Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: This is Thursday afternoon, January twenty second, and we are going to have some more testimony on h six twenty six from the Department of State's attorneys and sheriffs. Thank you so much for being here and for your patience.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: For the record, my name is Kenneth Gimenez with the Department of State's Attorneys and Chairs. If you can't hear me, just ask me to speak. My voice just keeps coming and going. I'm not quite sure what's going on. My hold from two weeks ago just

[Rep. Martin LaLonde (Chair)]: Okay.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: That monoligue. Right? So thank you for having us in on H626. The testimony this morning, I was able to listen to some of it, and it was so powerful. I can tell you, you heard many stories this morning. I have a member in my family, a young member in the family, who this exact same thing happened to, not in this state, in a different state. 16 year old boy, thought he was chatting with someone in his neighborhood, was asked to exchange pictures, sensitive pictures, did so. And then same exact storyline of the same evening, except it had a better outcome. He was so distraught when he was started to be threatened for money, for disclosing to his neighborhood. He absolutely thought my life is over and was taking steps towards harming himself. And fortunately, a wonderful police officer who had been called, one family member, was scared about his behavior, called the police. Police officer was able to kind of talk him out of crisis and then was able to get him to share what happened. So he did not have the same results as the wonderful parents you heard from today. But the harm for him, he wound up in a psych hospital for about a week, ten days, and then had to be slowly transitioned out to outpatient care, missed not months of school, I think about six weeks of school, and was just, yeah, a tremendously traumatizing event for him and his family. So on a professional and personal level, appreciate what this bill

[Rep. Martin LaLonde (Chair)]: Before trying to you get into the

[Rep. Thomas Burditt (Vice Chair)]: bill, along with your story, came up. Just think you said that a law enforcement officer got involved in whatever. Might even be the question for Tom, if there's training around this type of thing for law enforcement opportunities to handle or if it's been talked about how can we do something in the future because it's a whole new thing.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Yeah, and I heard earlier that question come up about training, and it would be interesting to connect with the Chiefs Association or the Sheriffs Association about ongoing training. I do know that our Vermont State Police have a division around I'm gonna get it wrong, and I meant to look it up beforehand. But shoot, I'm gonna look it up for you and I will send it to you. But around these more just technical cyber investigations. And then we do have ICAC, Crimes Against Children, the Internet Crimes Against Children. So I think for law enforcement in Vermont, they're an excellent resource. So when this comes up, you have somebody to reach out to. The particular officer involved in my family's case, I think officers in general are taught that de escalation and crisis, they didn't know why my family member was acting the way they were acting. I just knew he wasn't well. But he was able to talk him down to the point where he could explain the circumstances.

[Rep. Thomas Burditt (Vice Chair)]: I'm thinking some kind of specific, maybe not even a training, an awareness, something just because it's maybe it's already done or maybe law enforcement is already really aware of it, know, this new realm now. And that's kind of the way my mind works, I guess.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Well, as awareness

[Rep. Thomas Burditt (Vice Chair)]: if you run into something where, you know, a youth in some different situation that they need to call ICAC, you know, something as simple as that.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Well, and that's something with a change in this law. Anytime there's changes in the law, law enforcement are trying to keep up on those changes. And then if they're seeing cases like this in their community, each law enforcement does their training above and beyond the annual training. So I would imagine they're doing it if it's I don't know if they're doing it proactively, like before a case winds up in their community, but this would definitely give a platform to push and suggest that training.

[Rep. Martin LaLonde (Chair)]: So do you have anybody who could suggest or you want to do right now, shoot me an email from the state police. I think we'll reach out to the Chiefs of Police Association. But if there's somebody that you know that is involved in these kind of cases that we could recommend that we have come in and testify, that'd be great.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Yes. Happy to do that.

[Rep. Thomas Oliver (Member)]: I don't know, the bill idea people came up with this or you. Maybe it seems interesting that the stateside component of this, if it's orchestrated outside of the country, inside the country, I mean it seems like one of those too good to be true scenarios where someone's giving you 20% of an awful lot of money to participate in this, that there should be some potential liability there and could be included in this. I'm I'm not not not sure about how that would go. Are you going out the

[Rep. Thomas Burditt (Vice Chair)]: the sick people down in Atlanta that financial out there? And so I

[Rep. Martin LaLonde (Chair)]: Oh, yeah. Yeah. I'm trying Something.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Yeah. I think that would be interesting of the the funding benefiting from the monetary side of these projects.

[Rep. Thomas Oliver (Member)]: Well, it activates

[Rep. Thomas Burditt (Vice Chair)]: probably, but whatever.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: The particulars of the bill just had a few one thing to point out and then a question. The first section of voyeurism makes perfect sense of of how Legis Council broke it up to separate out and clarify the unlawful photographing, there we go, filming or reporting separate from viewing. One question I had on page well, will jump to a few places. But on page five, the display of disclosure to a third party under voyeurism, when you look to the penalty for this under voyeurism, it's a five year penalty, and that's on page seven. It cross references back to the subsection E. I just Sorry, wanted to page seven, line seven is the violation of subsection E, which jumps us back to page five, fourteen through 19, which that was the pass penalty for old subsection C, and that's fine. But then when we go into disclosure of sexually explicit images without consent, the on page nine, if you're disclosing an image, which would be the same as disclosing some of the images under voyeurism, the penalty is two years, a misdemeanor. So I just wanted to point that out, whether that was on purpose or just not cross referenced yet, and just when you're looking at the penalties. Because right now, we'd be able to charge the same crime under two different statutes for two very different penalties.

[Rep. Martin LaLonde (Chair)]: So it should be five years if we're being consistent?

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: If you're being consistent with the current voyeurism penalty, though again, that penalty and I can't figure out what was old c when it all got moved around, because there's two penalties in voyeurism. There's the first offense and then second offense, and then this now subsection E offense. We just might need a chart from Legis Council

[Rep. Martin LaLonde (Chair)]: Yes.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Of a side by side. I didn't have time to do that. But that might help, but I just saw that that was inconsistent. Okay. The other question I had on page nine, line 19 through 21, threatening to disclose the image, the way it reads right now with this clause without the person's consent, I just want to talk through that piece. So as you heard this morning, many of the folks engaging with the other person consensually gave that image or video at the beginning. They thought they were talking to somebody they knew, and then it was only after the image was given that they were then being threatened. And no doubt, if they were asked, would have removed their consent. So I just want to without the person's consent, the prosecutor right now would need to show that the person revoked their consent if they gave it originally? And can we show that just by the fact that they're being threatened?

[Rep. Thomas Oliver (Member)]: They already gave it before.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Yeah, so they consensually gave it at the beginning. So just wanted to point that out.

[Rep. Martin LaLonde (Chair)]: I

[Rep. Barbara Rachelson (Member)]: see that. And so I'm it's one of those things you have to keep following. Like, this is modifying which part of the sentence?

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Exactly. That's what I struggled with.

[Rep. Barbara Rachelson (Member)]: So Yeah. So it's saying no person shall knowingly threaten to disclose a visual image without the person's consent. But you're saying since the image was produced with consent, does that consent attach to the disclosure?

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Well, so I guess this is where my English construction starts to fall apart a little bit. But this without the person's consent clause, knowingly threatened to disclose a visual image. So you're saying the person's not consenting to being threatened?

[Rep. Barbara Rachelson (Member)]: I'm saying that the person's not consenting to the disclosure of the image. But you're reading it very differently, which is important. Right. So

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: it doesn't Right. I'm reading it, threatened to disclose, and you have a space almost. So maybe

[Rep. Barbara Rachelson (Member)]: if it said no person's child knowingly threatened to disclose without, comma, without the person's consent, comma, a visual image of an identifier for person who is new or is new. Would that be like, getting the lack of consent closer to the disclosure? Right. But my

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: struggle is that the person very well consented to their photo being shared with this person. Like, I've sent you a photo, this is fun, back and forth, back and forth. Then you threaten me. Then do I have to say, I do not consent to you threatening me or disclosing my picture? Like, that's like, right now, I have to show that you don't consent. Consent is a

[Rep. Martin LaLonde (Chair)]: matter? Well, that's all we'll see.

[Rep. Barbara Rachelson (Member)]: We can't. That's interesting.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: I mean, I guess you don't

[Rep. Thomas Oliver (Member)]: have a consent to pass it on, though.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Right, I guess you could, I could threaten to send something, you'd be like, Knock yourself off. Go ahead. Right? Then theoretically, you've given me consent. Like, I can share this photo of you. And in effect, you're not feeling threatened by me. I'm just Can

[Rep. Martin LaLonde (Chair)]: I just ask you, should we just strike without the person's consent on line 21?

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Well, that's what I wanted to raise it and talk through it. And again, maybe this is a question for legislative counsel. I know why without the person's consent is there, I just don't want to accidentally create a barrier that

[Rep. Thomas Oliver (Member)]: Well, that's another element you have to prove, too.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Exactly. Right. So if the person on the first threat, somebody certified and no longer engaging, so that's the question. I mean,

[Rep. Martin LaLonde (Chair)]: who consents to somebody when they're going to have the intent to compel the person to do these other things. Guess I would put that in there.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: That's exactly like when I was reading it, was like, when would we have someone's consent to view any of this?

[Rep. Martin LaLonde (Chair)]: It gets a little more confusing if we eliminate without the person's consent. Even if threatened to disclose, oh, in order to produce nude images or images of sexual conduct. Oh, okay. Well, engage in sexual conduct, engage in any act against a person's will. Yeah, so I don't know why you need to prove both that intent and then the previous

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: And then the threatening behavior. In the section above, it makes perfect sense of disclosing an image of someone without

[Rep. Barbara Rachelson (Member)]: the person's consent. That image was created without consent, in some cases. It's section down. Not Possibly. Right.

[Rep. Martin LaLonde (Chair)]: I think it's threatened to disclose an image, whether it was consented to at some point or not, when it's tied to the ill intent for that disclosure. Isn't that the key? Is that what you're saying, kind of?

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Yes, it just feels odd that we would have to show that someone didn't consent to this threatening behavior. Right. Is, I mean,

[Rep. Barbara Rachelson (Member)]: in the transcripts of these cases, there is very clearly a lack of consent. But if that record doesn't exist, or, you know, if then you would, the prosecutor would have to prove it. Right, right now with this. With this.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Yeah. Something just to consider. Yeah.

[Rep. Thomas Oliver (Member)]: I can use the points you have to approve the critique.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: We do appreciate that. Well, the end the elements and that they make sense. Yeah. I think

[Rep. Barbara Rachelson (Member)]: importantly, point that you were making, I don't think that anyone would hard to say and speak in absolutes, but this isn't behavior that one consents to. It's almost the lack of consent is inherent. It's baked into the thread. Yeah, so I see that point. You don't always wanna remove elements just to make it easier for prosecution.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: We're not we're not looking for a short list, but more that it just didn't make sense. Like, I kept reading it, and I just couldn't Yes. Make it work in my mind. So that piece is something to take a look at. And then I know the question about the limitations of prosecution for certain crimes, whether to have the tolling or just to enlarge the time period. One of the strong opinions I give you either way. I will admit I did not have time to do any research as far as on the criminal side, tolling, whether there's an issue. I'm happy to do that. But either, as you can see from that section of statute, you create all sorts of time limits. That's a decision for you all to make. We understand why you would want it from the time of awareness of the crime. You could either enlarge the time period or the total. Those are my only two comments.

[Rep. Martin LaLonde (Chair)]: Do you have any, well, you're talking here the additional suggestions that we're all going mull over that we heard from the underchair of Lawson, And I think Oliver already just mentioned one as far as some way to go after the folks who are benefiting financially from this. There's a few other things. And I will throw these questions out to you now, you don't have to answer them right now. They suggested conspiracy language. My initial thought was that we don't need to have it in this bill because we have conspiracy offense elsewhere, it might be covered elsewhere. But if you could kinda double check that, whether we should consider specifically. And also, there was the idea of an enhanced penalty for cause of death, a felony murder. But is that already covered? Do we need to do it in here? Do you know what they're answering? Nobody answered the question that came up. And I'll see if anybody else has additional ones. And then I think probably most important, because I could see, well, no, the financial one's important, is exemptions for victims who come forward. Because they may have produced sexually explicit material under age, then they, so some sort of a, I don't know if that's really good Samaritan law, but that, those are things we're kind of looking at. Think it can get back to us. Unless you want to shoot from the hip, can you even tell us what you think of those?

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: We do not. We'll send this out.

[Rep. Thomas Burditt (Vice Chair)]: Good answer.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Mostly, yeah.

[Rep. Martin LaLonde (Chair)]: Part of

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: these rays, they are important, and I would just wanna double check and not keep spouting.

[Rep. Martin LaLonde (Chair)]: Did I catch all those?

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Was one more that

[Rep. Barbara Rachelson (Member)]: Ian mentioned, the aggravated charge for

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: It involved a child.

[Rep. Barbara Rachelson (Member)]: We're doing the best. Right. Yeah. Right.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Yeah. That would be aggravated death penalty.

[Rep. Martin LaLonde (Chair)]: Right, and we're going to have some more testimony on Tuesday and Wednesday of next week.

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: Hopefully follow-up on questions. Do you

[Rep. Barbara Rachelson (Member)]: have the questions for us? I don't know if you have any direct knowledge of the case in Chittenden County, the case that inspired the change in statute of limitations, and not a sex corruption case, but the Boyer's case. And want to make sure if do have knowledge of that case, you want to

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: make sure that you've closed,

[Rep. Barbara Rachelson (Member)]: not closed loopholes, but covered the challenges, addressed this bill fully addresses the challenges faced by the victims in that case. My understanding was simply that the statute of limitations had run out, there was no criminal recourse, and then the addition of the change in harm, the definition of harm. But those were kind of the two main issues, as far as I understood, that emerged out of that case. Are you aware of any others, and would there be a statutory remedy you might need to look at?

[Kenneth Gimenez (Department of State’s Attorneys and Sheriffs)]: I am aware of that case from news stories. I believe the harm piece was connected with the civil suit, not the criminal. But I will double check to see, other than the statute of limitations running out, whether or not there was an element missing. I'll just do that as a double check with my other pieces, yes.

[Rep. Barbara Rachelson (Member)]: Any other questions for Kim?

[Rep. Martin LaLonde (Chair)]: Not seeing any. John, if I can get the contact information of the additional witness that we have for us to get to meet you and to to Nate as well. And then we'll look for a state somebody from the state police and the police as well for next week. We have a few other witnesses. So thank you very much. So before Eric should be on his way, or I just sent him a message. But I just wanted to address really quickly, there's an amendment to H. Five forty five, the immunization bill, has to do with informed consent. So the question was whether we needed to look at that again or look at that, the amendment. And I suggested we did not for two reasons. Number one, informed consent is really not our jurisdiction. And number two, even though it isn't our jurisdiction, we had a lot of testimony on it last week. So we heard in the morning from a witness who raised informed consent that somehow we needed to have that if there was immunity. And in the afternoon we had testimonies from the general counsel of the Department of Health and the executive director of the Vermont Medical Society. So we heard all that and we decided that, appropriately, that that was a contingent of immunity. So I just wanted to let you all know if on the floor this comes up, I don't know if they're gonna ask me to weigh in at all on that or not. I don't think they think they will. I think they'll probably ask me to weigh in on the other component, but I just wanted you all to know that that happened. And I do understand that they the, they voted voted to find the amendment unfavorable nine eleven. Essentially, we looked at that same exact issue when we still vote about nine eleven. So any questions on that or anything else? We're good? Yeah, yeah. I just wanna be transparent that that happened. Let's go off live. Eric, should be on his way over. I said that we would be able to start at 01:50. So we can get through that and we'll have more time pre floor. I don't think this walkthrough's gonna take more than 50.