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NO. 153. AN ACT RELATING TO LESSER INCLUDED OFFENSES.

(S.88)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 13 V.S.A. § 14 is added to read:

§ 14. LESSER INCLUDED OFFENSES

(a) Upon indictment or information for any offense, a person may be convicted of a lesser included offense if supported by the evidence. If requested by either party, the jury shall be informed of the lesser included offense if supported by the evidence. The court, on its own motion, may raise the issue of a lesser included offense at a jury charge conference.

(b) If requested by either party, or in his or her discretion, the judge in a court trial shall consider a lesser included offense if supported by the evidence.

Sec. 2. 13 V.S.A. § 5511 is added to read:

§ 5511. NOTIFICATION OF UNEMANCIPATED MINOR'S PARENT OR

GUARDIAN

(a) A law enforcement officer who arrests an unemancipated minor shall take reasonable steps to notify, as soon as reasonably practicable, a parent or guardian of the minor:

(1) that the minor has been arrested;

(2) the location where the minor is being held if still in law enforcement custody; and

(3) the nature of the criminal charge against the minor.

(b) If the minor is cited to appear in court, a copy of the citation shall promptly be mailed to the last known address of a parent or guardian of the minor.

Sec. 3. 13 V.S.A. § 1753 is amended to read:

§ 1753. FALSE PUBLIC ALARMS

A person who initiates or wilfully circulates a report of warning of an impending bombing or other offense or catastrophe, knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm, shall, for the first offense,be imprisoned for not more than *[one year]* two years or fined not more than *[$1,000.00]* $5,000.00, or both. For the second or subsequent offense, the person shall be imprisoned for not more than five years or fined not more than $10,000.00, or both. In addition, the court may order the person to perform community service. Any community service ordered under this section shall be supervised by the department of corrections.

Sec. 4. 15 V.S.A. § 1101(2) is amended to read:

(2) "Household members" means persons *[living together or sharing occupancy and persons who have lived together in a sexual relationship]* who, for any period of time, are living or have lived together, are sharing or have shared occupancy of a dwelling, are engaged in or have engaged in a sexual relationship, or minors who are dating or who have dated.

Sec. 5. 13 V.S.A. § 5320 is added to read:

§ 5320. NOTIFICATION OF CONDITIONS OF RELEASE TO VICTIM IN

DELINQUENCY PROCEEDINGS

Upon request, the victim in a delinquency proceeding based on a listed crime as defined in 13 V.S.A. § 13, shall be notified when conditions of release are initially ordered or modified by the court.

Sec. 6. 33 V.S.A. § 5536 is amended to read:

§ 5536. *[LAW ENFORCEMENT]* JUVENILE COURT RECORDS

(a) *[Law]* Court and law enforcement reports and files concerning a person subject to the jurisdiction of the juvenile court shall be maintained separate from the records and files *[of arrests]* of other persons. Unless a charge of delinquency is transferred for criminal prosecution under this act or the court otherwise orders in the interests of the child, such records and files shall not be open to public inspection nor their contents disclosed to the public by any person. However, upon a finding that a child is a delinquent child by reason of commission of a delinquent act which would have been a felony if committed by an adult the court, upon request of the victim, shall make the child's name available to the victim of the delinquent act. If the victim is incompetent or deceased, the child's name shall be released, upon request, to the victim's guardian or next of kin.

(b) Notwithstanding the foregoing, inspection of such records and files by the following is not prohibited:

(1) A juvenile court having the child before it in any proceeding;

(2) The officers of public institutions or agencies to whom the child is committed as a delinquent child;

(3) A court in which *[he]* a person is convicted of a criminal offense for the purpose of imposing sentence upon or supervising *[him]* the person, or by officials of penal institutions and other penal facilities to which *[he]* the person is committed, or by a parole board in considering *[his]* the person's parole or discharge or in exercising supervision over *[him.]* the person;

(4) Court personnel, the state's attorney or other prosecutor authorized to prosecute criminal or juvenile cases under state law, the child's guardian ad litem, the attorneys for the parties, probation officers and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the child;

(5) The child who is the subject of the proceeding, the child's parents and guardian may inspect such records and files upon approval of the family court judge;

(6) Any other person who has a need to know may be designated by order of the family court. Records and files inspected under this subdivision shall be marked: UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.

(c) Such records and files shall be available to state's attorneys and all other law enforcement officers in connection with record checks and other legal purposes.

(d) Any records or reports relating to a matter within the jurisdiction of the juvenile court prepared by or released by the court or the department of social and rehabilitation services, any portion of those records or reports, and information relating to the contents of those records or reports, shall not be disseminated by the receiving persons or agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section.

Sec. 7. 33 V.S.A. § 5536a is added to read:

§ 5536a. LIMITED EXCEPTION TO CONFIDENTIALITY OF RECORDS OF

JUVENILES MAINTAINED BY THE FAMILY COURT

(a) While records of juveniles maintained by the family court should be kept confidential, it is the policy of the general assembly to create through this section a limited exception for the overriding public purposes of rehabilitating juveniles and protecting students and staff within Vermont's public and independent schools.

(b) Notwithstanding any law to the contrary, a court finding that a child has committed a delinquent act requiring notice shall, within seven days of such finding, provide written notice to the superintendent of schools for the public school in which the child is enrolled or, in the event the child is enrolled in an independent school, the school's headmaster.

(c) For the purposes of this section:

(1) a "delinquent act requiring notice" means conduct resulting in a delinquency adjudication related to a listed crime as defined in 13 V.S.A. § 13; and

(2) an "independent school" means an approved or recognized independent school under 16 V.S.A. § 166.

(d) The written notice shall contain only a description of the delinquent act found by the court to have been committed by the child and shall be marked "UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00". The envelope in which the notice is sent by the court shall be marked "CONFIDENTIAL: TO BE OPENED BY THE SUPERINTENDENT (OR HEADMASTER) ONLY".

(e) The superintendent or headmaster, upon receipt of the notice, shall inform only those within the child's school with a legitimate need to know of the delinquent act, and only after first evaluating rehabilitation and protection measures that do not involve informing staff or students. Persons with a legitimate need to know are strictly limited to only those for whom the information is necessary for the rehabilitation program of the child or for the protection of staff or students; "need to know" shall be narrowly and strictly interpreted. Persons receiving information from the superintendent or headmastershall not, under any circumstances, discuss such information with any other individual except the child, the child's parent or guardian, others who have been similarly informed by the superintendent or headmaster, law enforcement personnel, or the juvenile's probation officer.

(f) The superintendent and headmaster annually shall provide training to school staff about the need for confidentiality of such information and the penalties for violation of this section.

(g) The written notice shall be maintained by the superintendent or headmaster in a file separate from the child's education record. If the child transfers to another public or independent school contemplated by this section, the superintendent or headmaster shall forward the written notice in the original marked envelope to the superintendent or headmaster for the school to which the child transferred. If the child either graduates or turns 18 years of age, the superintendent or headmaster then possessing the written notice shall destroy such notice.

(h) If custody of the child is transferred to the commissioner, or if the commissioner is supervising the child's probation, upon the request by a superintendent or headmaster, the commissioner shall provide to the superintendent or headmaster information concerning the child which the commissioner determines is necessary for the child's rehabilitation or for the protection of the staff or students in the school in which the child is enrolled.

(i) A person who intentionally violates the confidentiality provisions of this section shall be fined not more than $2,000.00.

(j) Except as provided in subsection (i) of this section, no liability shall attach to any person who transmits, or fails to transmit, the written notice required under this section.

Sec. 8. REPORT

On January 15, 1999, the court administrator, the commissioner of social and rehabilitation services and the commissioner of education, shall jointly submit a report to the general assembly on the implementation of this act. The report shall address the following:

(1) the number of notices sent to superintendents and headmasters pursuant to33 V.S.A. § 5536, together with a description of the delinquent act described in each notice;

(2) the list of people informed by the superintendents pursuant to 33 V.S.A. § 5536a(e) in each case.

(3) any problems incurred in implementing or administering this act;

(4) copies of any trial court or supreme court decisions, orders, or administrative rules involving this act;

(5) the number of criminal charges filed for violation of 33 V.S.A. § 5536a(i) and the disposition of those charges; and

(6) any recommended changes to the law.

Approved: April 29, 1998