ACT NO. 193
Court procedure; orders against stalking and sexual assault;
no contact orders; victims' rights study
This act has four distinct parts: 1) establishment of procedures for obtaining orders against stalking or sexual assault; 2) express authority for the court to include instructions on the care and custody of pets in abuse prevention orders; 3) expansion of no contact orders for criminal defendants; and 4) creation of a committee to study victims' rights.
The act creates a process for obtaining an order against stalking or sexual assault that is closely modeled on the procedures for obtaining a relief for abuse order. A person, other than a family or household member as defined in 15 V.S.A. § 1101(2), may seek an order against stalking or sexual assault on behalf of him- or herself or his or her children by filing a complaint in superior court. Family and household members may obtain an abuse prevention order pursuant to Title 15 to restrain such conduct. The plaintiff has the burden of proving by a preponderance of the evidence that the defendant stalked or sexually assaulted the plaintiff. The definition of stalking for purposes of the civil order is slightly different from the definition of stalking for criminal purposes. Stalking for civil orders includes threatening behavior directed at the plaintiff or the plaintiff's family, while the criminal definition includes harassing. "Sexually assaulted the plaintiff" means that the defendant engaged in conduct that meets elements of lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, sexual assault as defined in 13 V.S.A.
§ 3252, or aggravated sexual assault as defined in 13 V.S.A. § 3253, and that the plaintiff was the victim of the offense.
At the final hearing, if the court finds by a preponderance of the evidence that the defendant has stalked the plaintiff, has been convicted of sexually assaulting the plaintiff, or has sexually assaulted the plaintiff and there is a danger of the defendant further harming the plaintiff, the court shall order the defendant to stay away from the plaintiff or the plaintiff's children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff's children, or both. Proof of danger of future harm is only required if the court finds that the defendant sexually assaulted the plaintiff, but he or she was never convicted of the offense.
At the hearing for emergency relief, proof of conviction or of future harm is not required, and the court need only find by a preponderance of the evidence that the defendant has stalked or sexually assaulted the plaintiff. Orders may be issued ex parte, and a final hearing on the matter must be held within 10 days.
Codifying current practice, the act requires that plaintiffs submit affidavits in support of their complaint and are therefore subject to the penalties of false swearing for false statements alleging stalking or sexual assault when seeking an order.
Upon conviction for a violation of an order against stalking or sexual assault, the court may order the defendant to participate in mental health counseling or sex offender treatment approved by the department of corrections. The defendant is required to pay all or part of the costs of the counseling unless the court finds that the defendant is unable to do so.
With respect to temporary emergency abuse prevention orders, the act permits the court to require the defendant to refrain from cruelly treating as defined in 13 V.S.A. § 352 or from 352a or from killing any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household. In the final order, the court may include language concerning the possession, care, and control of any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household.
Section 10 of the act permits the court to order that a defendant not contact or cause to be contacted by a victim or potential witness. The order takes effect immediately, regardless of whether the defendant is incarcerated or released. Previously, the order could only address harassment by the defendant. Section 11 of the act clarifies that the general assembly does not intend to restrict attorneys who are representing criminal defendants from contacting witnesses or the alleged victim in cases for which no contact orders have been issued.
Finally, the act creates a study committee for the purpose of reviewing and addressing the rights of victims under current law to facilitate better enforcement of such rights and to consider specially the following issues:
(1) scheduling and continuances of court hearings as they relate to victims;
(2) the victim's input with plea agreements and sentencing
(3) victim notification by the department of corrections and the parole
board; and (4) the role of the victim at parole board hearings. The committee consists of 15 members and the center for crime victim services provides professional and administrative support for the committee.
The committee will present its findings and recommendations, including proposals for legislative action, to the general assembly no later than January 15, 2007.
Effective Date: The sections of the act that address orders against stalking and sexual assault and abuse prevention orders take effect October 1, 2006. The rest of the act takes effect July 1, 2006.
The Vermont General Assembly
115 State Street