 So we're picking up with Rebecca Turner and the bill is at age 183, which is an act relating to sexual violence. Rebecca, thank you again for being with us. You seem to be a daily guest of Senate judiciary. Seems at least this week. Thank you. Good morning, everyone. For the record, Rebecca Turner from the appellate division office of the defender generals. Here on age 183 this morning and I was I spoke and testified for the House Judiciary Committee and previously shared the general's offices overall objection to this bill. We're just there and we'll share today the numerous basis for our objection listening in on this morning's initial walkthrough and questions. I see that many of your questions are in fact basis of my concerns over this bill and that's what I heard this morning regarding the meaning of consent. And that is a primary concern for us. I understand the underlying motivation for this bill, but ultimately the expansive and significant amendment to the current sexual assault statute. To achieve I think what I think the goals are hoped for goals are and certainly doesn't make anyone safer but let's let's dig into the language and specifically going into the meaning of consent. As, as other senators have voiced this morning I too have been scratching my head as to what we are now left with as to the meaning of consent. I think what is called as an appellate attorney reading this language to discern in the negative than what is lawful consent, how can someone stay on the right side of the line to avoid a mandatory life imprisonment I think what is striking about this bill is it really constitutes substantial government regulation of the most private acts between consenting adults. And I understand that the goal is to capture the non consenting sexual acts the problem here is that the lines and the meaning of it is is now blurred. And I want to start I was not going to go here until the end but I wanted to just pick up with attorney Rory Tebow shared. If I heard him correctly, because this is my understanding of our Supreme Court jurisprudence as well and Michelle child shared this as well this while the sexual assault statute hasn't been amended for quite some time. This is a very active statute in our Supreme Court decisions there are plenty of case law for attorneys to read and understand and follow. And as I heard Rory Tebow and I certainly don't disagree. He cannot cite to any case or decision of our Vermont Supreme Court, that would otherwise prevent his ability to prosecute the cases that are of concern here that I'm hearing which is the involuntary intoxication situation, the unconscious situation. And again what I understood attorney Tebow to share this morning is that he's seeking just better clarity in this statute. And I think that was striking because what we have here in this bill is actually further muddling of the waters and lack of understanding. The thing I wanted to point out to right up front is that if the concern is how to instruct the jurors on a case by case matter involving a sexual assault prosecution. You probably already know we don't have Supreme Court adopted jury instructions, which means that we have model jury instructions which leaves it to the individual attorneys to put forward and request the most appropriate jury instructions relevant for the evidence that was presented in this bill. And I think that between that trial procedure along with our substantial Supreme Court precedent defining and developing sexual assault elements, we do not need to tinker, what is not broken, and certainly what is presented here just will create so much litigation alone. And the questions already asked, and I haven't heard them answered very clearly I do not I still do not know what consent means. It's defined all over the place. So this bill, both using broad language and vague undefined language. The problem with the vague and all over broad terms is that it leaves it open to the ultimate interpretation of the prosecutor. And never that happens. Of course, you, you open up and permit discriminatory selective enforcement. So, address that concern that I raised before the other committee by saying we'll know prosecutor will will charge otherwise clearly consensual sexual assault and my response is we do the law of course, and our constitutional rights to fundamental notice due process. We do not rest on the graces or discretion of individual prosecutors. Senator Benning already raised this as well whenever there is poorly defined terms. Understanding here in this context consent in variably shifts the burden to the defendant to prove that there was in fact consent. Again that shifting of the burden to the defense to prove that she is innocent is not permitted under due process. Again that burden lies with a prosecution squarely and is contrary to our fundamental principles of presumption of innocence. The other thing that hasn't been talked about before and I'm going through this quickly but I'm going to stop and maybe get a sense from you where you'd like me to focus because I can go into each of these a little more deeply. The next thing that I haven't heard talked about is the page one section 10 definition of incapable of consenting. It was, it was talked about this where there was references to if you have physical or mental limitations, you are not your incapable of consenting. While the questions this morning raised what is the meaning of this who interprets that what I want to raise to this committee's awareness is the effect of that, that whoever falls within these categories. It establishes that even if they actually consent to sex. Legally, they are not capable of consenting. If you think about the ramifications or implications of that people who are physical disabilities, mental disabilities adults who are otherwise able to consent to sex want to have sex to be legally stripped of that ability is how I see the effect of that added language to the page one. Also, yes. Sorry, could you just draw that out a bit more. What is the example you're referring to there of somebody who would meet these definitions, but should be allowed legally to have sex. Again, I'm looking at page one and section 10 incapable of consenting. And let's just look at 10 be 10 be is in is physically incapable of resisting. And I used that phrase to just some package, the hypothetical of someone who is physically disabled, perhaps, and cannot cannot stand on on their own to be must rely on wheelchair to move around. And that is that enough that you can't, or you can't decline to participate and you can't walk out of the room quickly. If you're if you know if your chair is not there. Again, are we saying that certain people, just by their physical incapabilities of resisting cannot then consent to sex. So I'm just pointing out that that's just looking at one example of one phrase, and I urge the House Judiciary Committee to bring in other witnesses who could speak specifically to the rights of these individuals now they did hear from one person, but I else I suggested another group, and now I'm forgetting but I certainly am happy to make other recommendations. Well, just to take your example. And to stay with be. I would think the last clause there or communicating on willingness to engage. So if we take the example that you're saying where someone might be a paraplegic and wheelchair, they would theoretically they would have. Oh shoot so in a brief I've lost you. He's frozen frozen. Okay, it's not just me. I always assume it's me when somebody for this. This time it's not it's filled. I don't understand where you was going he left he dropped off at a critical part of his question. Yeah. I'll, I'll, I'll go forward until he comes back hopefully soon. Does anyone else have other questions on that. Well, maybe not. Yeah. On that 10 it looks like a rewriting. Laws. I saw that as all new language. I meant, excuse me, I meant the drop procedure consent. Isn't that writing other law. Language from 3254 that was struck. You look under what is now subdivision six. And the physical incapable of resisting is now incorporated into the definition. Vision 10. Michelle I missed what you said where that came from. If you look at section 3254. Okay, and if you're looking at it in the draft you look at subdivision six. You look at subdivision B and you look at this. The language knows that the other person is not physically capable of resisting or declining consent. So, and I think Rory made a. A comment earlier around. That's a question of why is it a certain way and. And to Rebecca's point around. Because a lot of these statutes haven't been amended since they were adopted in the 70s. And there is a lot of case law built on that we're trying to work within the existing framework without kind of doing a wholesale throw it all out but trying to work with the existing structure. So the reason why 3254 is structured way that it is, is because that's how it's structured in there currently. And so when there were provisions in there that might have, we were trying to consolidate for clarity. And so the physically, the physical pieces is just brought in from 3254. And with some of the witnesses who were testifying on. The, the mental and physical disability aspects they had. Testified in the committee in the house worked quite a bit on trying to address their concerns around. Making it clear that. The fact that someone has a physical or mental or intellectual disability does not obviously then in, in and of itself mean that a person is incapable of consenting. And so that's what we're trying to do. So that's what we're trying to do. You have to use it. You have to use it within the context of the statute as well as looking to the definitions to a price that each individual circumstance. There may be some situations where somebody has a physical disability or an intellectual disability. Where they're absolutely fully capable of consenting. And then there are circumstances where they're not. Thank you. I see, I see where you're pointing at. I think the fact that we change there though, is that it is now divorced from the mens rea. And by shifting that language over to the definition section. And under a category of justice. Per se incapable consenting you've changed the use of that. It isn't such, it's not a simple thing of just reorganizing. And so it's significantly broadened the categories, is how I read it, of people who cannot consent wealthily versus where it is currently and it's within the context of someone who is charged whether that person knew, right? The menswear knew that they were not mentally capable, knew that they were not physically capable on and on and on, right? So I think that I understand, but if that doesn't change my concerns in terms of just because that language appeared and appears currently in a different section, the move, the current proposed move and the fact that it is undefined and is so broad plays and combines to make it that it now, to me, still leads like a categorical capture of huge groups of people who are now no longer able to legally consent even if they actually consent. And I don't think that I just wanna make sure that is on this committee's radar to read that and see if that makes sense and I'm happy to go deeper into it. The other piece, and I just started talking about it, Michelle spoke about it during the initial walkthrough is the removal of the or the additional language. To me, it's a removing of the specific intent man's rate of requirement. So now whatever consent means, which is problem number one, person charged with a mandatory life in prison in charge doesn't need to actually know that there was no consent. Only that, and this is the lowest amount of proof required to put someone in jail for life, only that they should have known. Now to me, that is a strict liability offense. And my concern is that we do not have that level of punishment for a felony offense with so little menswear requirement, actively none. Now the counterpoint has been that my characterization of this proposal of turning a life imprisonment felony offense strict liability that there is actually intent requirement still embedded in the sexual assault statute. And to be fair, there is still a requirement that there is a knowing engagement in a sexual act. And that's true. There is that is the menswear. The question though is does the person have to know that there was no consent? And under this proposed bill, you don't have a person no longer needs to know. So you can engage in knowing sex, sexual act and believe and know it was consensual but should have known that it wasn't consensual. And therefore you are subject to this life imprisonment charge. That is a substantial change in our current statute. And I want to, and I shared this with a house judiciary, a new case out of Washington Supreme Court State v. Blake late February of this year, struck down a felony drug possession statute on its face for failing to include a menswear element. And the Washington Supreme Court held that was a due process violation that while the legislature is afforded substantial discretion in fashioning crimes, it's within their wide powers to police and create new laws, there are limits. And the due process limits is that you cannot assign such an extreme penalty. And in that case, felony drug possession was just right, not life imprisonment. You cannot do that without having at least some matching culpability in the person, in the defendant's mind. And because that was a strict liability possession drug with a five year, they struck it down. So I put that on the house judiciary's radar as well, that A, we don't have anything comparable in our criminal statutes, that this is a gross exercise and extreme. And I think unconstitutional exercise of the legislature's police powers to strip a life imprisonment felony of a menswear requirement on the key component. And that's the question of consent. And I passed along the decision to them and I didn't get a chance to follow up with discussion on that after they received it. So I wanted to put that there. I have a few questions, if I might. First question, and I think I kind of tried to ask it of other witnesses, but never got a response. I did get a response of statistics about the number of cases that were solved and the number of people and so forth. Have there been prosecutions that were unable to go forward because is there a problem with our current law that makes it difficult for prosecutions? I guess that's a question for David, sure. But have you run into cases that the state has difficulty prosecuting? I am not aware of a problem with prosecuting these cases under the current sexual assault interpretations as our case law has shared. So no, I'm not aware that there was a problem. I understood Attorney Tebow as confirming the same. And I have not seen the data showing that the number of prosecutions, the number of charges have resulted in problems with difficulty in getting prosecutions for these types of facts scenarios that were hearing from Attorney Tebow. I certainly don't see or know of a Supreme Court decision that would bar that prosecution on its face. So no, I'm not aware of any problem. And again, I pointed to the fix if there is a need for a fix. And I heard a Attorney Tebow say that he wishes the statute was clear so that jurors could be instructed more clearly on these matters. And again, I see our jury instruction law, if that's how you can put it, has been flexible on that to address it and work it into the individual fact situations. You keep referring to a lifetime of sentence, but isn't it in fact a lifetime of supervision? I think the maximum sentence has to be life imprisonment. Covering 30, oh, 30 to... Let me see. It's not a mandatory though. I mean, it could be, but... No, I think, let me confirm that I'm pulling... I think I thought when we redid the sex laws, it was mandatory life supervision, not necessarily incarceration. So at the bottom of page two, it says F1 speaks to shall be in prison not less than three years for a maximum and for a maximum term of life. And in addition, maybe fine, not more than 25,000. Yeah. Right. Thank you. It is up to a maximum though, it's not a... Yeah. And I believe that there's further language somewhere that requires a lifetime supervision. That was one of the main things added to F1 back in 19... 20, 11 or 10. 2009, I think. God, time flies. I can remember, because I was pregnant when we were working on that one. Yeah, I know. So it's easy. Yeah, so you got the ages. But yeah, I just wanna, it isn't necessarily... It's not necessarily that 32, 52, F1, this section shall be in prison not less than three years and for a maximum term of life. Yeah. That's not a mandatory maximum life imprisonment. No. Okay. Well, it's a range, right? Yeah. Well, not less than three years. It's a mandatory minimum of three years. Yes. And obviously a maximum life. I'll be curious to hear from Attorney Tebow on how he's been interpreting that statute. But that's great. So, oh, Rory, are you here too? Do you like to count? I mean, I'm... Yeah, I'll just interject that. I don't think any court or prosecutors reading the life to be a non-discretionary and in fact, most sex assaults that result by a plea agreement have substantially shorter periods of both incarceration and supervised time. I don't believe there is currently lifetime supervision. But I think what's lacking there is part of what we did if it's aggravated sexual assault or sexual assault on a child. I believe it's a mandatory life supervision. I think that's what we did. Well, and thanks. Thank you for the clarification and to the extent though that that changes the due process point, which is again, the risk of exposure, right? And again, that it signifies that it's our most serious felony of punishment and to not provide day-to-day, every day, you know, the citizens' residence of Vermont notice of what it takes so to stay not exposed to that level of felony offense is just where it falls below the due process norms. Senator Baruth, you're back, I think. I'm sorry, I had to... John? You froze up Senator Baruth. I think Burlington Telecom went out of business. They didn't pay their light bill. Yeah, it was a severe outage. I got actually booted out of Zoom altogether. But I can remember my point and it was back on page one, section one, subdivision 10, incapable of consenting. You were speaking about somebody who might be disabled, perhaps severely disabled and unable to walk or run out of the room, but might otherwise be willing to consent. But I look at that last clause in B, which is, or communicating on willingness to engage, if even if somebody is severely handicapped, I would have to believe they have the ability to communicate with the person with whom they might engage in sex and could use that means of communication. If that's lacking, if someone is entirely paralyzed and can't speak or communicate in any way, then of course they can't consent. And I'm thinking that in a way that's a, a diversion from what we're really talking about, but I just wanted to speak to that example from the disabled community. I don't believe that this would take a class of disabled Vermonter and make them incapable of consenting to sex myself. I think they either have a way to communicate or then they are incapable of consenting. Does that make sense, Rebecca? So you were- I am hearing, yeah, I am hearing you. I think I just disagree that it doesn't protect against that interpretation in terms of categorical capture. And where, if I'm hearing you right, you're reading the last phrase of B as informing the first phrasing of physically incapable. Well, so I'm trying to imagine the disabled person that you're using for the example. And you're imagining somebody, or at least I understood you to be imagining somebody who was physically incapable of running away, but who might wanna indicate willingness to have sex. And I think if there is a means of communication, verbal or written, then you could have a means of communicating willingness. In the absence of any way of communicating willingness, then I believe that person is incapable of. So if you imagine somebody who was entirely paralyzed and could not move at all, I believe that person is incapable of consenting whatever their interior state of mind might be. Does that make sense? I do, I think that 10B is broader than what you're articulating though. I think that the physically incapable of communicating either way is not what 10B is saying, it is much broader. So if that is where that intent, I just think that language is... Well, I think you're right. I mean, in other words, it's trying to get to people who for many reasons might be physically incapable and among them would be things mentioned elsewhere in the bill like drugs or alcohol or something like that. But you were making a point about physical disability as though this language would deprive a segment of Vermonters of their rights to have consensual intercourse or sex. I'm saying I don't read it that way. I think it allows for the disabled community to consent to sex except in the very extreme case where somebody might be entirely paralyzed and unable to communicate. And my response to that is I understand your response. I read the commas there as these are separate phrases holding on, so is physically incapable of resisting? To me as an independent clause there. And so that I finished that incapable of consenting means the person is physically incapable of resisting or incapable of consenting means the person declining participation in. And I agree with the earlier concerns that that wording doesn't fit, right? But that's how I'm reading each of those. Incapable consenting means the person communicating on willingness to engage in a conductive issue. Again, I see those as three categories within 10B. And I think that the way that that's currently worded, I do believe it captures the person who is not able to physically, I don't even know what is physically incapable of resisting, right? I just threw out and presumed someone who is not, I am sharing, again, I think there's built-in biases I'm exhibiting with my hypothetical. My point is that we shouldn't be presuming people who have physical or mental disabilities cannot consent to sex. And that is the point. I think that this is an overreach and a presumption that consenting adults shouldn't be able to, cannot legally consent. Okay, we just disagree there. Maybe after Joe's question, maybe Michelle could weigh in on that. Well, before Joe asked his question, I'm just reading the chat. And thank you, Michelle, for giving us title 10 Federal Definition, 7 Consents. And written the way it is, seems to make a lot more sense than what I'm seeing in this room. It's easier for me to understand what I'm reading here in the chat. And I like all the surrounding circumstances are to be considered and determining whether a person gave consent. I don't see that, I don't see that there. Anyway, I just make that point. If committee and members or anybody who's a witness wants to look at that chat, I'm reading from Michelle Childs, 10, 28 a.m., Title 10, Federal Definition, Consents. Joe? I'm posting everybody the link, so if you want to look at the whole context as well. Well, but I'm just going to suggest that as we mark up this bill to look at that acting language rather than the confusing stuff. Rebecca, do you know if anybody from Disability Rights Vermont testified on this language? They did. They did? Yes, they did. Okay, Phillip, I just want to go back to your comment. I'm reading the lead in language at paragraph three. Where are you, Joe? Well, I'm on page, that's page one. Yeah. You've got this consent meaning words or actions. And in my eyes, what we've now done as we've said, silence is an indication of non-consent. And now the way that you're reading 10B is suggesting that there is a connection between the last phrase and the first. And I'm not seeing it that way at all. I'm seeing it just the opposite. I'm still totally confused about what declining participation in has to do with that line at all, because if they're actually declining, then they are perfectly capable of consenting or not. I don't think that should be in there at all. To me, this, I have to agree with Rebecca. I think it opens up another can of worms that's clearly not intended, but causes concern. Well, if so, Joe, I take your point. I think you're right about declining participation. I just think that's redundant, but is physically incapable of resisting and that could have the spectrum of meanings we've been talking about from being drugged or drunk all the way to paralysis because of a physical disability. So I read B as saying you could be physically incapable of resisting, but you could be capable of communicating willingness. So imagine somebody who's paraplegic. They could verbally indicate willingness and it seems to me that they would then not be captured by B, but they would be captured by B if they were physically incapable of resisting and physically incapable of communicating unwillingness. So to me, it's not as broad-based as Rebecca is portraying. I guess my response is that the lack of any communication is now shifting into the category of that by itself is indicating non-consent. No, and I hear you and I think that's a somewhat separate issue here. Not that they wouldn't come together in some cases, but here we're talking about the definition of incapable of consenting. Well, I see that phrase as three separate entities. Yeah, I'm hearing you read it all as one. And I guess I'm questioning the location of the commas and the word or would clearly indicate to me. And I would argue it in court that those are three separate sections to be considered. I would argue that part of the problem is they're trying to use the house was trying to use the federal definition or tried to do something else with it. It seems like the federal definition is clear. To me, I'm just a non-lawyer who's sitting here trying to figure out how I deal with the problem that is perceived to make sure that some person who commits an act, take the swimmer and stamp for it again, woman is legally intoxicated, is unable to respond and two guys see him sexually assaulting her and luckily they pull him on her. And the guy is charged and gets six months because he's a good swimmer. I think everybody's appalled at that. That sentence everybody's appalled at what happened there. We don't wanna see that happen in the law. So I think that's one case. But on the other hand, if you have an individual who thinks, I just don't understand some of the language that is just not clear to me. An expression, a lack of consent through words or conduct means there's no consent. Which I think as Joe pointed out, silence means non-consent. Yeah, so now the defendant has to bear the burden of proving in some fashion that there was. I'm really uncomfortable with this. I wanna make sure I hear from David Sher this morning and Ingrid Jonas. So I'm gonna move to David. Ingrid is only able to be here from 1145. I see Rory, we're gonna mark this up next week and hopefully you can join us then and continue this conversation. David, what's wrong with just using the federal definition and going from there? Senator, for the record, David Chair of the Attorney General's Office. Senator, I have not, that just came up now in terms of looking at that. And I have not had a chance to review it. I apologize, been among committees this morning, but I will say that we're certainly open to making sure that this, we appreciate the committee's concerns on this. We don't want to run into overbreath problems, constitutional problems, vagueness problems in these very important cases. And we are happy to work with the committee to consider definitions that are as clear as possible. So I'd express openness to looking at that and figuring out what might be workable. But I would need a chance to really look at that. In concept, I do want to say just the Attorney General's Office does support the purpose of this bill. I think it's addressing really important issues. And again, we do appreciate the committee's care in looking at these statutes. But I wanted to make a couple points and then really just make myself available for discussion because I think the sort of detail oriented discussion the committee's having is important. And I, again, want to reiterate that we think that this subject matter is incredibly important in making sure that we are criminalizing the behavior that needs to be criminalized is really, you know, essential to protecting for monitors. And I think the network did a nice job summarizing the issues there. One point that I wanted to make that hasn't been discussed at the very beginning is the affirmative definition of consent that you find right on page one. We have, we do support this language and I'm specifically referring to adding knowing and to the consent and we have testified that way in the house. I will say that there sort of was a bit of a scramble to make sure that we got that language right at the end of the process. And one of the ways in which our office views these things is in ensuring that current prosecutions are not accidentally made more difficult by amendments to current language. And so I would say that we would not object, you know, after further consideration and considering the sort of movement that happened to make sure that this language was right. We would not object to keeping subsection three, the subsection three definition of consent the same as it is currently because the sort of primary prosecutions that we see now, not the only one certainly but one of the primary ones is the basic no consent sexual assault prosecution under A1 also on page one just referring to 3252 A1 not engaging a sexual act without the consent of the other person. That is like the majority case that happens and making sure that we are maintaining that ability to move forward without any unexpected litigation through changing the definitions that apply to that piece. That would be something that again, we have supported it. We do think it's workable. We understand the thrust behind it but also would not object to keeping it the same. We think that some of what that's accomplished the same as it is currently we think that some of what that's accomplishing is really accomplished in the additional language below in 3252 on page two, for example a lot of the sort of substance around what does knowing this constitute is captured better and more precisely in B1 and 2 and in subdivision four under A. So that's a point of consideration but again, we do think it's workable as amended as well. So I don't mean to be overly confusing on that but just wanted to bring that up for consideration. The other thing I did wanna state on 3254 on page three which has been the topic of some discussion the specifically subdivision one there's been some discussion on what the impact of this is the import of it and this is what lack of consent is. And so on subdivision one, it says lack of verbal or physical resistance does not constitute consent. So I wanna sort of restate that and try to explain precisely what that is doing. All it's really doing is saying the mere fact of silence as we've been talking about the concept of silence the mere fact of silence is not enough to say that there is consent. That's all what that is doing. It is not saying on the contrary that silence equals lack of consent. That is not what that provision means. If it did say that that would be a very dramatic change in the law and it would move Vermont law quite significantly. I actually don't think this is moving for Vermont law that significantly. All it's saying again, if we're gonna take silence as one of the examples under which some a set of facts could proceed on this is that the mere fact of silence alone is not enough to constitute consent. In other words that the simple fact of silence can't be brought up as a definitive defense because there are other things that could have been indicated as States Attorney Tebow talked about in terms of how a encounter might unfold that would indicate a lack of consent and that should still be arguable and perhaps dispositive depending on the specific facts. So there's two of you but in two David that basically says an expression of lack of consent through words or conduct means there's no consent. How does that fit with one? Well, I think that they're addressing two different things. You know, if there's an affirmative but a known showable expression of a lack of consent that's a very clear indicator that there is no consent and this is the law stating plainly but that's the case. If somebody says no, that means there's no consent or if somebody moves away or whatever the specific facts might be that means there or tries to get away which could be conduct, that means there's no consent. On the contrary, the mere fact of silence just because somebody doesn't say something doesn't mean that there is consent. It's not enough to prove consent. And that's under one. So I don't, these are not contradictory. They are different ways of describing what is in consent. Senator Sears. Yes, Senator Benning. David, I am concerned about your position on this because the way the law currently reads there is a discussion of whether there was or there was not consent. And it's always the burden of the state to demonstrate its case. I haven't heard anything yet about difficulty in prosecuting a case with that language just the way it's written that would require us to now make a plain statement that lack of verbal or physical resistance does not constitute consent. That to me shifts the burden over to the defense. And in the absence of cases where prosecutors have been hamstrung because they lost a battle on whether there was or was not consent. I don't understand why we're changing it. Senator, I think what that does is makes clear that resistance doesn't have to be physical resistance. It doesn't have to be some sort of a fight or something like that in order to show that. You know, I think it's clarifying that we're talking about various forms of what resistance might mean. And I think that's all that's, I actually don't see this as being a dramatic change to current law. I understand that's a point of contention here, but I don't actually see this being a huge shift from what the current statute says. And I don't think it's a burden shift either. I think it's simply saying that evidence that there was say, again, I'll return to the example we've been using, the mere fact of silence is not enough to say that there was consent. That's just saying that that's not a burden shift. That's just saying that a defendant can't say, well, I didn't hear anything. There's nothing said. And therefore there was consent. And that's just saying like, that can't be enough. There's gotta be enough by itself. It may in fact be part of a pattern of conduct that sort of demonstrates that there was consent, but it's not enough. But what you just said, David, leads me to the question of why are we doing section? Yeah, you're moving from the word may to the words does not. And that to me is pretty clearly a shift from current law. And why are we doing this? If there's no cases out there demonstrating that this has been a problem in prosecutions. I think again, Senator, we're trying to be, we are trying to ensure that this is not an issue in terms of understanding what constitutes consent and being able to bring cases and ensure that we are not privileging behavior or sort of willful lack of understanding or something of that nature, which might present a defense that makes it harder to bring a case. But again, I don't think the burden still certainly remains on the prosecution to show the lack of consent ultimately. Well, you've stripped an ability of a defendant to make any argument in this area as I see it. Because in the case of silence, presently a defendant could argue that there was lack of resistance and the defendant's understanding was that everything was fine. But now you're saying specifically, you can't make that assumption. And if you combine it with the definition, you end up in a situation where there has to be an actual affirmative action on the part of the recipient of any sexual contact in order for the defendant to be cleared of that hurdle. And not hearing that that's actually been a problem in bringing the prosecutions, I'm asking again, why are we actually feeling the need to do this? Again, Senator, for the reasons I stated, and I do think I read it slightly differently in terms of simply saying something that is not that a lack of something does not constitute consent does not also mean that the sort of, that the contra-positive to get really technical, that the other thing has to be there. In other words, the lack of verbal or physical resistance does not constitute consent. But that does not now mean that a defense can't be made that a defense can't be made saying that a lack of verbal or physical resistance is part of a sort of part of the factual pattern that there was in fact consent. It's simply saying that that is not by itself dispositive. It just, there has to be sort of other indicators around consent being present. Let me try to phrase it a little differently if I could. Eliminate all other qualifiers, meaning there's no drugs, there's no intoxication, nobody's sleeping, anything else. Mere silence as one person initiates a sexual contact, it seems to me with this change in language is not enough. The defendant can't say, I assumed there was consent. There has to be a clear act either in words or actions on the part of the recipient in order for the defendant to clear this hurdle. And in the absence of that, this language as I see it eliminates the ability of the defendant to make any argument in that regard whatsoever. And that troubles me. Can I just jump in and say, I see what Joe was saying and I do, I don't know if I would say it shifts the burden of proof entirely, but it does seem to me that in the situation Joe's talking about, it would inevitably come down to the defendant to argue and prove that there was some sort of word or action that led them to construct in their mind consent. And if they couldn't point to any word or action, then it seems to me that they're liable to prosecution. So however you wanna look at it, it does make it incumbent upon the defendant to delineate what the word or action was. And that takes us back to our discussion about the bill has a one sentence, somewhat vague definition of consent. And then it has a full articulation in various places of what is not consent. So it seems like it sort of creates this note of confusion about what consent is. And then it does increase the responsibility of the defendant. Is that what you're saying, Joe? It's exactly what I'm saying. I'm gonna move on to Ingrid Jonas, but keep these thoughts for next week as we decide whether or not number one, how to mark up the bill, but number two, should we go forward with the bill? And what should be in the bill? Hearing some real concern from many members about this free life, what it might, but I do wanna give Ingrid an opportunity to speak to the bill on and welcome. Thank you, Major Jonas. Thank you for being with us. Thank you, sir. Thank you for inviting me to speak on the bill. I just, this moment dropped in, so I've missed the previous discussion and that's fine. Actually, that may be to your advantage. Well, thank you. For the record, Ingrid Jonas, I'm a major with the Vermont State Police. I actually spent several years, as you know, working in this field in response to sexual violence. I was a detective in several of Vermont's special investigative units and then moved on to provide leadership and supervision in those units. In a few words, we support the bill, we support the language in the bill and I'll talk a little bit about why. So the bill proposes to revise and clarify a wording in regard to consent to sexual activity, particularly in cases where the victim is vulnerable. We feel that's incredibly important and I'm going to leave that to folks today who provide direct support to survivors. The bill also requires data collection and reporting of information concerning reports of sexual violence. And I want to talk a little bit about that. We share and support the goal of creating better ways to examine and understand both the reporting of these crimes as well as the actual outcomes of these types of reports. It will be informative to everyone to see the difference between the number of cases reported and sort of where they conclude along the way. Are they successfully prosecuted? Are they successfully investigated and so forth? I think what's underpinning all of this is that sexual violence is an incredibly significant issue in Vermont and is known by those of us who work in the field to be under-reported. We could probably spend the day talking about the reasons why. We feel our system needs to work to improve the ways that we respond to sexual violence and this bill assists with those goals. Regarding data collection, the data is already being collected. So the actual numbers of reports, et cetera. My understanding is that the crime research group that has a contract through Department of Public Safety has indicated that they can easily complete the proposed reporting requirement as set forth in this bill and they can do that under their contract with us, with DPS. I do wanna just add that under their commissioner's guidance and leadership, DPS has a comprehensive data initiative underway that endeavors to provide all types of data to the public from what I believe will be a portal from our website and that will be forthcoming this year most likely. So while our greater goal, what we feel is ideal is to strive for sort of universal data capacities and availability to the public through systems versus kind of these one annual reports we do support the language in this bill. We just feel that we'll be able to provide this and many other types of data for a public portal sometime soon. Just out of curiosity, why honored before September 1st, 2024? That's an odd day. Usually it might say July 1st, 2024, October 1st. And why 2024? I mean, the honor before leaves it pretty open. Are you asking me that, Chairman? Yeah, I mean, how'd that get in there? That's a fair question and I don't have the answer, unfortunately. I'd have to get back to you on that. Okay, well, it may not be that important. It just seems an odd way to put it in an odd day to me. Also, I think the, well, Senator White speaks about reports and it's really troubled by the number of reports we asked for and what happens to the information. I'm not sure the General Assembly needs the information as much as the general public. You better understand the scope. So I'll let Senator White look at that section and give her views on what's cause she's tough on reports. I think Major Jonas knows I'm really, really tough and mean. I don't actually, I think it's a good idea and I appreciate your answering my question. My initial question was about the reports was that were you able to do it? Were we adding a new burden? Yeah, we're able to do it and we're hoping that, well, certainly in partnership with Crime Research Group and we're hoping that again, there'll be much more global data available to the public and anybody who's interested in that. Thank you. Any other questions from Major Jonas? Major, thanks for being with us this morning. Thank you all. Take care. Committee, this is not a simple bill. Is there ever a simple bill in this committee? Yeah, there are once in a while. Hopefully the bill we take up next week and there's usually something simple once in a while. Robo calls. Robo calls, you know, try to find somebody who likes Robo calls. I'm supportive of the attempt here to rewrite the law. I'm not sure we got what we wanna get and Michelle, you did post that information using the last couple of minutes in the chat about the federal definition. Seemed to read a lot better than they. I'm looking on a document that can show you the parallels between 183 and the federal definition because what's in 183? So if you look at the definition of consent that's in the federal definition, the elements that are in that definition of consent are also in 183. They're not in the definition of 183. They're mostly in section 3254 because that's how the existing chapter is structured around building out consent. You can decide to repeal 3254 and put that up into the definition of consent if you would like to do that. And so I put them side by side for you. Yeah, if you could. But I don't see all the surrounding circumstances are to be considered in determining whether a person gave consent. I don't see that in the version in front of us. That isn't in there. And that's just because that's what it always is with these types of cases, but you can certainly add that in there. And if it feels more comfortable for you and provides more clarity, you can add that. Just as one member of this committee, I would feel more comfortable with something like that in there. And also, so I'm gonna highlight them and compare stuff because I think one of the things that people were stuck on is the incapable of consenting and the physical resistance and the inability to communicate and the incapable of physically resisting is current law in Vermont. It's just being brought in from another section. And then the two other clauses there are brought in from the federal definition. So there's nothing new there that isn't either in the federal law or in our current state law with regard to those add to that particular subdivision. But I thought that Joe's comments regarding section 3-3254-1, the change in that language, is that in the federal definition? It is. Yep. And you don't have to obviously go with that. You could go with the existing language there and add in the verbal or physical. So I mean, I hear what Joe's saying, but I don't see it as big of a change again as he does just a difference of opinion between the two of us. But you could say, if you're really uncomfortable with the new language and subdivision one, I mean, I don't know what the witnesses would think, but I think you could just rely on the existing law. Lack of it may be shown without proof of verbal or physical resistance. And I think I heard the attorney general's office say, that in on page one, section 1-3, don't need the words knowing involuntarily. It just, they could be left as current law. Right. I think you could, I think there is, you can interpret a knowing element voluntary. So I don't think it's absolutely necessary. I would agree there. The question is, you know, will you at some point, if you decide to mark up the bill, kind of do an overhaul of the consent definition and bring some of the 3254 aspects into the definition of consent. Well, I'm trying to prepare so that next week, we can even decide we can do this bill this year or we can't do this bill this year. If we really in fact, are to be done by, that our final week of committee time will be the week of the 19th of April. That doesn't give us a lot of time on a lot of these bills. And this one certainly has a lot of good ideas in it, but some concern has been expressed. So let me, let's do the best we can, see where we get at next week. And if you can send out all of the people who are here today, some copies of that side by side and some other thoughts that be open to all of them. Thank everybody for the participation. Joe, a particular final comment. Yeah, Michelle, the federal definition, the silence clause, if you will. Has that ever been litigated, do you know? I'll check. Because our current version of that phrase has been litigated. There is history there. I'm just kind of curious if the feds have actually looked at that specifically.