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NO. 83.  AN ACT RELATING TO COMMUNITY SAFETY.

(S.15)

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

Sec. 1.  SHORT TITLE

This act may be referred to and cited as “The Safe Communities Act.”

Sec. 2.  13 V.S.A. § 2638 is added to read:

§ 2638.  VOYEURISM

(a)  As used in this section:

(1)  “Bona fide private investigator or bona fide security guard” means an individual lawfully providing services, whether licensed or unlicensed, pursuant to sections 3151 and 3151a of Title 26.

(2)  “Female breast” means any portion of the female breast below the top of the areola.

(3)  “Circumstances in which a person has a reasonable expectation of privacy” means circumstances in which a reasonable person would believe that his or her intimate areas would not be visible to the public, regardless of whether that person is in a public or private area.

(4)  “Intimate areas” means the naked or undergarment-clad genitals, pubic area, buttocks, or female breast of a person.

(5)  “Place where a person has a reasonable expectation of privacy” means:

(A)  a place in which a reasonable person would believe that he or she could disrobe in privacy, without his or her undressing being viewed by another; or

(B)  a place in which a reasonable person would expect to be safe from unwanted intrusion or surveillance.

(6)  “Surveillance” means secret observation of the activities of another person for the purpose of spying upon and invading the privacy of the person.

(7)  “View” means the intentional looking upon another person for more than a brief period of time, in other than a casual or cursory manner, with the unaided eye or a device designed or intended to improve visual acuity.

(b)  No person shall intentionally view, photograph, film, or record in any format:

(1)  the intimate areas of another person without that person’s knowledge and consent while the person being viewed, photographed, filmed, or recorded is in a place where he or she would have a reasonable expectation of privacy; or

(2)  the intimate areas of another person without that person’s knowledge and consent and under circumstances in which the person has a reasonable expectation of privacy.

(c)  No person shall disseminate any image recorded in violation of subsection (b) of this section. 

(d)  No person shall intentionally conduct surveillance or intentionally photograph, film, or record in any format a person without that person’s knowledge and consent while the person being surveilled, photographed, filmed, or recorded is in a place where he or she would have a reasonable expectation of privacy within a home or residence.  Bona fide private investigators and bona fide security guards engaged in otherwise lawful activities within the scope of their employment are exempt from this subsection.

(e)  This section shall apply to a person who intentionally views, photographs, films, or records the intimate areas of a person as part of a security or theft prevention policy or program at a place of business. 

(f)  This section shall not apply to:

(1)  a law enforcement officer conducting official law enforcement activities in accordance with state and federal law; or

(2)  official activities of the department of corrections, a law enforcement agency, the agency of human services, or a court for security purposes or during the investigation of alleged misconduct by a person in the custody of the department of corrections, a law enforcement agency, the agency of human services, or a court.

(g)  This section is not intended to infringe upon the freedom of the press to gather and disseminate news as guaranteed by the First Amendment to the Constitution of the United States.

(h)  It shall be an affirmative defense to a violation of subsection (b) of this section that the defendant was a bona fide private investigator or bona fide security guard conducting surveillance in the ordinary course of business, and the violation was unintentional and incidental to otherwise legal surveillance.  However, an unintentional and incidental violation of subsection (b) of this section shall not be a defense to a violation of subsection (c). 

(i)  For a first offense, a person who violates subsection (b) or (d) of this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both.  For a second or subsequent offense, a person who violates subsection (b) or (d) of this section shall be imprisoned not more than three years or fined not more than $5,000.00, or both.  A person who violates subsection (c) of this section shall be imprisoned not more than five years or fined not more than $5,000.00, or both. 

Sec. 3.  13 V.S.A. § 5401(10) is amended to read:

(10)  “Sex offender” means:

(A)  A person who is convicted in any jurisdiction of the United States, including a state, territory, commonwealth, the District of Columbia, or military, federal, or tribal court of any of the following offenses:

(i)  sexual assault as defined in 13 V.S.A. § 3252;

(ii)  aggravated sexual assault as defined in 13 V.S.A. § 3253;

(iii)  lewd and lascivious conduct as defined in 13 V.S.A. § 2601;

(iv)  sexual activity by a caregiver as defined in 33 V.S.A. § 6913(d);

(v)  second or subsequent conviction for voyeurism as defined in 13 V.S.A. § 2638(b) or (c); and

(vi)  an attempt to commit any offense listed in this subdivision.

* * *

Sec. 4.  13 V.S.A. § 1061 is amended to read:

§ 1061.  DEFINITIONS

As used in this subchapter,:

(1)  “Stalk” means to engage in a course of conduct which consists of following or, lying in wait for, or harassing, and:

(A)  serves no legitimate purpose; and

(B)  causes the would cause a reasonable person to fear for his or her physical safety or causes the would cause a reasonable person substantial emotional distress.

(2)  “Course of conduct” means a pattern of conduct composed of two or more acts over a period of time, however short, evidencing a continuity of purpose.  Constitutionally protected activity is not included within the meaning of “course of conduct.”

(3)  “Following” means maintaining over a period of time a visual or physical proximity to another person in such manner as would cause a reasonable person to have a fear of unlawful sexual conduct, unlawful restraint, bodily injury, or death.

(4)  “Harassing” means a course of conduct actions directed at a specific person, or a member of the person’s family, which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including but not limited to verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or unconsented to physical contact without consent.

(5)  “Lying in wait” means hiding or being concealed for the purpose of attacking or harming another person.

Sec. 5.  13 V.S.A. § 1063 is amended to read:

§ 1063.  AGGRAVATED STALKING

(a)  A person commits the crime of aggravated stalking if the person intentionally stalks another person;, and:

(1)  such conduct violates a court order that prohibits stalking and is in effect at the time of the offense; or

(2)  has been previously convicted of stalking or aggravated stalking; or

(3)  has been previously convicted of an offense an element of which involves an act of violence against the same person; or

(4)  the person being stalked is under the age of 16 years; or

(5)  had a deadly weapon, as defined in section 1021 of this title, in his or her possession while engaged in the act of stalking.

(b)  A person who commits the crime of aggravated stalking shall be imprisoned not more than five years or be fined not more than $25,000.00, or both.

(c)  Conduct constituting the offense of aggravated stalking shall be considered a violent act for the purposes of determining bail.

Sec. 6.  13 V.S.A. § 1024 is amended to read:

§ 1024.  AGGRAVATED ASSAULT

(a)  A person is guilty of aggravated assault if he the person:

(1)  attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or

(2)  attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(3)  for a purpose other than lawful medical or therapeutic treatment, he the person intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to him, the other person without his the other person’s consent, a drug, substance, or preparation capable of producing the intended harm; or

(4)  with intent to prevent a law enforcement officer from performing a lawful duty, he the person causes physical injury to any person; or

(5)  is armed with a deadly weapon and threatens to use the deadly weapon on another person.

(b)  A person found guilty of violating a provision of subsection subdivision (a)(1) or (2) of this section shall be imprisoned for not more than 15 years or fined not more than $10,000.00, or both.

(c)  A person found guilty of violating a provision of subsection subdivisions (a)(3) or, (4), or (5) of this section shall be imprisoned for not more than five years or fined not more than $5,000.00, or both.

(d)  Subdivision (a)(5) of this section shall not apply if the person threatened to use the deadly weapon:

(1)  In the just and necessary defense of his or her own life or the life of his or her husband, wife, civil union partner, parent, child, brother, sister, guardian, or ward;

(2)  In the suppression of a person attempting to commit murder, sexual assault, aggravated sexual assault, burglary, or robbery; or

(3)  In the case of a civil or military officer lawfully called out to suppress a riot or rebellion, prevent or suppress an invasion, or assist in serving legal process, in suppressing opposition against him or her in the just and necessary discharge of his or her duty.

(e)  Subsection (d) of this section shall not be construed to limit or infringe upon defenses granted at common law.

Sec. 7.  20 V.S.A. § 1932 is amended to read:

§ 1932.  DEFINITIONS

As used in this subchapter:

* * *

(12)  “Violent Designated crime” means any of the following offenses:

(A)  assault and robbery with a dangerous weapon as defined in subsection 608(b) of Title 13 a felony;

(B)  assault and robbery causing bodily injury as defined in subsection 608(c) of Title 13;

(C)  aggravated assault as defined in section 1024 of Title 13;

(D)  murder as defined in section 2301 of Title 13;

(E)  manslaughter as defined in section 2304 of Title 13;

(F)  kidnapping as defined in section 2405 of Title 13 or its predecessor as it was defined in section 2401 of Title 13;

(G)  first degree unlawful restraint as defined in section 2407 of Title 13;

(H)  maiming as defined in section 2701 of Title 13;

(I)  first degree aggravated domestic assault as defined in section 1043 of Title 13 where the defendant causes serious bodily injury to another person;

(J)  sexual assault as defined in 13 V.S.A. §§ 3252(a)(1), (2) and (4), and 3252(b) or the predecessor offenses as defined in section 3201 of Title 13;

(K)  aggravated sexual assault as defined in section 3253 of Title 13;

(L)  lewd and lascivious conduct as defined in section 2601 of Title 13;

(M)  lewd or lascivious conduct with a child as defined in section 2602 of Title 13;

(N)  sexual activity by a caregiver with an elderly or disabled adult, as defined in 33 V.S.A. § 6913(d), where the sexual activity is exploitation as described in 33 V.S.A. § 6902(7)(D);

(O)  sexual exploitation of children as defined in 13 V.S.A. §§ 2822, 2823 and 2824;

(P)  burglary as defined in 13 V.S.A. § 1201;

(Q)  unlawful trespass of a residence as defined in 13 V.S.A. § 3705(d);

(R)  an attempt to commit any offense listed in this subdivision; or

(S)(C)  any other offense, if, as part of a plea agreement in an action in which the original charge was a crime listed in this subdivision and probable cause was found by the court, there is a requirement that the defendant submit a DNA sample to the DNA data bank.

Sec. 8.  20 V.S.A. § 1933 is amended to read:

§ 1933.  DNA SAMPLE REQUIRED

(a)  The following persons shall submit a DNA sample:

(1)  every person convicted in a court in this state of a violent designated crime on or after the effective date of this subchapter; and

(2)  every person who was convicted in a court in this state of a violent designated crime prior to the effective date of this subchapter and, after the effective date of this subchapter, is:

(A)  in the custody of the commissioner of corrections pursuant to 28 V.S.A. § 701;

(B)  on parole for a violent designated crime;

(C)  serving a supervised community sentence for a violent designated crime; and

(D)  on probation for a violent designated crime.

(b)  A person serving a sentence for a violent designated crime in a correctional facility shall have his or her DNA samples collected or taken at the receiving correctional facility, or at a place and time designated by the commissioner of corrections or by a court.

(c)  A person serving a sentence for a violent designated crime not confined to a correctional facility shall have his or her DNA samples collected or taken at a place and time designated by the commissioner of corrections, the commissioner of public safety, or a court.

Sec. 9.  20 V.S.A. § 1940 is amended to read:

§ 1940.  EXPUNGEMENT OF RECORDS AND DESTRUCTION OF

               SAMPLES

(a)  If a person’s conviction of a violent designated crime is reversed and the case is nolle prosequi or dismissed or the person is granted a full pardon, the court with jurisdiction or, as the case may be, the governor, shall so notify the department, and the person’s DNA record in the state DNA database and CODIS and the person’s DNA sample in the state DNA data bank shall be removed and destroyed.  The laboratory shall purge the DNA record and all other identifiable information from the state DNA database and CODIS and destroy the DNA sample stored in the state DNA data bank.  If the person has more than one entry in the state DNA database, CODIS, or the state DNA data bank, only the entry related to the dismissed case shall be deleted.  The department shall notify the person upon completing its responsibilities under this subsection, by certified mail addressed to the person’s last known address.

* * *


Sec. 10.  20 V.S.A. § 1946 is added to read:

§ 1946.  REPORT FROM COMMISSIONER

The commissioner of public safety shall report annually no later than January 15 to the senate and house committees on judiciary regarding the administration of the DNA databank, any backlogs in processing samples, and staffing and funding issues related to any backlog.

Sec. 11.  FUNDING FOR DNA DATABANK EXPANSION

There is a general fund appropriation of $30,000.00 plus available matching funds in H.516 which shall be used to address the DNA processing associated with this act.  This funding includes hiring additional staff at the Vermont crime lab.

Sec. 12.  24 V.S.A. § 1940 is added to read:

§ 1940.  TASK FORCES; SPECIALIZED INVESTIGATIVE UNITS;

               BOARD; GRANTS

(a)  A task force or specialized investigative unit organized and operating under section 1938 of this title may accept, receive, and disburse in furtherance of its duties and functions any funds, grants, and services made available by the state of Vermont and its agencies, the federal government and its agencies, any municipality or other unit of local government, or private or civic sources.

(b)  A specialized investigative unit grants board is created which shall be comprised of the attorney general, the secretary of administration, the executive director of the department of state’s attorneys, the commissioner of the department of public safety, the executive director of the center for crime victim services, and the executive director of the Vermont League of Cities and Towns.  Specialized investigative units organized and operating under section 1938 of this title for the investigation of sex crimes, child abuse, elder abuse, domestic violence, or crimes against those with physical or developmental disabilities may apply to the board for a grant or grants covering the costs of salaries and employee benefits to be expended during a given year for the performance of unit duties as well as unit operating costs for rent, utilities, equipment, training, and supplies.  Grants under this section shall be approved by a majority of the entire board and shall not exceed 50 percent of the yearly salary and employee benefit costs of the unit. 

(c)  The board may adopt rules relating to grant eligibility criteria, processes for applications, awards, and reports related to grants authorized pursuant to this section.  The attorney general shall be the adopting authority.

Sec. 13.  13 V.S.A. § 5411a is amended to read:

§ 5411a.  ELECTRONIC POSTING OF THE SEX OFFENDER REGISTRY

* * *

(l)  If a sex offender’s information is required to be posted electronically pursuant to subdivision (a)(2) of this section, the department shall list the offender’s convictions for any crime listed in subdivision 5401(10) of this title, regardless of the date of the conviction or whether the offender was required to register as a sex offender based upon that conviction.

Sec. 14.  13 V.S.A. § 5412 is amended to read:

§ 5412.  ACTIVE COMMUNITY NOTIFICATION BY THE

               DEPARTMENT OF PUBLIC SAFETY, THE DEPARTMENT OF

               CORRECTIONS, AND LOCAL LAW ENFORCEMENT;

               IMMUNITY

(a)  The department, the department of corrections, any authorized local law enforcement agency, and their employees shall be immune from liability in carrying out the provisions under this subchapter except in instances of gross negligence or willful misconduct, provided that the agencies complied with the rules adopted pursuant to this subchapter.

(b)  Nothing in this subchapter shall be construed to prevent the The department, the department of corrections, and any authorized local law enforcement agency from notifying are authorized to notify members of the public who are likely to encounter a sex offender who poses a danger under circumstances that are not enumerated in this subchapter. 

(c)  Notification of the community beyond those persons likely to encounter a sex offender shall be authorized only under circumstances which constitute a compelling risk to public safety and only after consultation with the Vermont crime information center and the department of corrections.

(d)  Active community notification regarding registered sex offenders who may pose a danger to members of the community is an important public safety tool which the general assembly intends for authorized agencies to use at their discretion in accordance with this subchapter.

Sec. 15.  NOTICE OF AUTHORITY FOR ACTIVE COMMUNITY                                                NOTIFICATION

(a)  When the general assembly created the sex offender registry through the adoption of No. 124 of the Acts of the 1995 Adj. Sess. (1996), it granted authority to the department of public safety, the department of corrections, and local law enforcement agencies to notify actively members of the public of any registered sex offender who might pose a danger to them in the community.  The general assembly finds that this authority has been utilized inconsistently among agencies statewide. 

(b)  In No. 157 of the Acts of the 2003 Adj. Sess. (2004), the general assembly required the department of public safety to establish and conduct, in cooperation with the department of corrections, a comprehensive training program to inform and instruct law enforcement and corrections personnel on the operation of the sex offender registry and sex offender community notification, including authority to conduct active community notification.  The general assembly appropriated $25,000.00 for the training.

(c)  Amendments in this act to 13 V.S.A. § 5412 are clarifications of existing law and intended to dispel any ambiguities as to the authority of designated agencies to notify when appropriate the public of sex offenders who are living in the community. 

(d)  The department of public safety shall send notice of the amendments to sex offender laws in this act to all law enforcement agencies in the state, and of their authority to engage in active community notification in accordance with subchapter 3 of chapter 167 of Title 13.  The department of corrections shall send notice of the amendments to sex offender laws in this act to all probation and parole officers in the state, and of their authority to engage in active community notification in accordance with subchapter 3 of chapter 167 of Title 13.  This notice shall be sent no later than September 1, 2005.

Sec. 16.  13 V.S.A. § 5411b is amended to read:

§ 5411b.  DESIGNATION OF HIGH-RISK SEX OFFENDER

* * *

(d)  The department of corrections shall identify those sex offenders under the supervision of the department as of the date of passage of this act who are high-risk and shall designate them as such no later than September 1, 2005.

Sec. 17.  SEX OFFENDER COMMUNITY REENTRY; CIVIL

               COMMITMENT

(a)  The House Committee on Judiciary finds that the vast majority of convicted sex offenders eventually returns to the community, either on probation, parole, community sentence, or having reached their maximum sentence.  It is essential that policymakers determine the appropriate manner to maximize Vermont resources to have the greatest impact on public safety with regard to sex offenders. 

(b)  Testimony indicates that a very small number of dangerous sex offenders, estimated at one to two offenders a year by the department of public safety, poses a particularly high risk to community safety.  The committee recognizes the need to address not only these particularly dangerous offenders, but the return of all sex offenders to Vermont communities.

(c)  In order to address the risks that convicted sex offenders may pose in the community, the House Committee on Judiciary shall meet in the summer and fall of 2005 to continue its consideration and examination of current public safety and corrections policy regarding sexual violence and the return of sex offenders to our communities.  These meetings shall include consideration of civil commitment and other policy alternatives.  

(d)  The committee has taken considerable testimony on the option of civil commitment of sex offenders and strongly believes that more information is needed.  Proposals submitted to the committee on behalf of the administration lacked essential information regarding implementation of such a program, funding needs and resources, staffing requirements and resources, and treatment plans.  Without such details, it is impossible for the committee to determine whether such a program is the best approach to community safety and whether such a program would be constitutional as applied.

(e)  The committee shall also consider the best practices with regard to investigation, prosecution, sentencing, and prison treatment of sex offenders.  Issues shall include special prosecution units, presentence investigations, presentence risk assessment and psychosexual evaluations, enhanced criminal penalties, and successful treatment models.

(f)  The committee is authorized to meet five times during the summer and fall of 2005 and shall have the assistance and cooperation of all state and local agencies and departments.  The legislative council and the joint fiscal office shall provide professional and administrative support for the committee.

(g)  Committee members shall be entitled to per diem compensation and reimbursement for expenses in accordance with 2 V.S.A. § 406. 

(h)  The commissioner of health, commissioner of public safety, and commissioner of corrections shall jointly submit a report to the house committee on judiciary regarding the administration’s proposals for civil commitment of sex offenders.  The report shall be submitted no later than August 1, 2005. 

(i)  The report shall address the administration’s three options, including out-of-state placement, a Vermont facility-based program, and a module-based program.  The report shall address, at a minimum, the following:

(1)  Capacity.

(2)  Staffing.

(3)  Treatment.

(4)  Program and capital costs.

(j)  The report shall include findings regarding community based out-patient civil commitment and address 24-hour staff supervision of offenders, GPS monitoring, and viability of staffed halfway houses.

(k)  The report shall include findings regarding which states will accept Vermont sexually violent predators who have been civilly committed, the cost, the duration, and number of offenders.

(l)  The report shall include the impacts of dedicating a wing of an existing Vermont correctional facility, including the cost of displacing Vermont inmates to an out-of-state facility, as well as capital costs for retrofitting a designated wing for sexually violent predators.


Sec. 18.  CRIMINAL CODE STUDY COMMITTEE

Subsections (c) and (d) of Sec. 293 of No. 122 of the Acts of the 2003 Adj. Sess. (2004) are amended to read:

(c)  The committee shall consist of the following members:

(1)  two three members of the senate appointed by the committee on committees, one of whom shall be the chair of the committee on judiciary;

(2)  two three members of the house of representatives appointed by the speaker, one of whom shall be the chair of the committee on judiciary;

* * *

(d)  The committee shall consider the following:

* * *

(8)  any recommendations from the director of the law enforcement division of the department of fish and wildlife; and

(9)  recommendations as to whether Vermont should establish a permanent sentencing commission, including the mission and obligations of such a commission, the members of the commission, and the administration of the commission; and

(10)  any other issues the committee finds relevant to creating a comprehensive and clear criminal code.

* * *


Sec. 19.  EFFECTIVE DATE

Sec. 18 shall take effect upon passage.

Approved:  June 28, 2005



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us