 Good afternoon and welcome to Vermont House Judiciary Committee, and we are continuing our discussions on, sorry, just admitting coach, continuing our discussions on age 18 and actually relating to sexual exploitation of children. When we last were working on this bill. We, there are points of disagreement between the Attorney General's office and the defender general's office and we asked them to see if they could come to an agreement. And so I'm going to turn to David share first of the Attorney General's office to update us on on where you are. So good afternoon and welcome. Thank you madam chair for the record David share with the Vermont Attorney General's office. We have had extensive discussions about compromise language and I won't worry the lead we have not been able to find a compromise that was acceptable to both sides. We did forward to the committee, I think through Mike Bailey through the committee assistant, some proposed language coming from our office, which we were used and I don't know if folks have had a chance to review it and we may need to speak again when you've had more of a chance to review it. And with that language we tried to address some of the concerns our office tried to address some of the concerns. The defender general's office and I know Marshall's here and we'll speak to his concerns shortly. When we spoke last they had mentioned, including making sure that the concept of actual child was stated within the statute within the proposed statute, we in this in the attached proposal. We recently forwarded along. We, our office attempted to put into that proposal the concept of an actual child basically the limitation. The constitutional limitation is that you cannot criminalize possession of materials, simulated materials that are that are not a simulation that includes an actual real child. The defender general proposed something along the lines of using the term actual child or actual person under the age of 16. Our office had a concern with that because our office is thinking of it in terms of the eventual statutory interpretation that will be utilized by a court. And this is you that the term, or I should say the definition of a child right now, which is a person under the age of 16 is in fact a definition that is about an actual child like a real child, not a simulation I should say not a digital representation, not a drawing not a painting something like that. If we were to put into the simulation definition. It's something that said an actual added the term actual an actual person of the age of 16 or an actual child or something like that. The concern on our end is that a court is going to have to look at that and say well what does the word actual mean courts like to make sure that every word in fact it's sort of like a canon of statutory interpretation, that every word should have meaning, and that's a way of constraining courts so that they are interpreting the laws that were written by the legislature and not some other imagined version of the law. And so they try to give every word meaning. And the concern that our office has is that by adding an extra word to a definition that already refers to a real actual child it will be adding an element that our criminal division will be that our, you know prosecutors will be required to prove, perhaps an element of higher specificity than is required constitutionally, constitutionally it is required that there be an actual real child that is the subject who is within the simulation simulated image. But it's not the case that there's some sort of high high level of specificity like a identify like a known a child a child who is nameable. You can say this is the specific child that we are talking about. And the concern of our criminal division is that a court in interpreting language that adds another term to the already existing definition of a child, they will put meaning on to it that requires an element of proof that is not required constitutionally. And that being said, we agree that the we certainly are not disputing the constitutional limitation. So the proposal that we came up with was to explain the concept of that is embodied by the Ashcroft limitation Ashcroft uses the word actual the Ashcroft case uses the word actual to refer to a broader concept. So we've tried to address both concerns, making sure that the concept of the constitutional limitation is in the definition of simulation without potentially having this unforeseen unintended consequence of adding an element that is unnecessary for for the crime for the establishment of the crime. So the, as you, I don't know, hopefully you've been able to access it. Excuse me, let's make sure that everybody does have have a language. It is posted on your yeah. Yeah. And, and once everybody does get the, the language David maybe if you could walk us through it please see I know you've been speaking about it but if you could walk it walk us through it I think that would be very helpful. I know it'd be great. And also, I know Michelle has some has sent us and we can see it in the chat that that child means any person under 16 years of age and then we also have a definition of person. And I know that Michelle has advice buys us that that we are talking about an actual child in this in this chapter, I do see Martin Selena I do see your hands up do you do you want to go ahead while folks are getting a language or what I'm not sure what you're Jen but up to you. Well, go ahead Martin and Selena. Well, it's just that haven't courts already been using language actual child already so I'm just wondering about that concern about there being confusion, since that seems to be the standard that courts have already looked at and interpreted. The issue is that they haven't interpreted Vermont statutes right so Vermont has a court is going to look at Vermont statutes not necessarily like what other states have done or what. You know what the federal government have done there they're Vermont court is going to look at the Vermont law and say, All right we have this definition of of what a child is it's a person under 16. In the formulation section they added the word actual to that definition. What does that mean what additionally beyond what is already a real person does that mean courts are going to have to assign a meaning to that word because that's what they do that's supposed to do in statutory interpretation. And the concern is that that will go above and beyond what the elements are required, the elements that are required and essentially be like unpleasable or unprovable because there won't be the. There won't be any sort of evidence direct evidence about who specifically this child might be. That's the concern is that'll raise it beyond to a level beyond what's provable the Ashcroft limitation is not embodied by that word it's a concept that that word refers to the word actual is saying this can't be virtual it can't be some sort of animation it can't be some sort of computer rendering. That word is referring to and so in our proposal we tried to make very clear that we are embodying that Ashcroft directed concept by saying look we're going to make abundantly clear that this limitation is there again it was our reading of the that limitation was already there. Before this addition but we're going to make it abundantly clear that this limitation is there that we're not talking about paintings or drawings or things like that that we're talking about simulations of conduct and not simulations of children. And we're trying to embody that concept without as a matter of Vermont specific statutory interpretation, creating a unintentionally perhaps but nevertheless creating a new element that would essentially be unprovable if a court were to interpret it as requiring something beyond what is already required by. By the law which is that it be a real child that's being portrayed. So I can all go over the language real quick. It is this so it's it's looking at subdivision seven in 2821 which is the definition section of this chapter. And it room at the first part remains the same and again the first part is borrowed from other states specifically it's it's taken fairly closely from New York. And then there's two more sentences that have been added on in those sentences say simulations in the subdivision pertain to simulations of the conduct described in subdivisions to a through F of this section. And not to a simulated child. So again subdivisions to a through F or the various forms of sexual conduct that are types of sexual conduct where you know those are that forms the definition of what sexual conduct is. And what this sense is is clarifying is saying look we're talking about simulations of that conduct. We're not talking about a simulated child a child who is not a real child. And then the next sentence just sort of it actually borrows language from other sections in this chapter sections 2824 and 2827 which are the possession and promotion of child sexual abuse materials. And it uses language that sort of already exists and imports it into this to again emphasize that we are talking. We are not talking rather about things that are not real portrayals so it says simulations in this subdivision do not include paintings drawings or non visual or written descriptions of sexual conduct. Again trying to be very clear that the concept that is described in Ashcroft is very clearly written into this and saying. This cannot be something that is criminalized and we're making that abundantly clear in the statute. Again with you know I just give the caveat that it has always been our reading of the of the law that because of the limitation created by subsection one of the definition statute the definition of a child that it always been our reading that the limitation required in Ashcroft already existed. But to the extent there's any confusion about that we're trying to make it abundantly clear that that is not behavior that may be criminalized possession of those types of, you know, of drawings or paintings that type of that type of virtual image. Thank you, Selena and then Tom. Well I originally put my hand down because I actually had the exact same question as Martin just I think and that's why I won't ask, you know, I won't ask David to answer that again but was just sort of confused by the notion that this would be read really differently from the case law that's out there and and perhaps introduce the requirement for a new degree of specificity so but I put my hand back up just because I wanted to say when the time is right I would love to hear Michelle address that question if she's willing enable. Yes. Not now I know but let's get Tom's question because it may also be a question for Michelle and then we'll turn to Michelle. Tom. Yeah. Yeah, thank you. That's interesting because one of my questions was around case law to by by having actual in there but but David I'm just kind of curious. You had your original language and which at the time you seem you know pretty happy with and now you've got it and I guess just your reasoning around why why you change some of it. Mostly as a good faith gesture to show that we are taking we are trying to take into account everybody's concerns I think that again it had been our position that the language as proposed was constitutional. We understand that there were disagreements about the statutory interpretation. We're trying to make abundantly clear that there is no intention to be outside of the constitutional limitations in this in this proposal, and that's why we're including that in here. I mean, I just would say again the, the word actual is will carry will be required by a court to be judged in terms of its meaning within this statute. And it is not necessarily the case that a court is going to say oh well you know actual must mean what the exact say it must be used the exact same way as a as some as a case has used it. And especially in a situation where the limitation which is that it has to be a real, you know, a real child not a drawing or representation of a child is already present in the definition of child is. And so adding that extra word is adding something on on top of it on top of what's already there the sort of concept that's already embodied by that definition. The court's going to be required to give it some meaning it is not necessarily confined you know the word actual is a very common word. It's doesn't have any magical connotation. So the court the court is not necessarily going to say oh well it must be that it's the it's, they're using it only in this limited way. They're going to have to say, they put this in the definition of child already means, you know our reading is the definition of child already means that you're talking about a real actual child, a person under 16 is a, you know, living person under 16. And now they've added another term to that. So what does that what does that word mean now what what it must be something in addition to that. What Ashcroft is saying that the only thing that can be criminalized as a real actual child that that's the, that's all they're saying I mean that's an important limitation it's I don't mean to denigrate it it's essential to First Amendment freedom. And then the way that our statute is constructed adding another word to that is saying more than that is a higher limitation than the one that Ashcroft placed and it's not necessary in a court may be may read it and say well I have to give it you know it's my obligation as a court to read every word to have meaning to have an additional meaning and therefore I have to give it this phrase a some meaning in addition to it being a real actual child. Again, the Ashcroft in Ashcroft they use the word actual not because that is like the protector of constitutional rights they use as they use the word actual to refer to a concept. I believe that that concept is embodied, both in the definition of child, as well as now, in addition, the two sentences that are added to the, to the end of the simulation definition. Great, and I have one more. So, an actual case in Seattle. To me it doesn't really matter why. It was an accused that took, you know, real pictures, and for whatever reason, took the heads off of one picture, and, you know, did the copy and paste whatever, and put them on to another body. Now, after hearing that last night that that seems like that could really open a can of worms with actual if that is is could be an actual child since it's it's two different. It's two different children in a sense. I think that argument could probably go either way and that's very for you David and also Marshall, maybe you could touch on it when you speak and Michelle if you wanted to give your opinion on that also or what you think it would do. As far as a case goes, but anyway, that that is that's a real situation. And, and, and I think that it could really create some problems with by saying actual. So, I think that's a good point and I want to not hide the ball here, which is that Ashcroft did in fact, make it hard to prove some of these cases and that's entirely appropriate that is the line that they drew the First Amendment line they drew and we respect that that line. There may be cases when there's digital manipulation of the kind that you're talking about, where it effectively becomes impossible to prove that the body that we're talking about is the body of somebody who's under a real child who's under 16. That is a reality of the world that the legal world I should say that we are living. So I don't want to sit here and pretend that these cases are all going to be easy to prove or they're all or that they'll all even be provable Ashcroft put very real limits on what what the state can do and they do that did that to protect First Amendment speech and again we respect that and understand that that will be the reality that is faced in these cases. Thank you. Any other questions for David before I turn to Michelle. So, so Michelle, ask you to just to chime in here and legal questions that we've been wrestling with. So, um, so it's been interesting to see the dialogue between Marshall and David and I know that they've been they really have taken your request very seriously and they've had a lot of back and forth over the last week trying to settle on some language that we both agree to. I'm still where I was earlier which is that I think that when you read the chapter and the definitions, you know, in concert with one another, I don't have any, but I don't personally have concerns around whether or not it's clear that we've got an actual child because of the definition that's contained in chapter 64 as well as the title one definition of a person and we're talking about a natural person. And also I think you know everybody's been very very clear there's no disagreement amongst the committee or any of the witnesses that simulations are intended to be swept in here. I would agree with David's point on the issue of like when you know you sometimes we add what you all like to call belts and suspenders kind of like it's not necessary but you want to maybe for clarity purposes or highlighting an issue you want to make sure everybody's really clear on a particular context. And you add something but you do have to be careful that when you add something even though it may have only applied to that particular context, the court can read other things into it and say well, if you have to add actual here does that mean that in other cases it may not mean an actual child because they've specified it here. And so that's kind of where it gets a little tricky and as a draft or I get a little uncomfortable with adding things that I don't think are absolutely necessary but I understand people's concerns about wanting to make sure that it's the statute is very clear that it's and then it's not running afoul of Ashcroft so I feel as though you know I think the the new language at the AG's office proposed is fine and it gets at I think the concept without using the word actual I don't personally have as many concerns as the AG's office around using the term actual but you know I'm not in practice out there and so if they're thinking from a prosecutorial standpoint that they would that that makes their job a lot harder, you know that's something for you guys to weigh but I, I don't, it's, I don't have as much concern around the use of it in in terms of having to prove another element. Mine is more like, well, when we use a word consistently through the statutes and it means this, you know, and then we modify it over here and it sinewates that maybe it doesn't mean that and so I just don't love to do that, if we don't have to so hopefully that wasn't just more confusing for you. You know, I don't, I don't feel I feel like it's fine not to put anything in there. I don't think you do any damage at all by adding the AG's latest language. But, and, and, and as far as I'm concerned, you could probably use actual and that doesn't, you know, offend me to the same way as it does the prosecutors but I would say as a middle ground for me, you know, add, add the more descriptive language rather than the particular term if they think that's a stumbling bough but I haven't heard from Marshall about, about this new language from David either so maybe he can convince me that it stinks and we need to use the actual So. Okay, so before we turn to Marshall, just want to see if there are any questions for Michelle or for David. Martin. I'm just wondering if this stinks is like a legal terminology that is in my office. Thanks. Tom. Thank you. See, I got to find my question and my mess of notes here. I guess. Where did it go. Okay, is there language out there for from another state that has survived constitutional constitutional challenge. Yes. Yeah, there's lots of there's lots of statutes and look and see, you know, other states and things you know what you have to realize though is that it's not just necessarily a death or whatever it's like the whole statutory scheme so it may be set up differently. It's not necessarily, you know, apples to apples but if you're interested I can see if I can have an intern look and see what some of the other states language looks like if that's your wish. No, I mean I just didn't give it enough thought or I mean I just don't know it I mean when there's, there's a lot of other stuff that can determine what some final languages and how everything's tied together so I'm good with that. Right. I mean I think the thing is is that the descriptive language that the AG's office just proposed while I don't know I might want to try to play with it or tweak it but then I don't want to delay it further necessarily but it. It's a little awkward but it but it describes the concept without using the term that they have a concern about and so I don't know if that still meets Marshall's concerns. But it seems to me because it's just kind of describing what actual means rather than using the term. But I think all that's embedded within the existing scheme anyway so. I have one more I think it's for you Michelle but. So, if we did use actual. Now is it. Is that self defining, would we have to define it, or would. And I think this is the answer that the definition would be in time determined by the court. There's a question about, yes, I mean, I don't you know one of those things that if you so if you say actual child and then you define actual child are you saying it's a natural person under the age of 16. The law says now I mean I don't know maybe come up with a different term explanation for actual child, but. Okay great thank you. David, did you want to say anything before we go to Marshall. No nothing further to add at this point. Okay, great. Okay, and I know that both of you are wanted in Senate judiciary so if you disappear I'll, I'll understand. Marshall, welcome. Thank you. I will start by just saying that I really disagree with David on this, and to some extent, disagree with Michelle, and that's around this issue of what you know what do we need to do to make this statute clear. The actual child is language that's used, not just in one Supreme Court case it's used throughout the, I mean this is one of the most heavily litigated areas of First Amendment law. There are thousands of cases when you look at both state and federal courts about child pornography and about what must be proven in order to convict somebody for possession or distribution or production of child pornography. The vast vast vast majority of those cases use the language actual child. I tried to find any case or any court had any trouble figuring out what the word actual men, and I found absolutely none of them. The definition of child that's contained in section 2821, which doesn't say, I've heard a couple of people summarize that definition as meaning a natural person under the age of 16 years. It doesn't say that it says any person under the age of 16 years. And if you want to look through case law and look at courts debating what the meaning of the word person is. There's tons of cases where they dispute the meaning of the word person. And even in the definition that's provided in title one. Obviously that it means more than just person. It can mean an actual person. It can mean a corporation. It can mean municipality. It's a pretty open ended and broad definition. And it's not that it's as crystal clear in this statutory scheme that person means actual person as it seems. And I think that's reflected when you look at, for example, Professor teach up who doesn't really, you know, practice in Vermont. So he steps into this with a sort of outside perspective and looks at this statue, and he came in and his advice was right away. Oh, you got to make sure that it's clear that it requires an actual child, not a simulation of a child it's not clear enough, the way that it's written now. I don't think this committee got the benefit last year of hearing from a woman who's an attorney for children who have been victims of child pornography, but she testified in the Senate, and said essentially the same thing said, when you guys put simulation in here. It's not clear that what you mean is simulation that involves an actual child, and I would change that so that it's clear that it meant actual child. So I think that having language in there that reflects that what we're talking about is an actual child, a simulated act performed on an actual child is important, and it's not just me saying that it's Professor teach out. It's the woman I forgot her name she was the representative from an organization that represents victims of child pornography and sexual exploitation. And it just reflects what, you know, the vast vast majority. I would say even an overwhelming majority of the case law uses that same terminology. I don't understand where the AG's office gets the idea that this is going to confuse a judge into thinking it means something that it doesn't. When there is so much case law out there that says actual child means real child in the context of child pornography prosecution. And you know it was almost telling that when David was trying to explain what the concept was, he was unable to explain the concept without using the word actual child in the explanation. Now to get to the language that David's proposed. I actually think the language these proposed if I'm reading it correctly, more or less accomplishes what I'm after. It doesn't mean that I think it's a good idea. I think that language is horribly unclear. It's essentially a definition of the word simulation that uses the word simulation, three times in the definition of the word simulation. So it's it's just really awkward. And what I don't understand is the resistance to just saying actual child. It's what every court says when we talk about this. It's what all the case law says when we talk about this. And I'm unable to find a case anywhere where any court has been confused into thinking that actual child requires some level of proof beyond simply proving that the child is an actual child. You know it's, it's a straightforward meaning, you know, nobody seems confused in this committee or at the US Supreme Court or in any of the other places where this language has been discussed. Nobody seems confused by the term actual child. The court in a published decision seems to be confused about the term actual child. And so I guess I'm confused as to where this like worry that there's going to be a court that just can't make sense of actual child comes from particularly when the alternative is a definition that really incorporates the definition of the word person, which has been the subject of a lot of litigation. And in a lot of cases, courts are looking at the word person in the context of a statute, saying, In this statute, does the word person mean natural person. Does it mean person including corporation doesn't mean person including the government. And there's a lot of litigation about that, and about the particular meaning of the word person in a given statute. To me, you know, honestly, if the language that David proposed passes. Do I think that that necessarily makes the law unconstitutional. No, I think it makes it less clear that it could be. If we use the language that everybody else uses. When we discuss this concept that everyone else discusses. You know, to me, we've moved away from a question of is this language constitutional and moved into a better place which is, what's the most clear and sensible way to draft this. And honestly, that's where I really depart from David's perspective, because I cannot. You know, I feel like if there was case law out there with courts were confused by the word actual David would have brought it here to make the point. I can't find it. I don't understand what the where the speculation comes from. To me, you know, the better language would be right in the definition section to just simply change the definition of child, so that it means any actual child under the age of 16 years. I don't know why we wouldn't do that. But if it doesn't go that way do I think we made the bill unconstitutional, probably not just less clear, and less tied to the case law that really defines the boundaries of the statute. So I continue to support language that uses the words actual child, and not to support the language that's been proposed, but this language as it's proposed now. Probably constitutional, I think it's just bad language. Okay, all right. Well, getting closer. I have two hands. Felicia and then Selena. Okay, so I have a question and it kind of stems from Michelle's point that her concerns using the word actual would not only be any kind of higher standard of the prosecution might have to prove that David's point was for the court reading actual in this context into other statutes and into other instances where it wasn't intended. Is there a way to clean up definitions and kind of hit all birds with a single stone by creating its own definition for the word actual and and then linking that back to the definition we're currently using so that if I am looking up why did they use actual if of course looking up they can find that and then find the direct link back to the current definition. And that would kind of tie it in a way that it wouldn't be open to interpretation, or am I kind of wishing there. I think for Michelle is if we did that. What did accomplish. Kind of meeting everybody's. I think. Right, no, I think so when we have definitions in a chapter the lead in language will say as used in this chapter so, and we do have different throughout the title sometimes the same word will have different different titles or chapters, you know so there are some that are common. So you have like in what we were talking about the definition of person which is entitled one so there's there's some general terms that are used throughout the statutes that will generally turn but they may say for purposes of this chapter. It's going to mean something different. I think is that and so we do do that and it applies to that chapter and you don't necessarily apply that anywhere else you go to the default or how are you look at the whole construction of the chapter. It's more about trying to be careful about not creating a different definition. If it's really not any different. I mean so like if it's actually the same thing. Don't describe it differently in two different places. But, you know for me, a lot of I think this between the defender general's office in the AG's office, I hate to tell you guys I think is really a policy decision for you guys because from a legal standpoint, you know, as far as I'm concerned I think it's fine, not specifically either describing actual child or putting it in there because I think it's taking care of with the underlying but I also understand that this is a topic of debate and people want to make sure that they're really clear and there's a there's a disagreement between the two stakeholders that are working on this. So, I think it's really going to be just up to y'all I think, like I said the the language is a little and no disrespect to David and I'm guessing he probably didn't even write it anyway but the the the language at the AG's office, you know, I'm trying to try to meet a lot of needs there of different people probably being careful about how they structure it is that it's a little awkward you know I could maybe try to play with it a little bit and see if I could get something that still captures that that's that's agreeable to the parties. So that would be fine with me but also I again I don't have the same extent of concerns as the AG's office with regard to just using actual child for all the reasons that Marshall said to. So if you want to be a little on the safer side and give some deference to the litigators and the AG's office that that they feel as though it would be much harder for them if it had in there you can just go with the description. If you're not as concerned about that you know you can add the actual child into the definition. I didn't know if for purposes of redundancy instead of describing it differently in two different places it would just be redundant like a synonym to define it as it is and then. Right. I don't want to just I don't want yeah it would be weird to to describe to define actual child because it's really just what I think it is under the current law anyway so I think. So or it has to be a policy decision it's not something we're cleaning up in definitions. Yeah there's nothing wrong with the current definitions it's more about so I think it's really you know I hadn't. It's interesting to think about the way the AG's office did it which is describing you know focusing on the simulation rather on kind of redefining child for purposes of the statute. Okay, I think that's the only question I have thank you. Alicia are you also wondering because it's something that I've been thinking about to about just referencing. Yeah, the definition not not saying it again or repeating it in any way but just saying something like as defined in what is it 13 vs a 2321 you know I don't know if that would confuse things or help things. But that's that's sort of what you were thinking. Yeah, that's kind of where I was targeting is like instead of like gumming everything up just have it reference a definition that we can all agree on and move forward. But. Yeah, that's kind of where it's coming from you can, again, you can add that. It's, we typically just don't do that because the definitions are right there in the first section and so you know to kind of be like oh what's it out I'm going to look in the definitions but you could do that you could also, you know, if actuals and issue, I don't know it would be okay for both stakeholders if you just said if you just tweet the child definition to make it clear that it's a natural person under the age of 18 I don't know if that helps and maybe middle of the road. Yeah. Okay, let's see. Okay, I'm sorry I'm not sure the order but I'm just going to go with Tom Martin Selena. But I think Selena was ahead of me. Okay. All right, thank you. Selena. Oh, thanks. Sorry. So, this is actually a question back directed back to Marshall. So is the defender general's position that the is the only thing that you are asking for a change to just the definition, and would it then read child means any actual person under 16 years of age. Is there additional language that your office is looking for. That's all I'd prefer the language means an actual child under the age of 16 years just because actual child is the language that, you know, every court that looks at these cases uses. With that said, I mean, actual person, probably more or less the same thing. Again, I just don't see it. I don't see a reason to stray away from the language that every court uses I mean especially if the concern is how is a court going to interpret this language. Why not use the language that every court has already interpreted to mean exactly what we want it to me. I just wanted to make sure I was really understanding the specificity of your recommendation so that that was helpful. Thank you. Tom and then Martin. Yeah, Marshall, can you just touch on the other question that I asked David about the, if we did go to actual, if it would affect something like the electronic manipulation of pacing ahead on a body. Yeah, because there's already so we don't have a second circuit decision on that, but nearly every other federal circuit port has already ruled on that exact issue. And there's unanimity among the federal circuit courts that you cannot criminalize the possession of a picture of an, even if it's an actual and identifiable child's head morphed onto the body of an adult performing a sexual act. But that can't be criminalized, because the child, there was not actually child abuse in the making of the image. So, I think no matter how you draft the statute, you're not going to capture that and in fact if you draft this draft the statute, specifically with the intent of capturing that, you would probably render your whole statute unconstitutional, because there's, you know, maybe not in the second circuit because we don't actually have a case from the second circuit yet. But every other circuit that's waiting on it. I said, yeah, that's, you know, that's, I think every every circuit uses the same language. They all say it's morally repugnant, but constitutionally protected. So, I don't think you can alter that either way with this definition. Oh, great, great. Thank you. So, the new language that David has, you said it is better. It's getting getting closer. Not your exact words but, and apparently it's a little, I'm guessing it's a little wordy for you. And I didn't know what's that. Sorry. No. And so I didn't know if there's something to work, work from there. If you and David got together with that language, if, if that could be changed or you know between the two of you working on that where it could get you even closer. Honestly, I doubt it. And I say that because, like I said, we no longer with this language, we no longer feel that it would make the statute unconstitutional. It just comes down to what's a better way to do this is it to use the language that everybody uses all over the country that they use in all the decisions that have interpreted these, you know, the bounds of the question in these cases, or is it to invent our own language and say we're Vermont we're going to make up our own language. And I'm always going to fall on the side of, let's just say actual child, because that's what we mean, even David says that's what we mean. And that's what the, that's what the federal courts the Supreme Court that's what, that's what basically everybody who looks at this that's the language they use. You know, I'm not going to agree that I think it's a better idea to use language that diverges from that when we could instead use language that's consistent with that. Great, thank you. Martin. I did have a question but I think I instead of a make a comment. So, I mean, I agree with with Marshall frankly on this I think we can use the language that we have from David. And in the sentence where it says, and not to a simulated child is changed that to of the section with a an actual child and keep the last sentence that's added there because it does add some further clarity. It just seems, it seems pretty straightforward to me, ultimately, at this point and I'm just not buying that it's going to be confusing for the courts in the state to figure out what actual child means I really just don't so I think we should change that one bit and I'm not going to go on with this question I was going to have though and I just don't know that it's really relevant at this point is a rule of statutory construction which if there's any kind of ambiguity which I guess probably there isn't at this point. It's supposed to be read in a defendant's favor and and I guess I had a question of whether this is ambiguous as it is but I'm hearing from Marshall isn't necessarily ambiguous. That's what I would throw out there is just change that and not to a simulated child to with an actual child and one. So just to respond to that you know you're you're referring to the rule of lenity my experience with the rule of lenity is that things have to be actually very, very ambiguous. And nobody like everybody reads the, you know the section of law, and nobody can tell what it means before courts will apply the rule of lenity. I've argued the rule of lenity, a bunch of times, I've never gotten a court to agree with me that whatever it is I'm pointing to is actually ambiguous. And there's no need to reach the rule of lenity, because it's clear what the intent of the law was, and that's what we're going to go with we're not going to. We're not going to cut the defendant a break in any case. I know there are rule of lenity cases out there, but they are few and far between, and they really are usually reserved for places where either a statute is essentially incomprehensible, or more commonly, or statutes are just silent, because there's no one. So we don't have so it's not really an issue here, but I guess I'd still stand with just that that straightforward change to the language that provided. That's where I that's where I'm at least. Yeah, so Selena before I turn to you David, like you to respond to Martin's comment. I think it's certainly different than what your concern is by putting it here in this language that any. So that's still not possibly make you prove another element or does it work in here. I have to look and think about a little more carefully but my initial responses that it does raise it still would raise the same concern that our office has with respect to producing another element. I'll just say two things really quickly here because I think the points have been made on both sides of the argument but I think point one is that it is the case that that that terminology is often used around the country and other courts the concern from our office is that these are going to be Vermont courts interpreting a Vermont statute in the context of other courts of that statute and that that is what raises the concern not so much that it's not about like common language or what's been done elsewhere but what very specifically might be done under the pressure of litigation here trying to understand what these new extra words mean. The other point I'll make it but again I think that point's been made an argument that the other point all the other piece that I wanted to bring up is I think you know we would be open to seeing what these tweaks might be she is the professional statutory drafter not us and while I can't guarantee you're going to agree with whatever comes up whatever comes out of there I certainly am happy to let somebody who's a professional and statutory drafting take a crack at tweaking what we put and making it something that might make more sense from her professional vantage point and just wanted to express openness to that. Great. Thank you. Selena and then Tom. Yeah, I just had a question from Marshall about Martin's suggestion. Oh, sorry. It's getting really good at lowering my hand for me. I'm glad to get to it. So the I think Martin's proposing Martin I understood you to be proposing not changing the definition but just including the words actual child in the in the statutory in the statutory in the other language in that provision and again and it's encounter or it's with that last sentence which I think it makes it very clear that we're just being really clear that in this context we're talking about an actual child not you know paintings drawings etc. I think it's in combination with that last sentence that it takes away these concerns about what we're talking about when we're talking about an actual child so just to be clear. So Marshall I just wanted to hear your thoughts on that because I think that is a little bit different from what you all have been proposing is a bit different but it's fine I mean as far as I'm concerned that still applies the words actual child to the definition of a child that's contained within a simulation section. So that works for me, I again, you know I think the easy way to do it is just to drop actual child into the definition a child but 601 half dozen of the other. It just makes it a little more complex. Okay, great. Thanks. Thank you. Tom. Thank you. It's interesting how, you know, and it's very short bills at times when there's there's so much discussion around, you know, one word. And sometimes it's shall and may and and here it's you know it's around actual. And I mean, being a lay person. I think I've heard. I do like the definition with actual in there I don't know where I don't know how Martin's suggestion certainly incorporates, you know, language from both sides. And it just crossed my mind just before I raised my hand that I feel like I'm getting away from what we're trying to do here. And in the bottom line is we're trying to protect children. And I think, whether we use the AG's language or or the defender generals language, or it now Martin is, you know, brought it brought kind of brought forward some language that incorporates both that the language protects children. So, and that's to me that's the main thing is is to, you know, to protect the children, you know, I mean, I mean, you can't get any more vulnerable than it, than a three year old. And, and I guess, I guess where I'm going ultimately is, is supporting the language that that Martin suggested, I think it just takes into account. There's somebody who's been working so hard on this. You know, and that's, that's the language I would definitely support. Thanks. Okay, well, I. Sorry. Somebody else wants my attention. So, Tom, I appreciate that. However, I also appreciate with the attorney general's office or David say I'm on behalf of his office and in order to protect children we need a statute that prosecutors will actually use to protect children. And so I'm so I'm concerned about about their concern with it with using actual so what I would like is for Michelle to to take a pause on this right now. And I'd like Michelle to tweak David's language. And come back with them with some you know share it with Marshall and David, but come back to our, to our committee and and see where we land. So maybe you and I can, can meet briefly. So, so just going with the concept that the AG's office has through the description, but not using the term actual child. Okay, yes, yes. Yeah, and seeing if a reference as defined in 13 vs a 2321 if that works or if that's too clunky then maybe not but yeah, yeah. Sure. So, okay. All right, and then, and then, and then we'll have a committee discussion but I would like to, I would like to see more language before we, you know, before we open up further. Martin. I just want to make sure just one thing you said, and what I've been hearing from from David as well is there's concern that court might interpret actual is I don't know requiring the identify the particular action you know the child by name or something like that. Which I just not buying frankly from what other courts have said and what I've read of other cases. I want to understand is it's, is it a question of whether the prosecutors will bring these kind of cases because if that's the case that's a whole different issue for me, I mean if prosecutors are going to be concerned that they aren't sure that this is an actual child or if it's simulation or whatnot. Then yeah I'm willing absolutely to go with what the AG is saying, but I don't think that's what they're saying, but let me hear from David as far as that's concerned. Is it going to get going back to Tom, what Tom said, you know, this is about protecting these children in these situations and if having the word actual in there is somehow going to lessen that protection because prosecutors are going to be concerned about bringing the cases, you know, I would have a big problem with that. Let me say this, if it, if the word actual is incorporated in such a way that there's an argument there that it's adding another element beyond what beyond simply a real child. There's a distinct chance that they will not attempt to bring cases because they in almost every case because they would not have sufficient information to feed that. So they are concerned that if it's included in a way that are that adds an element that arguably adds an element that they would not bring cases. Obviously we have to see exact proposals to make the details really matter on this stuff. We'd have to see exact proposals to see if we're walking over that line. And you think we're walking over that line if we change that and not to a simulated child to with an actual child with that next sentence as a further explainer you think that that's still problematic. The response is that it's very likely to be but I also it is slightly different, I will say, then it uses slightly different wording than a lot of what Marshall and I were discussing. And Michelle were discussing so let me, let me take that back but my, my initial responses that is likely to elicit the same concern but again I do want to the person, you know, the exact words do matter and I would want to bring that back. Thanks. I thought I saw Tom's hand up it's now down I just want to make sure you don't have any. Yeah, I had it up I took it down I'm all set. Thank you. Okay. All right. So it sounds like David you'll bring back today's discussion to your office right and see if Martin's proposal is different and does not go more towards inserting another element of the, the crime. And then Michelle also you'll tweak and David's language and work with with David Marshall and and then we'll, it'll be up to us to make the policy decision. Okay, so I think folks I am going to. Let's see, I was going to adjourn at 330 because I have a meeting and then. Yeah, so why don't we do that will adjourn early. And hopefully I would like to continue on this bill. You know this week and bring it to closure. And as if we could get a vote on this so anyway, okay, so Maxine when do you think we would be possibly taking a vote and the reason being is if we get any amount of snow tonight which were potentially going to, I will be plowing in the morning. Okay. Yeah, let me look at. So we do have it so tomorrow we we just have it for a half an hour. I am hoping, I don't know, David if you're if you're able to come back with with feedback. Michelle I don't know if that gives you time but that is what I don't have a note I don't have a notice for it when is what time is that. It's nine o'clock we won't be voting at nine o'clock tomorrow I can I can say that for sure because I like to give the committee generally 24 hours and I don't think you know we still have more discussion so we're not close to vote, but it's more just an issue of that I need to be able to you know I'm going to try to come up with something send it to Marshall and David, David has, you know they both have to check with their people then they have to send it back to me it I don't I don't know if just the back and forth, if that gives us enough time for that. Yeah, that's fine so I'm looking their thumb I don't. We're going to be discussing. age 20 we also have the budget adjustment when we made a schedule we didn't know exactly when the budget adjustment is but I think it's it's going to be Thursday and Friday correct. So, so anyway so I'm not really answering the question unless we can insert this, I say later, later in the week. Either either tomorrow afternoon or Thursday morning. See where we are. I'm in another committee all afternoon tomorrow but I do have some time Thursday morning. Yeah we do have it again on Thursday morning. Oh you do okay. We do have it on our schedule. So. Okay. What what time on Thursday. It is at. Let's see. Looks like it's right after age 20 so 930 ish. Yeah, yeah, Mike Bailey can you send me a meeting notice. We'll do. David if you're able to give us a very, very quick update on age 20 that might help people think about kind of where we are and that and move that along quicker. Thanks Michelle. I do have to drop off very soon, but I will give a very quick summary age 20 to remind everybody is the bill about pre trial services. I think that the idea the sense of the group that is emerging is to have to essentially remove risk from the pre trial services statute entirely except that a judge, it will judges will retain discretion to request that a pre trial services are sorry that a risk assessment be performed by a pre trial services case worker. The idea there is that it basically eliminates the use in almost all cases which addresses some of the concerns around bias that underlies risk assessments it would also remove discretion from case workers. So prior language arguably gave case workers or did give case workers the sort of arbitrary arbitrary power to decide who might get one and who might not. But if there is an unusual circumstance or what I think would likely be an unusual circumstance where a judge feels like they would be assisted by, by the, by somebody getting a risk assessment and again it would be a risk assessment solely for a risk of a pre trial service which is all that we do now that option would remain available. And then will you be bringing us language reflecting that. Yeah, I'll work with turn this project on that I will probably largely leave the execution of the concept of that but I will work with him on trying to make that into legislative language. Okay. Great. Any questions for David before we let him go. Okay, all right. Thanks, David. So, so given that we're not going to get back to 18 tomorrow morning, Martin, are you able to start earlier or do you have, do you have a meeting. I'm good. I'm good to start. So, okay, so why don't we do that at nine o'clock will start with them 87. Okay, so am I going to get like the health benefits that the legislative council gets. If I present the bill. Okay, and then. Yeah, and then I'll look over the schedule again and you know put him when we'll be on the floor with budget adjustment I'm not sure how long. It's going to the bill is going to take I don't know if anybody, anybody knows but if you could let me know but so, so our schedule maybe tweaked a little bit. And then I know Selena you're working on the summary and so we can fit that in this as well. So, okay, and I'm going to be meeting with DCF soon, talk about some interest that they have in terms of child support and I'm also going to talk about Bob your your questions about rule of evidence and see if they have any thinking on that. Right.