Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: The house judiciary committee this Wednesday morning, January twenty eighth, and we're looking at draft number 2.2 of h 66. It has been posted as well. And I'll turn it over to Michelle. Thank you for being here, and thank you for the quick turnaround on this So revised

[Michelle Childs (Office of Legislative Counsel)]: for the record, Michelle Charlott's Office of Legislative Counsel. And as the chair mentioned, we're working on draft 2.2. The draft is highlighted, so I'm just going go through the highlighting sections for you. So section one is the Boyers and Stem Field. You'll see on page two, I added a definition of harm on there. This was a suggestion that was made by the Attorney General's Office. They're not particularly engaged in starting this bill, but they were kind of issue spotting there. There is a definition of harm in the dissemination of sexual explicit images without consent section, and so we're just screwing those two up. The next changes are on page six. And you'll see in subsection J under the penalties, there's just a little technical amendment there, but it was just incorrect cross reference, so I'm just correcting that, but it's not changing things substantively. Section two, which starts on page seven, is the statute on disclosure of sexual explicit images without consent. So if you turn to page eight, subsection B, so that's where we get to the elements of the offense. And so you'll see on line 12, obstruct, threaten or coerce. So you have a lot of elements in that particular crime. One of them is you have to do the act with the intent to harm, harass, intimidate, threaten, or force. So taken out threaten, or force. So it would just be harm, harass, or intimidate. And that's because you've moved the threatening and coercion pieces into the new sexual extortion.

[Rep. Martin LaLonde (Chair)]: So should we do the mark for questions as we go? Are you fine with questions as we go? Sure. Can I just back up? Thank you. Can we just back up so that I can follow you on the rest of it? Going back to page two on line 17, where you added, was serious emotional distress added? Because I'm trying to look on the original draft, and I'm not finding it. I just

[Michelle Childs (Office of Legislative Counsel)]: So this definition, the whole definition of Subdivision nine, the definition of harm is added.

[Rep. Martin LaLonde (Chair)]: Thank you.

[Michelle Childs (Office of Legislative Counsel)]: And here, and that's there is the same definition contained in section twenty six zero six on dissemination of sexually explicit images without consent, and it relates to the the provision on the on the civil act.

[Rep. Martin LaLonde (Chair)]: I'm just very happy to see that serious emotional distress on you. Thank you.

[Michelle Childs (Office of Legislative Counsel)]: So and then the other change that we just went over was just the technical change on the penalties on page six. Nate, can you give Matt a copy so he can

[Nate (Committee Staff)]: Give me one minute.

[Michelle Childs (Office of Legislative Counsel)]: I'm sorry. So that's just a technical fixing of typo. We just went over on page eight in subsection B on the elements. So right now it has the intent to harm, harass, intimidate, threaten and coerce. We're removing threats and coercion because that's now going into the new sexual extortion statute. The next changes, and I'll just note for you, is that you'll recall that previously the sexual extortion provisions were in 2606, but you wanted them moved out into a separate statutory section. So they no longer appear in 2606, and they are now in this new Section three, which is creating a new section 2,607 on sexual extortion. The language you have with regard to the offenses is the same. I did add a definition section because we needed to because we need to pull in those definitions that were in 2,606 because we're using those same terms. We also added in the penalty section an enhanced penalty if a violation results in serious bodily injury or death. So we want to reference that even though anybody in practices and criminal law knows what serious bodily injury is because it's used throughout the statutes. But I want to reference the definition that's in another part of the title. So you have on page 11, you have subsection A. So you have these definitions. Again, there's nothing new here. It just looks different. But from a policy perspective, I haven't changed anything. So I've just reorganized it. Subsection B is the offense with regard to knowingly threatening to disclose a visual image of an identifiable person who's new or engaged in sexual conduct without the person's consent and with the intent to compel the person to either do something they don't want to do or do anything from doing something that they have a right to do. Subsection C is the provision with regard to with the intent to compel a person to create the images of nude images or of sexual conduct, then the person, if they knowingly threatened to do something like physically injure the person or accuse the person of a crime, those types of things. Page 12, subsection D, which starts on line four. Here's your penalty section. So you have three different penalties that are provided here. I'll remind you that the extortion statute that currently is kind of the general extortion that's in law is a five year felony. So you'll see in subdivision D1 starting on line four, it's a five year felony, dollars 5,000 or both. If the victim is 18 years of age or older, Subdivision 2 is an enhanced penalty and goes up to ten years and $10,000 if the victim of the offense is under 18 years of age. And then Subdivision three, there's no age component to that, but that if serious bodily injury or death results from a violation of the section, then it can be up to fifteen years. So subsection E, this is modeling language that you have elsewhere in statute, as I mentioned yesterday, there's something in the prostitution chapter relating to if someone is either witnesses a crime or is a victim of a crime, that they can report such a crime and then not be charged for certain things. You also have the Good Samaritan Law in Title 18 around reporting a drug overdose that we discussed yesterday. So this is modeling that language. So it's not new to the statutes. And so it's a person who in good faith and in a timely manner reports to law enforcement that the person is a victim of a violation of sexual extortion statutes is not to be cited, arrested or prosecuted for a violation of essentially the provisions in the obscenity chapter that are dealing with dissemination or sharing of explicit images with respect to minor. So showing the minor explicit images or the second provision, which is twenty eight zero two b. I don't know whether or not Dominica talked to you about whether as part of your discussion yesterday y'all talked about any of those things. But I think that was one of the things that was raised by one of the first witnesses about having, perhaps removing any potential liability or fear that someone would have that if especially in regard to teens were sexting one another pictures and wouldn't want to disclose that there's been a crime committed under the sexual extortion statute because they fear that they might be charged with a violation under the obscenity statutes. So subsection F is again just standard language that we have in the other immunity provisions in law, which is that it only applies to the use and derivative use of evidence gained as approximate results of the reporting of the offense to law enforcement and that the person was a victim of a violation of this section. And it doesn't preclude prosecution of the person on the basis of evidence obtained from an independent source. And so that's just so saying that as related to that specific report reporting, you can't use evidence gain to do that. But if there's outside circumstances that relate to something else and other offense that can be used. So page 13, Section four, and this is on the criminal statute of limitations. And so just the things that the endowment subsection C, so this is the extended time period of forty years. I just added some cross references in there as a technical because that's kind of standard for us and they weren't in there already. So those first subdivisions one, two and three are just technical clarifications. Let's see on page 14, I've moved the offenses that you previously had that specific language earlier about, and that's been moved to the forty years. So it's voyeurism involving photographing, filming or recording. It's voyeurism involving display or disclosure of images to a third party, disclosure of sexually explicit images without consent. And I wasn't sure if y'all had discussed having the I mean, before the sexual extortion was in 2606, so it was applied. But then now it's its new stat, it's its own, so I applied that there. But these are all policy decisions for you about what you want to apply for the forty years. And then just at the bottom of the page, I just retitled it. Now that sexual extortion is its own statute and also because a lot of the testimony and focus of this has been around creation of this new crime, and so I thought it would just be clear to state up front in the title that sexual extortion is part of this proposal.

[Rep. Martin LaLonde (Chair)]: Questions? I've got a couple. Going back to page eight and line 11 and page 11 and line eight, nine. This is the without the person's consent, you were gonna think more about our suggestion of striking that language. And I'm wondering if

[Michelle Childs (Office of Legislative Counsel)]: was wondering, was that supposed to be?

[Rep. Martin LaLonde (Chair)]: It's because we were gonna have you strike that and you said, well, let me think about that a And little bit our thought was that that was unnecessary because, I mean, who's going to consent to the disclosure of image when the intent is to harm, harass, or intimidate, for instance, in B1 on page eight? And kind of the same rationale when you get to the age 11. But you were gonna give that some more thought on why we might want to keep that. I mean, we can get some more testimony. I'm just flagging that, that that's still the question. I think the test ruling that we've had suggested that why do we need to have that additional element in there?

[Michelle Childs (Office of Legislative Counsel)]: Right. I can see it more on the-

[Rep. Martin LaLonde (Chair)]: Right, and the minor can't consent that. That is correct. Can see

[Michelle Childs (Office of Legislative Counsel)]: it initially more in either removal in the muse extortion, but I want to think a little more about the

[Rep. Martin LaLonde (Chair)]: We got you halfway to where we are. We

[Michelle Childs (Office of Legislative Counsel)]: went into it for some reason.

[Rep. Martin LaLonde (Chair)]: Striking out that. All right, my other question is on page 12, line 10 to 12, and that's the serious bodily injury or death resulting. Do we need to have a mens rea? Do we need to have a sientra? I'm not feeling some modern phrases. Or is it understood that it's based on recklessness? Or do we need to have

[Michelle Childs (Office of Legislative Counsel)]: I think it would be understood because you would look to the other places where it's currently used in statute. But I think I'll take a look at that. And I think probably the witnesses from DSAS and Defender General can probably speak to that. Okay. Yeah, that's definitely one that I'd like to speak to. Other questions?

[Unidentified Committee Member]: Have to answer them. Quick one, I think. On that same page, page 12, line 13, this new immunity clause, where it says sorry, line 13. A person who in good faith and in a timely manner reports to law enforcement. I'm thinking about what we're doing with this statute of limitations.

[Michelle Childs (Office of Legislative Counsel)]: Right. And I did kind of put a little note in here for myself about that because, again, I was trying to kind of model what we have currently, and some may not necessarily under these circumstances. It may not be appropriate, but I think you would wanna talk to to folks about that.

[Unidentified Committee Member]: Because I guess that's my question is, in this context, what is a timely manner?

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Where's the patient in Page 12, line 13.

[Rep. Barbara Rachelson (Member)]: So Barbara was first. Barbara, please? So I have a question, but it's on existing language. It's page nine, section three.

[Rep. Martin LaLonde (Chair)]: The

[Rep. Barbara Rachelson (Member)]: last part of the so lines eight, nine and nine. The part where we say, if requested by the depicted person, I'm almost wondering That seems like that's really hard because the depicted person needs to know what sites this is popping up on and then know to say, Don't put it up there. So I'm just wondering if it should be the opposite, like should not post unless they receive written permission from the depicted person so that the burden isn't on the depicted person to try to figure out where the

[Michelle Childs (Office of Legislative Counsel)]: You're saying like a website before anybody could put something on a website that the company would have to get permission?

[Rep. Martin LaLonde (Chair)]: Think websites supposed to be big companies don't

[Rep. Barbara Rachelson (Member)]: They don't do any of that.

[Michelle Childs (Office of Legislative Counsel)]: So I

[Rep. Martin LaLonde (Chair)]: mean, that's a bigger

[Rep. Barbara Rachelson (Member)]: Right. Like Yeah. That

[Unidentified Committee Member]: That gets yeah.

[Rep. Barbara Rachelson (Member)]: That's I mean, it's not Yeah. I'm just

[Unidentified Committee Member]: they don't control their content.

[Michelle Childs (Office of Legislative Counsel)]: No. I yeah. It's not

[Rep. Barbara Rachelson (Member)]: What it sounds like is it gets taken down from one site and it pops up again on another site. So, yeah.

[Michelle Childs (Office of Legislative Counsel)]: I see the problem that you're pointing out, but I do think that is a much larger discussion in the context of this escalation of

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: providers. There's 30 question conversation. Let's talk about it.

[Unidentified Committee Member]: Two quick things. One, page 12, line one, we decide we're gonna keep secret in.

[Michelle Childs (Office of Legislative Counsel)]: Those are publicized and asserted facts. So we're gonna strike secret.

[Unidentified Committee Member]: And then my only other question is oh, you know, I should have asked this last time, and it just kinda came up in your walk through. So for a forty year statute of limitations instead of a discovery rule statute of limitations, just based on the testimony you heard today, if it's really unclear when exactly something happened, but you can generally place it. So for example, we heard testimony this morning about a woman who knew that she was in a relationship with this gentleman approximately ten years ago, and that this had happened sometime in that relationship, the recording.

[Michelle Childs (Office of Legislative Counsel)]: Maybe How do

[Rep. Barbara Rachelson (Member)]: they pinpoint the commission of the offense? If can't, is that going to somehow impact an ability to bring it?

[Michelle Childs (Office of Legislative Counsel)]: I would say the best thing is to talk to practitioners. They must face that now in those types of circumstances, where if it's not clear when the date the commission of the offense occurred.

[Rep. Martin LaLonde (Chair)]: Mean, that just said we shouldn't do the discovery.

[Unidentified Committee Member]: Well, that's, I guess, it occurred to me that it's much cleaner to know the date of the discovery. And if it causes any issue in bringing a criminal charge, if you can't pinpoint the date of the offense to be able to establish the term of the statute of limitations, that would be my concern.

[Rep. Martin LaLonde (Chair)]: Having a forty year as opposed to

[Unidentified Committee Member]: Well, yeah. If you can go to a judge and be like, well, we know it happened around 1998, but, your honor, we can't tell you. It could have been February. It could have been April. Like, is that

[Michelle Childs (Office of Legislative Counsel)]: So these events is only so it doesn't it doesn't do the viewing piece of the border. So it's just around the the filming, you know, the things that kind of are saying. Right?

[Unidentified Committee Member]: Yeah. So so that's kind of where I could see it being pretty tricky to establish exactly when it happened.

[Michelle Childs (Office of Legislative Counsel)]: When the initial disclosure happened?

[Unidentified Committee Member]: Or when the initial recording. Right.

[Michelle Childs (Office of Legislative Counsel)]: But I would say that that issue exists now. So I would say, how do practitioners deal with that now? Yeah.

[Unidentified Committee Member]: Yeah. But it's only three years.

[Unidentified Committee Member]: Correct.

[Unidentified Committee Member]: So probably easier than, like, fifteen.

[Michelle Childs (Office of Legislative Counsel)]: True.

[Unidentified Committee Member]: Yeah. So I mean, I

[Rep. Martin LaLonde (Chair)]: would think that might have similar problems with the discovery. When was the discovery? Maybe that's easier to tell. Yeah.

[Unidentified Committee Member]: I guess presumably, the discovery is from a party that is willing to work with you.

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

[Unidentified Committee Member]: No. I I don't know. Maybe it's not an issue. It just occurred to me based on what we heard this morning.

[Rep. Martin LaLonde (Chair)]: Okay. That's it for me. Kenneth people have it in there as well. Other questions from Michelle? Alright. So we can get some initial thoughts or maybe full thoughts from Department of State's attorneys, the network, and the Defender General. And if you all need a little more time as well and want to come back, we do have a time slot open this afternoon at 02:30. We were going to have this walk through, but we managed to get it in this morning. But we'll start with Kim.

[Michelle Childs (Office of Legislative Counsel)]: Do want to start with Matt since he's sitting in my chair?

[Rep. Martin LaLonde (Chair)]: We can start with Wanna join us?

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Or do

[Rep. Martin LaLonde (Chair)]: you want to go after See if you're sitting in Michelle's chair anyway. Oh boy!

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: It's the only place you have a desk in here.

[Rep. Martin LaLonde (Chair)]: I have mine. Thank you for being here, Matt. I appreciate it.

[Matthew Valerio (Defender General)]: No problem. My office is close.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: But it's cold.

[Rep. Martin LaLonde (Chair)]: I'll tell you.

[Matthew Valerio (Defender General)]: I walked over here, and there was big shiny bright thing in the sky, which I didn't recognize.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Yes. I felt complete.

[Matthew Valerio (Defender General)]: I know it's eight degrees out, but it felt warm.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: It's not relative. Not to say.

[Matthew Valerio (Defender General)]: For the camera, I'm not familiar. Gender general. This is doesn't look well, it looks sorta like what I looked at. Let me just tell you, generally, we don't have anything really to say about the bill practically. You know, conceptually, I think I said something last week about it ought to be in the extortion statute, not in the voyeurism statute, because it really wasn't voyeurs, and it was just kinda attached. And so I see that an attempt to have made it that. And obviously, I haven't had time to go through it line by line to see if there would be a better way to write it or understand it. But conceptually, it doesn't doesn't offend anybody. I will say that I don't know, as a practical matter, that the and we the defendant general's office doesn't really care much about the civil side of it. But as a lawyer who actually represented victims in the past and at one time got a million dollar judgment against somebody who attempted a sexual assault on an individual, Mike Byant. I don't know that the civil section really adds anything to existing law. If you just wanna make a statement about something, that's fine. But I don't think it it doesn't aid anything. It doesn't change what if I were if I were gonna pursue a civil case, it doesn't doesn't add anything. From my review of that, I always get concerned when the legislature writes a statute in an area where existing law, common law tort, would cover it because then there is a question about whether or not there's a limitation on what types of claims could be made. Now it it's just you know, when the legislature delves into an area that, you know, is broadly covered by civil tort law and then puts, like, some either specific elements or requirements in it, courts look at it and say, they're trying to do something different. What exactly are they trying to do? But it is of no concern to the defender general's office or our clients. I'm just telling you, as a lawyer, he did this work before I did this work, that it those things always make me wary, you know? And so it's something to consider when trying to create a statutory tort as opposed to one that would be otherwise covered under common law, whether it be invasion of privacy or any number of other number of other things that that I could think of. The, you know, the rest of it, I don't really have much to say about it. I forty year statute of limitations is

[Rep. Martin LaLonde (Chair)]: I don't know what to say about it.

[Matthew Valerio (Defender General)]: There's there's not much to say about it. So the bottom line is there's no real concern with the concept. If I was gonna go through this line by line, as any lawyer might, he might disagree about the way it would be written word for word. But we don't have any major concerns, especially now that extortion seems to be covered in extortion as opposed to voyeurism, which might cause confusion or cause some states' attorneys to not know where it is. Know, part of it is, we have a lot of laws that are entitled 13. And some of our criminal laws are stretched over a couple of different volumes, but most of them are entitled 13. But it's like anybody else. If a state's attorney doesn't really know where to find it, then they can't use it, or they won't think of it. Years ago, probably my first ten years on this job, there was a state's attorney in Rutland who's a dear friend of mine who kept coming to me and saying, Why didn't they criminalize the precursors to meth? Peter, we did this five years ago. Like he didn't But he wasn't seeing it. I think he was in Title 18, not in Title 13. So he was getting You know, got confused. The guy had been a state's attorney for twenty years. It's just a matter of how our statutes are organized so that people can find it and it makes sense. And so by putting this in extortion, it's a that's the way it should be done, in my opinion. It makes the rest of extortion you know, the this type of extortion is, like, three times the length of the rest of the extortion statute, but maybe that's the way you want it. In any event, if you have any questions, like, you thought of something along the way, and I heard Michelle say that, ask the Defender General about it, but I don't know what it was.

[Rep. Martin LaLonde (Chair)]: I'll point you to the one page, page eight and line 11. And we've had testimony and discussion about whether without the person's consent, is language that is needed there in the knowingly disclose a visual image of an identifiable person who's moved or who's engaged in sexual conduct with the intent to harm, harass, or intimidate. It didn't seem to us that without the person's consent, made much sense to have that requirement. Okay. Any new on that?

[Matthew Valerio (Defender General)]: No. Not really. Okay.

[Rep. Martin LaLonde (Chair)]: I don't

[Matthew Valerio (Defender General)]: know that it's see, take out anything that doesn't add something. I don't know that that adds anything.

[Rep. Martin LaLonde (Chair)]: That was a view of some ants in here.

[Matthew Valerio (Defender General)]: Reading it as a whole, I don't know if it hurts anything either. But you always want to take out something that is surplus that can confuse judges. There's fewer words. Alright.

[Rep. Martin LaLonde (Chair)]: The other question I had is

[Matthew Valerio (Defender General)]: Well, you know, they they try to fashion jury instructions based on a new crime. And they're like, wait. What does this mean? Is this an element? Is this just is this a new, you know, mental what is it? So they try to figure it out. And then ultimately, Supreme Court does. So if you have some specific thing you want done and that doesn't add to it, then take it out.

[Rep. Martin LaLonde (Chair)]: You have a question, Michelle?

[Michelle Childs (Office of Legislative Counsel)]: Yeah, can I just raise one? So I am in agreement, I think, on how it applies to the intellectual extortion provision. But that language came from when it was earlier in 2606 and disclosure without the victim's consent is an important element of that crime. I get what you're saying in terms of, with the following being harassed and somebody, right? But nobody would be consenting something but in that I would just be very cautious and I would wanna go back and look at, I think it's the Van Buren case was when there was an initial challenge to the statute and look at that because that's been an essential element of the offense for that kind of conduct, which is you have the images, they may have consented to you having the images, but they didn't consent to

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: the disclosure. So

[Michelle Childs (Office of Legislative Counsel)]: at this point I wouldn't take it out of page 11.

[Unidentified Committee Member]: You mean on page eight?

[Michelle Childs (Office of Legislative Counsel)]: On page eight, that's good, sorry. Yes. Page eight.

[Rep. Martin LaLonde (Chair)]: So it doesn't quite read that. Maybe we need to look at what Victorian structures highlighted about the difference

[Matthew Valerio (Defender General)]: because The invulner was a different crime. That was the voyeurism crime. And this is

[Michelle Childs (Office of Legislative Counsel)]: Oh, you're right. Yeah, Okay.

[Matthew Valerio (Defender General)]: This is extortion.

[Rep. Martin LaLonde (Chair)]: Well, we'll still

[Unidentified Committee Member]: No. On page eight, it's not.

[Rep. Martin LaLonde (Chair)]: So if you take it out, then someone could consent to the photo being taken, consent to

[Unidentified Committee Member]: the disclosure of the photo, and then the disclosure of the photo causes harm. And now the question is, was the person who disclosed the photo was their intent to cause the harm?

[Rep. Martin LaLonde (Chair)]: Right? Right. Well, I guess also the question is, without the person's consent, is that consent for having had the photo taken, or was it consent to disclose? So it could be shelved, so there's a little confusion that I have.

[Michelle Childs (Office of Legislative Counsel)]: It's knowingly disclose a visual image without the person's consent.

[Rep. Martin LaLonde (Chair)]: I think that's So it's been the disclosure. It has nothing to do with whether there was consent. But again, it doesn't seem, it seems to be surplus because who's gonna get this consent to disclosure when the intent is to harm, harass, or intimidate this life? You have to keep it with the intent. Yeah, I consent to disclose, but that's because there's no intent to harm or harass or intimidate. That falls out of this, it would seem to me. But we will put a question mark, and that'll be something that Michelle can give further thought and we can hear some more testimony from Kenneth Charlie as well. I'm gonna go to my other question, unless we have more on that. So it's on page 12 and it's the line 10 to 12 that serious bodily injury or death resulting. And the question that I had is, is it understood that the enter would probably in this instance be recklessness that somebody is engaged in this extortion recklessly. Is that understood? Do we need to put the mens rea there?

[Matthew Valerio (Defender General)]: That's not clear. This is one of those things where if I had a chance to look at it closely, the question is, could somebody interpret this as being a, like, strict liability situation? I wanted to embarrass the person, but they killed themselves or something. Right?

[Rep. Martin LaLonde (Chair)]: I was extorting the person for any of these you know, for money and and the person that died by suicide.

[Unidentified Committee Member]: Yeah.

[Matthew Valerio (Defender General)]: Guess you have to decide what you wanna do.

[Rep. Martin LaLonde (Chair)]: Yeah, but I guess the question just is, should we be explicit that we're talking about a recklessness essentially the same as an involuntary manslaughter type standard?

[Matthew Valerio (Defender General)]: I think voluntary manslaughter is not reckless. It's negligent. Okay. Well, the But and slaughter. Volunteering manslaughter would be reckless if that's what you wanna do. I mean, that that's a choice. What what are you trying to criminalize? You know? So to me, at some point, you have to have some kind of reasonably foreseeable result of what you are doing. And if, you know, if you've got teenagers screwing around and or very, you know, relatively young people and, you know, they spread around their, you know, their picks from the party or whatever with no Would

[Rep. Martin LaLonde (Chair)]: it

[Matthew Valerio (Defender General)]: be reasonably foreseeable to them that somebody may end up dead as a result of them doing that? Probably not. So to me, what you want to do is determine how far down the road of foreseeability you wanna go. Or do you wanna say, No, we're going to make this a strict liability kind of situation, where if you do it, whatever happens next, that's your problem. So, you know, my sense in general is that's not fair when you have young people who don't know what they're doing half the time anyway.

[Rep. Martin LaLonde (Chair)]: And just to be clear, this isn't attached to just the disclosure of this is with extortion. This is if somebody is extorting somebody by threatening to disclose the movement. So there's a little more center in that kind of situation than

[Matthew Valerio (Defender General)]: Right. What I always have worried about, and I've always talked about this, when the original voyeurism statute was written, what was it, twenty years ago or so, was what happens with young people doing stupid things as opposed to, you know, 40 year old people doing vicious things. So that's the part I would be mindful of if I were you. Right. Know, it's a matter of, you know, what you want to criminalize, or, you know, what kind of evil intent or what degree of negligence, recklessness, simple negligence, nothing at all, making strict liability. Like, those are all of the things you could do. But, you know, my sense is you don't want to draw in, you know, young people who do stupid things who have no idea what they're doing. Right. And unfortunately, you know, that's what you know, some of this is. There's, you know, a fair amount of something else too. So

[Rep. Martin LaLonde (Chair)]: Alright. Fair enough. Do you have a question for that? Not see any? Thank you very much. And if you have more to say on this

[Matthew Valerio (Defender General)]: Yeah, I'll go through it with a five tooth comb like that. But it's hard when you kind of just see it.

[Rep. Martin LaLonde (Chair)]: Yeah. So I think we have a time slot. Well, we have this afternoon, but also I think tomorrow afternoon if I'm gonna stay and we better check.

[Matthew Valerio (Defender General)]: Yeah, I'm not around tomorrow. I'm not in Montpelier tomorrow.

[Rep. Martin LaLonde (Chair)]: But So even if you can let me know if you wanna weigh in any further on Friday, you know, that that's possible.

[Matthew Valerio (Defender General)]: Yes. I will be around Montpelier on Friday.

[Rep. Martin LaLonde (Chair)]: Okay. Alright. Thank you. Thank you. Thank you. Thank you. Alright. So we'll hear from Kim.

[Michelle Childs (Office of Legislative Counsel)]: So the Van Buren case was on 4606, not on lawyers, so on the dissemination of sexually explicit images without consent. So I sent that to you and take the call. Look at the intent.

[Rep. Martin LaLonde (Chair)]: I'm looking at the journey trip here. Pardon?

[Unidentified Committee Member]: Yeah, I'll take it off.

[Rep. Martin LaLonde (Chair)]: Thank you for being here. Identify yourself for that criticism. Good

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: morning. Kim McManus, Department of State's Attorneys and Sharps. Similar to the Defender General, I will give the caveat that I'd like to have a little bit more time just reading through the changes, though he's definitely made aware of the direction we're heading in and absolutely makes sense moving the sexual extortion section out of lawyerism that all tracks. So just a few points. I believe I had raised this last week, though nobody remembers that I testified last week. I'll raise it again. I'll soon remember. And this can absolutely be the committee's intent. I just wanted to point it out that under voyeurism changes on page four, the disclosure to a third party.

[Rep. Martin LaLonde (Chair)]: Can count some lines that you're looking at as well.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Apologize. Page four, lines 14 through 19. So somebody has done the filming and recording and now disclosing it to a third party, then that penalty, if you go to page six, line eight, it's five years. Can find not more than 5,000 under the disclosure of sexually explicit images statute, disclosing an image, so whether you've been the one who reported it or not, just disclosing somebody's image, that's a misdemeanor of two years. So absolutely fine if the intent is that you've done the recording and then you disclose it, that you want that higher penalty. I pointed it out last week that they're both disclosures. And again, facts and circumstances, a prosecutor may charge those differently. But just wanted to point out that they seem similar in the piece, and they have different penalties. But again, if it's because they've done the act of voyeurism and disclosing it, you have a higher penalty, that makes perfect sense and is rational. Just wanted to highlight to make sure that's what you wanted to do. Raised last week, and again today, the without the person's consent. I'll hopefully read as well the Van Buren case again. I think this is extraneous to have the without the person's consent for both sections on page three and on page 11. I'll do a little bit more digging and I know Ledge Council will be doing that. Go ahead. I mean, the Van Buren case was one of the

[Michelle Childs (Office of Legislative Counsel)]: things that was focused on is the extreme invasion of privacy. So it seems to me that if you take out them without consent, right? So that's the difference why there's this definition between 02/3200, right? Is that the lawyer is nobody is consenting to the viewing to only view the Office 2606. You could have been in complete agreement between the two parties as to the creation of the image, but there was not an intent for you to disclose. So it seems to me as though in order to kind of look at the human hearing case, and I'll have to go back and review the result, but that the fact that the person may have it is fine and completely separate out that they're disclosing without intent. I get what people are saying is that nobody would consent to be harassed or harmed or things like that, but I guess I'm not sure that it's been there all this time and I don't know that there is a reason to remove it now and that it may jeopardize the delicate balance.

[Unidentified Committee Member]: I mean, twenty six zero six is called disclosure of sexually explicit images without consent. So I do feel like I see Michelle's point that in this section And then further down, well, on page nine, top of page nine, stating very clearly that consent to recording or production of the visual image does not by itself constitute consent for disclosure of the image. I feel like there's a little more import here to that consent piece in this section. But I support taking it out from the sexual distortion. I think then that argument that you can't possibly consent to Well, I don't think you can consent to being extorted. That's oxymoronic. So I could see taking it out there.

[Rep. Martin LaLonde (Chair)]: Yeah, and there is the argument that this has been law for, I don't know what, six, seven, eight years, something like that. Less longer. Less longer than that. So it's established. So is there a real reason to look with it now? That would be another-

[Michelle Childs (Office of Legislative Counsel)]: We have a case that upholds it.

[Rep. Martin LaLonde (Chair)]: And we have a case that upholds So maybe that kind of satisfies that. So for now, we'll consider leaving it despite good arguments that help.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Page 11. Page 11. Yes, right.

[Rep. Martin LaLonde (Chair)]: Page 11.

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: That is absolutely fair.

[Michelle Childs (Office of Legislative Counsel)]: The

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: discussion oh, so page 12 for the penalty sections. I wonder if the committee would like to clarify in subsection D1 and two, this is line four through nine, it mentions whether the victim is 18 or 18. But I wonder whether the offender is over or under 18, whether that impacts how you would like the penalty. That's something just to highlight. For the if serious bodily injury or death, as Defender General said, this is a decision point for the committee. You could make the analogy to negligent operation. As a community, we have decided that if you negligently operate your vehicle and serious injury or death results, There is no additional mens rea there on the causation, like what caused that event. It's that you negligently operated, and then the positive events caused that serious bodily injury. So this would be a claim to that. If you're saying that when someone knowingly threatens someone and then the result is serious bodily injury, that sentence, this enhancement, would be allowed. It would be argued whether that causation is there. That would have to be proven that the extorting cause, that act it would be inherently difficult because there's an intervening actor or a person who has hurt himself. So it would be very much dependent on the facts and circumstances. But as written, don't see a need for extra language right here. But again, that would be similar to how negligent operation death resulting is written.

[Unidentified Committee Member]: I can't ask a question about that specifically before we move on, if that's okay. And I'm thinking about the transcripts of these interactions that I've seen, and it's very consistent. I can't say all every time, but very consistent that the victim will say, please don't do this. I'm killing my I'm gonna kill myself right now. And then there's the response is like, good. You Like, go ahead. Like,

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: Is that the kind of proof that would be needed and looked for to draw the direct connection? That's going to be the type of evidence that's going to connect those events, the threatening and serious bodily injury or death. So I was listening to that testimony too and thinking in those situations where it's, yeah, go ahead, you're already dead, those sort of statements that when that person is saying that is more aware that something potentially could happen to that person and that their actions are potentially causing that versus two teenagers are going back and forth in a chat and there's no mention of harming yourself or hurting yourself or you don't deserve to live anyway. If there's any of that sort of rhetoric in there, whether or not that would be enough evidence for that causation would depend. But that would be the type of thing that would weigh in favor of connecting those dots.

[Unidentified Committee Member]: Okay. So, would it be the existence of that type of evidence, the transcript or whatever, that a prosecutor would look for making a charging distance? It would really depend. That would be

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: very cool seeing that and knowing again that some actor was continuing to make these threats and the other person on the other end is saying things of self harm. Again, that goes towards, can they connect that their actions could have this outcome? Similar to someone driving the wrong way on a highway, Parents are, somebody might get hurt. That's how we connected those pieces. There was a conversation about statute of limitations that I was going to mention a few things, but I think with the forty year piece, I think it's not I think for prosecutors, as law enforcement said, that time frame absolutely helps the ability to prosecute these cases. There was a question, I think, about tolling of the statute of limitations. So I just wanted to mention if there was a voyeurism case, someone here found out that someone had a video of them from a year ago, and right now it's a three year window, if this statute goes into effect during that three year window, then the new time limit attaches. So as long as your case, you're not outside of the statute of limitations, you can get into the next window for statute of limitations. So you can't go back, but anyone who's in the three year window right now, you would have more time on those cases right now.

[Rep. Martin LaLonde (Chair)]: A quick question because we need to break.

[Unidentified Committee Member]: Oh, yes it is. Just about the timely manner for this immunity on page 12. Maybe This isn't the new language, so if

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: you want spend more time with it.

[Rep. Martin LaLonde (Chair)]: So here's what I suggest. So this afternoon, I do have some time set aside, but we're gonna have a little more committee discussion about a couple of the things that came up for perhaps another revised version or not. At a minimum, we're gonna be striking felt consent in that one section. And that'll give you, if you're available, and if you're available this afternoon to weigh in, it's at 02:30, I think. Is that what I have? Yeah, I have it down at 02:30. And if you can't, also have this down at 02:00 tomorrow for some final discussion, hopefully wrapping it up. Those two

[Kim McManus (Department of State’s Attorneys and Sheriffs)]: opportunities I'll be able to do tomorrow, not later. Thank you.

[Rep. Martin LaLonde (Chair)]: Thanks. So at one, we have some folks coming in to, on H541, the interference with voters and election officials. We have a new draft given Rod Smolut's professor Smolut's input last week. It was very helpful. And we have a few witnesses on that as well. So