 We're live on YouTube. This is Friday. No, it's not. It's Thursday, April 8th 2021. I should know it's Thursday Just returned from Doggy day camp with my doggy Marley. So Marley won't be disturbing us today Yesterday we voted out S99 and accruing to Healing the statute of limitations for civil actions based on childhood physical abuse We did not senator Benning was unable to join us due to a court hearing so If senator Benning would like to vote now or ask any questions about the bill happy to answer Senator Benning is prepared to vote and would vote aye Thank you. So that's five zero zero Peggy Senator Bruce I already have the version Okay, and then I'll Yeah, and I did send a message. I haven't heard back from I might I haven't checked my email this morning but I sent a message to John Bloomer and Becca now regarding the S bill and obviously didn't meet me How they want us to deal with it It's an important bill and Hopefully they will also take it up So this morning we're taking up H183 an act relating to sexual violence And our first witness is Michelle Childs who will walk us through the bill and try to understand help us understand Why would why and what changes house made to the bill as introduced Repeat the number please H183 it's an act relating to sexual violence Leave it changes our consent laws is the main So Michelle, but Michelle you're muted you're muted Is it okay for me to turn my screen put my document up for sure? Yeah I Was a cartoon in this morning's paper people were meeting together and the caption is can we still use the mute button? Social distance meeting so I'm going to walk you through so the first Few sections deal with amendments to the statutes in the sexual assault chapter And then as in our sears I think mentioned a moment ago There's like in there about creating an intercollegiate Council that is gonna to address sexual harm on campus and And there's some occasions at the end as well as some data collection requirements So I'm starting with section one and this is the definition section for the chapter on sexual assault And so we're starting out with the definition section and you see there's an existing definition of consent So currently means words or actions by a person indicating a knowing In the and voluntary agreement to engage in a sexual act right now It says a voluntary agreement and so this is adding knowing and so a lot of the the tweaks around Consents that are Incorporated into this and to this draft were based on federal law title 10 Military code if you look at the federal law There's the with respect to military lots in title 10 with respect to elsewhere It's in title 18 the title 18 sexual assault statutes are Fairly antiquated and they generally haven't been amended much since the mid 80s As opposed to the military law has been I think because of a lot of the Cases in the news and the last several years and the military looking at Sexual violence within the armed forces They have done more we much more recent updates to their statutes And so I was looking to those as well as to some other states. And so I will send you some links to In case you ever want to take a look at it And now so we'll send you a couple links to some existing Vermont statutes where I Where there's some poor some parallel language? So see in it's adding a new deaf a new definition and subdivision 10 of incapable of consenting And this is again based on federal law Incapable consenting means the person's incapable of understanding the nature of the conduct at issue It's physically incapable of resisting declining participation in or communicating Unwillingness to engage in the conduct at issue or lacks the mental ability to make or communicate a decision about whether to engage in the conduct at issue Who makes the decision that a person's incapable of understanding? Well, we are gonna get to that Okay, because that Right, I mean physically I'm incapable would I would assume means somebody's So intoxicated that they're You know Unable to Do anything, you know what But I think maybe once I walk you through the other language and then you look at how it all works together and and Okay, I'm back around because some of those particular instances are specifically delineated Okay, I guess I'll wait but Incapable of understanding and lax lacks the mental ability aren't they similar Um, the so the mental ability is so there was there was language previously in 83 that was addressing developmental. I believe developmental or psychological Disabilities and it was building on existing law and just updating terms There was some concern expressed by advocates Mental health advocates around having that and so the language has gone a lot more general around that but I would say that if you have Incapable of understanding the nature of the conduct that issue it could be somebody who's incapacitated through intoxication Lacks mental ability to make or communicate a decision about whether to engage in the conduct of the shoe I mean it may fall under that as well, but you would also have people who might have some type of Disability that may affect the ability to to communicate a decision To this but my question is to maybe witnesses who May come forward What if somebody's incapable of understanding wouldn't they also lack the mental ability to make Communicator decision Is Senator Sears, yeah Michelle I'm looking at Ten Incapable of consenting means and I'm isolating the phrase in be declining participation in it just does not flow right and maybe it's just me but if you're incapable of consenting and You're declining participation in you are capable of either consenting or not that just I Don't know. Maybe it's just me. I guess I look to Philip as the English specialist, but I See what you're saying You know this has gone through several iterations in the house I'm happy to look at all compared to their old definition and see if I use that language or if it was using some of the Language that's in the existing statute and bringing into this definition. So I'll look at where it originated good So section 32 52 is your statute for sexual assault So subsection a right now It's no person shall engage in a sexual act with another person and compel the other person to participate in the sexual act So forcing that person that is struck But you have under here so no person shall engage in a sexual act with another person one without the consent of the other person To by threatening or coercing the other person Three placing the other person in fear that any person will suffer eminent bodily injury or For when the person knows or reasonably should know that the other person is asleep Unconscious or otherwise unaware that the sexual act is occurring So I will note that this knows or reasonably should know is a new standard within 32 52 you do use it elsewhere in In title 13, it's used in the statute for sexual abuse of a vulnerable adult It's also used in stalking So I just raise that and as I go through other provisions you'll see where it is used in another section and then I think Introducing you to all these concepts and then perhaps hearing from the witnesses and then circling back with me to have the discussion might Might be most helpful, but just a suggestion Could you just bring it back up a half a page? I think so Sorry All right, so you've struck out and compel the other person So we're down to no person shall engage in a sexual act with another person without the consent of the other is that now Meaning simply that you have to have a Formal acknowledgement that it's okay No, there's some language that we'll get to and in the next section that'll talk more about what consent is not But it does not require There's not a requirement here that there be like a affirmative Okay, I just caution those that are watching on YouTube That feel like our questions are Whatever That we're going through the bills to make sure that I don't think anybody on this committee and I know that Want this to happen to anyone the issue is is it written well enough to not have unintended consequences or Or not be able to prosecute somebody because legislature made a mistake in The conduct that we're discussing here is obviously You know, and I think of some of the cases That we've heard about like the swimmer out At scamford University Those need to be dealt with in the harshest possible manner so Hopefully people will understand these questions related to Will the law work and will the law would the law result in unintended consequences of people being prosecuted Or Guilty people not being prosecuted because the legislature made a mistake and wrap Thank You Michelle So subsection B and I Currently it just has the language it just has once it subdivisions just subsection B And that language currently reads no person shall engage in a sexual act with another person and impair Substantially the ability of the other person to appraise or control conduct by administering or employ drugs or intoxicants without the knowledge or against the will of the other person So this We've kept that but just kind of restructured the sentence So that it would be no person shall administer any alcohol drugs or other intoxicants to another person without the person's knowledge or against the person's will and while the person is impaired by alcohol Drugs or intoxicants engage in a sexual act with that person You may have heard of the Case that came out. I think last week from the Minnesota Supreme Court I know that some years had I don't know if other familiar with it and In that particular case, there was a woman who had Done I think believe like five shots of alcohol and taken an opiate pill. She was intoxicated. She went to a bar to go in and she was denied entry at the bar because she was too intoxicated. And so When she was outside, she met some men who invited her and I think maybe some friends to a party and they so the woman went back with the men, but there wasn't a party and She quickly passed out on the couch and when she woke up and came to The defendant was having sex with was was raping her and and so this case was brought and what the Supreme Court said was that the charge didn't apply because she Voluntarily got was intoxicated. She caused her own intoxication. And so she based the statute didn't apply. This is something that's similar to that. However, we have other provisions that Can be more of a catch all around lack of consent. So it's a little different. It's also different in the sense that in Minnesota. The way that it reads is that It's a it's third degree criminal sexual conduct with some sexual penetration with another person when the actor knows or has reason to know That the complainant is mentally incapacitated and then Minnesota, they have a definition for mentally incapacitated that Brings in the standard of you of the person being drugged or or by someone else. We don't have that definition here. And like I said, there's other provisions. I think that can address, but I just wanted to kind of bring your awareness to this one provision. So the be one is addressing a situation where Someone is, you know, unaware that somebody has perhaps drug their drink or something like that. Subdivision two is new and that is no person shall engage in a sexual act with another person when the other person is incapable of consenting to the sexual act. Due to substantial impairment by alcohol drugs or intoxicants and that condition is known or reasonably should be known by the person. So there we have the term incapable of consenting to the act, something that's different between these two is up here and be one it's around when the person is impaired by alcohol for this on subdivision to there's the addition of the word substantial So just kind of highlighting some of the elements there that I think probably witnesses will discuss and and you may want to circle back around to so subdivision one involves someone drugging someone else and engaging in sex with them subdivision to is engaging in sex with someone who is incapable of consenting because they're substantially impaired by an intoxicants. But it doesn't how they became vaccinated doesn't matter. Are there cases in Vermont where current law has not allowed a prosecution. I don't know I would rely on the on the witnesses to to address that. So next section section three and section, you know I have to go back and double check but while you have obviously amended the sexual assault chapter quite a bit over the last couple of decades it's typically been around penalties around around children around things like that this particular section has not been amended I think for for a while. If ever, I'll have to double check and so here it talks about a prosecution for crime defined in this chapter which is a sexual assault chapter or section 2601 which is lean lascivious conduct. And these are the following provisions that apply so the first one being that lack of verbal or physical resistance does not constitute consent. So you can't just by the fact of that someone didn't fight back. Doesn't necessarily equal consent. May I ask a question about that. Sure. So lack of verbal or physical resistance but so lack of verbal if somebody doesn't say anything at all. It's still could be non consent. Okay you're going to look at the totality of the circumstances so it could be that it could be that somebody falls into one of these other categories in the sense of that they're impaired. It could be that they are under duress. Maybe they're fearful of rejecting the person because the person's been threatening towards them. I think there's it. It means that you can't that lack of consent isn't it isn't just positive by saying that the person didn't physically fight back or scream or anything like that. Where is the phrase to tell Terry the circumstances in the bill or law. That's just I just a term a legal term of art that we use in term in terms of looking at all of the evidence and in order to make a decision. So, so in this what some what subdivision one is saying is that this is not that the issue of resistance lack of this doesn't automatically equal consent. You would be looking to other things to show lack of lack of consent, or that there was consent. Michelle. Yeah, when I when I look at one two and three. They're they're all constructed negatively they they speak to what doesn't constitute consent. And I, and I think, partially, the questions will arise around what does constitute consent. I know that California has worked with various levels worked with language about active consent. It almost seems like this phrase is an attempt to avoid saying what what consent is. So to go back to Jeanette's question if there's, if there's no verbal or physical resistance. How, how does someone know whether there is consent. I think that it could be in cases where there's impairment for intoxication. It could be because of someone's. I'm sorry I don't know the right term terminology around like a mental impairment or a disability or issue. No, I, I understand those are those are more easily understood situations where consent can happen. But if you imagine a, you know, a situation without those. I feel like this pairs away what doesn't represent consent, a couple of cases of what doesn't represent consent, but it doesn't articulate what what is consent. And so that seems like a gray area that we're that we're working with. Well, there was no resistance. The person didn't say no, their conduct didn't say no. So, I think you would then have to go back up to, you know, did that was the person. Yeah, I'm going to agree with Phillip though that there's such a thing called passive consent that doesn't have any of the, the triggering lane. The triggering language where someone new or should have known, but if those other those things don't exist this language in a separate section of trial procedure sort of just leaps out and screams at you that you've got to have an active consent statement. Otherwise you're in violation of this particular language. And I don't, I'm not going to get personal here but the, the two people who are engaged in an act one may be willing but is not verbally making any kind of statement, and is not intoxicated or under the influence of substances or whatever this may be. But they are going along with it and not making a formal statement that they want this to happen. And to me that's what this language lack of verbal or physical resistance does not constitute consent I'm troubled by how that could be applied in a trial. I mean it just seems in, in, I understand this is a fraught place in the law and in culture where we're trying to determine, you know, in dating in sexual activity what constitutes consent. And I know that, that that's the toughest piece, but the way this is framed here, three statements of what doesn't constitute consent it in any other bill we would have a definition for what did constitute consent, or, or whatever the X factor was. Well you do have a definition of consent. Okay where's it. It was the first first thing I talked about consent means actions by a person indicating a knowing and volunteering. Okay so that really strengthens the argument though that the individual has to perform some words or actions. And then there's no such thing as passive consent. The actions could be having Well the lack of action could be passive consent. I'm trying to understand, I think what the committee is concerned with here is a person has regret the next morning perhaps, and then claim something. I just want to make clear the concept of someone taking advantage of another person, I think is behind this bill, and I'm in support of that concept to try to correct that behavior. What I find as a potential minefield is ending up in a criminal trial, where someone was not subject to any of the things we're concerned about that could manipulate them into a position they didn't want to be in. Rather there was passive consent, and there was no formal action no formal words, writings or whatever saying yes I want to go along with this. And I'm troubled by how that language is connected here. I'm hoping we're going to hear some more from witnesses to try to clarify. I don't remember seeing and statute trial procedure discuss like this. Maybe it maybe it's there and I didn't know it. I guess it is because you have current language. What would happen if you took out 2345 I mean you already defined it up above. I want to think about that, and see whether or not there were that created any gaps or if it was covered out by everything else. Well, maybe it's a title there. Maybe it was clear that the talent area. Out of the circumstances. I just. So the, the first one through one through five are are premised on federal law. You do have under existing law currently lack of consent may be shown without proof of resistance. And then you have what is now subdivision six. So that's essentially no means no. Subdivision three, see everything and then we can circle back around and so. So the second subdivision is that an expression of lack of consent through words or conduct means there is no consent so that's essentially no means no. Number five is a reference to the reach our rape shield law that consent shall not be demonstrated by evidence that's prohibited under our current rape shield statute. So no bringing in the, the survivors past sexual conduct and where they were dressed things like that. Number five a sleeping or unconscious person cannot consent. Division six so you see this is amending the existing law under current law it talks about whether the person was mentally or physically incapable of consenting so there's some little tweaks here I would say the general changes to this subdivision are requiring knowing it's new or reasonably should have known. So, changing the standard there and then you'll see on subdivision six a striking mentally so that it would just be more generic using that new definition of incapable of consenting so the person knew or recently should have known that the other person was incapable consenting to the sexual after the loot or lascivious conduct. Number three is that the person knew or recently should have known that the other person was unaware that a sexual act or a lead conduct was being committed. And then see the person that knew or recently should have known that the other person was incapable of consenting this to the sexual actor lead conduct with the actor because the person was substantially impaired by alcohol or drugs. Is it okay to go to the data reporting section. Sure. So section four is data collection and reporting. And so this is honor before September 1 of 2024 so it's a ways out and annually by annually after that DPS is to provide a statistical report to the general assembly based on the neighbors data. And the Vermont judiciary on the following issues and essentially what it is is there to compile county by county looking at the number of sexual violence cases that were reported to any law enforcement agency. Then the number of civil sexual assault or stalking orders that were granted. And then the number of sexual violence cases that after they were reported to law enforcement were subsequently sent to pro for prosecution. That's in C for potential charges and then top of page five and D is the number of sexual violence cases charged in the nature of the charge and the disposition of charge so what it's attempting to do is to look at say, you know, I think there's a lot of data out there that that it's a description of sexual assaults are actually reported but how many are actually reported in Vermont and then out of those that are reported how many are referred for prosecution. And then out of those were referred referred for prosecution how many result in charges and what is the disposition and what is the type of charge was there a fiscal note on this. I don't know. We request I believe it's using, I believe it's using data, my recollection like a fiscal note from the joint fiscal on section five. Okay, excuse me section four. I'm asking an awful lot from the Department of Public Safety and what we obviously angry Jonas is here may be able to respond to the question. But I'd like a fiscal note on it. Well and Mr chair if you add in what we were talking about yesterday. In terms of the the race based demographic data. There's a huge amount of data gathering. And it would come across the same agencies. My recollection is that this, like the crime research group has a lot of this information. And that's, then why aren't they doing the question is I'm not objecting to getting the data. And how he's going to pay for it. And how it's going to be done in the current budget of the Department of Public Safety which I go over yearly as part of my responsibility on the committee. And I'm concerned that we put more and more on people and, for example, I hear, you know, that what Senator Bruce just mentioned in yesterday's conversation about the race racial data should be a fiscal note on these issues. And if, if the crime research group already has the information why wouldn't we want to use them instead. I'm not questioning you Michelle questioning the house's decision to go this route. I think that there was a method to the madness I don't necessarily know what it is but perhaps. I'm not going to verify but my understanding was that that it was not going to be an issue and didn't require. Well, I think it's important that since they've got appropriations in this bill in a following section that we get all the information that we need to make a good decision about who should be gathering this information and whether it should be the crime research group or some other. So let's skip section five. Leaving that there's a subcommittee of the Senate Judiciary Committee that's looking at section five. Okay, well, as section six goes with it. So I'm on to section seven for appropriations. So the subdivision. A deals with the, with the task force or the council up above so I won't talk about that. Pardon. Yeah, no, that's fine. Section B is an appropriation of $40,000 to the Center for Crime Victim Services to provide a grant to expand for a pilot project the Vermont forensic nursing program so this is the training program for specialized healthcare who can collect evidence after there's been a reported sexual assault. And so, you know, they have to be able to be specially trained because evidence is important and they have to log everything and be very careful around the chain of custody. The funds right now those services are only offered in hospitals. And the funds would be used to recruit trained and credential nurses to provide that type of care within either primary care or reproductive health or campus healthcare settings so it wouldn't just be available in hospitals. And I want to know why we would be appropriate a modern money for this type of service to the Center for Crime Victim Services. I mean, why are they the entity. Yeah, why not the Castleton School of Nursing or the UBM School of Nursing. Because they administer the forensic nursing program. Who the Center for Crime Victim Services. Mr. Chair, I just wanted to say I think that's the best piece of the bill. It's directed right at one of the biggest problems which is that following one of these sorts of incidents. There's a lot of times not not the people on the ground to help collect the evidence or to take care of the victim. So, I think that would be money very well spent. So then in January of next year, the Center is to report to your committee and House judiciary on the progress of the pilot program, and then a second time November of next year regarding the implementation and results of the pilot program. Thank you. Any further questions from Michelle. I just skipped over the, the council but Senator Baruth will probably, he has questions about it. Okay. The next witness is Sarah Robinson, deputy director of Vermont network against domestic violence and so. Sarah, good morning and welcome. Good morning. Thank you so much for having me. Yeah. I don't have any questions, but probably have your testimony so feel free to do both. I will do my best to do both and based on your questions this morning I'll probably be able to answer some of them and some of them other witnesses will also be able to address. The committee has been discussing this morning and as you know from your much broader work sexual violence is a significant issue, which impacts thousands of Vermonters every year. And just by way of a very small bit of context in the US approximately one in five women, and one in 38 men have experienced rape or attempted rape in their lifetime. And as with many other forms of violence. Some individuals and communities are disproportionately impacted by sexual violence, and that includes individuals with disabilities, black indigenous and other people of color and transgender and non conforming gender non conforming individuals. And here in Vermont were not exempt from those trends. So I thought it was worth highlighting that in the most recent youth risk behavior survey here in Vermont in 2019, which asked a series of questions to nine through 12th graders across the state. One in four female identified students report experiencing unwanted sexual contact and students of color in Vermont are more likely than white students to ever been forced into sexual intercourse. And likewise LGBTQ students are more than two times as likely to be forced to have sexual intercourse compared to their heterosexual or cisgender peers. So I'm just going to speak briefly to the sections of the bill and then again would be happy, and I'll try to address some of your questions as I go and then I'd be happy to take any additional questions. The updates to the consent statute I think states attorney Tebow will be able to speak to those probably in greater depth and with a much more direct understanding of the courtroom implications of those changes. But certainly as understandings of sexual violence and its impacts have evolved over time. So to have definitions of consent and the updates to the sexual assault statutes that Michelle outlined, seek to more accurately capture situations involving drug facilitated sexual assault and to update language related to lack of consent through words or conduct submission as a result of force and sleeping or unconscious individuals. It's kind of an area that that was sought to be to be clarified around section for the data collection section there are some good questions there. The intent of that section is to really collect in one place information about the legal systems response to sexual violence. And despite the high prevalence of sexual violence, as you know the legal system often struggles to respond to these cases. So we know nationally for every 100 sexual assaults, only 23 are ever reported. There is five lead to an arrest and less than 1% of cases are ever referred to a prosecutor. And after cases are referred to prosecutors, a very small minority of those cases lead to a conviction. So there's this incredible attrition in sexual violence cases. There are many good reasons why a survivor might choose not to report an assault, but when they do. It's incredibly important that the legal system provider a robust and consistent response. And so the language in the section was the result of stakeholder conversations with DPS crime research group the state's attorney association. That's it. And what we heard from DPS and hopefully you'll hear this from major Jonas as well is that what is outlined in the report is already within the scope of crime research groups existing contract with DPS. They will be able to create this report without any additional data the data is already available to them and doable within the scope of their existing contract. But the idea that was my confusion that doesn't mention the crime research group. So that was a little bit of the preference of the house they wanted to ensure that they were only directing state agencies and not directing private nonprofit organizations and you'll see I'll talk about another instance of that further down in the bill. Because DPS is the entity that holds the contract with crime research group. They are the ones directed to create the report but Robin Roy from crime research group was the one that, along with anger Jonas was involved in those conversations and I'm sure that Robin would would be able to speak to the availability of that data and the possibility of crime research group to perform what is called for or within the scope of their existing contract. On section five, the intercollegiate sexual violence prevention Council I'd be happy to work with Senator Bruce or others on this section. The establishment of this kind of standing Council was a key recommendation of the previous legislative task force on campus sexual harm. And the intent is really to serve to coordinate in an innovate responses to sexual violence on campuses across Vermont, knowing that, you know, one in five female students and over one in five transgender students are sexually assaulted on campuses and that that age group 18 to 24 folks are four times more likely than people of other ages to experience sexual violence. And so the intent is really again to just ensure that responses and prevention efforts on campuses across Vermont are coordinated and that resources are shared across both large and small institutions private and public institutions. So you'll see in section seven of the bill. It appropriates a small amount of funds to the Vermont Center for Crime Victim Services to essentially staff this Council again these are some changes that were made on on the house side. When the previous legislative task force sunset it. There was a discussion about the establishment of this new intercollegiate sexual violence prevention Council and who ought to staff that body, whether it could be a state agency whether legislative Council, and what ended up happening is no one essentially raise their raise their hand, the network said we'd be willing to do it, but we would also be happy to step back. And so there is a small amount of funds in section seven around, providing the kind of administrative and coordinating support to that body. In the house, there was a certain amount reduced from that award for staffing the Council to accommodate some needed per diems of members of the Council so one of our particular requests is that the amount in section seven a one is restored to the original level in the bill is introduced which it's very small, it's just up back up to $13,000 is what we would need. If the network were the Center for Crime Victim Services was to ask the network to do this work. And in section seven the forensic medical care for victims Michelle explained that well but I'm happy to provide some additional details. Okay. So, essentially, right now the, you know the center does fund that program. And right now the care is only available in emergency departments, and we certainly see the needs from survivors to have that care available in settings for patients who may not access emergency rooms but still need that actually trying to remember, remember, but I think this committee actually started that program. I think you're right. I think you're right centers years. There's no objection to expanding the program or anything. Yeah, again that was also a change that was made on the house side. So I'm happy to answer any questions that folks may have. But I find that the section three to be very confusing. It may be because we're significantly changing the current statute regarding trial procedure and the consent issue. I'm afraid of some unintended consequences and some things that may be it, you know, that may actually be an assault under this. How did this get to where it is. So I think that, you know, I can speak to that from our perspective I know that states turn it to you know, maybe able to speak to what was drawn on from other states and jurisdictions and how the language mirrors, mirrors those pieces I would just say that there was a desire to ensure that there was additional clarity in the statutes, especially around cases where people were incapable of consenting due to intoxication or being unconscious or things like that and this was the way that the language was ultimately where the language ultimately ended I would will also say Center Sears that it is certainly our share your intention not to have any unintended consequences and ensure that this language isn't overly broad and unintentionally criminalizes behavior that ought not to be criminalized and by the same token doesn't leave out cases that ought to be able to be prosecuted that cannot be and in my understanding based on conversations with prosecutors and the experiences of survivors that we hear about is that most often these cases are actually just the cases that actually end up being prosecuted are in this realm are egregious and these are people that are truly unconscious, semi conscious and states turning to both and speak to that but I think the intent of the languages to address those circumstances. I think it's number two on page three. In section three, number two, an expression of the lack of consent through words of conduct means there is no consent. I don't know what that that's I guess. State turning to both and explain that one to me. Clearly. Submission route resulting from the use of force threat of force replacing another person in fear does not constitute and said that's pretty clear. The lack of verbal or physical resistance does not constitute. It's just rewarding what's already in law lack of consent may be shown without proof of resistance. But it's, I think I'm stumbling on to. Yeah, I can understand that and I think as Michelle noted I think it is related to the definition of consent and that those two things essentially have to go together that there need to be words or actions by a person indicating some knowing and voluntary agreement and so I think that those two things kind of work together, I guess I would say. Thank you questions of Sarah. I was just going to jump in there and say, I, I think I understand the, the interaction between the definition of consent and then these provisions about lack of consent. But I think part of the problem comes in that the bill is articulating at great length what doesn't constitute consent, but then the definition of consent is very, very brief and vague. So actions indicating consent seems like it begs more description or more. Without that, I feel as though some of these provisions in section three. It, it becomes more confusing for me than an overt statement of what consent is with articulations below that in the way that we've articulated what non consent is. And I know that that's hard but I think that's where people's questions are originating is it's when you imagine the scenario in your mind it's hard to think about what what are the indicators of consent that the bill is referring to. I appreciate that and I would just say I do think it is. It is a matter of kind of policy and preference whether, you know, the state chooses to define consent positively or dispositively. And I think with either approach there are courtroom implications for that. And I will leave that to the prosecutors to highlight. I thank you, Sarah, very helpful. I think we'll go on to my head john Campbell but I'm assuming that Rory, you both state attorney and Washington County is taking john Campbell's place. Welcome to Senate judiciary. Nice to see you. Good morning. Yeah, different being here remotely rather than in person. You've heard a lot of our questions and I'm sure you have some answers that will help us understand better. So, please proceed with the testimony and we'll be here for a minute. Thank you. And for the record, Rory Tiva Washington County State's attorney and the questions by members today are excellent. I think show a really complex under good understanding of a complex topic. Sex assault prosecutions and defense of those cases are among the most difficult that anyone looks at. I think it's important though to add a little bit of context as to what the current state of law in Vermont is where things could be improved. So, I believe Senator Benning asked the question, or perhaps as you Senator Sears of, is any of this not covered by existing Vermont law, and there's a nuanced answer to that. Generally speaking, this doesn't break new ground or criminal or attempt to criminalize things that would not already be subject of a prosecution. But that said, our statutory definitions are relatively vague and broad. Instead, we rely on jury instructions in case law to really get to the answer of what is or is not consent or when there is or is not a sexual assault committed. Right now, and pulling up the Vermont model jury instructions, lack of consent may be shown without proof of resistance. Consent cannot is cannot be there when a victim was mentally incapable understanding the nature of the sexual act was not physically capable of resisting or declining consent to the sexual act was unaware that the sexual act is being committed. What is mentally incapable of resisting or declining to consent to the sexual act due to mental illness, or other issues with intellectual functioning. It's important though, just as a broad basis this, as I mentioned sex assault prosecutions are difficult Sarah outlined the really sobering statistics of how few of these cases actually make it to trial. So there's a lot of gatekeeping already in terms of prosecutorial discretion or investigative leads burning out because of just the view that there may not be enough evidence. In cases we bring to trial. It's important to note that they, we are fighting every case against greatness that are embedded among the population. The idea that someone could be asking for it when they allow himself to become intoxicated or vulnerable in a situation. The idea that will, you know if someone didn't fight back and is that really a sexual assault, or the fact that because they've been prior sexual acts with someone was asleep or intoxicated that meant that there was then the ability to assume the future. One term that didn't come up in the walkthrough or in the other testimonies really the notion in nature of a mistake of fact as to consent defense. What we're dealing with here are definitions in our framework that doesn't preclude other evidence showing that the state of mind of an offender alleged defender was influenced by other circumstances. So, Michelle mentioned that while totality the circumstances does not appear anywhere in the statute that is necessarily what every criminal case turns on. It's all the circumstances what was known to that person. Nothing here changes that sex assault or lewdness of his conduct as it may be under the definition consent are specific intent crimes, meaning the person who's doing it has to have that specific intent to engage in the sexual act or sexual conduct. So that doesn't change. And I think as everyone is aware specific intent crimes are difficult for the state to to prove. So a few things and I want to give a step back and give a little bit of my context and contribution so I was able to assist and work with Michelle throughout this and some of the language choices. I don't expect everyone to know my personal biography but before returning to Vermont. I spent eight and a half years as a judge advocate in the US Army, and during the time period it was the peak of the military sexual assault crisis that started right at the very beginning of my service in 2008 and in 2008 was the first of three revisions to military law revolving around sex assault, of which Senator Gillibrand in our neighboring state of New York has been a leader and working towards more effective definitions, as well as somewhere home state prosecutors and their contributions to, to that work. With that said, there's a recognition, I think across what one advocacy advocacy groups, you know, such as those that are part of the network and certainly my prosecutors. The nature type nature and types of sex assault cases and what we understand and appreciate to be sex assault have changed to give context in Washington County, our youngest alleged victim in the past two years is three years old, our oldest was 84. We've had victims who are male, female, non binary, gay, straight, bisexual. We've had people of color, we've had any demographic group you can identify can be a victim. What unifies many of these cases is that it's not the stereotypical predatory act of being drugged at a bar or being stalked and attacked out of the bushes. Instead, the most insidious cases and difficult ones are those that are acquaintances and also involve alcohol or recreational consumption of alcohol or drugs. This is particularly prevalent in college campuses or among our younger cohort group of 18 to 24 year olds. With that being said, the definitions that we have in Vermont are not as modern, clear or comprehensive as other states have adopted. I noted the Senator Bruce referenced the California penal code and their definition of consent and I'd like to share that with the committee. California has gone on to define consent to mean positive cooperation and act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. Colorado also modernized their sexual assault statutes to include redefining consent. Colorado defines consent as sexual activity means cooperate consent for sexual activity means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. In fact, Illinois has adopted a similar theory with respect to the changes around substantial incapacitation and the consumption, voluntary consumption, if you will, of alcohol or drugs. Kansas and Oklahoma are two states that have gone in this direction. Kansas amended their statutes to indicate that a victim that there is a sex assault where a victim is incapable of giving consent because of mental deficiency or disease, or because of the effect of any alcohol liquor, narcotic drug or other substance which in which condition was known by the offender or is reasonably apparent to the offender. Oklahoma again has a similar definition and with respect to consent mirrors the direction which California and Colorado have gone. The term consent means the affirmative unambiguous and voluntary agreement to engage in a specific sexual activity during a sexual encounter which can be revoked at any time. And finally, make reference to New Jersey. New Jersey does not. They use a term called ineffective consent and consent is ineffective if it is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or of harmfulness or of the conduct charge to constitute such an offense. For several reasons New Jersey definition is a little bit more problematic in the sense that it implies this somewhat moralistic view or could be interpreted to include that someone has to know that let's say pregnancy could result from sexual intercourse or something along those lines. What's been proposed in a 23 doesn't go nearly as far as that New Jersey definition. It also does not go so far as California and Colorado do have to have suggested in their language affirmative consent. But I think it's important to note that the balance region h183 first provides greater definition and brings out of instructions and case law standards that exist in trial procedure, which I know a lot of focus and discussion has been on today, really attempts to endeavor to ensure there's a statutory prohibition on using such rate myths as that that because there was no resistance that there could not have been a sexual assault. And I'll just add as an anecdote. I'm sure Senator Benning probably isn't missing jury trials and what year at the moment, but you have what year with jurors is always an interesting process and people answer candidly and truthfully. And that's one thing I love about Vermont jurors people aren't afraid to express how they really feel about a case. And just about every sex assault case where we've conducted one year at least one or two jurors will raise their hand. When asked the question, you know, do you believe that a victim can invite a sexual assault based upon how he or she is dressed. Same as much as you think if a, you know, someone should be held responsible if they have sexual intercourse with someone who is voluntarily intoxicated. It's another notion that people put themselves in harm's way or accept risk when they make certain decisions is inconsistent law, but it's an attitude that is pervasive among some of our friends and neighbors in the community. It's not for us to tell them that that's right or wrong, but from a legal standpoint, we need to have a proper definition. And I think that the trial procedure along with referencing our rape shield statute codifies and takes out of just instructions from the law what the standard ought to be, which is those things that someone can be sexually assaulted and offer no resistance. In my house testimony offered the analogy of this. Many of us are familiar even as a very young age with the concept of fight or flight. So when something startling or scary happens some people stand up and defend themselves. Others try to run away or avoid a confrontation. In the context of sex assault there's and really all responses there's a third response which I think we understand better today than maybe we did in past times which is freeze. Some people when faced with a traumatic incident or stressful event simply freeze and don't know what to do. And there lies a difficult concept which is can mirror acquiescence or freezing in fear equal consent. When you think about the type of consent that's required for medical procedure going to the dentist getting a COVID-19 vaccine. Would any doctor or practitioner just assume that they could go and perform surgery without some agreement or manifestation from that person. Sometimes that agreement to get a shot let's say can be as simple as a nod. Go ahead. Which is why the trial procedure as Michelle pointed out does need to be read consistent with our definition of consent which is fairly simple. It's also accurate in capturing it. It's a freely given as defined or as proposed to be defined it would mean words or actions by person indicating a knowing and voluntary agreement to engage in a sexual act. So sometimes there's beauty and simplicity and I think that is a simple definition, but it's a powerful one that imparts that there has to be something. It doesn't have to be words or some actions doesn't have to be words so there doesn't have to be I've heard people make jokes about having you know a written contract if I consent to this or that you know when people think about the concept of affirmative consent. That's not what the standard is it's just something to show that mistake of fact is consent as a defense cannot be presented a trial but I will tell you candidly it's something that we consider as prosecutors from the get go. We put a victim unnecessarily through the trial procedure. It's invasive. It covers intensely private matters and unfortunately prosecutors and victim advocates often have to have the conversation, a very difficult conversation with a victim of crime and lay out the reasons why we don't believe we could prove a case of trial or overcome proof beyond reasonable doubt. Other times we forge ahead in that process is unpleasant because the victims mental health substance abuse disorder or other defining factors can come into play as to character loaded to fabricate bias. And certainly some of the things contribute to why a defendant may or may not have reasonably believe that there was in fact consent for the act. Again, unlike a drug case where you have physical evidence on a table three or four officers maybe cooperating individual telling you what's there, or property crime where it's caught on video. So many of our sex assaults take place with only two witnesses, the victim and the offender. It's a rarity when we have other third parties who have firsthand knowledge of what occurred. In these cases are necessarily difficult and they necessarily turn on the credibility and recollection of those individuals. Of course that is more and more difficult when you have the influence of drugs or alcohol or things that impact memory. So I've, I realize I've gone on probably longer than I need to I hope that this narrative is answered some of the questions but I'd really like to answer your specific questions. It helps me to some extent worry, but I'm still stuck with, I have no idea what an expression of lack of consent to words of conduct means there is no consent. Two people are engaged in a sexual activity. And at some point, I don't know what a lack an expression of lack of consent through words of conduct means there's no consent that just doesn't make sense to me and maybe I'm missing something here. There's no question. Me the party there's been sexual activity but what does that mean. So I think in practical terms, you know, as Michelle mentioned no means now would be the easiest, but other things could be someone trying but he said but an expression of lack of consent. Nobody said anything. Through words or conduct. So that's where I lead to the question to somebody have to say yes. And that gets you back to what you described as. I don't want to get you know to graphic and public testimony but in one hand in a sexual encounter, you can look at two different types of contact between persons let's say in one sense. Somebody initiates contact, the receiving or not initiating partner of that then embraces the person warmly and proceeds that embrace would be a sufficient basis to determine that the definition or 3251 is met that the person is then through their actions, indicating an agreement to engage or at least proceed further with that encounter, as opposed to if someone attempts to initiate sexual contact. And then that person tries to push away or rolls over or squirms out of reach at the person. I'm not sure that anybody would reasonably believe that to be an invitation to proceed further with that activity. What's important is this definition applies not just to casual acquaintances or strangers who find themselves in an intimate situation can apply to people who are in a relationship. I mentioned before acquaintance, you know, majority of our cases involves some degree of familiarity or an acquaintance. That could be boyfriend girlfriend girlfriend girlfriend, husband wife wife wife, whatever combination you can come up with. Not just looking at incidents between people who are loosely acquainted or don't know each other. There are sexual assaults that occur within marriage, and that often leads to a very difficult discussion of what was the past history. How were these type of acts initiated in the past, what type of things were demonstrated or done to show agreement to engage in a sexual act. I think I'm sure we can all think to our own experiences of intimacy and consider that likely every time there's not some verbal acknowledgement of this is what's going to happen during an encounter. There, there doesn't need to be and that's what's important in both looking at the negative expression under trial procedure and looking at the actual definition of consent. I think just emphasizing to my view at least understand or appreciate that words and actions can go either way to demonstrate consent or to demonstrate a lack thereof. There need not be any words and the need not be any conduct without someone can say no and not push back or resist and that manifests a lack of consent. Likewise, someone can just lay there and say yes, go ahead, and that would constitute freely given consent. Senator Benning first and then Senator White. Rory, as I'm reading this silence is lack of consent. And I am really troubled with that if you take the definition of consent and the phrase under trial procedure. This silence benefits the prosecution and strips away a defendant's ability to make any kind of an argument that there was interpreted consent by silence, eliminate substances alcohol manipulation by somebody who is in a position of authority eliminate those qualifiers and just focus on this phrase. It seems to me this crosses a very big line. And I can't you use the term freeze. When you interpret freeze now has shifted over to the defense to try to demonstrate that that wasn't the case. And I'm really troubled by going that far. I think all of us on the screen agree with the concept of the bill that someone shouldn't be manipulated into a sexual act. But when you eliminate all of those qualifiers and simply say, that's equals lack of consent. That's really problematic for me. And by the way, I would love to get jury trials going because I don't know about your office but my office. And the office in say Johnsbury the prosecution there, we're all violent buying file folders to put our new cases in because we can't get rid of cases. That's awful when this trigger gets pulled you and I are going to be in a real crazy man. Good news is that's next week's agenda and then the bad news is the house didn't put any money in for the, nor did the governor, any money into restart our criminal and civil justice. I don't want to get too far off thing that our committee will make significant recommendations towards getting the backlog cleared up in both criminal and civil cases. Well, I got a, I got a letter from just I think we're meeting next Thursday on that subject job. I love to hear. Oh, well, I've been corrected Peggy. Sorry, it's Wednesday. Stephanie couldn't make Thursday so we switched it to Wednesday. That's, no, that's fine Peggy. I just wanted to alert Joe and Rory that we're actually aware of that problem. Senator Senator Sears I just learned this morning from a letter from Justice Seaton that the various courthouses are actually ready for trials. But when he was asked, when's the first one coming, he didn't know. So I mean, there's sessions your witness list for next time. There's such a backlog that you may be happy to hear that there might be night court show, and you'll be able to go to court it to in the morning. Nothing surprises. I want to leave that subject at hand. Yeah, I want to leave that with you that silence. Now is clearly interpreted as lack of consent. And that troubles me. Somehow we've got to fix that I just I can't vote for this the way that's currently presented. Senator White. So Rory, when you were giving the some of the more positive definitions, instead of the negative definitions, there were there were a couple in there that I think really, there was one about attitude that that was could be construed as consent, the attitude and I don't know why we would focus on what isn't here as opposed to adopting some of those definitions that you gave and I can't remember where that one was from but it struck me that it was something and attitude are construed as consent. I think I was Colorado. But it was either Colorado or the one right before Colorado it was. Yeah. So both both California and Colorado have used that terminology. I'd be happy to send that to the senators by email afterwards. I think Michelle already sent it to us. Great. Do you know why the house chose to go with negative definitions, because of Joe's concern here that it implies lack of consent, as opposed to going with a more positive definition. So, you know, that's a good question. My, my educated guest or understanding has been to try to amend and modify Vermont's existing statutory regime rather than start from scratch, if that makes sense. Adopting the let's say California definition is is a significant change from existing law. So by inserting some minimal changes in the consent definition itself. So I think that that balance was then to go back and take a look at and trying to clarify that in the negative under the trial procedure, and it is sort of odd I will say this and system criticism of a past legislation where we get to many other states for Rape Shield, it's a rule of evidence not a statutory construct so I think Vermont is ahead of the curve there by making sure that it's a clear standard built in statute, not just a court rule. We have then this adjunct trial procedure which some states have a lot of others do not the analogous federal and military statutes do not. Instead it's just a statutory definition of consent and what it is. So, if nothing else during this process I've learned and looking at a number of other states, we have 50 different standards 50 different sets of definitions, or 51 if you add, you know the federal and military side into it. I don't have benefits and disadvantages, but one thing that I did testify to the house and spoke to Michelle about was the more we could tailor definitions to an existing standard in this case the the federal military standard has been updated several times with a lot of US congressional scrutiny leading up to it, the better. It means that Vermont courts have a specific jurisdiction, particularly federal jurisdiction to look to in terms of how to interpret these. I think everyone's well aware anytime we go back and change a statutory definition it opens up the question of what did the legislature mean and also what do these words mean in this context. So, doing so in a deliberate way that can loop back a reference cross reference existing case law is helpful in the house testimony, the defender generals representatives had expressed concern about you know due process what these definitions mean. And I think that was really the cognizance of trying to avoid those type of pitfalls where we give some new or undefined definition there. So ultimately, I would say this there are different benefits and detriments of other regimes, certainly the California definition of consent is interesting because it goes in greater detail on the positive side of things. I would certainly encourage this committee to consider that definition in lieu of the existing consent definition if that would be viewed as better than trying to prescribe things in the negative and trial procedure. Well we've been given, I mean, Michelle sent us copies of California, Colorado, Illinois, New Hampshire, New Jersey, Oklahoma, and Oregon. I don't know if it's pronounced Oregon right. Yes. So we have those. I'm going to suggest unless David sure is on a real tight final scale that we take our 1030 break now and come back at 1045. That's fine on my and I can talk about this with Peggy but it might actually work out best if I get moved to the bottom of the list and say I'm triple booked this morning. No problem. That's that's fine. We can pick up take Rebecca Turner if she's going to be ready at 1045. I know that Ingrid Jonas is only available to 1145. So I can't go back that far for you. That's fine. Let's happy to have attorney Turner go before me and hopefully I'll be back in in time. Thanks so much.