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H.163

Introduced by   Representative Grad of Moretown

Referred to Committee on

Date:

Subject:  Crimes; vulnerable adults; abuse, neglect, and exploitation

Statement of purpose:  This bill proposes to revise and expand existing criminal law regarding abuse, neglect, and exploitation of vulnerable adults.

AN ACT RELATING TO CRIMINAL ABUSE, NEGLECT, AND EXPLOITATION OF VULNERABLE ADULTS

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

Sec. 1.  13 V.S.A. chapter 28 is added to read:

CHAPTER 28.  ABUSE, NEGLECT, AND

EXPLOITATION OF VULNERABLE ADULTS

§ 1375.  definitions

As used in this chapter:

(1)  “Bodily injury” means physical pain, illness, or any impairment of physical condition.

(2)  “Caregiver” means:

(A)  a person, agency, facility, or other organization with responsibility for providing subsistence, medical, or other care to a vulnerable adult, who has assumed the responsibility voluntarily, by contract, or by an order of the court; or

(B)  a person providing care, including medical care, custodial care, personal care, mental health services, rehabilitative services, or any other kind of care which is required because of another’s age or disability.

(3)  "Lewd and lascivious conduct" means any lewd or lascivious act upon or with the body, or any part or member thereof, of a vulnerable adult, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the actor or the vulnerable adult.

(4)  “Neglect” means the failure or omission by a caregiver to provide care or arrange for goods or services necessary to maintain the health or safety of a vulnerable adult, including food, clothing, medicine, shelter, supervision, and medical services, unless the caregiver is acting pursuant to the wishes of the vulnerable adult or his or her representative, or a terminal care document, as defined in chapter 111 of Title 18.

(5)  “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health or substantial disfigurement.

(6)  "Sexual act" means conduct between persons consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any intrusion, however slight, by any part of a person's body into the genital or anal opening of another.

(7)  "Sexual activity" means a sexual act, other than appropriate medical care or personal hygiene, or lewd and lascivious conduct.

(8)  “Vulnerable adult” means any person 18 years of age or older who:

(A)  is a resident of a facility required to be licensed under chapter 71 of Title 33;

(B)  is a resident of a psychiatric hospital or a psychiatric unit of a hospital;

(C)  has been receiving personal care services for more than one month from a home health agency certified by the Vermont department of health or from a person or organization that offers, provides, or arranges for personal care; or

(D)  regardless of residence or whether any type of service is received, is impaired due to brain damage, infirmities of aging, or a physical, mental, or developmental disability that results in some impairment of the individual’s ability to:

(i)  provide for his or her own care without assistance, including the provision of food, shelter, clothing, health care, supervision, or management of finances; or

(ii)  protect himself or herself from abuse, neglect, or exploitation.

§ 1376.  Abuse

(a)  A person who willfully, knowingly, or recklessly engages in conduct that is likely to cause unnecessary harm, unnecessary pain, or unnecessary suffering to a vulnerable adult shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

(b)  A person who commits an assault, as defined in section 1023 of this title, with knowledge that the victim is a vulnerable adult, shall be imprisoned for not more than two years or fined not more than $2,000.00, or both.

(c)  A person who commits an aggravated assault, as defined in section 1024 of this title, with knowledge that the victim is a vulnerable adult, shall be imprisoned not more than 20 years or fined not more than $10,000.00, or both. 

§ 1377.  Abuse by restraint

(a)  For purposes of this section, “restraint” shall mean either a physical restraint or a drug that is being used as a restraint.  A physical restraint is any manual method or physical or mechanical device, material, or equipment attached or adjacent to the vulnerable adult’s body that he or she cannot easily remove that restricts freedom of movement or normal access to one’s body.  A “drug” used as a restraint is a medication used to control behavior or to restrict the vulnerable adult’s freedom of movement and is not a standard treatment for the vulnerable adult’s medical or psychiatric condition.

(b)  A person who willfully, knowingly, or recklessly uses or threatens to use a restraint on a vulnerable adult unnecessarily, unlawfully, or as a means of discipline or retaliation shall be imprisoned not more than two years or fined not more than $10,000.00, or both.

(c)  A person who violates subsection (b) of this section, and, as a proximate cause bodily injury results, shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

(d)  A person who violates subsection (b) of this section and as a proximate cause serious bodily injury results shall be imprisoned not more than 15 years or fined not more than $10,000.00, or both.

§ 1378.  NEGLECT

(a)  A caregiver who willfully, knowingly, or recklessly neglects a vulnerable adult shall be imprisoned not more than 18 months or fined not more than $10,000.00, or both.

(b)  A caregiver who violates subsection (a) of this section, and as a result of such neglect, serious bodily injury occurs to the vulnerable adult, shall be imprisoned not more than 15 years or fined not more than $10,000.00, or both.

§ 1379.  SEXUAL ABUSE

(a)  A caregiver who volunteers for or is paid by a caregiving facility or program shall not engage in any sexual activity with a vulnerable adult.  It shall be an affirmative defense to a prosecution under this section that the sexual activity was consensual between the vulnerable adult and a caregiver who was hired, supervised, and directed by the vulnerable adult.

(b)  A person who violates this section, and the sexual activity involves lewd and lascivious conduct, shall be imprisoned not more than five years or fined not more than $10,000.00, or both.  A person who violates this section, and the sexual activity involves a sexual act, shall be imprisoned not more than 20 years or fined not more than $10,000.00, or both.

§ 1380.  Financial exploitation

(a)  No person shall willfully use, withhold, transfer, or dispose of funds or property of a vulnerable adult, without or in excess of legal authority, for wrongful profit or advantage.  No person shall willfully acquire possession or control of or an interest in funds or property of a vulnerable adult through the use of undue influence, harassment, duress, or fraud.

(b)  A person who violates subsection (a) of this section, and exploits money, funds, or property of no more than $500.00 in value, shall be imprisoned not more than 18 months or fined not more than $10,000.00, or both.

(c)  A person who violates subsection (a) of this section, and exploits money, funds, or property in excess of $500.00 in value, shall be imprisoned not more than 10 years or fined not more than $10,000.00, or both.

§ 1381.  Exploitation of services

Any person who willfully forces or compels a vulnerable adult against his or her will to perform services for the profit or advantage of another shall be imprisoned not more than two years or fined not more than $10,000.00, or both.

§ 1382.  ADULT ABUSE REGISTRY

A person who is convicted of a crime under this chapter shall be placed on the adult abuse registry.  A deferred sentence is considered a conviction for purposes of the adult abuse registry.

Sec. 2.  13 V.S.A. § 5301(7) is amended to read:

§ 5301.  Definitions

As used in this chapter:

* * *

(7)  For the purpose of this chapter, “listed crime” means any of the following offenses:

* * *

(Z)  burglary into an occupied dwelling as defined in section subsection 1201(c) of this title; and

(AA)  the attempt to commit any of the offenses listed in this section; and

(BB)  abuse (section 1376 of this title), abuse by restraint (section 1377 of this title), neglect (section 1378 of this title), sexual abuse (section 1379 of this title), financial exploitation (section 1380 of this title), and exploitation of services (section 1381 of this title).

Sec. 3.  33 V.S.A. § 6913 is amended to read:

§ 6913.  PENALTIES; DEFERRED SENTENCING; CRIMINAL SEXUAL

              ACTIVITY BY CAREGIVER; ABUSE; NEGLECT;

              EXPLOITATION; MANDATORY REPORTER’S FAILURE TO

              REPORT

(a)  Any person who engages in abuse, as defined in subdivision 6902(1)(B) or (C) of this title shall be fined not more than $10,000.00 or be imprisoned not more than 18 months, or both.

(b)  Any person who willfully engages in exploitation as defined in subdivision 6902(6)(A), (B) or (C) of this title, shall be fined not more than $10,000.00 or be imprisoned for not more than 18 months, or both.

(c)  Any caregiver who purposely, knowingly or recklessly neglects a vulnerable adult as defined in subdivision 6902(7) of this title shall be fined not more than $10,000.00 or be imprisoned for not more than 18 months, or both.

(d)  Any caregiver who engages in abuse of a vulnerable adult in violation of subdivision 6902(1)(D) of this title shall be fined not more than $10,000.00 or be imprisoned not more than two years, or both.

(e)  Any mandatory reporter as defined in subdivision 6903(a)(1), (2), (3), (4) and (5) of this title that willfully violates subsection 6903(a) of this title shall be fined not more than $500.00 or be imprisoned for not more than one year, or both.

(f)  Notwithstanding the limitation of 13 V.S.A. § 7041(a), a court may, on the motion of a party or on its own motion, with or without the consent of the state’s attorney, defer sentencing and place the defendant on probation upon such terms and conditions as it may require.

(g)  Whenever the commissioner finds, after notice and hearing, that a person has committed sexual abuse as defined in subdivision 6902(1)(D) of this title, sexual exploitation as defined in subdivision 6902(6)(D), exploitation as defined in subdivision 6902(6)(A) or (B) in an amount in excess of $500.00, abuse which causes grievous injury to or the death of a vulnerable adult, or neglect which causes grievous injury to or the death of a vulnerable adult, the commissioner may impose an administrative penalty of not more than $10,000.00 for each violation, except as provided in subsection (h) of this section.  The commissioner shall notify the office of professional regulation, or any other professional licensing board applicable to the violator, of any decision made pursuant to this subsection.

(h)(b)  Whenever the commissioner finds, after notice and hearing, that a mandatory reporter, as defined in subdivisions 6903(a)(1), (2), (3), (4), and (5) of this title, has willfully violated the provisions of subsection 6903(a), the commissioner may impose an administrative penalty not to exceed $500.00 per violation.  For purposes of this subsection, every 24 hours that a report is not made beyond the period for reporting required by subsection 6903(a) shall constitute a new and separate violation, and a mandatory reporter shall be liable for an administrative penalty of not more than $500.00 for each 24-hour period, not to exceed a maximum penalty of $5,000.00 per reportable incident.

(i)(c)  A person who is aggrieved by a decision under subsection (g)(a) or (h)(b) of this section may appeal that decision to the superior court where either party may request trial by jury.

Sec. 4.  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:

* * *

(iv)  sexual activity by a caregiver as defined in 33 V.S.A. § 6913(d) abuse of a vulnerable adult as defined in 13 V.S.A. § 1379;

* * *



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us