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Sec

H.856

Introduced by   Committee on Judiciary

Date:

Subject:  Criminal procedures; sexual offenders; sentencing

Statement of purpose:  This bill proposes to enhance procedures for prevention and investigation of sex crimes, and for sentencing, treatment, and community reintegration of sex offenders.

AN ACT RELATING TO ENHANCING SENTENCES FOR AND PREVENTING RISKS POSED BY DANGEROUS SEXUAL OFFENDERS

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

Sec. 1.  SHORT TITLE

This act may be known as the “Sexual Violence Prevention Act.”

Sec. 2.  LEGISLATIVE PURPOSE

The safety of Vermont’s communities is strengthened by working toward  eliminating crimes of sexual violence.  Vermont’s Sexual Violence Prevention Act builds on proven measures for preventing such crimes through enhancing sentencing and expanding treatment of sexually violent offenders.  Special investigative units for sex crimes are expanded statewide to ensure that all Vermonters benefit from the units’ expertise at protecting victims and apprehending sex offenders.  By restructuring sentencing for the most serious crimes of sexual violence, the department of corrections is given the authority to maintain continuing jurisdiction and lifetime supervision over high risk sex offenders who pose an unacceptable danger to Vermont communities.  Under this system, a sex offender may be held on an indeterminate basis for a period of time up to the rest of the offender’s life unless sex offender treatment has been successfully completed and the department determines that the person poses a sufficiently low risk of reoffense to protect the community.

* * * Prevention * * *

Sec. 3.  FINDINGS; APPROPRIATION

(a)  The general assembly finds that prevention and community education are integral components of addressing the epidemic of sexual violence in Vermont.  Comprehensive collaborative prevention efforts are vitally needed to create safe communities.

(b)  The amount of $65,000.00 is appropriated from the general fund in fiscal year 2007 to the University of Vermont to support implementation of “The Vermont Approach:  A Strategic Plan for Sexual Violence Prevention,” produced by the Vermont network against domestic and sexual violence, the Vermont department of health, and the anti-violence partnership at the University of Vermont.  The funds appropriated under this subsection shall be used to hire a coordinator and to support the project safe choices program, with the goal of beginning a statewide, collaborative, comprehensive approach to ending sexual violence in our communities.

(c)  The sum appropriated under this subsection shall be made available when evidence is presented to the state treasurer that one dollar has been raised from nonstate sources for each dollar appropriated.

* * * Investigation * * *

Sec. 4.  FINDINGS

(a)  Special investigative units are devoted solely to the investigation, victim advocacy, and prosecution of sexual violence, child sexual and physical abuse, and other serious family abuse.  The units are multidisciplinary task forces comprising specially trained investigators, victim advocates, department for children and families workers, and prosecutors whose caseload is confined to matters involving sexual violence, child sexual and physical abuse, and family abuse. 

(b)  Because of their specialized training and experience with sexual violence, special investigative units achieve a high conviction rate and are one of the most effective models available for investigating and prosecuting crimes of sexual violence. 

(c)  Maintaining a limited caseload permits the units’ investigations to be more thoroughly and expertly performed than is generally the case.  As a result, an unusually high proportion of defendants, approximately 70 percent, confesses involvement in the crime. 

(d)  The high confession rate achieved by special investigative units means convictions are frequently obtained without having to go to trial.  If a victim, especially a child, does not have to go through the rigors and stresses of testifying, the child is not revictimized. 

(e)  The smaller caseloads for special investigative units allow a unit’s attorneys, victim advocates, and investigators to devote more time to each individual case.  This additional care and attention has a positive effect on advocacy for the victim, the quality of the case for prosecution, and the quality of the case for trial.

(f)  The department of state’s attorneys and sheriffs currently has two special investigative units in place, one in Chittenden County, known as CUSI, which has been in operation since 1990 and one in Franklin/Grand Isle County, known as NUSI, which has been in operation since 1995.

(g)  The extraordinary success of CUSI and NUSI in prosecuting sex crimes merits expanding special investigative units so that all Vermont counties and citizens have access to this highly effective law enforcement and prosecutorial tool.         

Sec. 5.  24 V.S.A. § 1940 is amended to read:

§ 1940.  TASK FORCES; SPECIALIZED INVESTIGATIVE UNITS;

               BOARD; GRANTS

(a)  Pursuant to the authority established under section 1938 of this title, the department of state’s attorneys and sheriffs shall by July 1, 2009 provide all Vermont counties with access to a special investigative unit to investigate sex crimes, child abuse, elder abuse, domestic violence, or crimes against those with physical or developmental disabilities.  In implementing this subsection, the department of state’s attorneys and sheriffs should act with all deliberate speed in order to ensure that special investigative units are available to serve all Vermonters as soon as is reasonably possible. 

(b)  A task force or specialized investigative unit organized and operating under section 1938 of this title section 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)(c)  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 section 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)(d)  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. 6.  APPROPRIATIONS

(a)  The amount of $500,000.00 is appropriated from the general fund to the department of state’s attorneys and sheriffs for purposes of funding the special investigative units established by subsection 1940(a) of Title 24.

(b)  The general assembly intends that after fiscal year 2007, an appropriation be made to the department of state’s attorneys and sheriffs during each fiscal year until fiscal year 2009 to fund the special investigative units established by subsection 1940(a) of Title 24.  The amount appropriated in fiscal year 2008 should be at least three percent greater than $500,000.00, and the amount appropriated in each successive year should be at least three percent greater than the amount appropriated during the preceding year. 

Sec. 7.  POLICY; VERTICAL REPRESENTATION

It is the policy of the state of Vermont to encourage, whenever practicable,  vertical representation in sex offense cases.  In a case having vertical representation, a single prosecutor in a state’s attorney’s office and a single defense attorney handle a criminal case from start to finish.  Vertical representation permits the prosecutor and defense attorney most familiar with the case to oversee all its important procedural elements, increasing the likelihood that every legal decision related to the case is based upon the best possible knowledge of its facts and circumstances.  This means that a victim will always meet with the same prosecutor who is first assigned to the case, and such consistency promotes victims’ knowledge of and trust in the criminal justice system.  Victim advocates are also an important part of this process since they provide a consistent point of contact and source of support and information for victims of violent crime.  Because vertical representation and state-based victim advocates offer the most effective method of fairly and successfully resolving sex offense cases, they should be used in such cases whenever practicable.

* * * Sentencing * * *

Sec. 8.  13 V.S.A. § 1021(2) is amended to read:

§ 1021.  DEFINITIONS

For the purpose of this chapter:

* * *

(2)  “Serious bodily injury” means:

(A)  bodily injury which creates any of the following:

(i)  a substantial risk of death or which causes;

(ii)  a substantial loss or impairment of the function of any bodily member or organ or;

(iii)  a substantial impairment of health,; or

(iv)  substantial disfigurement; or

(B)  strangulation by intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.

Sec. 9.  13 V.S.A. § 1375 is amended to read:

§ 1375.  DEFINITIONS

As used in this chapter:

* * *

(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 shall have the same meaning as in subdivision 1021(2) of this title.

* * *

Sec. 10.  13 V.S.A. § 2602 is amended to read:

§ 2602.  LEWD OR LASCIVIOUS CONDUCT WITH CHILD

(a)  No person shall wilfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of 16 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of such child.

(b)  A person who violates subsection (a) of this section shall be:

(1)  For a first offense, imprisoned not less than one year and not more than 15 years or fined not more than $5,000.00, or both.

(2)  For a second or subsequent offense, imprisoned not less than two three years and not more than 30 years a maximum term of life or fined not more than $10,000.00 $25,000.00, or both.

(3)  For a third offense, imprisoned not less than three years and up to and including life or fined not more than $25,000.00, or both.

(c)  A person convicted of violating subdivision (b)(2) of this section shall be sentenced under section 3271 of this title.


Sec. 11.  13 V.S.A. § 2828 is amended to read:

§ 2828.  USE OF ELECTRONIC COMMUNICATION TO LURE

              LURING A CHILD

(a)  No person shall knowingly utilize an electronic communication to solicit, lure, or entice, or to attempt to solicit, lure, or entice, a child under the age of 16 or another person believed by the person to be a child under the age of 16, to engage in a sexual act as defined in section 3251 of this title or engage in lewd and lascivious conduct as defined in section 2602 of this title. 

(b)  This section applies to solicitation, luring, or enticement by any means, including in person, through written or telephonic correspondence or electronic communication.

Sec. 12.  13 V.S.A. chapter 72 is amended to read:

CHAPTER 72.  SEXUAL ASSAULT

Subchapter 1.  Crimes; Trial

§ 3251.  DEFINITIONS

As used in this chapter:

* * *

(4)  “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 shall have the same meaning as in subdivision 1021(2) of this title;

* * *

§ 3252.  SEXUAL ASSAULT

(a)  A No person who engages shall engage in a sexual act with another person and

(1)  Compels compel the other person to participate in a sexual act:

(A)(1)  Without without the consent of the other person; or

(B)(2)  By by threatening or coercing the other person; or

(C)(3)  By by placing the other person in fear that any person will suffer imminent bodily injury; or.

(2)  Has impaired (b)  No person shall engage in a sexual act with another person and impair substantially the ability of the other person to appraise or control conduct by administering or employing drugs or intoxicants without the knowledge or against the will of the other person; or.

(3)  The other person (c)  No person shall engage in a sexual act with a child who is under the age of 16, except where the persons are married to each other, and the sexual act is consensual; or.

(4)  The other person (d)  No person shall engage in a sexual act with a child who is under the age of 18 and is entrusted to the actor’s care by authority of law or is the actor’s child, grandchild, foster child, adopted child, or step-child;

shall be imprisoned for not more than 20 years, or fined not more than $10,000.00, or both stepchild.

(b)(e)  A No person who engages shall engage in a sexual act with another person a child under the age of 16 and if:

(1)  the victim is entrusted to the actor’s care by authority of law or is the actor’s child, grandchild, foster child, adopted child, or step-child stepchild; or

(2)  the actor is at least 18 years of age, resides in the victim’s household, and serves in a parental role with respect to the victim;

shall be imprisoned for not more than 35 years, or fined not more than $25,000.00, or both.

(f)(1)  A person who violates subsection (a), (b), (d), or (e) of this section shall be imprisoned not less than three years and for a maximum term of life or fined not more than $25,000.00, or both

(2)  A person who violates subsection (c) of this section shall be imprisoned for not more than 20 years or fined not more than $10,000.00, or both.

(g)  A person convicted of violating subsection (a), (b), (d), or (e) of this section shall be sentenced under section 3271 of this title.


§ 3253.  AGGRAVATED SEXUAL ASSAULT

(a)  A person commits the crime of aggravated sexual assault if the person commits sexual assault under any one of the following circumstances:

(1)  At the time of the sexual assault, the actor causes serious bodily injury to the victim or to another.

(2)  The actor is joined or assisted by one or more persons in physically restraining, assaulting or sexually assaulting the victim.

(3)  The actor commits the sexual act under circumstances which constitute the crime of kidnapping.

(4)  The actor has previously been convicted in this state of sexual assault under subdivision 3252(a)(1) or (2) of this title or aggravated sexual assault or has been convicted in any jurisdiction in the United States or territories of an offense which would constitute sexual assault under subdivision 3252(a)(1) or (2) of this title or aggravated sexual assault if committed in this state.

(5)  At the time of the sexual assault, the actor is armed with a deadly weapon and uses or threatens to use the deadly weapon on the victim or on another.

(6)  At the time of the sexual assault, the actor threatens to cause imminent serious bodily injury to the victim or to another and the victim reasonably believes that the actor has the present ability to carry out the threat.

(7)  At the time of the sexual assault, the actor applies deadly force to the victim.

(8)  The victim is under the age of 10 13 and the actor is at least 18 years of age.

(9)  The victim is subjected by the actor to repeated nonconsensual sexual acts as part of the same occurrence or the victim is subjected to repeated nonconsensual sexual acts as part of the actor’s common scheme and plan.

(b)  A person who commits the crime of aggravated sexual assault shall be imprisoned up to and including not less than five years and a maximum term of life or fined not more than $50,000.00, or both.  No person who receives a minimum sentence under this section shall be eligible for early release or furlough until the expiration of the minimum sentence imposed. 

(c)  A person convicted of violating this section shall be sentenced under section 3271 of this title.

* * *

Subchapter 2.  Sentencing, Treatment, and Supervision

§ 3271.  INDETERMINATE LIFE SENTENCE

(a)  A person who commits one of the following violations shall be sentenced under this section:

(1)  Lewd and lascivious conduct with a child, second or subsequent offense, in violation of subdivision 2602(b)(2) of this title.

(2)  Sexual assault in violation of section 3252(a), (b), (d), or (e) of this title.

(3)  Aggravated sexual assault in violation of section 3253 of this title.

(b)  If a person is sentenced under this section, the person’s maximum sentence shall be imprisonment for life.

(c)  If a person sentenced under this section receives a sentence that is wholly or partially suspended, sex offender conditions and treatment shall be a condition of the person’s probation agreement.

(d)  If a person sentenced under this section receives a sentence for an unsuspended term of incarceration, the person shall not be released until the person successfully completes all sex offender treatment and programming required by the department of corrections, unless the department determines that the person poses a sufficiently low risk of reoffense to protect the community or that a program can be implemented which adequately supervises the person and addresses any risk the person may pose to the community.

Sec. 13.  13  V.S.A. § 3274 is added to read:

§ 3274.  POSTRELEASE POLYGRAPH TESTING

(a)  A court may order as a condition of probation, and the department of corrections may order as a condition of furlough, that an offender under supervision for a sex offense submit to polygraphic examinations to ensure compliance with the terms of probation or conditions of furlough.

(b)  The court or commissioner may order the offender to pay all or a portion of the costs of polygraphic examinations conducted pursuant to this section.  The fee may be waived if the offender is indigent or if payment would result in an economic hardship to the offender’s immediate family.

Sec. 14.  28 V.S.A. § 204 is amended to read:

§ 204.  SUBMISSION OF WRITTEN REPORT; PROTECTION OF

            RECORDS

* * *

(c)  The report ordered by the court under this section or section 204a of this title shall be made not less than one week nor more than three weeks from the date of the order. This three week limit may be extended by order of the court.

* * *

(e)  The presentence report ordered by the court under this section or section 204a of this title shall include the comments or written statement of the victim, or the victim's guardian or next of kin if the victim is incompetent or deceased, whenever the victim or the victim's guardian or next of kin choose to submit comments or a written statement.

(f)  If the offense charged is aggravated sexual assault, sexual assault, lewd and lascivious behavior, lewd or lascivious behavior with a child, or sexual exploitation of children, the report shall address the issue of the availability of appropriate treatment programs within correctional facilities and on an outpatient basis in the community, including recommendation as to the defendant's eligibility for such treatment programs and shall include a statement of the relevant policies of the department of corrections regarding parole recommendations for the offense of which the offender was convicted.

Sec. 15.  28 V.S.A. § 204a is added to read:

§ 204a.  SEXUAL OFFENDERS; PRE-SENTENCE INVESTIGATIONS;

                RISK ASSESSMENTS; PSYCHOSEXUAL EVALUATIONS

(a)  The department of corrections shall conduct a presentence investigation for all persons convicted of:

(1)  lewd and lascivious conduct in violation of section 2601 of this title;

(2)  lewd and lascivious conduct with a child in violation of section 2602 of this title;

(3)  sexual assault in violation of section 3252 of this title;

(4)  aggravated sexual assault in violation of section 3253 of this title; or

(5)  an offense involving sexual exploitation of children in violation of chapter 64 of this title.

(b)  A presentence investigation required by this section:

(1)  shall include an assessment of the offender’s risk of reoffense and a determination of whether the person is a high risk offender;

(2)  may include a psychosexual evaluation; and

(3)  shall be completed before the defendant is sentenced.  Upon completion, the department shall submit copies to the court, the state’s attorney, and the defendant’s attorney.

(c)(1)  The department of corrections shall prepare a recommendation for programming and treatment for all persons for whom a presentence investigation is required under subsection (a) of this section.  The department shall consider the information contained in the presentence investigation when recommending the programming and treatment appropriate for the offender.

(2)  The recommendation required by this subdivision shall address the issue of the availability of appropriate treatment programs within correctional facilities and on an outpatient basis in the community, including recommendation as to the defendant's eligibility for such treatment programs, and shall include a statement of the relevant policies of the department of corrections regarding parole recommendations for the offense of which the offender was convicted.

(3)(A) The court may order the department to provide a report including:

(i)  the results of a preclassification of the offender identifying all available treatment programs for the offender at department facilities;

(ii)  whether the offender will be admitted to each of the available treatment programs, provided the offender agrees to participate and is sentenced to a term which permits participation; and

(iii)  the minimum and maximum sentences necessary to permit admission of the offender to each of the available treatment programs.

(B)(i)  Except as provided in subdivision (ii) of this subdivision (B), the department shall provide a report to the court under this subdivision within 30 days after it is ordered.

(ii)  If the department requires a psychosexual evaluation in order to determine whether the offender will be admitted into any of the available treatment programs, the department shall complete the evaluation and provide it to the court along with its report within 45 days after the report is ordered.

(d)  The requirement that a presentence investigation be performed pursuant to subsection (a) of this section:

(1)  may be waived if the court finds that a report is not necessary for purposes of sentencing; and

(2)  shall not be interpreted to prohibit the performance of a presentence investigation, psychosexual evaluation, or risk assessment at any other time during the proceeding, including prior to the entry of a plea agreement or prior to sentencing for a violation of probation.

Sec. 16.  REPORT

On or before January 15, 2007, the commissioner of corrections and the court administrator shall jointly submit a report to the chairs of the house and senate committees on judiciary, government operations, and appropriations.  The report shall assess the advisability and feasibility of transferring responsibility for presentence investigations from the department of corrections to the department of judiciary, and recommend whether such a transfer should be made.  The court administrator and the commissioner may designate appropriate personnel to prepare the report and to conduct whatever investigation they deem necessary to make the assessment and recommendation required by this section.

Sec. 17.  APPROPRIATION

Notwithstanding any other provision of law, the unused balance of the $50,000.00 appropriation made to the department of corrections pursuant to Sec. 11 of No. 79 of the Acts of 2005 shall be used by the department for the purpose of funding the presentence investigations required by section 204a of Title 28.  This appropriation shall be used only for the purposes defined in this section, and any unexpended balance of this appropriation shall carry forward and not be reverted to the general fund.  The department of corrections shall include in its annual budget proposal for fiscal year 2007 and thereafter an allocation to fund these investigations.  The annual allocation shall be estimated based on the need for such investigations experienced in the current and previous two fiscal years.


* * * Treatment * * *

Sec. 18.  13 V.S.A. § 3272 is added to read:

§ 3272.  TREATMENT

(a)(1)  The general assembly finds that placing a sex offender in prison without treatment increases the likelihood that the offender will commit more sex crimes after release.

(2)  In order to decrease the likelihood that sex offenders reoffend after release, the general assembly requests the department of corrections to consider and research the effectiveness of providing sex offender programming and treatment immediately after incarceration.

(b)  The department of corrections shall provide sex offender programming and treatment to all persons incarcerated on a conviction of one of the following offenses:

(1)  lewd and lascivious conduct in violation of section 2601 of this title;

(2)  lewd and lascivious conduct with a child in violation of section 2602 of this title;

(3)  sexual assault in violation of section 3252 of this title;

(4)  aggravated sexual assault in violation of section 3253 of this title;

(5)  an offense involving sexual exploitation of children in violation of chapter 64 of this title; or

(6)  sexual abuse of a vulnerable adult in violation of section 1379 of this title.

(c)  The department shall have discretion to determine the appropriate form and level of programming and treatment for each offender.

(d)  This section shall not be interpreted to have any effect on the availability or provision of programming or treatment for sex offenders who are not incarcerated. 

* * * Community Reintegration * * *

Sec. 19.  13 V.S.A. § 3273 is added to read:

§ 3273.  COMMUNITY REENTRY; PRERELEASE PLANNING

(a)  Consistent with section 721 of Title 28, the department of corrections shall jointly establish with the community of planned residence a community reentry support team for all offenders designated as high risk under section 5411b of this title.  The department, the reentry support team, and the offender shall jointly begin developing a release plan for each offender subject to this subsection beginning at least 12 months prior to the offender’s release.  The department shall designate a person to oversee the creation of prerelease plans developed under this section and to review completed plans. 

(b)  A release plan developed under this section shall be individually tailored for each offender, shall describe in detail the community reentry programming planned for the offender, and shall include provisions addressing:

(1)  the appropriate residence for the offender;

(2)  postrelease treatment;

(3)  the community support and accountability network available to the offender; and

(4)  potential employment for the offender, including job and skills training.

(c)  A release plan developed under this section shall include a plan for victim safety developed jointly by the department and any known victim desiring to participate.  A plan developed pursuant to this subsection shall include victim wraparound services when practicable and desired by the victim.

(d)  Notwithstanding the provisions of chapter 25 of Title 3, the department shall develop an internal directive to implement the provisions of this section. 

Sec. 20.  REPORT

On or before January 15, 2007, the department of corrections shall provide to the house and senate committees on judiciary and on institutions a plan for expansion of the individualized offender reentry program required by Sec. 19 of this act to encompass all sex offenders.  The plan required by this section shall include:

(1)  a recommendation for which offenders should qualify for the expanded program;

(2)  an itemization of any new resources needed to implement the expanded program; and

(3)  a goal of implementing the expanded program by July 1, 2007. 

Sec. 21.  EFFECTIVE DATE

This act shall take effect on passage.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us