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NO. 56. AN ACT RELATING TO INJUNCTIONS AGAINST HATE-MOTIVATED CRIMES.

(S.45)

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

Sec. 1. 13 V.S.A. § 1457 is amended to read:

§ 1457. CIVIL LIABILITY AND ENFORCEMENT

Independent of any criminal prosecution or the result thereof, any person suffering damage, loss or injury as a result of conduct prohibited by section 1455 or 1456 of this title may bring an action for injunctive relief, compensatory and punitive damages, costs and reasonable attorneys fees, and other appropriate relief against any person who engaged in such conduct.

Sec. 2. LEGISLATIVE INTENT

It is the intent of the general assembly that the superior court, when hearing cases under chapter 33 of Title 13 which are brought against persons under the age of 18, be sensitive to the issues which prompted the general assembly to provide that juvenile proceedings in family court, as opposed to district court, are closed to the general public, and also faithful to the rights of a free press under Chapter I, Article 13 of the Vermont Constitution and the First Amendment to the United States Constitution to attend court proceedings. In cases brought under this chapter, the superior court should balance the protection of juveniles from inappropriate or counterproductive publicity and stigmatization against the needs of the victims of hate crimes, and the needs of members of the protected classes of the victims, for safety and security. The superior court should also take into consideration the deterrent effect of publicizing hate-motivated crime injunctions on the illegal behavior of those similarly situated to the defendants who are subject to the injunctions.

Sec. 3. 13 V.S.A. chapter 33 is added to read:

CHAPTER 33. INJUNCTIONS AGAINST

HATE-MOTIVATED CRIMES

§ 1458. DEFINITIONS

For purposes of this chapter only:

(1) "Complainant" means a person who has suffered damage as a result of a hate-motivated crime.

(2) "Damage" includes destruction or defacement of personal or real property, personal injury or the receipt of threats of violence. "Threats of violence" means verbal, electronic or written communication, or course of conduct, or a combination thereof, which causes reasonable fear of injury to the complainant or the complainant's property.

(3) A "hate-motivated crime" occurs whenever a person engages in conduct prohibited by chapter 31 of this title or section 1063 of this title which causes damage to the person at whom the conduct was directed.

(4) "Hate-motivated crime injunction" or "order" means an injunction or other order issued under this chapter.

(5) "Plaintiff" means the attorney general or a complainant.

(6) "Protected category" includes race, color, religion, national origin, sex, ancestry, age, service in the armed forces of the United States, handicap as defined by 21 V.S.A. § 495d(5), sexual orientation and gender identity, and perceived membership in any such group.

§ 1459. COMMENCEMENT OF ACTION AND HEARING

(a) The superior court shall have jurisdiction over proceedings under this chapter. The Vermont Rules of Civil Procedure and the Vermont Rules of Evidence shall apply.

(b) Proceedings under this chapter may be commenced in the county in which the complainant or the defendant resides, or in the county in which the incident occurred.

(c) A plaintiff may seek a hate-motivated crime injunction by filing a complaint under this chapter.

(d) A preliminary hearing upon the complaint shall be scheduled as soon as reasonably possible in consideration of the safety of the complainant.

§ 1460. JUVENILE DEFENDANTS

(a) The general public shall be excluded from hearings held in superior court under this chapter where the defendant is under the age of 16. Only the parties, their counsel, the complainant, witnesses and other persons accompanying a party for the party's assistance and such other persons as the court finds to have a proper interest in the case, or in the work of the court, may be admitted by the court. In such a case, there shall be no publicity given by any person to any proceedings under the authority of this chapter except with the consent of the defendant and his or her parent or guardian. The records in such a case shall be subject to the confidentiality provision of 33 V.S.A. § 5536. Upon its own motion or the motion of a party, the court may open the hearing for good cause shown, in consideration of relevant factors, including the likelihood that a court would make a determination that charges against the defendant with respect to the underlying crime on which the hate-motivated crime injunction is based should be heard in district court pursuant to chapter 55 of Title 33.

(b) If the defendant is 16 to 17 years of age, the hearing shall be open to the general public. However, upon its own motion or the motion of a party, the court may close the hearing for good cause shown. If the court orders the hearing to be closed, the confidentiality provisions of subsection (a) of this section shall apply.

(c) If a hate-motivated crime injunction is issued under this section, the court shall give notice of the contents of the order to the complainant, and to any school personnel or other appropriate persons the court finds to have a proper interest in the case and whose knowledge of the contents of the order is reasonably necessary to ensure the defendant's compliance with the order, regardless of whether the proceedings were open or closed to the general public.

§ 1461. RELIEF

(a) If the court finds by a preponderance of the evidence that the defendant has committed a hate-motivated crime against the complainant, or if the parties stipulate to an order, the court shall make such preliminary and final orders as it deems necessary to protect the complainant and the complainant's property and other appropriate persons who are in need of protection and such persons' property, including any of the following orders:

(1) An order to refrain from committing any crime against the complainant;

(2) An order restricting the defendant's ability to contact the complainant;

(3) An order prohibiting the defendant from coming within a fixed distance of the complainant, the complainant's residence or other designated locations where the complainant is likely to spend time;

(4) An order to refrain from committing a hate-motivated crime against the complainant, other appropriate persons who are in need of protection and members of any protected category.

(b) A preliminary order issued under this chapter shall remain in effect until a final order is issued or for a fixed period that the court deems appropriate, but in no event more than 120 days without a further order from the court. A final order shall be issued for a fixed period, but in no event more than two years without a further order from the court. The court may extend any order for such time as it deems necessary to protect the complainant, other appropriate persons who are in need of protection and members of any protected category. It shall not be necessary for the court to find that the defendant has committed a hate-motivated crime during the pendency of an order to extend the terms of the order; however, the court shall find that there is a reasonable basis for continued protection. The court may modify its order at any subsequent time upon motion by either party and a showing of good cause.

(c) Every preliminary or final order issued under this section shall bear the following language: VIOLATION OF THIS ORDER MAY BE PROSECUTED AS A CRIME PUNISHABLE BY A TERM OF IMPRISONMENT OR A FINE, OR BOTH, OR MAY BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY A TERM OF IMPRISONMENT OR A FINE, OR BOTH.

§ 1462. SERVICE

Hate-motivated crime complaints, notices of hearing and orders shall be served as soon as reasonably possible and in a manner that takes into consideration the safety of the complainant.

§ 1463. PROCEDURE

(a) Notwithstanding any law to the contrary, proceedings commenced under this chapter shall be in addition to any other available civil or criminal remedies.

(b) The supreme court shall establish procedures consistent with this chapter that provide prompt access to relief.

(c) Police departments, sheriffs' departments and the state police shall establish procedures for filing orders issued under this chapter and for making their personnel aware of the existence and contents of such orders.

(d) The court that issues an order under this chapter shall transmit a copy of the order to the department of public safety relief from abuse database.

§ 1464. ENFORCEMENT

(a) Law enforcement officers are authorized to enforce orders issued under this chapter. Enforcement may include making an arrest in accordance with the provisions of Rule 3 of the Vermont Rules of Criminal Procedure.

(b) A law enforcement officer may rely upon a copy of any order issued under this chapter which has been provided to the law enforcement officer by any source.

§ 1465. PENALTIES

(a) Provided that notice was properly served, a person who violates a hate-motivated crime injunction issued under this chapter shall be imprisoned not more than one year or fined not more than $2,000.00, or both.

(b) A person who is convicted of a second or subsequent offense under this section shall be imprisoned not more than three years or fined not more than $10,000.00, or both.

(c) Nothing in this section shall be construed to diminish the inherent authority of the courts to enforce their lawful orders through contempt proceedings.

(d) Prosecution under this section shall not bar prosecution for any other crime, including any crime that may have been committed at the time of the violation of the hate-motivated crime injunction.

§ 1466. CIVIL PENALTIES

The attorney general may seek the imposition of a civil penalty of not more than $5,000.00, plus costs and reasonable attorney's fees for each violation of section 1455 or 1456 of this title, including violations of any injunction issued pursuant to this chapter.

Sec. 4. 13 V.S.A. § 1455 is amended to read:

§ 1455. *[HATE MOTIVATED]* HATE-MOTIVATED CRIMES

A person who commits, causes to be committed or attempts to commit any crime and whose conduct is maliciously motivated by the victim's actual or perceived race, color, religion, national origin, sex, ancestry, age, service in the armed forces of the United States, handicap as defined by *[21 V.S.A. § 495d(7)-(11)]* 21 V.S.A. § 495d(5), *[or]* sexual orientation or gender identity shall be subject to the following penalties:

* * *

Sec. 5. Rule 3 of the Vermont Rules of Criminal Procedure is amended to read:

Rule 3. ARREST WITHOUT WARRANT; CITATION TO APPEAR

(a) Arrest without Warrant. A law enforcement officer may arrest without warrant a person whom the officer has probable cause to believe has committed a crime in the presence of the officer. Such an arrest shall be made*[ ]*while the crime is being committed or without unreasonable delay thereafter. An officer may also arrest a person without warrant in the following situations:

* * *

(2) when the officer has probable cause to believe:

* * *

(D) that a person has violated a hate-motivated crime injunction issued pursuant to chapter 33 of Title 13.

* * *

Sec. 6. REPORT

On March 1, 2000 and then on an annual basis beginning on January 15, 2001, the attorney general shall submit a report to the House and Senate Committees on Judiciary on the implementation of this act. The report shall address the following:

(1) the number of complaints filed pursuant to this act, the nature of the underlying crime upon which the complaint is based, and the disposition of those complaints;

(2) the number of juvenile defendants against whom a complaint was filed pursuant to this act, the nature of the underlying crime upon which the complaint is based, the ages of the defendants and the complainants if available, whether the proceedings were open or closed, and the disposition of those complaints;

(3) the number of criminal charges filed for a violation of section 1455 or 1456 of Title 13, the nature of the underlying crime, the disposition of those charges, and whether a hate-motivated crime injunction was sought or issued in connection with the underlying crime;

(4) the number of criminal charges filed against juveniles for a violation of section 1455 or 1456 of Title 13, the nature of the underlying crime, the ages of the defendants, whether the proceedings were open or closed, the disposition of those charges, and whether a hate-motivated crime injunction was sought or issued in connection with the underlying crime;

(5) a review of the training program designed to educate law enforcement officers about investigating hate-motivated crimes;

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

(7) any recommended changes to the law.

Sec. 7. NOTIFICATION BY ATTORNEY GENERAL

The attorney general shall notify all law enforcement agencies of the provisions of this chapter by the effective date and shall develop and implement a plan to provide training in the investigation of hate-motivated crimes to law enforcement officers.

Approved: June 1, 1999