, and to allow the strikingly similar outcomes and suffering to both have the opportunity to gain some justice. In my past slides, I've talked about the psychological and neurological effects of abuse. I don't think this is anything new to anyone but clearly the abuse can have influence on all aspects of life, including brain development, emotions, relationships, mental health. In my previous slide regarding deprivation and neglect in childhood that caused serious emotional and cognitive problems and in the brain itself is evidence of that. One of the things that I think is important that is probably behind this bill is delayed disclosure. They will never tell anyone that they were ever abused. And the average age in one study that we've looked at with 1000 victims was 52 years. So I think that this bill itself is supported by the science and the delayed disclosure. And I think that's important for people to recognize. And the other thing is that it can also have great effects in other areas. The statute of limitations reform and repealing the statute of limitations will help identify previously unknown predators and in any institutions that are involved in that. It does shift the cost from the victims and society to the perpetrators and the institutions when we're able to recover and put together, you know, life care plans that will help these people in the future continue to get the mental health treatment that they need, as you know, having taxpayers pay for that. It also obviously educates the public regarding the types of abuse that are out there. And oftentimes in these cases, when you either go to court or even settle, it does result in change in policies and procedures. I think one of the things that's a requirement that we include in a settlement is to make sure that policies change procedures change so that the continued abuse is not something that can take place or that at least gets limited in some ways and so that there's an opportunity to affect the future and help to make people safer all together. So I just want to say thank you all for the opportunity to speak today to share information related to childhood abuse, probably not telling you all anything you don't already know. I do support this bill and I think it's an important bill that needs to be passed. If there's opportunity to amend it in any way to ensure that the purpose is set forth to help situations where children have suffered, I'd be happy to continue to participate with any of you all in the future. And if anyone has any questions I'd be happy to answer those as well. I think I don't know. I'm muted. I was muted. I'm sorry. Okay. Either question for Kim. Senator Benning first. Kim you. Obviously, there's a problem that needs to be fixed here and that's pretty easy to see. But I'm still coming back to the attempted language. And part of your presentation has strengthened my concern. You believe that the case of attempted would be so difficult to prove it probably would never get there. Why would we leave it in the bill at all. I mean, it seems to me as a responsible legislator, I should be making sure that concerns like that are just not present and available to cause problems. I'm thinking. A person who has ended up in the emergency room has a very strong building block for a case. You take the screen down so we can see people. Yes, I'm sorry. Let me let me do that. Stop share real quick. Sorry. Sorry, Joe. So a person who ends up in the emergency room has a building block for a case 30 years later. If you don't end up in the emergency room, there is an allegation. Most of the sexual abuse cases and physical abuse cases have a long history of a plaintiff having mental problems. Life problems that have been manifested as a result of the abuse that they suffered. In an attempted situation. I'm struggling. How is it, for instance, if a kid in a camp on several occasions was put in a restraint situation. And then the police see them making an argument that reason that they ended up in therapy for 1520 years. And all of their life problems was because they have this repetitive dream of being somebody attempting to make an aggravated assault on them and I'm struggling trying to figure out how to make this all work right. So why would we have attempted in there. If you don't think that an attempted case would ever be brought. Yeah, I don't want to speak for the drafters or Mr Fitzpatrick I think it just the way that the bill reads it relates back to the definition of aggravated assault that Vermont has in a separate statute and that is the precursor language within that statute. If there's some concerns regarding it, I think it's just drafting that would need to address that concern that you're not citing back to that statute that defines it and includes attempted. So could there be a case of attempted aggravated assault that is actionable. You know it's just really hard to prove, I think, and I'm trying. It would be even harder to defend against after a very long period of time and it. Thanks for your response I'm just trying to wrestle in my head. I appreciate it. I understand it and I appreciate that concern. Yes. Thanks, and Joe and and the chairs. Questions about attempted I'm starting to think along the same lines. It seems like something that we might better get rid of at this stage. Ms Doherty, you said you'd be happy to work with us in terms of strengthening the bill if that were a possibility. Do you do you have any ideas along those lines. I'm you know part of it is what you're talking about here to further clarify what attempted means if there is and I would need to think on it whether there's ever any attempted case that could be actionable. What I was thinking about is was did someone chase someone down with a gun and hold a gun to their head multiple times you know could that be something that you know, that's another part of the of the aggravated assault statute where it's, you actually did have the gun or another piece is drugging somebody you actually did drug them. The attempt it is the, the first and second prong of it. Yeah, instances, but yeah, I think, you know, I would, I would like to study the bill a little further and see if there's some way to address the concerns of, I think that attorney O'Neill has raised you know collectability and ensuring that we don't retraumatize people to believe that they're going to now have a cause of action and in fact not be able to move forward on any type of cause of action. It just, it that that's an issue that is not necessarily solvable by a bill. It's just case by case scenario you have to look at whether or not you have a defendant that is in a position where you can collect. And so I be happy to look further and study and think about, you know, are there other ways that we can alleviate any concerns of those types. And, you know, ensure that there's, there's a broad avenue to seeking justice retroactivity retroactively but that doesn't also leave open the concerns that you all have about the attempted language. Okay, appreciate that. Okay, any other questions for Kim. I am getting a, if the institution, and we didn't talk about very much, but is the standard for the institution the right place. In other words, the gross negligence. I have to prove that the institution, and maybe going back to St. Joseph. Mr. Romeo, I'm still with the sort. Kim. Where does that leave us. The nuns work for an order. They were in a facility owned by the diocese case at Manhattan. There were certain house parents who did things that both the sexual and physical abuse. The standard of gross negligence, that the standard we need to lie to low for the institution. Jerry. Senator, I think that's a good standard. I think it's a reasonable standard in the context. I know specifically in the context of the child sexual abuse cases that you were the one who thought that the standard of gross negligence was needed as a relays to institutions. Right. I mean, I do think that we want to hold institutions accountable, but we don't want it to be too easy. From a plaintiff's perspective, I may be contrary to what others might think I should be saying, but I believe it. And I think the gross negligence standard works, because the question is, whether or not in a given context, the actions of those who responsible for supervision, which is really what this is have acted not just simply negligently, but really weren't paying attention to business in a meaningful way. That's the way I would think of gross negligence, which is really not paying attention to what you're supposed to be doing in a significant way such that you caused injury permitted injury to occur. You're going to comment. It is obviously a higher standard than negligence. But again, you know, you're you're not talking about the perpetrator about the people who are supervising the perpetrators and the other people who are acting and causing the misconduct. I'm not sure where I would stand on that. All I can say is that, you know, in the case of current hat and in a lot of the cases that I work on while gross stand negligence is a higher standard. The type of conduct that we're talking about will easily reach that. You know, so it it it may not have as much of a real true impact on these cases where the abuse is so severe. And the meeting that standard, I feel for particularly in the cases that where I take on is usually pretty while it's higher, it's attainable, because the misconduct is so grave. Well, I will say that one of the most surprising aspects of the discussion about current in our joint session. Last week seems like a month ago. Was the failure to even even recently have mandated reporting to not take place. I mean, I just think we spend so much time talking about mandated reporters and spend a lot of time on issues of school teachers and being mandated and what their obligations were training to doing all that and I'm talking about 2019, not 10 years ago, I'm talking right recently failure to report. That that shocked me actually. Yeah, it's pretty egregious. And that's why in that instance itself. You know, I think the gross negligence is something that is attainable, particularly in that case. Could it could it come to be an issue in other cases where you know there's a debate between the plaintiffs and the defendants as to what the intent was of the legislature to put in the term gross. And that too and I certainly do believe that it will be used as a defense to say that, you know, it doesn't meet the standards of gross negligence this is, you know, yeah we were negligent yeah we didn't see this we didn't, you know, so I can see it as being a defense in the future. I appreciate the conversation around this. I don't have the full answer for you, other than to say, you know, in the cases that I take on it's usually pretty grossly negligent. And I don't know if Mr. O'Neill feels the same. We're going to take a break Peggy if you could let, I see Sarah Robinson is our next witnesses right here. Could let them know we're a little bit ahead of time. So if you can let Mary Keo and Amy Brady know that we're a little ahead of schedule. We'll do what time do you want to come back from break. Thank you.