Vermont Legislature SmartTranscripts:

[Sen. Nader Hashim (Chair)]: We are live. Hey. Good morning. We're back in the Senate Judiciary with age five. It's March 17, and we have Legion Household to give us the law firm.

[Michelle Childs (Office of Legislative Counsel)]: Good morning, President Rednard, Michelle Childs, Office of Legislative Council and we're talking about H5 and I think people around the table thought this looked a little familiar and you are correct in that what H-five does is it amends 804A, the Vermont Rules of Evidence. You don't amend the court rules that often, but you do have the authority to do that, and so you do it from time to time. And we did do it actually two years ago, specifically this particular rule and another one on depositions. So the issue may feel fresh in your mind since that proposal, I think it was 01/1990 and I think Senator Norris reported for judiciary and Scott Boskey reported for The

[Sen. Philip Baruth (Member)]: Vox.

[Michelle Childs (Office of Legislative Counsel)]: The Vox, right. And what that proposal did is prior to those amendments, Rule four A was just pertaining to in matters where a child was a victim in a sexually based event, and you expanded that to also include those exceptions for offenses where there was cruelty to a child and resulted in serious bodily injury to the child. In this particular case, you're only amending Rule 804A of the Rules of Evidence with respect to hearsay and it's changing the age. That's the only change here. And so you'll see under current law, the hearsay exception is for a victim aged 12 or under. Now that is being changed to under 16 years of age. So remember, hearsay is something that is generally not permitted as evidence in court. It's an out of court statement that's then used as evidence to prove the truth of whatever it was asserting. So you think of it as kind of a second PM evidence. But generally hearsay is not admitted because the person being quoted isn't present. So they can't be questioned specifically with regards to that statement. But there are a variety of instances where hearsay can be presented as evidence. And so that's what we have here now and will be a Board A, because there are exceptions for children of a certain age in certain types of cases where you could bring in hearsay evidence. So thinking about in terms of, will the child hold the teacher or the best adult about something and then that person wasn't available to testify for bringing in hearsay updates. There are still the protections under 804A around trying to assure credibility, the statements must not have been made in preparation for a legal proceeding, and if a criminal or delinquency proceeding has been initiated, the statements have to have been made prior to the defendant's initial appearance before the judicial officer. The child has to be available to testify in court and the time, content, and circumstances of the statements must provide substantial addition of trustworthiness. So, those are all things that are currently contained in this rule. So again, one policy change that's for you is whether or not to move the age up.

[Sen. Nader Hashim (Chair)]: Any questions? So I'm looking at page two, client's five. And one of the questions I have, and I already know the answer to, but I just wanna confirm here is, the defense would be able to introduce hearsay statements of somebody who is not necessarily a victim, but they're under the age of 16. So we're starting off with a person with a mental illness or intellectual or developmental disability, if that individual makes hearsay statements and they're 15 years old, the defense can introduce those statements.

[Michelle Childs (Office of Legislative Counsel)]: Yeah. So this

[Sen. Nader Hashim (Chair)]: allows hearsay to be introduced and looks like the first part applies to children who are the victims, the alleged victims of all those listed offenses. Then on page two where it gets to lines five through eight, it also says, or a person with a mental illness or intellectual developmental disability. And so So the person, either a child or a person with a disability,

[Michelle Childs (Office of Legislative Counsel)]: is the victim in the case and you're looking to bring in an outcome statement.

[Sen. Philip Baruth (Member)]: So I'm assuming that under 16 means you have not reached a sixteenth or Right. Sorry. 15, and you're.

[Sen. Nader Hashim (Chair)]: So in cases where there are multiple victims then, the defense would be able to introduce hearsay statements from one victim against another victim without having to call that victim to the stand?

[Michelle Childs (Office of Legislative Counsel)]: Well, the child does have to be available to testify, and then there's other parts in the rule that you know that provide for some around that. So, I think, you know, what is contemplated, speaking to the practitioners, the witnesses will probably give you a much better idea of the circumstances that they would foresee this how this would play out, but that it would be just like I had said before, where the child has made a statement to someone else, and then you're looking to bring that. And so are you saying with multiple victims?

[Sen. Nader Hashim (Chair)]: Yeah. Yeah. Thinking of, you know, the nature of the offenses described. There are a number of situations where there are multiple victims and situations where if a juvenile or somebody under the age of 16 falls into one of these categories, their hearsay statements being introduced by the defense with the state being unable to cross examine that victim, the statements are being introduced?

[Michelle Childs (Office of Legislative Counsel)]: Well, the child has to be able to testify in some manner. The answer is, you know

[Sen. Nader Hashim (Chair)]: what Right, I'm so, yeah, okay. So then, okay.

[Michelle Childs (Office of Legislative Counsel)]: I think maybe once folks kind of talk to you about where they're seeing the instances, but when I think again, this is, you know, child said something to an art teacher or something like that. So it was the teacher, right? There would be evidence brought in around the state. So the child was still available to cross examine or to check the statements with regard to that, but they would be.

[Sen. Nader Hashim (Chair)]: So. Yeah. Okay. Yeah. Mean, I'm thinking of the situation where it's the teacher testifying saying, Yeah, I heard X, Y, and Z, and then that being admissible because of its hearsay statement.

[Michelle Childs (Office of Legislative Counsel)]: Oh, so you're like really kind of drawing it out to let everybody Right. I would talk to the practitioners So, about

[Sen. Nader Hashim (Chair)]: Mindy, have any questions on this? Michelle, are you able to provide us with any additional background on why this is being introduced and why they picked this age of 16 instead of 15, 17?

[Michelle Childs (Office of Legislative Counsel)]: No, I think that would have to come from the witnesses. I know that this issue has been kicking around for some time in the legislature, but I don't know around with the rules of evidence committee, could ask the reporter to come in and talk about that experience. Are different positions certainly among the folks who work in this area about about this about the age group. I do think that I need to check. I think I could be wrong, but think there are other places in the rules that use 16. That's the threshold. I'll double check that for you.

[Sen. Nader Hashim (Chair)]: Any other questions or comments, thoughts at all? Any general interest in pursuing this further or wanna get more testimony?

[Michelle Childs (Office of Legislative Counsel)]: It sounds like we need more time to get from the public church first.

[Sen. Nader Hashim (Chair)]: Any other thoughts? I just think I agree. Okay. See what the emphasis is raising thirteen, twelve, and 13, whatever it was before, about 86, I guess.

[Michelle Childs (Office of Legislative Counsel)]: Maybe, you know, but I think it's been kind of a crack at me in service since it's experiencing changes to the rules for the last several years.

[Sen. Philip Baruth (Member)]: In the house, was there any group that was opposed?

[Michelle Childs (Office of Legislative Counsel)]: I don't think that it's an adult's office. Okay. Don't wanna speak for that.

[Sen. Nader Hashim (Chair)]: Thank you. So, on page five. Oh, we have 626. So we wanna just starting that now. Sure. Thanks.

[Sen. Philip Baruth (Member)]: Thanks, Nader.

[Michelle Childs (Office of Legislative Counsel)]: So, 626, we're working in We're working in pedal 13 in chronic criminal procedure, and we're working in the statutes, having to do essentially various things around sexual exploitation. So there's three different crimes that this bill addresses. One is voyeurism. The second one is insemination of sexual explicit images without consent. And then there's a hate crime committed of sexual extortion. So just talking about them generally. So our voyeurism statute, that was adopted by the General Assembly in 2005. And our member sitting right in this chair working with this committee at the time around that, just for a little background, my recollection was it was in response to, there was a peeping Tom in Montefiore that had been caught by law enforcement. I think some folks in law enforcement had reached out to a member the team saying, you know, we don't really have a statute that's kind of like on point around this type of behavior. I think they probably needed something to call to like an LML charge or a hippocampus or something like that. And so the legislature started looking at it and one of the things that they discovered was that so this was 2005. They keep meaning to Google and be like, when was it that everybody had cameras on phones? I don't know, but it was kind of starting to be around that time. And my recollection was that when they caught this person who had been keeping in windows and things like that, that this person either had a camera or a phone camera or something like that and had taken photos of other times they had done this in the community, right? So we're talking about kind of the, I don't know, there's some kind of peeping Tom kind of idea, but then we have this whole new thing around that images can be taken, can be saved, can be shared.

[Sen. Philip Baruth (Member)]: Well, I'm remembering

[Michelle Childs (Office of Legislative Counsel)]: the Alan Birkey. He was the first person Right, who predicted a

[Sen. Philip Baruth (Member)]: so he was in a tanning salon, just as he walked out, took his camera and took pictures of women who were

[Michelle Childs (Office of Legislative Counsel)]: tanning. Like over the, like those little dividers? Yeah.

[Sen. Philip Baruth (Member)]: I mean, snapped pictures over it and then they went to his house and he got his phone.

[Michelle Childs (Office of Legislative Counsel)]: So, voyeurism is, you know, and we can go through the language, I'll say that even though there's a lot of language that's changed in the voyeurism statute, it is primarily done to rearrange it in a way to separate viewing from photographing, filming, recording, and then disseminating. And that is because the statute of limitations for the filming, recording, dissemination has been extended. And you may And so that is because, and there's a theme with this one as well, is the sexual based dissemination of sexual assault images without consent, is that the offense may not be known for some time. Because if you're talking about, know, ten years later that the images are discovered, but no one knew that the events had occurred ten years prior until the images surfaced. So when I walk you through the language I just wanted to note that there's a lot of things going on in there, but they're most technical so that I can separate them out. They have different statute limitations, so the viewing is staying the same for the statute limitations, but there's an expanded one for the recording. For the dissemination of sexually based images, that was ten years later in 2015. And that was what people commonly referred to at the time, it's revenge porn. That is different from the voyeurism, in the sense that voyeurism, no one is getting their consent to be spied on, to have to photo taken, anything like that. For the images, sexually based images without consent, it could be an image that was recorded with the consent of the victim in that particular case, but who does not consent for sharing. And so there's some elements that are a little different from that around intent to harm that is a requirement there. But again, I just kind of wanted to distinguish those two things for you, then I'll walk you through and talk to you about the new offense of sexual extortion. So if you're taking a look at the language So starting with section one, amending the voyeurism statute, there's just some technical amendments there. With the exception of on page two, there's a new definition of harm, and that is because there is a civil right of action that's added to this warism offense mirrors what is available for sexually dissemination of sexually explicit images without consent. But those are the only changes. And then you'll see in subsection B, I create, I kind of start to change the language to make B, unlawful viewing, and then C is the unlawful photographic filming or recording. Again, if you want me to, I can go through all the elements of the crime with you, But it's not changed, but I'm happy to.

[Sen. Nader Hashim (Chair)]: Quick question on the I definition of know I'm fairly certain that there was a Supreme Court decision that came out, Maybe it was somehow this summer. I haven't looked at it recently, but basically saying that we, the legislature, needed to clarify what harm is because of the way a certain case resolved. I can't remember the specifics.

[Michelle Childs (Office of Legislative Counsel)]: Yep, sure, and I was gonna get to that because there's a part a little later, but that's okay if we can jump ahead of So you're probably thinking about the Kilburn v. Simmons case, And in that case, forgive me if I don't get all the details right, but there were two women who discovered as adults that there was a video circulating on pornographic websites of them when they were in their teens and had been secretly recorded changing clothes. And I can provide some articles and also that I can provide the Kilburn case to Henry so he can put it up there. And because of this issue of the so one of the issues was the statute of limitations, right? So that they're addressing it here. But another one was around being able to recover for essentially emotional harm in a negligence action. And the court, looking at precedent, said that essentially case law limits recovery for emotional harm in these particular cases. But there was a, I don't know if it was at the center that was concurring with and from I believe, Justice Breiber. I think it was a dissident. And Justice Breiber said, you know, if you're talking about a situation where someone is experiencing PTSD or severe emotional harm that's manifesting in a physical injury, things like this, that there should be a way for plaintiffs to be able to recover. And so there is a provision in here that I'll show you here that addresses that specific thing, and that in these particular cases, that defendant could recover for, and we'll skip ahead and see that.

[Sen. Philip Baruth (Member)]: Page six.

[Michelle Childs (Office of Legislative Counsel)]: Page six. So if you look at page six, subsection A is where you have your new pregnant right of action. And you'll see on subdivision three, and then action brought for some subsection, the required element, and the negligence claim of actual injury to the plaintiff who is dissatisfied by a diagnosis of a disorder resulting from trauma. And that suggestion was what came from the network so they can talk to you about what they envisioned that that would encompass. I think there was some debate about should it be limited to PTSD. I think there is, I don't know if there's a Senate version, I think there's a House version that Eric did that was looking at this issue of being able to recover in the negligence action for PTSD in all types of cases, not just these, but that was not acted on by the House. But it's saying for these particular types of cases that she could recover for that type of thing.

[Sen. Philip Baruth (Member)]: Just wondering, on top of page seven, it's a retroactive extension of the statute of limitations. And I'm wondering why 07/01/2005 was the

[Michelle Childs (Office of Legislative Counsel)]: Because that's the date that the criminal statute was and that And took so essentially it's saying that instead of calculating it from, let's say if you made this act effective July 1, but if somebody was harmed prior to that date, as long as in a way that would work with statute of limitations, as long as the original statute of limitations has not run and expired, then you can still avail yourself of this. So I just wanted to clarify. So the reason we can do this retroactively is because it's not before the original statute of limitations. So there's no one who would have been told like, No, you can't, because the statute of limitations is out. That now came out. I mean, think you probably want to have some practitioners on that one, I think that in general, the safe space is to say it wasn't a crime before, and so we're going from a point in which it was a crime and people are on notice that you're not supposed to engage in this type of activity. I'm not comfortable saying that somebody couldn't use other avenues and remedies at common law to pursue something that happened in 2002 that then caused that first law. Do you know what I'm saying? So outside the context of that, it's not for closing anything that might exist anyway, right? So lots of times all may create a private right of action that's very specific about something, but it'll say there's other remedy, you know, this is not to foreclose any other remedies Okay, available at thank you.

[Sen. Philip Baruth (Member)]: Jennifer, just wondering about the private cause of action. If that wasn't in the bill, could the person not sue or could they sue but they might have a harder time?

[Michelle Childs (Office of Legislative Counsel)]: I would go with the second one but again I think you'd want to talk to people who are practicing that type of litigation day in and day out about liability and things like that.

[Sen. Philip Baruth (Member)]: Because this is, I think this is the second bill, if not the third, where we've had a right of action if it's been added in, and I know where we'll hear it from.

[Michelle Childs (Office of Legislative Counsel)]: Right, I mean the Pilbara case was just that, suing and going after folks because of something that had happened and you didn't have this statute. So there, you know, but in terms of how do they navigate that, you know, types claims do you bring, you know, what kind of things do you have available to you,

[Sen. Nader Hashim (Chair)]: those things, and you want to

[Michelle Childs (Office of Legislative Counsel)]: talk to folks who are doing that work. Okay, so we're gonna move on to section two, disclosure of sexually explicit images without consent. So I think, so the first big change, think it's on page eight, subsection B. So this is where you go to the elements of the chronic. So I'll just kind of read through it. No person shall knowingly disclose a visual image of an identifiable person who was nude or who was engaged in sexual conduct without the person's consent with the intent to harm, harass, or intimidate the person depicted and the disclosure would cause a reasonable person to suffer harm. So you see on line seven there, the words threaten, vote, or coerce are eliminated and that's because that concept has been pulled into the new crime of sexual extortion that we'll talk about in a couple of minutes. The ones that are struck on eight through 11 have just been moved elsewhere in the statute.

[Sen. Philip Baruth (Member)]: Michelle? So there's a mens rea and I'm wondering to what extent, and maybe it's a question from the practitioners, to what extent that is problematic and why it is just automatic that you can't share with whatever you're intent, you can't share those images without their consent.

[Michelle Childs (Office of Legislative Counsel)]: You mean strict liability?

[Sen. Philip Baruth (Member)]: Yeah, in other words, they could say, well, I thought this would help them get more clicks on TikTok or something like that. So I meant well when I shared this video.

[Michelle Childs (Office of Legislative Counsel)]: Well you have to, you do have to prove that there was an intent to harm.

[Sen. Philip Baruth (Member)]: That's what I mean. Right.

[Michelle Childs (Office of Legislative Counsel)]: Oh why, oh why do you have to have that?

[Sen. Philip Baruth (Member)]: Why do have to prove intent to harm? We're just saying we don't want these shared without consent. Why don't we make it

[Michelle Childs (Office of Legislative Counsel)]: Right, no I get what you're saying. And you know it's interesting, we did look at the issue of intent harm there, because at the time that everybody was working on this, right, ten years ago, and working with some experts kind of in what was a real emerging field, right? It was kind of like this stuff know, as usual technology is going faster than the law, kids keep up with it, right? And so we were kind of at the forefront of a bunch of states looking at adopting some type of statute to get into this process. I remember at the time it was recommended that you have the intent to harm. And I had to go back and look at the Van Buren case, but I think when I looked at kind of a jurisdictional survey of all the states that are out there, some have intent to, like some form of intent to harm and some do not. So it's kind of all over the place. You do have, so after you passed this law, it was challenged pretty quickly. Remember that Bennington case, where someone hacked somebody else's Facebook and then put stuff up and whatever. It wasn't a perfect test case for what once we hadn't even contemplated that kind of stuff that your ex girlfriend is gonna use your computer. But it's the statute was upheld as constitutional. It went through this whole analysis and also in addition to this the Simmons case also provided the case as well. And I think where a house is shaved down and practitioners was, you know, yes, intent to harm makes it more difficult to prove, but the statute had been found constitutional because there's a lot of things you kind of have to navigate on the and so it was kind of like, alright, we're going to go with what's working. If you wanted to explore that you could because there are some states that don't have that requirement but

[Sen. Philip Baruth (Member)]: just curious because I could imagine somebody who is clueless, relatively clueless, I mean it's part of a matching these days that something could be fact clueless, But they record these sort of things with their with their partner and then upload them and then argue afterwards. Oh, I didn't mean anything. People buy it and it just seems like if you had strict liability it's hard to imagine somebody getting caught up in strict liability would have good intentions pushing our most these.

[Michelle Childs (Office of Legislative Counsel)]: Yeah, I mean I would think we generally don't like to use strict liability for these types of things and then I guess I would put out there and say is if somebody honestly did so without ill intent in any way, is that who you want to capture by criminal statute?

[Sen. Philip Baruth (Member)]: Well, but the person is still harmed, like Sure. And that's the thing.

[Michelle Childs (Office of Legislative Counsel)]: And there is a civil route to that. So I don't want to argue that, but I'm just saying that there's I

[Sen. Philip Baruth (Member)]: guess one way of looking at it is I'd be interested to see the list of who's who in terms of strict liability or not in public estates. You you said that.

[Michelle Childs (Office of Legislative Counsel)]: Oh, I'm not saying they don't have strict liability. They may not have the intent to harm. They still have to have like intentionally knowingly like all of that kind of stuff. In terms, if you're just talking, I thought you were, if you're just talking about you don't have intent to harm.

[Sen. Philip Baruth (Member)]: Okay, so nobody has just if you shared it's illegal.

[Michelle Childs (Office of Legislative Counsel)]: I didn't look for that. Okay. But I can.

[Sen. Philip Baruth (Member)]: Yeah.

[Sen. Nader Hashim (Chair)]: Think in terms of the strict liability piece, I get where you're coming from, but we do generally have to have placed a burden on the state to explain and reach their burden of proving that there was an intent to do a certain offense. And the only strict liability that's that I'm thinking of off the top of my head is statutory rating. And the intent doesn't matter there. But generally, it's it's not a great idea to have a strict liability offense. Mean, it's,

[Sen. Philip Baruth (Member)]: you know, you don't even

[Sen. Nader Hashim (Chair)]: have that for her.

[Sen. Philip Baruth (Member)]: And I suppose somebody could share it by accident. You know, they're

[Michelle Childs (Office of Legislative Counsel)]: And then you can go after them from a civil standpoint, but it wouldn't fall under this. I would just note that the mensperia that's used here in this statute is knowing The one for voyeurism is intentional. So, you know, these committees really worked hard at thinking about that because it seems as though the voyeurism, you know, they wanted to be very clear that, you know, that they didn't want anybody to be accidentally swept up and that if they accidentally saw something through a, you know, a break in the shades or something like that, knowingly, and not that you couldn't accidentally share something without consent, But it's a little less likely that you're going to accidentally do that. And so just as a reminder, if you act knowingly, it needs to engage in conduct that will cause or that will be practically certain to cause a specific harmful event.

[Sen. Philip Baruth (Member)]: Thank you.

[Sen. Nader Hashim (Chair)]: I think I can wait until we have more testimony on this bill. Just sort

[Michelle Childs (Office of Legislative Counsel)]: of share Senator Baruth's feeling that if you share these types of things without someone's consent, why you did it shouldn't really matter. Like you shouldn't be sharing these things without consent. But we can dive into that.

[Sen. Nader Hashim (Chair)]: Yeah.

[Michelle Childs (Office of Legislative Counsel)]: Alright, so, just moving on, most of them are technical, until we get to page 10. And I'll just show you that the intro to to this subsection is at the bottom of each line, subsection so E. And so that's where you see there's already an existing private right of action in these types of cases, that language is modeled for the lawyers and statutes. But you're adding in subdivisions three and four the provisions saying that the negligence claim actual harm can be satisfied by a disorder resulting from trauma. And then the applicability date in terms of, and so for here it's different from the earlier retroactive one because it tracks the date the criminal statute was adopted. So for this statute, it was 07/01/2015. The other one was 07/01/2005. So those are different and they are different intentions. Is

[Sen. Nader Hashim (Chair)]: there somewhere where we define what an identifiable person is?

[Michelle Childs (Office of Legislative Counsel)]: Don't think so. My recollection is that's like a term that is often used when looking at sexual abuse materials, things like that. So if you're trying, you know, as opposed to an AI generated or, you know, snapshot of, like, body parts, but isn't you can't identify. So either a real person or a fluid. Yeah.

[Sen. Nader Hashim (Chair)]: Okay. Yeah. The only reason I ask is, you know, thinking about hypotheticals where somebody has this footage and they blur somebody's face out and they and they still use it as extortion material, but the the victim of the case, they they know it's the the video that's being recorded.

[Michelle Childs (Office of Legislative Counsel)]: I don't know. You know, that's language that's already in statute now. And so you can ask I know you should have Domenico Fedula, the Chief of the Criminal Division at the Attorney General's Office, who does a lot of the work with IPACT. She's tremendously knowledgeable and helpful in kind of talking about types of cases they see and how they navigate the evidence. Alright, so I'm going move on to section three, sexual extortion. So this is a new crime and you may have Bless you. Thank you. Heard things on the news. I was just listening to this podcast where they talking about some of the litigation in California with respect to the social media companies and things that they were talking about, law firms, young people in social media was young folks harming themselves because they were being sexually exhorted. Generally this is where someone will strike up a, and you'll hear from law enforcement practitioners about the cases they have, they can talk to them. But it's where somebody is, you know, possesses an image of either being body or your case in sexual conduct. And then it tries to extort you essentially by saying, I'm gonna send this picture to everybody on your Snapchat friends group. If you don't do any number of things for me. Another piece to that is if somebody said, I'm going to do something to harm you unless you provide me with images of your new body or you engaged in sexual conduct. So I'm gonna report you to immigration authorities, I'm gonna accuse you of a crime, and I'm going, you know, whatever those types of things are. So that's kind of the conduct that really isn't quite captured under our existing law. We do have an extortion statute currently in Title 13 that could be used for some of these circumstances, but this is just a little more focused in on a particular conduct. The extortion statutes. So we look at the language. Subsection A is your definition. It's primarily using definitions from other sections that we've already talked about. Page 11, subsection B. That's no person shall know I leave the threaten to disclose a visual image of an identifiable person who's nude or engaged in sexual conduct without their consent, with the intent to compel a person to produce nude images or images of sexual conduct. I have this picture now, you have to start sending more pictures to compel a person to engage in sexual conduct, really to engage in any type of conduct against their will, or to refrain from engaging in any conduct which they have a right to do or provide anything of money or value. Subsection C is that with the intent to compel a person to produce those images, no person shall knowingly threaten a person, accuse a person of a crime, cause injury to a person or property, expose or publicize an assertive fact, whether to revolve intending to subject another person to hatred and contempt or ridicule. Report a person with immigration status or suspected status. Then on page 12, subsection d, you have the penalties. I'm

[Sen. Nader Hashim (Chair)]: sorry. Before we keep going there, just going back to page 11. I'm looking at lines sixteen and seventeen. So is that to capture situations where somebody says, If you don't send me news, it's not going to be a and you assaulted me or something like that.

[Michelle Childs (Office of Legislative Counsel)]: Right, or that you sell cannabis illegally or that you do, you know, like whatever it is, they're threatening to accuse someone.

[Sen. Nader Hashim (Chair)]: So, okay, so I got the accusing part, but then the or cause criminal charges to be instituted against a person. Can you stand on what that means?

[Michelle Childs (Office of Legislative Counsel)]: I think my recollection was we were looking at what other states have and there are a number of states that have some variation of this and that that was on the part of that, but I don't remember exactly how that came in. But I would think of that perhaps, you know, that I think there's been, unfortunately, number of reports in the last few years around people involved in the criminal justice system who work in the criminal justice system, either it's law enforcement or prosecutors that have been charged with sexually abased offenses that might have authority and power to pursue something like that. That

[Sen. Nader Hashim (Chair)]: makes sense. I just hadn't heard charges to be instituted against person.

[Michelle Childs (Office of Legislative Counsel)]: And there may be federal language, like I said, I think that came from another state, but I have to look. So back on page 12, subsection D, these are the penalties. So violation is a three year felony, a fine of $3,000 if the victim of the offense is an adult, is 18 years of age or older. Subdivision two, it's a ten year felony, dollars 10,000 fine, if the victim of the offense is a minor. And subdivision three is that if serious bodily injury for death results from a violation, it's a fifteen year. So testimony in the house was received by a number of folks related to young young people who had been sexually distorted or and then the children committing suicide based on that exclusion.

[Sen. Nader Hashim (Chair)]: I'm glad that it's in there. I'm wondering, there needs to be some clarity around if serious bodily injury or death results death. Don't know if that could cause confusion. I mean, obviously, I think it should be this is something that should exist that this law here. I just want to make sure that we're not creating something that could cause confusion if, let's say this conduct happens and then as a result, two other people, not the victim, not the person who was extorting, two other people get into a fight, let's say an ex boyfriend or something getting into a fight and somebody gets a serious bodily injury, that would fall into this or

[Michelle Childs (Office of Legislative Counsel)]: I think that's a good point. I don't recall maybe they discussed it, but I don't recall us considering that I think it was the intent was thinking about the big problem

[Sen. Nader Hashim (Chair)]: of the extortion. Yeah. And and I I want that, to be in there. I'm not saying that we need to take this out or anything, but just wanna make sure we clarify so that it doesn't cause any confusion down the road. Alright. Thank you.

[Michelle Childs (Office of Legislative Counsel)]: So subsection E, provides some limited immunity. An issue that was raised in house judiciary was concern that a teenager might be afraid to report to an adult that they are being sexually extorted because they don't want to admit that they shared an explicit image of themselves or did certain things. And we do have these laws on the books. Again, I all these flashbacks to the odds with this committee, right, that this committee created the Sexting Law a number of years ago when that was first starting to occur and our phones had the hardware, software, whatever to do that. So sharing of sexually based images, nude images, when the subject is a minor is an offense under current law. And so what E does is it follows the model with which you have done for other instances around encouraging or removing barriers to people reporting crimes, and you have provisions that are somewhat similar to this in your drug laws for someone who reports an overdose. You also have that for laws around prostitution and human trafficking. And so this is just modeled after that. It says, for as long as a person in good faith in a timely manner reports to law enforcement that the person's a victim of a violation, they shall not be cited, arrested, prosecuted for these particular kind of offenses that are of any obscenity around sharing of explicitly, of explicit sexual images of a minor.

[Sen. Nader Hashim (Chair)]: And I see below that, that doesn't preclude prosecution of the person on the basis of evidence of the film.

[Michelle Childs (Office of Legislative Counsel)]: Right, and that's again, modeled exactly after what we do in those others, is that it has to be use and derivative use of the evidence, right? Gain is approximate result of this particular thing. So if you have outside evidence that is independent from what you gained through disclosure reporting of that crime, then you could totally

[Sen. Nader Hashim (Chair)]: Were there any conversations about what Well, let me just frame an example that I would want to be careful of. I would worry about a situation where two people are trading pictures and then one person wants to use this immunity clause. And the person trying to use the immunity clause was engaging in sexual extortion or disseminating the photos to other people, but they're somehow trying to find a way to use the immunity clause to protect themselves. I know there's a million variables to hypotheticals, but it's just maybe for other witnesses.

[Michelle Childs (Office of Legislative Counsel)]: Yeah, think that would be a great question for the practitioners.

[Sen. Nader Hashim (Chair)]: Create something that allows a shield or something to help you. Anyways, thank you.

[Michelle Childs (Office of Legislative Counsel)]: So I'm going move on to section four on page 13. And so this is in title 13, we're talking about crimes on statute of limitations. And you'll see that on subsection C, you have certain offenses that have been designated as, they have to be commenced within forty years after the permission of the offense. So you have certain offenses that are there primarily pertaining to child sexual abuse. And then you'll see on page 14, you're adding voyeurism involving photographic filming or recording. So the viewing does not have the extended statute limitations. It would just be when you're capturing that image. Voyorism involving display or disclosure of images to a third party, and then disclosure of sexually explicit images without consent, and then sexual extortion. Again, the policy reason they chose around that was because it's very possible, like in the Simmons case, that someone may not know that they are a victim of crime until that comes to life through the images being widespread.

[Sen. Nader Hashim (Chair)]: Thank you. Committee, any questions? So just as a refresher that on the Senate side, we did introduce a similar, if not identical bill I have a lot of bipartisan support, and so we're working on to move forward with this one. We'll put together a list of witnesses to get in probably next week, and we'll just continue working on it, see if there's anything that we need to clarify or refine a bit. Questions or comments on that?

[Michelle Childs (Office of Legislative Counsel)]: No, good. Yeah.

[Sen. Nader Hashim (Chair)]: Alright. Great. Thank you, Michelle. Thanks, Shannon. And we are concerned for the day.