Vermont Legislature SmartTranscripts:

[Sen. Nader Hashim (Chair)]: You're welcome. Hey. Good morning. It is March 18, and we're having a hearing basically on human trafficking slash prostitution. And we have a list of folks who've been asking to testify for a while now, and we're just gonna start at the top of the list with Melissa. So Melissa, if you want to introduce yourself and the floor is yours. Thank

[Melissa Broudo (Legal Director, Decriminalize Sex Work)]: you so much. Good morning, everybody. My name is Melissa Brudeau. I have been an attorney and advocate for sex workers and survivors of human trafficking. An attorney for twenty years and advocate in this space for twenty five. I'm here to strongly support Senate Bill 54, which would repeal laws, prostitution laws relating to indiscriminate sexual intercourse, right? So it would fully decriminalize consensual adult prostitution while retaining laws related to trafficking and exploitation. Now, during my presentation, please feel free to interrupt me for any questions. I'm gonna cover a little bit of sort of like larger picture sort of models, and then talk a little bit about some case studies, but please feel free to ask me any questions during this time and I appreciate all of your time. So I have a joint JD and Master's in Public Health from Georgetown and Johns Hopkins School of Bloomberg School of Public Health. I entered into that program specifically to study the public health impacts of decriminalization of consensual sex work. That was twenty years ago, and I've been working in the field pretty much ever since. I spent about ten years doing direct defense, primarily appellate defense of survivors of human trafficking, specifically vacating convictions. So clearing convictions of the records of survivors of human trafficking. I transitioned in 2018 to doing policy work. I'm the legal director and one of the founders of Decriminalized Sex Work. And we work in five states, New York, Rhode Island, New Hampshire, Vermont, and Massachusetts. So really New York and then parts of New England, of course. My perspective is always one of public health, right, and harm reduction. We cannot legislate via morality, right? We have to legislate in terms of science, data, health and safety, right? And also bodily autonomy, right? Which is a really important tenant, I know for folks in Vermont, and it's a really important tenant when we discuss sex work, right? So in terms of models around around prostitution, there's sort of four overall legal models, right? There's full criminalization, which is what every single state in The U. S. Has, right? With two exceptions, right? There's Nevada and Maine, but every other state, including Vermont, including New York where I'm based, penal code criminalizing prostitution. Then there is the Nordic model or in demand model, right? Which would remove criminal penalties from, okay, sorry, the screen just shifted, okay, would remove criminal penalties from workers, but maintain criminal penalties for clients. And that model exists in Norway, Sweden, Northern Ireland, Iceland, and I know that Nina will speak about why those models fail to not only meet the goals of ending demand, but also fail to improve health and safety for sex workers. Then there's fulgey criminalization, which I am in support of and which this bill would enact in Vermont. This removes criminal penalties from all consenting adults. It would allow law enforcement to focus on trafficking and exploitation, which is what we want law enforcement to be focusing on, right? Not wasting time and energy, arresting consenting adults and also making it much more fearful for people to work, right, who want to work. Full decrim exists in New Zealand for at this point, almost twenty five years, parts of Australia, Belgium just changed their model to full decrim, and many other states around the country are considering decriminalization. There's bills in New York, Rhode Island, Illinois, Massachusetts, there's been bills in Colorado, Hawaii. Something that really in the ether because it is the right thing to do. And, you know, I think that that is the direction that The US will head in and many other countries we're gonna see head in that direction because that is really what will effectuate fullest autonomy and safety for people in the industry.

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: Oh, okay. Sorry. Didn't think there's

[Melissa Broudo (Legal Director, Decriminalize Sex Work)]: one thing. Then there is legalization, which is the last model. That is where sex work is permitted but highly regulated. Right? So that exists in Nevada in the brothels. That exists in Amsterdam and the red light districts, and in some other jurisdictions. So I'm going to talk a little bit about public health data. You know, first and foremost, decriminalization is a public health issue, full stop, right? And again, that's why I chose to, when I went to law school to do a joint degree, because I knew that the public health piece was central to this conversation. I wanna point out two different studies. One is from my Alma mater Hopkins Bloomberg School of Public Health. They conducted a meta analysis back in 2018, where they looked at 130 studies over around 30, I think 30 countries weren't involved. And they did a meta analysis looking at all of this data, which is really important because people can always cherry pick particular studies, but it's really important to look at the, like the full panoply of what we are working with, right? And it found that repressive policing, which includes either policing sex workers or clients or both, increased the risk of sexual and physical violence at the hands of clients, law enforcement, domestic partners. It also increased the risk of infection of HIV and STIs and diminished the likelihood of use of condoms. And repressive policing also disrupted sex workers support networks and the ability to work safely, right? And that's something anecdotally, you know, I've heard for over twenty five years, right? When you are under criminalization as a sex worker, it is very hard to be safe. It's very hard to screen clients, to talk to other workers about safety, to, you know, properly vet people to make sure they're not somebody, a harmful person posing as a client, right? The other key study I wanted to point out is the Rhode Island Study Commission. So back in 2019, I was part of creating a legislative study commission in the state of Rhode Island. And over a few years, it took longer because of COVID. So beginning in 2019 and then ending in 2023, when the final report was issued, there was a legislative study commission in the state of Rhode Island that included experts from across the field and across the political spectrum and reviewed data specific to Rhode Island, but also internationally. And what that study, what that commission ended up recommending ultimately was considering a lot of restore Rhode Island to a pre-two thousand and nine landscape when prostitution was decriminalized indoors. And the reason they found that was during the time that Rhode Island had decriminalized prostitution indoors, there was a decrease in sexual assaults and in gonorrhea, right? And people were safer, people were able to work, people able to go to law enforcement and report. I mean, thankfully Vermont has immunity legislation, but it allowed people to work safer. It also proposed a series of partial measures, which Rhode Island is trying to enact that thankfully Vermont has already enacted, again, immunity prohibiting police sexual violence of people in custody or people that are being investigated, right? So Vermont has already been at the forefront of this issue, thankfully. I wanna quickly discuss some instances from when I was doing direct defense about how criminalization impacted my clients, right? I saw, I represented primarily survivors of human trafficking in New York City when I was at the Urban Justice Center for nearly a decade. And I had clients that some of whom had dozens and dozens, if not hundreds of convictions on their record from prostitution during, that resulted from being trafficked, right? And I mean, in the 80s and 90s, policing was different, certainly in New York where it was much more high volume, right? But my clients faced staggering political consequences of their convictions. They were not able to get employment, they were not able to get housing, they often lost their children or were barred from having custody or visitation in family court. And then of course immigration, right? We know, especially in this political climate that protecting immigrants is paramount, right? And prostitution is a crime of moral turpitude in the immigration context. And so people are prohibited from obtaining status in this country, right? Unless they're able to go a few certain routes around getting a T visa or a U visa, but those are quite hard to get. So it really prohibits people from obtaining citizenship in this country. I had one client who was from Queens, she had 133 convictions on her record, all from being trafficked. She had an abusive partner, which is very often what human trafficking looks like, right? Despite what people see in movies, right? Human trafficking is most often an intimate violent partner situation. She was forced from quite a young age to engage in prostitution, as well as theft. She had a few felony theft convictions that we were able to get vacated as well. Her dream was to be a security guard in a building in Manhattan, and she could never obtain that dream because of her record. And we were finally able to clear all convictions from her record and she was able to work. I also wanna talk about a case of an Asian migrant worker, right? And again, in this current political climate, this is especially important, a woman named Yang Song who leapt to her death in 2017, there was a police raid in Queens in her massage parlor and she had already had abusive interactions with law enforcement. And so rather than engage with law enforcement again, she leapt to her death. And her story has become a rallying cry, especially for Asian migrant women, I think throughout the Northeast. You know, it's not just a New York issue. I see it, you know, in the work I do in Rhode Island and throughout New England where Asian migrant women are especially targeted by law enforcement around prostitution laws, and the consequences are so severe because of immigration. So I wanted just to conclude that I wholeheartedly support Senate Bill 54. It is not radical, it is really ethical, right? It is really what would bring health and safety to sex workers and survivors of trafficking, right? We wanna maintain all of the laws on the books related to human trafficking, which this does. And we wanna remove penalties for consenting adults to make sure that people can work and work safely. And to also make sure that if people do not wanna be there, they can engage with law enforcement, they can get services, they can exit, right? And so, you know, it's time to repeal archaic laws, right? This was put on the books, I think in 1919, indiscriminate sexual intercourse. And here we are, you know, in 2026. So we really just want to ensure that people can be healthy and safe, right, and seek support when they need it. Thank you so much for your time. I'm open to any questions.

[Sen. Nader Hashim (Chair)]: Thank you. Committee, any questions?

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: I'm wondering if you have any type

[Hilary (Legislative Counsel, Vermont Legislature)]: of definition of what indiscriminate sexual intercourse or sexual activity even is, because my understanding is that goes beyond consensual adult sex work for pay.

[Melissa Broudo (Legal Director, Decriminalize Sex Work)]: Yes. My understanding is that this, the law, and this doesn't get to all of it, but that indiscriminate sexual intercourse refers to any outside marriage, right? Sexual intercourse. We're just, this bill would just repeal laws relating to prostitution for, you know, for high, like sexual, indiscriminate sexual intercourse for hire. But the bill that it was attached to back in 1919 addressed and criminalized all sorts of indiscriminate sexual intercourse, even not for hire, which again, right, shows how archaic this is that we're talking about, right? You're talking about adultery, which is not criminalized anymore, right? We're talking about sex outside of marriage, all of that, which again is clearly not something that is criminalized in Vermont anymore.

[Sen. Nader Hashim (Chair)]: Well, shouldn't be, but I think the

[Hilary (Legislative Counsel, Vermont Legislature)]: way the law reads, depending on how you read it, it does still criminalize indiscriminate sexual activity. Yeah.

[Melissa Broudo (Legal Director, Decriminalize Sex Work)]: Right. And, you know, I'm not practicing in Vermont. But, you know, certainly for, you know, laws relating to whether it is sex between people of the same gender, you know, sex outside of marriage, like all of, you know, that can no longer be criminalized, obviously, because of Supreme Court cases. But again, it just sort of shows how archaic these laws are.

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: Thank you. Any

[Sen. Nader Hashim (Chair)]: other questions? All right thank you Melissa.

[Melissa Broudo (Legal Director, Decriminalize Sex Work)]: Thank you so much for your time I really appreciate it.

[Sen. Nader Hashim (Chair)]: Very welcome. Next up Savannah, slide.

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: Let's see here. I share my screen.

[Savannah Sly (Executive Director, New Moon)]: I have a brief slideshow for us.

[Sen. Nader Hashim (Chair)]: Do you mind grabbing a seat?

[Hilary (Legislative Counsel, Vermont Legislature)]: Okay, is that okay? Yep.

[Savannah Sly (Executive Director, New Moon)]: Thanks for your time today.

[Savannah Sly (Executive Director, New Moon)]: My name is Savannah. I grew

[Savannah Sly (Executive Director, New Moon)]: up in Vermont in Orange County. I've lived in Boston and Seattle over the years, but I've lived here for the past five to take care of my parents. I come to you today as a sex worker. I have been a sex worker since I was 18, over twenty years. I also experienced exploitation in the sex trade and I've witnessed sex traffic king. But professionally, I'm an advocate for human rights and I run a national nonprofit that supports the movement for sex workers' rights in The USA. So some of the data I'll be giving you today comes from having worked with hundreds of individual advocates and many, many organizations around the country. Today we're going to talk briefly about just the history of sex work in The United States, what is the movement for sex workers' rights, who are sex workers, some of the impacts of conflating sex work with sex trafficking, we're going talk about discrimination protections, and also the fact that sex workers exist in Vermont. So very brief history.

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: We're going

[Savannah Sly (Executive Director, New Moon)]: to kind of run through this. The first prostitution related law in The US that I'm aware of is the Page Act of 1875. This was a precursor to the Chinese Exclusion Act. I've also I've picked these moments in history to illustrate how people in the sex trade are also experiencing forms of discrimination outside of being involved in prostitution. The PAGE Act was specifically designed to prevent women from Asia from migrating to The US if they were suspected of being prostitutes. How were they determined to be prostitutes? Well, were questioned extensively. Men had to vouch for them, and they were the first people in the immigration process to be photographed at every step of the progress process. So we can see how, racialized, women, who are soon to be sex workers, are being surveilled more than other people. So sex workers, people presumed to be sex workers, experience quite a bit of surveillance, and also racism. More racist sex trade related laws, the White Slave Traffic Act, which is currently known as the Mann Act, it's still in the books. This made it a felony to transport any woman or girl for the purposes of prostitution or debauchery or for immoral purposes. And so this is where we start to see the conflation of sex work with sex trafficking, and it's deeply racialized. We see a poster here on the right. It's all about the hysteria of white females gaining more autonomy and independence, moving to the city to get their own jobs, and concerns about interracial mingling, essentially. So the idea that a white female would never choose to be with a black man, for instance. He must be trafficking her. That's where we get this law, and black men were the targets of this law. The Trafficking Victims Protection Act of 2000, this is where we get our first comprehensive federal law in The US to address human trafficking, both labor trafficking and sex trafficking. And so it defines sex trafficking as the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act, where the commercial sex act is induced by force, fraud, or coercion, or where the person is 18. And I bring this up because I think this is a great definition of sex trafficking. As somebody who's experienced exploitation and witnessed trafficking and done sex work, I know the difference. And I feel like this definition helps us delineate consenting adult sex work with trafficking. And then most recently, the CESA and FAFSA, which stands for the Stop Enabling Sex Trafficking Act and the Fight Online Sex Trafficking Act of 2018, signed into law very ironically by Donald Trump. This amended section two thirty of the Communications Decency Act to remove legal immunity for online platforms that host content that promote or facilitate prostitution. So what we did is this is essentially a censorship law that made it very dangerous for people to host websites in The US where sex workers could advertise. So overnight, workers lost dozens and dozens of websites where we could advertise, and those websites are really important for us staying safe. They're also important for law enforcement to go on an advertising website. If they're looking for a missing person, law enforcement detectives would just go on these websites, look for the missing person, find a picture that looks like them, call the number and you can go and find them and be like, So law enforcement also lost these tools and sex workers lost a way of safely advertising and vetting potential clients. Sex workers rights in The USA. About over a hundred years ago, we had our first workers rights march in The United States. Over 300 sex workers marched to protest the imminent closure of their brothels in San Francisco. These workers who were female were demanding economic justice in light of wage gaps and lack of resources. They're like, if you want to stop prostitution, if you want to take away our brothels, which are our homes, you can give us housing, fair paying jobs, immediate access to childcare. So sex workers are asking for the same things now that they were over one hundred years ago. In 1970, STAR was founded in New York and I uplifted this because we have Sylvia Rivera and Marsha P. Johnson who are two icons for trans rights, LGBTQ rights in New York, And they started STAR to bring in homeless transgender youth in the seventies in New York because they knew, as trans women themselves, that queer youth get kicked out of their homes by discriminating parents, and these youth try and survive in the sex trade, and that's a form of sex trafficking. But sometimes youth have to make that hard decision to support themselves, especially when they face discrimination. So this is an example of how sex workers these two women, Marksha and Sylvia, used their own sex work money as adults to help support youth so that those youth did not need to engage in the sex trade. This is sex workers understanding how to stop sex trafficking, right? Because we care. We see sex trafficking, we want to stop it, and we know how this works. In the late seventies or early eighties, the Scarlet Harlot seen on the right, Carol Lee coined the phrase sex work. It didn't exist before them, and she coined it to frame prostitution as a labor issue. This is a job we're talking about. It's sex work. And to also have a counter to dehumanizing phrases used by second wave feminists like the sex use industry, which remove all agency from people who are engaging in prostitution. And then as my colleague Melissa said earlier, illustrating how attempting to raid and rescue people from presumed trafficking can lead to a lot of harm. Yang Song in Flushing, New York jumped to her death from her apartment when her apartment was raided for the second time by police who were there to stop sex trafficking. Such a brief history. But what is the movement for sex workers' rights? Well, I think it kind of started in The US with those 300 sex workers marching in San Francisco. But this is a little data about how this movement is rapidly accelerating and for good reason. In 2015, was working I was at Sex Workers Outreach Project USA, and we counted about 30 visible sex worker rights organizations in The US. These these are organizations led by people with lived experience in the sex trade. There's about 30 of them. Now my organization, New Moon, in 2025, we can count nearly 300 sex worker led organizations. These organizations are advocating for the decriminalization of sex work, which is what we're doing here today. They're also providing services to their communities, much like Marsha and Sylvia were trying to protect trans youth. So sex workers are trying to protect themselves and change the laws that are affecting them. And my organization has provided resources to nearly half of the organizations that you see on the right. We talk to these people every day. We know who they are. Why are sex workers mobilizing? They're criminalized. They're highly stigmatized, and they often face racialized or gender based discrimination or class issues. So why are they coming out of the woodwork to say we exist and we want society to

[Julio Thompson (Assistant Attorney General, Vermont)]: talk with

[Savannah Sly (Executive Director, New Moon)]: us? There's been an increasing conflation between sex work and sex trafficking. Efforts to abolish the sex trade, to stop sex trafficking, have led to increased danger and instability for sex workers. And I can say this for myself, I've experienced this. I became an advocate about thirteen years ago because in Seattle I was experiencing some of these things that were happening to stop sex trafficking. Increased policing, raids on your home or workplace, increased penalties for working together or for our clients, increased surveillance such as facial recognition technology was sort of trained on sex worker advertising sites with data scraping. We get surveilled left and right, increased discrimination in banking, housing, and child custody. On the right we have a chart here from Free Speech Coalition, they're the trade association for the porn industry, and they say sixty three percent of people working in the adult industry have lost a bank account or financial tool due to their work. And when you lose access to your bank account, it doesn't mean that you don't use money anymore. Means you have to rely on somebody else to do your transacting, and that can lead to exploitation. All of these things increase instability in somebody's life and actually increase the odds that they will be exploited by another person in the sex trade. Increased censorship being removed from the Internet, not being allowed to exist on the Internet or in public. Decreased laws of tools for law enforcement to investigate missing people, I mentioned that earlier. And then the erasure and discrediting of sex worker existence. Sex workers understand sex trafficking because a lot of us have experienced it. It's really hard to stay safe when you can't tell people what you're doing, when you're afraid of being arrested, when you're afraid of having a safe place to work. Don't want anybody to know what you're doing. You're very isolated because of criminalization. And also people want to make money off of us. If we can't build community or talk to each other or understand what's right or wrong, it's like Zach said, it's like understanding if somebody's hurting you or exploiting you, you don't know that unless you have that education. So a lot of us have experienced exploitation and I think it's because of criminalization. But we decided to ask people in our extensive network. We asked 20 organizations that we work with, How do leaders in your organization identify as sex workers or survivors? 19 of the organizations said that their leaders identified as sex workers and 16 said that their leaders identify as survivors. And we're like, Oh, didn't really quite ask the right question. We're not researchers. Does this mean that sex workers and survivors are working together as leaders? We know that that does happen. Or are people saying that they have both experiences? So we ask the question again to individual program participants in one of our leadership programs, and on the right we ask, How do you identify as a sex worker, a survivor, or both? And we see that seven out of 21 oh, I got that math wrong, ignore that. Anyways, the graph is proportionately right. The numbers are wrong, my apologies. But a lot of us have both experiences is what I'm saying, and we still are advocating for the decriminalization of sex work. And also sex workers are central stakeholders to identifying and stopping exploitation of the sexuality. You know how it works. Sex workers also have other identities and life experiences frequently that make life challenging. And a lot of people choose sex work for a variety of reasons, maybe due to discrimination or disability. Like we see here we asked 21 program participants whether they were low income, disabled, or housing unstable. And again, I apologize here that the numbers are not matching 21, but this is proportionally correct. Of our 21 participants, the vast majority of them said that they were low income. About half of them said that they were currently housing unstable, and then I would say maybe a sixth of them said that they were living with a disability. About half of them identified as being people of color, a lot of them identified as being cisgendered females, and a little less than half identified as transgender or non gender non conforming. So we see this kind of pattern with these demographics all over the sex trade in The United States. A lot of LGBTQ people, a lot of females, a lot of people of color, and people who are struggling to make ends meet. People do sex work to make ends meet. I understand that Vermont is advancing a constitutional declaration of rights right now. That's really great and it would provide equal it would mean that everybody gets treated equally despite their race, ethnicity, sex, religion, disability. This is great for sex workers because as we can see sex workers have a lot of identities that can be discriminated against, you know, people of color, women, queer people, and this is an opportunity to extend that to sex workers or to consider sex workers as people who experience discrimination. We have another statistic down here from Free Speech Coalition that three in five adult industry performers, Corn Stars, have experienced employment discrimination. So how can you move on from sex work if no one will give you a job? It kind of traps people in the sex trade. And then two out of three performers have had experienced housing discrimination. People will not rent to a known sex worker based on moral grounds alone. And there are actually sometimes laws on the books, you know, that prevent sex workers from accessing housing. But in Victoria, Australia, where sex work is decriminalized, they actually have the Equal Opportunity Act. It's very much like what Vermont is considering right now, but it recognizes sex workers as disproportionately LGBTQIA. A lot of LGBTQ people get involved in the sex trade because of discrimination. And so it includes sex workers specifically in their Equal Opportunity Act, and they say that nobody can be treated unfairly due to their occupation, their current occupation or their prior occupation, and sex workers in Victoria, Australia have successfully used this to sue current employers who fire them when they find out

[Julio Thompson (Assistant Attorney General, Vermont)]: that they used to be a

[Savannah Sly (Executive Director, New Moon)]: sex worker. And this happens to sex workers all the time. They lose their jobs when they're like, oh, you did you were a stripper twenty years ago? You're fired. You're not the right kind of person. But in Australia, in Victoria, Australia, you can't do that. And also sex workers in Vermont exist. I know this might not seem like a relevant issue. I'm a sex worker, there are other sex workers in the room, pulled a little data for us. Last Friday when I was preparing this presentation, I decided to count how many people I could see advertising sexual services in Vermont. I counted about 90 on three different websites. That's just three. I'm sure there's more. I estimated about a third of them live in Vermont, either part time or full time, just kind of glancing through profiles. I personally know 10 other sex workers in Vermont who are not advertising right now. And then also ISHTAAR Collective, our local sex worker rights organization, they hosted a summit a little while ago that over a 100 people attended, overwhelmingly sex workers and some allies. So sex workers are in Vermont. It's likely that there are hundreds of online sex workers in Vermont. These are people who are creating adult media, which we also call pornography. They're performing on live shows or they're offering phone sex. And there are going to be more and more people turning to sex work as things get more economically difficult in Vermont and elsewhere. And we have a little bit of data, which is that during the onset of the pandemic in 2020, online sex work shot way up, way, way, way, way up. So OnlyFans, which is one popular online sex work site, reported a 75 increase in sign ups of people wanting to sell adult media for money in the early months of the pandemic. 60,000 new creators joining in March 2020 alone. That's one platform. That's one month. And all these people are now technically sex workers who can face child custody being jeopardized, have their kids taken away, they've had deportation issues, housing issues, intimate partner violence and discrimination on the workplace. So sex workers exist in Vermont and there will be more

[Hilary (Legislative Counsel, Vermont Legislature)]: of us. Thank you for listening

[Savannah Sly (Executive Director, New Moon)]: and I'm open to any questions.

[Sen. Nader Hashim (Chair)]: Thank you. Maybe any questions you can.

[Savannah Sly (Executive Director, New Moon)]: Thank you. Thank you.

[Sen. Nader Hashim (Chair)]: Next up we have Nina and I don't want to mispronounce the last name. Dina, can you hear us?

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: Sorry. I I can

[Dr. Niina Vuolajärvi (Assistant Professor, LSE; Visiting Scholar, NYU)]: don't know if we should take the sharing of the presentation off. Oh yeah, thank you. Thank you everyone for listening, and thank you Melissa and Savanna for the great introduction to the topic and the legislation, and also kind of the experience of sex workers and survivors, and how they often interlap. I also want to thank the committee for considering this bill that will directly affect the safety, health, and lives of sex workers and survivors in Vermont. I think you're at a very important decision here. So I just wanted to say a few words about myself. So I'm an assistant professor of international migration at London School of Economics and currently a visiting scholar at NYU. I have over ten years of experience of researching sex work and trafficking, and in my work I have especially focused on the so called Nordic model that claims to shift the focus away from sex workers and survivors by criminalising the buying but not the selling of sex, and I did extensive research on this topic in the Nordic region. I carried a tree country study, one of the largest studies on the topic, and I interviewed over 200 people, out of which majority are sex workers and survivors. Of course, as part of my research and academic career, I have also read extensively on different policy models, and that's what I'm here to talk about. So I wanted to first say that my testimony will really much focus on the research, and I think it's really important when it comes to sex work and trafficking to look at research and evidence, because in this area policies are too often guided by moral arguments than what the data actually shows us. And I'm in strong support of this decriminalisation bill because if we look at the international research, the evidence is clear that full decriminalisation represents the global best practice. Leading medical and social science journals such as Lancet has demonstrated that decriminalisation improves health, safety and rights outcomes for sex workers and survivors. For example, studies have established that if decriminalisation would be adopted as a global approach, HIV infections would reduce from thirty to forty six percent globally in the next ten years, so we can see that it has massive health impacts for sex workers. Of course it also is very important for the safety of sex workers which has been already said, decriminalisation brings rights to sex workers and survivors and improves relations between sex workers and law enforcement. When you're no longer criminalized you can turn to police and officials in the case where you're exploited. And this is also a very powerful tool against criminality and trafficking, so when sex work is decriminalised, criminal associations become unnecessary, so it reduces association with criminality and sex work, and sex workers and survivors are empowered to turn to officials knowing that they will be protected and not criminalised by the law, and we have a lot of evidence on that on this especially in New Zealand and Australia where a full decriminalisation has existed since the 1990s. It's also important to mention that full decriminalisation does not increase the sex trade, so evidence from Australia, especially New South Wales and New Zealand both which have had a full decriminalisation since the 1990s show that there has been no increase in the sex worker population. Studies also show that a number of sex buyers have not increased, and for example in New South Wales, one of the Australian states with decriminalisation, two point three percent of men reported paying sex in the last year, and this is also in accordance with the broader Australia that has different legislation so we can see that the decriminalisation does not increase sex buying or the number of people in sex work. Importantly decriminalisation has the potential to reduce trafficking and exploitation because it reduces the structural conditions that enable trafficking, it reduces the profitability of illegal operations, and creates conditions where sex workers are more likely to report exploitation to authority. So we can see clearly kind of the benefits of decriminalization for the health safety and kind of reduced criminalizations or criminal associations of commercial sex. One thing that hasn't been mentioned is that it can also reduce stigma related to sex work, and studies show that stigma is one of the main contributors to violence that sex workers experience. So for example in New Zealand in 2018, Catherine Healy, a sex worker activist that was crucial in campaigning for the sex work decriminalisation, was made Dame in the Queen's Birthday Honours list, and this is about like twenty years after the decriminalisation was accepted or adopted in New Zealand, and this tells something about how sex workers can be seen as valuable contributing members in society when stigma then comes with criminalisation is reduced. So we can see clearly the benefits of full decriminalisation. I also wanted to talk about different types of criminalisation and the harms that they cause, and I wanted to especially focus on the so called Nordic model or the end demand model, because it's heavily present in policy discussions and often offered as an alternative to full decriminalisation. As I mentioned earlier, I conducted vast research on this topic, and my research together with studies on other jurisdictions such as Canada, Northern Ireland and France demonstrate that even if this model claims to move policing away from sex workers and survivors to sex buyers, It does not happen in practice, but sex workers are still the main target of policing and also bear the biggest burden of the loss and negative consequences, and I will outline the negative consequences very shortly here. So first we can see that partial criminalisation increases violence against sex workers and survivors, and this effect is worse for the most marginalised, those working on the street, migrant sex workers, indigenous people, and people of colour. And kind of the reason is concrete, like when clients fear arrest they refuse to share personal details, rush street interactions, and increasingly demand in calls, which means that sex worker goes to the locations of clients choosing instead of their own, which is always more dangerous for sex workers. So in other words it diminishes the ability sex workers to protect themselves and to screen clients, And if we look at the studies through different jurisdictions, they have the same results and these findings are drawn from studies that have very high number of sex workers survived, so from two thousand to 600 sex workers and survivors surveyed in Canada, France and in the Nordic Region. Secondly, we can see that the Nordic model consistently leads to the police to prioritise reducing sex work by any means available. For example in the Nordic region where I conducted my research as well as in Canada, we can see how this has less led to the use of other laws like third party so called pimping laws and migration laws to evict and deport sex workers as a way to kind of reduce the numbers of people in commercial sex. So the overall picture that we see is a punitive environment targeting sex workers and survivors rather than sex buyers, and this of course increases violence and erodes trust in officials, making it harder to report crime and exploitation. Also in my experience, perpetrators know that sex workers are unlikely to report violence and exploitations, and that's why sex workers often get targeted by these people who mean harm. So often kind of the Nordic model is kind of marketed as a way to reduce the levels of sex trade. However there's no studies that would demonstrate that it would deliver on its central promise of reducing the sex trade. At points the street based sex work has declined because it's the easiest to police, but we see that this is rather displacement not reduction, the trade moves online and indoors becoming less visible. There's no evidence from any jurisdiction that sex by a criminalization would reduce trafficking or bimping. My own study found the opposite, that this kind of punitive policing targeting sex workers of working locations forced many sex workers instead to turn to exploitive third parties to secure a place to sell sex. Finally we can see that the promised social services and exit programmes have not materialised in any accessible form in any jurisdiction this model has been adopted, and where they do exist they are often unsufficient and conditional on stopping selling sex, which many cannot afford. I'm happy I've compiled this comparative research summary effects of sex by your criminalization laws globally. I'm happy to share it with the committee as well as a policy brief that summarizes my research findings so you can look more into detail these, so I can share them after I finished. So just to kind of summarise, we can see that there are no benefits to the Nordic model. It increases the vulnerability of sex workers and survivors and exposes them to violence. On the contrary, we can see that the research shows that in fully decriminalized environments we see clear improvements in health, safety and rights, increased trust in officials, greater reporting of crime, and no increase in the sex trade. So the committee here has an opportunity to make Vermont a place where the evidence guides policy and where the well-being of sex workers and survivors is placed at the centre of decision making. Research and human rights communities on unambiguous, full decriminalisation is the best global approach that protects the most vulnerable and reduces criminal involvement in the industry. Thank you.

[Sen. Nader Hashim (Chair)]: Thank you. Committee, any questions? Thanks again.

[Julio Thompson (Assistant Attorney General, Vermont)]: Next up, Henry.

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: I apologize if we go over a few moments, I wanted to start by thanking you all for your time. There are a lot of experienced advocates and experts who have worked directly with my community. And over the past six years, members of our community have lived and died under criminalization and stigma. So even in small states where these numbers can't be big enough to be sensationalized and where data might not be attractive to our own moral compasses, even giving us this opportunity to speak truths means so that our friends who aren't here with us today aren't forgotten in legacy and that they're worth something. Thank you. So without further ado, my name is Henry Banks. I'm a retired consensual sex worker for more than ten years. I'm the co founder and co director of The H Star Collective. We're an anti trafficking and sex worker rights organization based out of Vermont that breaches bar reviews of snow. We were established in 2020. We work in policy and direct services with trafficking survivors in the Green Mountain State. In 2020, a bill to decriminalize sex work was already introduced before our collective was named and formed, but that same year we were born, our membership got together. Members of the collective being sex workers and survivors, as I mentioned. We coined the name in our first meeting, and

[Sen. Nader Hashim (Chair)]: we decided this organization was needed in order to put sex workers in

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: the room where policy conversations about us are happening, because we're stakeholders too. We wanted to make sure legislators knew this bill was needed and that sex workers live here in Vermont and that they care about their futures enough to advocate for their rights and their safety. The pandemic did show us that even in most dire times, sex workers can be left out in the colds with no help from the government. For us, that manifested in the federal stimulus program. Many sex workers were written out, even ten ninety nine tax paying contractors. You'll find that most strip club employees can be identified in their tax files as ten ninety nine private contractors, not employees at all. So folks like that were written out of the stimulus program. That means that those really, really helpful $2,000 checks that would have made or broken people's housing access, healthcare access, etcetera, They didn't get those. Sex workers in Vermont rallied together. We gleaned produce and started our own food distribution garden that is now grown and delivered over 3,000 pounds of produce, not just to sex workers, but all kinds of struggling families in Central Vermont. And from there, we've expanded our direct services to include a health referral clinic where sex workers and high risk members of the community can find non discriminate healthcare if they don't have insurance, access to safe STI testing, therapy, HRT, etcetera, through our program. We also have two active partnerships with two separate churches in Central Vermont in expansion of our food distribution program. One being the Church of the Good Shepherd in Barrie that helps us host our hot meals once a week on Sunday from four to six. I'd love to see any of you there. Come as you are kind of thing. And then also our community fridge program in the Montpelier Church, the Universalist Church that's there on State Street next to the liquor store. But the stark reality of our second class citizenship became real in the pandemic. When we realized we needed to organize not just for policy conversations, but for our own well-being. We established our food distribution garden, as I said, and many members of the community saw sex workers rising up as the good, considerate, caring, and big picture thinking neighbors that we are. Aside from our direct services, we have worked hard with policymakers since 2020, starting here in Vermont to protect the lives of sex workers and survivors alike. We don't care how you identify. We want you to survive. Right? We want you to be safe And to further the rights of sex workers as well. Know? Sex workers I mean, sorry. Vermont's legislature has shown us that there is real care and recognition for robotic laborers in the Green Mountain State. Over the past six years, that recognition has manifested itself in a couple really important incremental measures that I would love to kind of go over with y'all. Some of us were working together at that time. Some of us are meeting for the first time. In 2023, the legislature enacted a law prohibiting law enforcement from engaging in what you would call investigatory sex, which along with the state's already existing prohibition on custodial sex comprises the country's most comprehensive ban on police sexual violence. And I'm proud to say that sex work advocates were a part of that process. In 2022, a ballot referendum approved by the governor removed a ban on prostitution from the city charter in Burlington. And not only was this passed by Burlington's municipality, but it was signed by the governor that stopped. Again, it builds confidence in the sex worker rights community in the state of Vermont. In 2022, there was also a ban removed on prostitution in Montpelier. And there we saw our own city council stand in our defense of the sex workers that they could identify from our disaster relief program and our policy actions we passed. Again, trust in good neighbors, you know? In 2021, an immunity law that's been referred to a couple times in this hearing, H18, was passed. It allows sex workers and survivors of trafficking to seek police assistance for medical care should they be witness to or victim of a crime without period arrest. And this was enacted with the past, with the house passing this unanimously. No debate. But under criminal evasion, we still don't see the same protections as other workers and citizens. We face discrimination, stigma, and arrest in many day to day circumstances. For a lot of other people, just don't. Excuse me. I apologize. I'm sorry I lost my plate. I've had my own labor history victimized against me. Unfortunately, my stalker who followed the last publicly pursued not just me, but like my neighbors, my coworkers, and even other members of the collective for over a year. And my ability to seek legal avenues of protection were cut off as I needed by stigma, inadoxing, that happened to me in public. It created a sort of doubt that led to the refusal of an RFA. My doctor was never held accountable. Not a single time. In the last month, four the Shark Alliance members have told me stories also. A stigma being used in person to person conflicts to intimidate and silence members of my community, and if criminality did not impact the situation, perhaps then my friends would feel safer looking for support through the legal system. And again, maybe my shocker would have met real consequences. The people I know who have had their experience in sex work weaponized against them, arch victims, though this is not a call to evangelize us in the name of denying us rights. We are self empowered, autonomous people for adults. What it is though, named to do is to point out that even with immunity past and the incredible incremental changes that we've realized together over the past half decade, criminalization still impacts us day to day. That is not just a risk, it's a reality. And thus it's relevant to the population of Vermont. A community driven, small do it yourself state that doesn't beat big impressive numbers to make the right decision, this is another opportunity like that. Vermont has been a trailblazer in making hard, not feelings based, but facts based policy decisions for as long as I've been familiar with the state. It informed why I chose this state as my own place. More than that, Vermont has an opportunity, as you've heard, to join a growing movement that is calling for the rights of sex workers. Also, globally research demonstrates that decriminalization increases public health and the safety of the increases violence and exploitation. You can see endorsements of this policy from the World Health Organization, the ACLU, and the ST International, the Human Rights Campaign, the UN Group for Working, or Group on Discrimination Against Women and Girls, UNAIDS, the Freedom Network. They all called for the decriminalization of adult consensual sex work to combat trafficking and the transmission of HIV. Evidence from Closer to Home reflects this too. You heard a mention of a study commission that took place in 2019 and included 2023. I was also a part of that study commission. And many stakeholders from a spectrum of experiences, from law enforcement to state health commissioners, were all part of this study commission that took place more than, that was active for more than six months. These were our conversations that compounded themselves over a number of years that resulted in these recommendations to decriminalize from this neighboring state. When it comes to human rights, I really do believe that Vermont's policies should be informed by on the grounds the needs of people most affected. And we see in our work that decriminalization is the next step to improving the lives of survivors and workers of life. This facts, opiumity's face policy says Vermont takes part of responsible and big picture decisions for state shadow community members who still need fair access to resources, outside labor, and safety like every other laborer. Sex workers should be able to access housing and healthcare without discrimination. They should not have to worry about losing custody of their children because of how they support them. They should, they do deserve, just like everyone else, to live

[Sen. Nader Hashim (Chair)]: in a community where their

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: labor doesn't inhibit access to other forms of labor or any basic resource needed to sustain life. We deserve to live freely with safety and dignity. I really thank you for your time and consideration on this matter. I'm absolutely open to answer any follow-up questions with the remainder of our time.

[Julio Thompson (Assistant Attorney General, Vermont)]: Thank you. Any questions?

[Sen. Nader Hashim (Chair)]: Okay. Thank you.

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: Thank you.

[Sen. Nader Hashim (Chair)]: Switching gears now to H849 and we have Hillary here with us.

[Hilary (Legislative Counsel, Vermont Legislature)]: Good morning.

[Sen. Nader Hashim (Chair)]: Do you need the screen?

[Hilary (Legislative Counsel, Vermont Legislature)]: Alright. For the record, we can lower each other against the legislative council. And this morning, I have a couple slides, just kind of context that I use with past judiciary on age 49, and then can quickly review the draft. Well, just find five things. What a call of action is, what is in existing law, what H-eight 41 proposes to do, what other states are doing or have done, and some questions related to whether states can do something like this. So a cause of action is permission to go to court. You can have a right, but unless you have permission and some source of law to enforce it in court and ask for some kind of relief, then you can't go to court and ask for anything. So, cause of action generally specify who can sue, who they can sue based on what conduct, and what they can ask the court to order. Two pieces on kinds of relief, damages, monetary damages can compensate someone for harm that happened in the past or deter future unlawful conduct. An injunctive relief is an order to do or stop doing something. Causing action comes from either recognized by common law, legislators can create them in statutes, and courts sometimes infer or imply a cause of action. So existing law, there is not a Vermont state or federal statute creating a cause of action for damages against federal officials provided in The US constitution. H a 49 is based on a federal statute for a two year old identity 19 theft 83, which creates a cause of action for damages against state and local officials for violating the US constitution. But section nineteen eighty three does not cover federal officials at all. There is some case laws that the US Supreme Court has inferred of cause of action for damages against certain federal officials for violating certain federal and constitutional rights, but it's very limited to a certain number of factual scenarios. So what H eight forty nine proposes to do insofar as it creates a positive action against state local officials. It is a parallel to the federal law of Section nineteen eighty three, but in adding federal officials, it is doing something that is not available under current state federal law. We're gonna interrupt any type of question, but let's keep moving. So H. 49 would create a cause of action for damages against state, local, or federal officials for violating The U. S. Constitution, who can sue any citizen of the state of Vermont or other person within the jurisdiction of Vermont. They could sue every person who, under color of any statute, ordinance, regulation, custom, or usage, subjects or causes to be subjected One. Any resident, a Vermont resident, or any person in Vermont to the deprivation of any rights, privileges, or immunities secured by The US constitution. Under color basically means when acting in official capacity. So it's not any person is a person who has an official capacity, is a state, local, or federal official, and the conduct is within that capacity. What kinds of relief were available? Both monetary damages and destructive relief would be available under age eight forty nine.

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: Other

[Hilary (Legislative Counsel, Vermont Legislature)]: states, there are some examples of existing laws in a number of states that are a little bit different from age eight forty nine, but that have kind of broader language creating cost of action for violations of constitutional rights. Generally, those laws pertain to a certain kind of violation when threats, intimidation, or coercion are used, but they are a law that creates a cause of action that is available against a federal official. For bills that are more similar to age eight forty nine, there are number of states considering them. California, New York, I think other places you might hear from could give you other examples for more details, but some states are considering bills like this. I'm not aware that any of passed, with the exception of Illinois. And Illinois law, the Illinois Bivens Act, is narrower and a little bit different than H-eight 49. It applies only to suits against people who are acting. I guess it's the conduct while conducting civil immigration enforcement knowingly violate the state or federal constitution. So as just as you're doing under three forty nine, that is not a narrowing piece of age eight forty nine, but that's a main difference with the Illinois law of sex students.

[Sen. Nader Hashim (Chair)]: So I'm curious about, and maybe you'll be getting to this eventually, but just sovereign immunity in general. How would we be able to create a statute that allows a citizen to sue an appeal on the federal government if the federal government is not explicitly said under these circumstances, you could sue us unless there's the intentional misconduct piece to get through the sovereign immunity.

[Hilary (Legislative Counsel, Vermont Legislature)]: So generally sovereign immunity applies to suits where, if

[Julio Thompson (Assistant Attorney General, Vermont)]: you're

[Hilary (Legislative Counsel, Vermont Legislature)]: talking about United States sovereign immunity, where The United States itself is named a defendant, there are lots of areas of law where the kind of workaround to sovereign immunity, something that doesn't trigger sovereign immunity, is if you sue a federal official in their official capacity. It seems odd because in many cases, or it might seem odd because in many cases it is still ultimately the federal government that will indemnify an individual officer. So it is still, in a way, the federal government paying, but suits against individual officials don't trigger the sovereign immunity concerns that suits that The United States as a defendant might. So a first level answer, I have it for a follow-up, and I can also follow-up with the committee with more DHS.

[Sen. Nader Hashim (Chair)]: Yeah, think, I know that, you know, hypothetically, the head of DHS could get sued in a certain situation depending on the facts. If somebody were to try suing the head of a local DHS office or even individual officers in any federal office in the area. Can you describe how that would work and how that would be different rather than suing the head

[Hilary (Legislative Counsel, Vermont Legislature)]: of the agency? The So difference between suing an individual officer and the head of an agency?

[Sen. Nader Hashim (Chair)]: Under this statute.

[Hilary (Legislative Counsel, Vermont Legislature)]: Under the statute. So under the statute there would not be a difference between those suits necessarily. The cause of action would be available if any of those individuals allegedly violated constitutional rights. There might be factual differences between the kind of claim against the head of an agency and an individual official. There could be a kind of supervisory argument with relation to the head of an agency. But without going fully down the rabbit hole of possible differences and the facts, the cause of action would be available against either. So sovereign immunity gets triggered when you sue for money damages, but it is not, it does not create a concern when you are suing an individual official. There are other, we can move forward to those, there are other supremacy related, supremacy clause related questions with a bill like this, but that's distinct from sovereign immunity. Senator Wilson? Yeah, so I've got two questions, although it might be answered. And so one of my questions is if there is a constitutional or supremacy bug reason why we are defaulting to to only the US constitution being violated and not the Vermont constitution being violated. So there are a couple of issues that would arise if H eight forty nine also included violations of the wrong constitution. One is that enforcing or creating a cause of action that allowed suit against a federal officer for violating a state constitution likely raises some francis clause concerns for which there are not necessarily strong arguments. One other reason that is separate from Socranency Clause concerns is the Vermont Supreme Court has implied causes of action under certain provisions of the Vermont constitution. So there is an existing body of case law such that individuals in Vermont can sue at least state and local officials or persons for privately paid particular provisions of Vermont constitution. And if the bill included Vermont constitution, it would kind of displace that case law. And I think some of the considerations involved in that were if that case law is working, is right, is nuanced based on Vermont constitution, fully displacing it by adding the constitution to ageing 49 might create more challenges. But those are those are at least two considerations for, I think, why decision makers related to this bill did not include four month institution. Okay. That's helpful. And then my other question is so you said that the Illinois law is is much narrower than this, but my concern with the Illinois law is that it might be deemed as discriminatory against the federal government, whereas this applies to everyone. So does that make this stronger than the Illinois law in terms of defensibility? So it's a great segue into some general questions defensibility. The committee is very familiar with intergovernmental immunity at this point, and there's both direct regulation and discrimination. You're correct, senator, that the Illinois law one of the so the US government has the federal government has challenged the Illinois law briefing is still ongoing, so we don't have a decision yet. But one of the arguments they make is that the Illinois law extremes against federal officials because effectively the people generally think civil provision enforcement are federal officials. You're correct that age eight forty nine does not raise that discrimination concern because it applies to state, local, and federal officials. There are other arguments that the federal government can't say arguments, and there are complaints. Some of the issues that have come up in the federal government challenge to the Illinois law would still apply to h a 49. So in terms of direct regulation and here, I think, I can't predict what the court will do. This is generally an unsettled area of law. There are scholarly and judicial opinions and arguments on kind of both sides of whether states can do this on each of these issues. So I can kind of offer what issues might come up and some of the arguments involved. And then I think other witnesses will be positioned to offer their predictions or expectations of what might happen. On direct regulation, I think the arguments are that in allowing creating a positive action that would allow people to sue federal officials for damages, for money damages. It could affect their conduct because they are scared about ending up sued and that that effectively changed their conduct in a way that constitutes direct regulation of the conduct. I think the flip side is that just creating a cause of action that enforces what federal officials are supposed to be doing anyway, which is following the US constitution, is not necessarily direct regulation. So intergovernmental immunity might still come up, but there are kind of arguments on both sides of what that might look like. On federal preemption, generally, you're asking, has Congress and the federal statute either explicitly said or suggested that states can't pass a law like 1849? And I'll just flag two federal statutes that are relevant here. The Federal Tort Claims Act allows individuals to sue federal employees for negligence or wrongful conduct in the course of their employment. It provides a very specific structure. The Westfall Act then says if you are suing a federal employee for negligence or wrongful conduct, you have to do it through the Federal Court Claims Act. You can't do it through any other kind of action. So one argument is that under the Westwell Act, if a state has a law like H-eight 49 would be, then the Westwell Act basically says you can't use that against a federal employee because Westlaw Act says you have to use the Federal Court Claims Act. The argument on the other side is that a constitutional violation is not necessarily considered a negligent or other court. Right? There's a difference between and for there are differences within against that. You can argue that there are differences between certain constitutional violations and the kinds of conduct that would be covered by the courts in the Federal Tract Act. There's also an exception to the Westfall Act saying that the Federal Tract Act is the only way to go. The exception says that it that the, you know, exclusivity of the Federal Trucking Act does not apply to suits for violations of the constitution of The United States. The US constitution, not the exact quote, but So the argument there is that that exception preserves other positive action, specifically for violations of the US constitution. I think there, differ and some judges have had a few not finding, but put some opinions on that question. Some say that just pertains to those. I mentioned the Supreme Court has implied some positive actions. Some folks say that was just to preserve that implied positive action. And some say that that still could allow a law like state law like Haitian Court. So those are some of the potential issues that could come up, in a facial direct challenge to the law or in a case where someone brought suit under the law against a federal official, they could be raising some of these arguments in defense. Happy to answer any questions. Otherwise, I will briefly touch through the sections of the bill

[Sen. Nader Hashim (Chair)]: That sounds good.

[Hilary (Legislative Counsel, Vermont Legislature)]: So, H849, on page one, line eight through 16, this is subsection I guess I'll take a step back. This would create a new chapter and a new section in title 12 of the DSA. The chapter would be deprivation of constitutional rights, section a new section fifty seven ninety seven, civil action. The reason behind creating a new chapter, creating a new class of action is something that you'd want people to be able to find easily when they are looking through ASA. And so instead of adding a section underneath another chapter that doesn't clearly pertain to the topics, it's a way of really identifying where this is. So lines eight through 16, subsection a. This is everything that we just talked about on the slides. The language of this is not the most clear. An easier way to say this would be these people may bring an action against these people, but this language matches the language of the federal statute, section nineteen eighty three, with the idea being we're directing a court, the bill's directing a court to look at that body of case law in deciding how to interpret this section. Line 17 through 20, subsection B, clarifies that under color of any statute, ordinance, regulation, customer usage includes any statute, ordinance, regulation, customer usage of The United States and of any US state or territory or the District Of Columbia. And that's clarifying that subsection a is applying to state, local, or federal, action taken by the state. To any defendant in action brought under subsection a of this section. So that includes qualified or absolute immunity defenses, but it is not necessarily limited to those. Any defense that could be raised in section nineteen eighty three suit could be raised by a defendant in action brought under this section. The section sentence the second sent sentence that this subsection does not alter, amend, decree, or support a qualified or absolute immunity defense in any other action or proceeding brought under any other provision of Vermont law specifies that preserving qualified rights of immunity here does not suggest that qualified immunity is available elsewhere. So it's not codifying qualified immunity in Vermont law. It is other than saying that it is available just for cost of action for this section. Finally, on page two, line six through eight, subsection d, this specifies that the intent is that courts construing this section will be guided by the construction of 42 USC section nineteen eighty three as amended and as interpreted by the courts of The United States.

[Sen. Philip Baruth (Member)]: Certainly. Just wondering there, and maybe this is a standard practice that would be an objection as opposed to the courts, but would this strike the courts as separation of powers where we're guiding their

[Hilary (Legislative Counsel, Vermont Legislature)]: instruction? So this is modeled off of two existing statutes, so it's not an entirely new thing to put in a bill. The way that it does not necessarily trigger separation of powers concerns is that the court's role in interpreting a statute is to give intent to or give effect to the intent of allegedly passing it. So this is more of a tool to give the court to say, in writing this, we are intending that it carry the meaning of section nineteen eighty three. Like, we're intending to bring in section nineteen eighty three case one, have it operate that way. It does say guided by, not bound by. I think bound by might raise that kind of aberration of powers concern that you mentioned. But ways is raised. It is providing that extra tool to a court in doing what a court is supposed to be doing and what a court does in interpreting a statute to say that the intent of the other language is to bring in how section nineteen eighty three. Finally, page two, line 10. The effective date is July 1. Happy to answer any other questions. Otherwise, I know you have other workers who's not at this point.

[Julio Thompson (Assistant Attorney General, Vermont)]: Thank you. Questions?

[Sen. Nader Hashim (Chair)]: Great, thank you very

[Henry Banks (Co‑Founder/Co‑Director, ISHTAAR Collective)]: much. I

[Sen. Nader Hashim (Chair)]: know actually, had asked to go next just due to some time constraints and then we'll get to the next. Judge Zonay, welcome.

[Judge Thomas A. Zonay (Chief Superior Judge of Vermont)]: Thank you. Good morning. And I thank you for taking me out of order. I'm gonna head back up to house judiciary in a moment. Tom Zone, chief superior judge. This will be short and I'll give you what I told house judiciary. This is a policy bill. It involves a lot of questions about interpretation of law, so I really can't offer much there. As ledge counsel indicated, it really is a state version with some changes from a 1983 action, I'm aware other states have done this. Senator Baruth, your question on subsection d, without weighing in on whether some judge could look at it and say, oh, this is separation of powers issues. I think that, Legis Council is right on target, and that is it is helpful at times for legislative intent for the courts to understand that if there is a question, what is the legislative intent? And this clearly identifies for the courts what the legislature would like us to look to for guidance as far as here is what we, the legislature, intended in enacting this bill. As far as impacts on the courts, while there could be cases that come in and certainly have impacts, we wouldn't know the numbers of those cases. I would also note that there are provisions under federal law that would allow certain cases to be removed on diversity or federal questions. And so are there is not only are there cases that can be brought in our state court under this, but those cases could be removed to federal court. And so that would lessen any burden on the courts. I don't have any I'm not opining as to, again, the number of cases that we would have, but I do not see the implementation of this as having an impact on the court such that we would not be able to address these cases and our business as is necessary.

[Sen. Nader Hashim (Chair)]: Thank you. Committee, any questions for judge votes? Thank you, judge.

[Judge Thomas A. Zonay (Chief Superior Judge of Vermont)]: Have a great day, everyone. Take care.

[Sen. Nader Hashim (Chair)]: Next up, Falco, I have to step out two minutes, but Senator Morris here.

[Falco Schilling (Advocacy Director, ACLU of Vermont)]: Morning, thank you for the opportunity to testify. My name is Walter Schilling and I'm the Advocacy Director of Quarterly Barrancs delivering to you of Vermont. I'll start off by saying that the CLE Vermont strongly supports this bill because we strongly stand behind the idea that people should have the ability to, you know, have remedies when their rights are violated. That's simply what this is trying to do. On its face and intent, this bill is looking to close the gap that currently exists within the law. State and local officials are currently held to the standards that are envisioned in this bill. So the goal is not to expand that liability, but to simply create a path for folks to bring those suits in state court as well as to hold federal officials to those same standards. So when I testified in house judiciary, I was joined by my colleague from the National ACLU, but we thought that was largely unnecessary at this point in time just because legislative council did such an excellent job walking through the entirety of the bill and the arguments that folks might hear on both sides. So you just have me today, but I will second that, I think legislative council has given a very strong presentation and outlaid many of the facts and considerations at play in this bill. You know, it is a two page bill, so there's not a ton to look at and it's pretty straightforward, but I can walk through, you know, some of the concerns and why this makes sense. So as you heard currently, if there are constitutional violations by a federal official, there are limited avenues to remedies. There's a Federal Torts Claims Act, which covers how a lot of courts and not all violations has a number of different procedural hurdles, which you heard about. And Bivens Actions, which is a court created way to bring suits, but as the court also created that action, it's because of action they're continually narrowing down. And as we look at the current landscape, there's a real gap and that's what this bill is trying to address. And that is why me and a number of other legal scholars are advocating for these types of laws. And I want to make sure that a number of the different briefing materials that went to House Judiciary are also sent to this committee. There was a brief submit by a wide range of different scholars which I think would be helpful in reviewing the issue and coming to more depth when we present today. So in terms of reviewing these laws, the ACLU has seen them pop up in a number of different places around the country. Just to reference, the other states considering similar bills are California, Colorado, Connecticut, Delaware, Washington, the District Of Columbia, Georgia, Hawaii, Maryland, Massachusetts, Minnesota, New York, Rhode Island, Vermont, Washington, and Wisconsin. So as we're looking at these bills that are coming up around the country, the two main components we think are essential before the ACLU could endorse any sort of legislation like this is one, is that it creates a civil liability for violations of The US constitution, and two, that it mitigate litigation risk by applying to both state and federal actors. As you've heard, trying to limit this to just federal action factors raises a number of concerns, also raising it to certain state actors, whether it be federal immigration officials or something like that. The way to best address the constitutionality and protection. Is challenges to do exactly what the the Raptors did in h eight four nine and have this applied equally to all state and local officials. And we also support the the the importing of section nine to kinda make that as clear as possible. Also, to get at what our JV drafters intent was. We did not create new avenues of liability for state and local officials, but to mirror what exists already. And I think as the legislature stated, there's a likelihood if there are there are plain fraud again under this against state and local officials, highly likely those could be removed to federal court as well and proceed as they normally would under section nineteen eighty three. And so there are never weapons on the floor of the house of representatives as this is indicated. I think I wanted to try and address some of since those are likely questions that might come up here in the senate. And the number one question that came up was just trying to clarify the scope of who this would apply to. And so just to say once again, this applies to all state, local, and federal officials acting under the color of law. So that would include things like postal officials and others, but as envisioned in this law, the bar to be able to bring a successful student is pretty high. Currently under section nineteen eighty three, there needs to not only be a constitutional violation. It also has to be clearly established law that they actually violated the constitution and that a reasonable official in that same situation should know that they're violating the constitution. So that's a pretty high bar. They get that some of the concerns folks heard about a high volume of suit or frivolous suits, and there's also mechanisms to dismiss suits that are frivolous and without warrant. And, basically, no one can know exactly what a court might do when they look at these laws, but in opinion of the American Civil Liberties Union, how this was drafted by legislative council, the approach that was taken in this bill sets the state up for the highest likelihood of success in moving forward with this type of legislation. And at this point in time, it does feel like it is yet necessary to address an institution gap within the law when we see actions, especially by federal officials, which do raise concerns about violations of clearly established constitutional rights. And if they were to happen here in Vermont and folks felt they had the evidence to prove that, we think those folks should be able to have their day in court and to be able to seek remedies for that, whether that be money remedies for direct violation or if there's systemic, constitutional violations happening, both courts and junkie relief, as a way to try and address that as well. So at a high level, the ACLU of Vermont strongly supports this bill and we hope that you move it forward and I think it may answer any questions.

[Sen. Nader Hashim (Chair)]: Is there any questions? So are you I know I missed the first part of your testimony, but are you also suggesting that subsection A get reported to some extent?

[Falco Schilling (Advocacy Director, ACLU of Vermont)]: The nineteen eighty three import sections? Yes. No. No. I mean, if we were to look for changes in the bill, the two things that I would highlight, that I highlight with the House of Judiciary Committee, would be the effective date. We would we would propose that it be effective on passage so that it's very clear that once this is in effect that violations have happened after that date, there would be a remedy available. So that's one thing. And then, section nineteen eighty three, not within the statute itself, but within other areas of federal law, allows for the collection of attorney's fees on the successful on a successful suit. We propose that the, the legislature look towards those existing federal laws and import similar opportunities to get attorney's fees within the same constructs under existing federal law. But those are the two suggestions that we offer to the House Judiciary Committee, and but still, support this piece of legislation and appreciate the house passage and be happy to work the senate as you continue to consider it. Thank you.

[Sen. Nader Hashim (Chair)]: Any other questions? Okay. Thank you.

[Julio Thompson (Assistant Attorney General, Vermont)]: Good morning. Julio Thompson, Assistant Attorney General and co director of the General Relations Unit. I wanna echo what Judge Sonay said in his first sentence, he has said, this is a policy bill. This is not a law that involves the state of Vermont taking any action. The attorney general doesn't have any enforcement authority, nor does any state agency. And so the AG's office doesn't have I don't if if the law were inactive, doesn't have a role in this. That's an issue that has come up in Illinois, for example, when it passed its version of this, and the government said it had violated principles of federalism. The response of the state of Illinois was that, beyond standing, the suit of the state of Illinois because the governor and the attorney general don't have can't take any action that a court could enjoin. So I think, you know, when we're thinking ahead about, like, if if if you would like to pass this as a matter of policy, you know, strengths and weaknesses of the bill, think the fact that it doesn't include a state enforcement component, I think, an area where I think already out of the gate, I think we'll see the district court wrestle with that issue, like how could you block a state for passing a law that where the state has no enforcing on its overeat? So our role, So

[Sen. Philip Baruth (Member)]: it's a strength or a weakness?

[Julio Thompson (Assistant Attorney General, Vermont)]: I would say it's

[Sen. Nader Hashim (Chair)]: a strength

[Julio Thompson (Assistant Attorney General, Vermont)]: of the bill because it's an issue that the state of Illinois has argued, and again, haven't heard the court's decision because it's early days, But the state of Illinois' argument is that those that those issues of federalism, that's something that The United States or a federal officer or a federal official could bring up in a case where they're being sued. But for the federal government to enter you know, to start in proactively and say, you can't ever apply this law, they they're saying, well, you don't have you can't show an injury because the state of Illinois is not suing you right now, and and indeed the state cannot sue. You know, the role of the attorney general's office when we look at bills where we don't have, or the state of Vermont doesn't have an enforcement mechanism, really is to look at how a bill works to try and get a sense of what the legislature, what motivates the sponsors and the folks who have supported the bill, and then also to identify potential challenges and to see whether there are means either clarifying the bill so it's more effective to do what the legislature wants or to defend it from an external challenge. And so, although this is a small bill, I would say in a way that it's a very large bill, because it opens up a type of litigation at the state, and I would argue mostly federal level, that hasn't existed before. We've heard a lot about Section nineteen eighty three that was enacted by Congress in 1871 to provide a mechanism for relief for damages and also injunctive relief against state and federal officials. But in the one hundred and fifty five years since then, Congress has not enacted a law to provide a remedy for constitutional violations by federal officials. And so if this this statute were to be to face a court challenge, of the questions will be, well, why hasn't congress acted? And what are the basis for Vermont to assert that congress was fined with any of the 50 states creating such a right of action against the federal government's employees, which, you know, may affect federal operations both in terms of resources to defend such cases, but also in terms of the effects, if any, on influence influencing or Chilean government discretion. Those are the arguments that have been presented in the Illinois case, they're ones that, you know, we're still examining. And, again, we haven't had a decision from the federal district court quite yet, we don't have the benefit of these being tested in front of a judge so far. What I'd like to do in the time that's provided to me here is kind of fill in a few of the gaps that have been that that or flesh out, I should say, some of the points that have been raised before today so that we kinda have a a better context of addressing the bill because I would anticipate, although not expect, that there may be further testimony on this. I think these are some additional points to explore. One is there's been mention of the Federal Tort Claims Act and that that provides a means to obtain damages for negligence or other acts. So I wanna talk a little bit about the federal tort tort claims act and talk about when congress has opened the gates to waive sovereign immunity to allow itself to be sued or its employees to be sued for harms to the general public. When they have waived that, how have they waived it and how does that compare against the bill? Because I think that places in context both, I think, the legal challenges that we can face, and I think the legal challenge to the bill is pretty likely based on the statements by the Department of Justice so far.

[Sen. Nader Hashim (Chair)]: So the Federal Work Claims

[Julio Thompson (Assistant Attorney General, Vermont)]: Act was passed right after World War two. It was the first time that the US government had by or the Congress had by statute expressly waived the general rule of sovereign immunity that says that you can sue The United States for damages, usually arising out of negligence. So I think about something that's like a postal, you know, a post office truck that, you know, rear ends your car in a parking lot. Federal Court Claims Act for that kind of negligence allows for someone who's a person, you know, you have a damaged bribe. You gotta have it fixed. You can prove your damages, but you gotta sue The United States. And the federal court claims act says, yes. You can do that, but you can only do it under rules that we set in congress. So there are a lot of rules, and I think they're important because this bill doesn't have a lot of rules. And so I think it is a pretty stark contrast. And the question will be, can states create those rules for the ultimate question or or is that something for congress? So Federal Torts Claims Act, you have two years to file your claim about your damaged car, and you have to file it with the post office. You have to file our form, it's called Form 95. When you sign the form, there are provisions in the form reminding you that if you're lying about your claim, you can be fined or you can go to jail. So that's a requirement. You have to sign at the risk of criminal exposure and then filing the claim. The post office has a period of time to evaluate the claim. If they deny the claim, you have six months to go to court. If you wait six months and a day, you're out of luck. As we'll talk about in a second, the statute of limitations for this bill has been under Vermont, it's three years. So there's different limitations period. If you go to court, there are limitations. You can't seek community damages. Attorney's fees are capped at 20% or 25% depending if the case is resolved at the claims level or the court level. You can't sue for most intentional courts. So if the claim is that the post office employee did it deliberately, you can't sue, you can't pursue that claim. Nor can you pursue the claim if the facts would show that the postal employee was exercising their discretion as a federal employee. And there's a most of the litigation under the Federal Tort Claims Act is focused on whether federal employees are exercising their discretion. That becomes relevant when we're talking about cases involving law enforcement, because law enforcement officers use a lot of discretion. So at the bottom there are a lot of limitations under the Federal Court Claims Act, and in 1988 Congress amended the law again to say that if you sue an individual, like the letter carrier damaged your car, The United States can step in as the defendant so that there's no personal exposure by the letter carrier and then defend the case on behalf of The United States. There is an exception in that act called the Westfall Act was for constitutional claims. And I'm gonna talk about the mechanism for constitutional claims. And a second question, So in H849, there are quite a few differences between what happens under this bill than what would happen in my letter carrier case. So suppose, for example, that I know the letter carrier, he's my letter carrier, and he damages my car, but I claim that he didn't I claim he either did it negligently or because you can plead, you can sue the alternative, or he did it intentionally in retaliation for me complaining about how late he delivers the mail. And that claim is a claim of First Amendment I exercise my First Amendment right to make agreements to the government. Dear supervisor, my carrier is not very good. My mail arrives late and sometimes damaged. And my allegation is that the person intentionally backed into my car to punish me for exercising my First Amendment rights. Now the negligence claim has to proceed under the Federal Trouble Claims Act, Congress has said so. But August would say, I can see not by making a federal claim or going to federal court, I won't see you in state court. And I have two years to file the negligence claim, but this bill says, I have three years. Other states, you know, it's three years for personal injury. That's how you establish, like, your statute of limitations for a constitutional violation. Maine has a six year statute of limitation. I think see what Missouri has a five year statute of limitation. And so one of the challenges that we're wrestling at, we're still analyzing it, is one of the is one of the vulnerabilities of the bill that you could have 50 versions of this with 50 different statutes of limitation, which are different than the one that congress created. Would courts be hostile or receptive to that? Because ultimately this has to be challenged in front of a court. And so now I want to pivot slightly to federal court doctrine that's been alluded to but not really explained, which is a so called spivens action. So in 1971, some federal drug enforcement agency agents entered an apartment of a Brooklyn resident, Webster Vivints, and allegedly appointed the representative, forced him to the ground from his family, handcuffed him, and arrested him all unconstitutionally, he argued. And he sued in federal court. There was no statute that says that you could sue for a federal constitutional court, but the Supreme Court at that time, an opinion authored by Justice Brennan, said, well, courts are in the job of adjudicating controversies between parties and the constitution confers important rights. And so even though Congress hasn't spoken, we think courts have the inherent power to hear such a case, and so we'll allow Mr. Vibbens to proceed. So it's kind of a common law remedy that was created by federal court. There had been a history of federal common law in US history, but that was the first time it really had been applied to a constitutional claim. Since 1971, the US Supreme Court has only allowed that to happen two other times. One case involved a congressional employee, female, who claimed sex discrimination by a member of Congress, and the court said, You can proceed with a constitutional claim there. And the other instance was a case where someone in a correctional facility was known to have asthma, was not provided access to his asthma medication, and tragically died in custody. And the Supreme Court said, You can proceed with an Eighth Amendment claim for indifference to the welfare of people in custody under the Eighth Amendment's prohibition against cruel and unusual punishment. Since that time, this agreement with the US Supreme Court, and that was in 1983, I think, the US Supreme Court has repeatedly refused to extend remedies for constitutional violations. And indeed in the most recent decision from a few years ago, the current court has said, if we had to, in a majority opinion, if we had to decide Vivins all over again, it's not clear we would do it. Far from it. And in denying these cases, and there are various different cases. So one case, that most recent case involved the owner of a motel near the Washington Canadian border who claimed that a customs and border protection agent retaliated against him when he complained about excessive force when he was trying to inspect the premises for people who were undocumented. And the motel ordinances, I complained about that. So the supervisor and then the agent called the IRS and had them audit me. So it was a First Amendment retaliation claim. Although there were differing opinions in the justices about why that motel owner could not enforce the claim. The Supreme Court did rule nine to zero, a fact that there were nine votes saying you cannot pursue your First Amendment claim. One of the one of the incurrence and and partial dissents that was authored by Justice Sotomayor said, you know, there are several million federal employees, and First Amendment claims can be complicated because it involves the intent of the actor who's accused of wrongdoing. And that could be pretty disruptive to government operations. We think this is an area where congress really needs to balance the interests and constitutional remedies versus the potential disruption in the workforce. And so that's the context in which these cases fall. Repeatedly when the Supreme Court has declined to extend a common law remedy, they've repeatedly said that these present issues that are best left to Congress. Some of the cases have involved, for example, issues of foreign policy and national security. One case of 2020 involved a border immigration official who shot across the border and killed a 15 year old boy standing on Mexican soil, a Mexican national. And Supreme Court didn't decline. Though they had previously recognized Fourth Amendment claims, they didn't recognize it in that case because they said, well, that's really complicated. There's a dispute with Mexico about who's accountable for that. And border also involves national security issues and that's not for court to decide. That's for congress to decide. The the big question here for states is with supreme court looking here, be comfortable with states deciding that issue as opposed to congress. That's the big unanswered question. So when we look at the bill, there are two sides of the bill. One is actions against federal officers and the other actions against state or federal employees. And so the question is, if the legislature wants to address all federal employees, how do they do that? And what testimony should they consider to balance for what like what the statute of invitation should be? For example, should it be different then Or should it be the same as a federal court claim? Should it be narrower? Should the bill only focus on law enforcement employees? There are states looking at similar statutes, but there's also a bill in Congress. Yeah, it's in Congress, it's in both houses that provide the constitutional remedy, but only for federal law enforcement employees. That's a bill. The bill was introduced last December by Alex Medias from California. Senator Nader was also the co of that narrower bill is Bernie Sanders. So that's a question that I think in terms of policy that to consider. Our office doesn't have a position on those policy choices, but we want you to be aware of what's being considered out there. And so one bill that's in in both chambers is looking at a narrower scope. And the other question is what happens if a court strikes down the federal part of the bill? Does the legislature want the state part of the bill or not? Generally, part of the statute's dropped down, courts try to salvage the rest. That's called the chapter of severability. You severed the unconstitutional part, and you keep this part. And the question is, if the state and local part of the bill simply mirrors what happens under section nineteen eighty three, does the legislature even want the bill? For state and local, if it's identical, because if you sue in superior court and you allege a local police officer violated the Fourth Amendment of the US constitution, that's immediately removable to federal court because there's a federal claim in the complaint, a violation of a federal law. And it's not clear how that's different than an existing Section nineteen eighty three action. So I think that would be an area for testimony to hear about, like what benefits does Vermont realize if only the state and local part survives? And if it doesn't, if there aren't any benefits, is there something you want to do about that to say if it either all survives or none of them survives. That's a policy question. I think that's important. I'll stop there. You're an expert to chime in.

[Sen. Nader Hashim (Chair)]: Yeah, no problem. Well, thank you for

[Julio Thompson (Assistant Attorney General, Vermont)]: your testimony. Okay. Appreciate it. Alright.