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Sec

H.856

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 INTENT

The general assembly intends that any increase in the rate of incarceration of sexual offenders caused by this act be offset by a decrease in the rate of incarceration of nonviolent offenders.

Sec. 3.  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 this restructuring of 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. 4.  SEXUAL VIOLENCE PREVENTION TASK FORCE

(a)  The general assembly acknowledges that many diverse organizations in Vermont currently provide sexual violence prevention education in Vermont schools with minimal financial support from the state.  In order to further the goal of comprehensive, collaborative statewide sexual violence prevention efforts, the antiviolence partnership at the University of Vermont shall convene a task force to identify opportunities for sexual violence prevention education in Vermont schools.  The task force shall conduct an inventory of sexual violence prevention activities currently offered by Vermont schools and by nonprofit and other nongovernmental organizations, and shall provide information to them concerning the changes to law made by this act and concerning the consequences of sexual activity among minors.

(b)  The task force established by this section shall include representatives from:

(1)  The department of education.

(2)  The department of health.

(3)  The department for children and families.

(4)  The judiciary.

(5)  An organization which works with youthful sex offenders.

(6)  Prevent child abuse-Vermont.

(7)  The Vermont network against domestic and sexual violence.

(8)  The Vermont center for prevention and treatment of sexual abuse.

(9)  The Vermont children’s alliance.

(10)  The University of Vermont college of education and social services.

(c)  On or before January 15, 2007, and on or before January 15 for five years thereafter, the task force shall report on its activities during the preceding year to the house and senate committees on education and judiciary.  The task force shall cease to exist after it files the report due on January 15, 2012.

* * * Investigation * * *

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, and in collaboration with law enforcement agencies, investigative agencies, victims’ advocates and social service providers, the department of state’s attorneys and sheriffs shall coordinate efforts to provide access in each region of the state to special investigative units to investigate sex crimes, child abuse, domestic violence, or crimes against those with physical or developmental disabilities.  The general assembly intends that access to special investigative units be available to all Vermonters as soon as reasonably possible, but not later than July 1, 2009.

(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.  Any employee covered by an agreement establishing a special investigative unit shall remain an employee of the donor agency.

(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.  Preference shall be given to grant applications which include the participation of the department of public safety, the department for children and families, and municipalities within the region.  

(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.

* * * Sentencing * * *

Sec. 6.  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. 7.  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. 8.  13 V.S.A. § 2602 is amended to read:

§ 2602.  LEWD OR LASCIVIOUS CONDUCT WITH CHILD

(a)(1)  No person shall willfully 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.

(2)  This section shall not apply if the person is less than 19 years old, the child is at least 15 years old, and the conduct is consensual.

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

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

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

(3)  For a third or subsequent offense, imprisoned not less than three ten years and up to and including a maximum term of life or, and, in addition, may be fined not more than $25,000.00, or both. 

(c)(1)  Except as provided in subdivision (2) of this subsection, a sentence ordered pursuant to subdivision (b)(2) of this section shall include at least a five-year term of imprisonment and a sentence ordered pursuant to subdivision (b)(3) of this section shall include at least a ten-year term of imprisonment.  The five-year and ten-year terms of imprisonment required by this subdivision shall be served and may not be suspended, deferred, or served as a supervised sentence.  The defendant shall not be eligible for probation, parole, furlough, or any other type of early release until the expiration of the five-year or

ten-year term of imprisonment.

(2)  The court may depart downwardly from the five-year and ten-year terms of imprisonment required by subdivisions (b)(2) and (3) of this section and impose a lesser term of incarceration if the court makes written findings on the record that the downward departure will serve the interests of justice and public safety.

(d)  A person convicted of violating subdivision (b)(2) or (3) of this section shall be sentenced under section 3271 of this title.

Sec. 9.  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.

(c)  This section shall not apply if the person is less than 19 years old, the child is at least 15 years old, and the conduct is consensual.

Sec. 10.  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:

(1)  where the persons are married to each other and the sexual act is consensual; or

(2)  where the person is less than 19 years old, the child is at least 15 years old, and the sexual act is consensual.

(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, and, in addition, may be fined not more than $25,000.00.

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

(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) subsection 3252(a) or (b) 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) subsection 3252(a) or (b) 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 ten years and a maximum term of life or, and, in addition, may be 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)(1)  Except as provided in subdivision (2) of this subsection, a sentence ordered pursuant to subsection (b) of this section shall include at least a ten‑year term of imprisonment.  The ten-year term of imprisonment required by this subdivision shall be served and may not be suspended, deferred, or served as a supervised sentence.  The defendant shall not be eligible for probation, parole, furlough, or any other type of early release until the expiration of the five-year or ten-year term of imprisonment.

(2)  The court may depart downwardly from the ten-year term of imprisonment required by subsection (b) of this section and impose a lesser term of incarceration if the court makes written findings on the record that the downward departure will serve the interests of justice and public safety, provided that in no event may the court impose a term of incarceration of less than five years.

(d)  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 offenses 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 subsection 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. 11.  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. 12.  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)  shall include a psychosexual evaluation if so ordered by the court; 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 minimum and maximum sentences necessary to permit admission of the offender to any of the available treatment programs; and

(ii)  the results of a pre-assessment of the offender.

(B)  A pre-assessment under this subdivision shall consist of:

(i)  an interview with the defendant;

(ii)  an assessment of the offender’s risk level;

(iii)  completion of testing and any other steps necessary to make an appropriate programming decision for the defendant;

(iv)  identification of the treatment program within a correctional facility to which the offender will be referred based on the information available at the time of sentencing, provided the defendant agrees to treatment and is sentenced to a term which permits participation in the program.

(C)(i)  Except as provided in subdivision (ii) of this subdivision (C), the department shall provide a report to the court under this subdivision within 60 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 90 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.

(e)  Nothing in this section shall be construed to infringe in any manner upon the department’s authority to make decisions about programming for defendants or to create a right on the part of the offender to receive treatment in a particular program. 

* * * Treatment * * *

Sec. 13.  REPORT

On or before January 15, 2007, the department of corrections shall report to the corrections oversight committee:

(1)  the total current resources and expenditures allocated for providing sex offender programming and treatment to incarcerated offenders;

(2)  the resources and expenditures necessary to provide sex offender programming and treatment to all incarcerated offenders who are amenable to treatment; and

(3)  any significant programmatic changes, including but not limited to elimination of a program. 

* * * Community Reintegration * * *

Sec. 14.  13 V.S.A. § 3272 is added to read:

§ 3272.  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. 

(e)  This section shall not be construed to affect in any way the department’s duty to develop and implement plans for offenders to return to the community under subsection 1(b) of Title 28. 

Sec. 15.  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. 14 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.

* * * Vermont Sentencing Commission * * *

Sec. 16.  13 V.S.A. chapter 169 is added to read:

Chapter 169.  VERMONT SENTENCING COMMISSION

§ 5451.  CREATION OF COMMISSION

(a)  The Vermont sentencing commission is established for the purpose of overseeing criminal sentencing practices in the state, reducing geographical disparities in sentencing, and making recommendations regarding criminal sentencing to the general assembly.

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

(1)  the chief justice of the Vermont supreme court or designee;

(2)  the administrative judge or designee, provided that the designee is a sitting or retired Vermont judge;

(3)  a district or superior court judge with substantial criminal law experience appointed by the administrative judge;

(4)  the chair of the senate committee on judiciary;

(5)  the chair of the house committee on judiciary;

(6)  the attorney general or designee;

(7)  the defender general or designee;

(8)  the executive director of the department of state’s attorneys and sheriffs or designee;

(9)  the appellate defender;

(10)  a state’s attorney appointed by the executive director of the department of state’s attorneys and sheriffs;

(11)  a staff public defender with experience in juvenile defense matters appointed by the defender general;

(12)  an attorney with substantial criminal law experience appointed by the Vermont bar association;

(13)  the commissioner of corrections or designee;

(14)  the commissioner of public safety or designee;

(15)  the executive director of the Vermont center for crime victim services or designee;

(16)  the executive director of the Vermont center for justice research; and

(17)  one member of the public appointed by the governor.

(c)  The chief justice shall appoint a chair and vice chair of the commission.  Legislative members of the commission shall serve only while in office.  A substitute shall be appointed for a legislator who no longer serves in such capacity.  All other members of the commission shall serve on the committee for renewable two-year terms for as long as the member continues to hold the position which made the member eligible for appointment to or membership on the committee.  Vacancies shall be appointed in the same manner as original appointments.

(d)  The commission shall meet at least quarterly and at any additional times at the call of the chair.  The commission shall take minutes of its meetings and may hold public hearings.  Ten members of the commission shall constitute a quorum.

(e)  The commission shall have the assistance and cooperation of the judiciary, the department of public safety, the department of corrections, the department for children and families, the department of state’s attorneys and sheriffs, the office of defender general, the Vermont center for crime victim services, and all other state and local agencies and departments. 

(f)  Legislative members of the commission shall be entitled to per diem compensation and reimbursement for expenses in accordance with section 406 of Title 2.  Members of the commission who are not otherwise compensated by their employer shall be entitled to per diem compensation and reimbursement for expenses in the same manner as board members are compensated under section 1010 of Title 32.

§ 5452.  DUTIES

(a)  In addition to the general responsibilities set forth in section 5451 of this title, the commission shall:

(1)  Report on historical and existing sentencing practices in Vermont, including the frequency and duration of incarcerative and nonincarcerative sentences for particular offenses.

(2)  Report on geographical sentencing disparities which result in a defendant’s sentence for an offense varying substantially on the basis of the county in which it is committed.

(3)  Propose a system of statewide discretionary sentencing ranges which take into account historical and existing sentencing practices and establish rational and consistent statewide sentencing standards. 

(4)  Review alternatives to the traditional prosecutorial model and make recommendations for alternative sentencing methods to the general assembly.

(5)  Review practices involving probation, parole, early or conditional release, pre-approved furlough, supervised community sentence, graduated sanctions, and the awarding of sentencing credits, and make recommendations concerning such practices to the department of corrections and the general assembly.

(6)  Review developments in criminal law, including statutory modifications and judicial decisions, and make recommendations to the general assembly when the commission determines that legislative changes are advisable.

(7)  Review proposed legislation and make recommendations concerning the proposals to the general assembly.

(8)  Consider any other issue the commission finds relevant to criminal sentencing and the criminal justice system.

(b)  The commission shall report its activities and recommendations, including any proposals for legislative action, to the general assembly and the governor no later than December 1, 2007, and no later than December 1 of each year thereafter.

* * * Nonviolent Offenders * * *

Global Positioning System

Sec. 17.  Sec. 23 of No. 63 of the Acts of 2005 is amended to read:

Sec. 23.  ELECTRONIC MONITORING

(a)  The department of corrections is authorized to implement a pilot program using a global positioning system (“GPS”) or other similar technology within the community pursuant to the terms of the plan submitted by the department to the house committees on appropriations and institutions in January 2005 (the “pilot program”); provided that the pilot program may only involve:

(1)  20 100 offenders at any one time.

(2)  Offenders convicted of D.U.I. pursuant to Title 23 and nonviolent offenders who might otherwise be incarcerated for violating the conditions of their release.

(b)  When the department of corrections determines that an offender shall be subject to electronic monitoring under this subsection, the department shall provide notice of its determination to the victim of the offense, if the victim has filed a request for notification with the department.

(c)  On or before January 15, 2006, 2007, the commissioner of corrections shall report to the house and senate committees on appropriations and on judiciary regarding the department’s progress in implementing the pilot program.

* * * Term Probation for Nonviolent Felons * * *

Sec. 18.  28 V.S.A. § 205 is amended to read:

§ 205.  PROBATION

(a)(1)  After passing sentence, a court may suspend all or part of the sentence and place the person so sentenced in the care and custody of the commissioner upon such conditions and for such time as it may prescribe in accordance with law or until further order of court.

(2)  The term of probation for misdemeanors shall be for a specific term not to exceed two years unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.

(3)(A)  The term of probation for nonviolent felonies shall not exceed the statutory maximum term of imprisonment for the offense unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.

(B)  As used in this subdivision, “nonviolent felonies” means an offense which is not:

(i)  a listed crime as defined in subdivision 5301(7) of Title 13; or

(ii)  an offense involving sexual exploitation of children in violation of chapter 6 of Title 13.

(4)  Nothing in this subsection shall prevent the court from terminating the period of probation and discharging a person pursuant to section 251 of this title.

(5)  The probation officer of a person on probation for a specific term shall review the person’s case file during probation and, not less than 45 days prior to the expiration of the probation term, may file a petition with the court requesting the court to extend the period of probation for a specific term not to exceed one year in order to provide the person the opportunity to complete programming consistent with special conditions of probation.  A hearing on the petition for an extension of probation under this subsection shall comply with the procedures set forth in Rule 32.1 of the Vermont Rules of Criminal Procedure.

* * *

* * * Early Assignment of Counsel

for Indigent Nonviolent Defendants * * *

Sec. 19.  INDIGENT DEFENDANTS; NONVIOLENT OFFENSES; EARLY

              ASSIGNMENT OF COUNSEL; REPORT

On or before January 15, 2007, designees from the defender general, the department of state’s attorneys and sheriffs, the court administrator’s office, and the Vermont bar association shall report to the senate and house committees on judiciary on the most effective ways to provide counsel before arraignment to nonviolent, indigent defendants who have a substance abuse problem.

* * * Sex Offender Registry

Violation of Registry Requirements (S.184) * * *

Sec. 20.  Rule 3 of the Vermont Rules of Criminal Procedure is amended to read:

Rule 3.  Arrest Without a Warrant; Citation to Appear

* * *

(c)  Nonwitnessed Misdemeanor Offenses.  If an officer has probable cause to believe a person has committed or is committing a misdemeanor outside the presence of the officer, the officer may issue a citation to appear before a judicial officer in lieu of arrest.  The officer may arrest the person without a warrant if the officer has probable cause to believe: 

* * *

(17)  The person is a sex offender who has failed to comply with the provisions of subchapter 3 of chapter 167 of Title 13 (sex offender registration and notification).

Sec. 21.  13 V.S.A. § 5408 is amended to read:

§ 5408.  RECORD OF ADDRESSES; ARREST WARRANT

(a)  The department shall maintain a record of the addresses of all sex offenders.  The record shall be updated at least every three months. At any time, if the department is unable to verify the whereabouts and address of a sex offender subject to this subchapter, it shall immediately notify the local law enforcement agency in writing that the sex offender’s whereabouts are unknown.  The department shall also send a copy of the notification to the state’s attorney of the county in which the sex offender’s most recent address is located.

(b)  A sex offender’s failure to report a change of address as required by this subchapter shall be grounds to issue a warrant for the arrest of the sex offender and the provisions of Rule 3 of the Vermont Rules of Criminal Procedure shall not apply to such an arrest.

Sec. 22.  13 V.S.A. § 5409 is amended to read:

§ 5409.  PENALTIES

(a)  A Except as provided in subsection (b) of this section, a sex offender who knowingly fails to comply with any provision of this subchapter shall:

(1)  Be imprisoned for not more than two years or fined not more than $1,000.00, or both.  A sentence imposed under this subdivision shall run consecutively to any sentence being served by the sex offender at the time of sentencing.

(2)  For the second or subsequent offense, be imprisoned not more than three years or fined not more than $5,000.00, or both.  A sentence imposed under this subdivision shall run consecutively to any sentence being served by the sex offender at the time of sentencing.

(b)  A sex offender who knowingly fails to comply with any provision of this subchapter for a period of more than five consecutive days shall be imprisoned not more than five years or fined not more than $5,000.00, or both.  A sentence imposed under this subsection shall run consecutively to any sentence being served by the sex offender at the time of sentencing.

* * * Addresses * * *

Sec. 23.  13 V.S.A. § 5411(c)(3) is added to read:

(3)(A)  The department, the department of corrections, and any authorized local law enforcement agency may, at the discretion of an authorized law enforcement officer, release the current address of an offender listed in subdivision (1) of this subsection if the requestor can articulate a concern regarding the requestor’s personal safety or the safety of another, and the requirements of subsection (d) of this section have been satisfied. 

(B)  For purposes of this subdivision, “authorized law enforcement officer” means a sheriff, a chief of police, the commissioner of public safety, the state’s attorney of Essex County, or a designee.  The designee shall be a certified law enforcement officer whose authority is granted or given by the sheriff, chief of police, commissioner of public safety, or state’s attorney of Essex County, either through explicit order or department policy.

* * * Kidnapping with Intent to Commit Sexual Assault;

Registration of Offenders Under Age 18 (S.202) * * *

Sec. 24.  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:

* * *

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

(vi)  kidnapping with intent to commit sexual assault as defined in 13 V.S.A. § 2405(a)(1)(D); and

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

(B)  A person who is convicted of any of the following offenses against a victim who is a minor, except that, for purposes of this subdivision, conduct which is criminal only because of the age of the victim shall not be considered an offense for purposes of the registry if the perpetrator is under the age of 18 and the victim is at least 12 years old:

(i)  any offense listed in subdivision (A) of this subdivision (10);

* * *

* * * High Risk Offender Duty to Report * * *

Sec. 25.  13 V.S.A. § 5407(a)(3) is amended to read:

(3)  within three days after any change of address, or if a person is designated as a high-risk sex offender pursuant to section 5411b of this title, that person shall report to the department within 36 hours;

* * * Community Notification Expansion * * *

Sec. 26.  13 V.S.A. § 5411 is amended to read:

§ 5411.  NOTIFICATION TO LOCAL LAW ENFORCEMENT AND

               LOCAL COMMUNITY

* * *

(c)(1)  Except as provided for in subsection (e) of this section, upon request of a member of the public about a specific person, the department, the department of corrections, and any authorized local law enforcement agency shall release registry information on the following registrants: sex offenders whose information is required to be posted on the internet in accordance with section 5411a of this title.

(A)  Sex offenders who have been convicted of section 3253 of this title (aggravated sexual assault), subdivision 2405(a)(1)(D) of this title if a registrable offense (kidnapping and sexual assault of a child), or 33 V.S.A. § 6913(d)(sexual activity with a vulnerable adult).

(B)  Sex offenders who have at least one prior conviction for an offense described in subdivision 5401(10) of this subchapter or a comparable offense in another jurisdiction.

(C)  Sex offenders who have failed to comply with sex offender registration requirements and for whose arrest there is an outstanding warrant for such noncompliance.

(D)  Sex offenders who have been designated as sexual predators pursuant to section 5405 of this title.

(E)  Sex offenders who have been designated by the department of corrections, pursuant to section 5411b of this title, as high risk.

(2)  The department, the department of corrections, and any authorized local law enforcement agency shall release the following registry information to a requestor in accordance with subdivision (1) of this subsection:

(A)  the offender’s known aliases;

(B)  the offender’s date of birth;

(C)  a general physical description of the offender;

(D)  the offender’s town of residence;

(E)  the date and nature of the offender’s conviction;

(F)  if the offender is under the supervision of the department of corrections, the name and telephone number of the local department of corrections office in charge of monitoring the offender;

(G)  whether the offender complied with treatment recommended by the department of corrections;

(H)  whether there is an outstanding warrant for the offender’s arrest; and

(I)  the reason for which the offender information is accessible under subdivision (1) of this subsection.

* * *

(f)  Registry information shall not be released under this section unless it is released pursuant to written protocols governing the manner and circumstances of the release developed by the department, the department of corrections, or an authorized law enforcement agency.  The protocols shall include consultation between the department or agency releasing the information and the department of corrections’ staff member responsible for supervising the offender.

Sec. 27.  13 V.S.A. § 5411c is added to read:

§ 5411c.  Active community notification by the

                department of public safety, the department of

                corrections, and local law enforcement

(a)  Notwithstanding other provisions to the contrary, the department, the department of corrections, and any authorized local law enforcement agency are authorized to notify members of the public at their discretion about any sex offender whose information is required to be posted on the internet in accordance with section 5411a of this title.

(b)  The department, the department of corrections, and any authorized local law enforcement agency are authorized to notify members of the public at their discretion about a sex offender whose information is not required to be posted on the internet in accordance with section 5411a of this title 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.

(c)  Registry information shall not be released under this section unless it is released pursuant to written protocols governing the manner and circumstances of the release developed by the department, the department of corrections, or an authorized law enforcement agency.  The protocols shall include consultation between the department or agency releasing the information and the department of corrections’ staff member responsible for supervising the offender. 

(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. 28.  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)  The department, the department of corrections, and any authorized local law enforcement agency 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.

* * * Internet Registry; Expansion and Repeat Offenders;

Removal of Log-In Requirement * * *

Sec. 29.  13 V.S.A. § 5411a is amended to read:

§ 5411a.  ELECTRONIC POSTING OF THE SEX OFFENDER REGISTRY

(a)  Notwithstanding sections 2056a–2056e of Title 20, the department shall electronically post information on the internet in accordance with subsection (b) of this section regarding the following sex offenders, upon their release from confinement:

(1)  Sex offenders who have been convicted of a violation of section 3253 of this title (aggravated sexual assault), section 2602 of this title (lewd or lascivious conduct with child) if the offender has been designated as high risk by the department of corrections pursuant to section 5411b of this title, or subdivision 2405(a)(1)(D) of this title if a registrable offense (kidnapping and sexual assault of a child).

(2)  Sex offenders who are convicted of a violation of section 3252 (sexual assault) or 2602 (lewd or lascivious conduct with child) of this title, and who have a prior conviction of a violation of section 3252 (sexual assault) or 2602 (lewd or lascivious conduct with child) of this title. Comparable offenses in another jurisdiction shall be included in this subsection who have at least one prior conviction for an offense described in subdivision 5401(10) of this subchapter.

(3)  Sex offenders who have failed to comply with sex offender registration requirements and for whose arrest there is an outstanding warrant for such noncompliance.  Information on offenders shall remain on the internet only while the warrant is outstanding.

(4)  Sex offenders who have been designated as sexual predators pursuant to section 5405 of this title.

(5)  Sex offenders who have not complied with sex offender treatment recommended by the department of corrections or who are ineligible for sex offender treatment.  The department of corrections shall establish rules for the administration of this subdivision and shall specify what circumstances constitute noncompliance with treatment and criteria for ineligibility to participate in treatment.  Offenders subject to this provision shall have the right to appeal the department of corrections’ determination in superior court in accordance with Rule 75 of the Vermont Rules of Civil Procedure.  This subdivision shall apply prospectively and shall not apply to those sex offenders who did not comply with treatment or were ineligible for treatment prior to March 1, 2005.

(6)  Sex offenders who have been designated by the department of corrections, pursuant to section 5411b of this title, as high-risk.

(b)  The department shall electronically post the following information on sex offenders designated in subsection (a) of this section:

(1)  the offender’s name and any known aliases;

(2)  the offender’s date of birth;

(3)  a general physical description of the offender;

(4)  a digital photograph of the offender;

(5)  the offender’s town of residence;

(6)  the date and nature of the offender’s conviction;

(7)  if the offender is under the supervision of the department of corrections, the name and telephone number of the local department of corrections office in charge of monitoring the sex offender;

(8)  whether the offender complied with treatment recommended by the department of corrections;

(9)  a statement that there is an outstanding warrant for the offender’s arrest, if applicable; and

(10)  the reason for which the offender information is accessible under this section.

(c)  The department shall have the authority to take necessary steps to obtain digital photographs of offenders whose information is required to be posted on the internet and to update photographs as necessary.  An offender who is requested by the department to report to the department or a local law enforcement agency for the purpose of being photographed for the internet shall comply with the request within 30 days.

(d)  An offender’s street address shall not be posted electronically.  The identity of a victim of an offense that requires registration shall not be released.

(e)  Information regarding a sex offender shall not be posted electronically if the conduct that is the basis for the offense is criminal only because of the age of the victim and the perpetrator is within 38 months of age of the victim.

(f)  Information regarding a sex offender shall not be posted electronically prior to the offender reaching the age of 18, but such information shall be otherwise available pursuant to section 5411 of this title.

(g)  Information on sex offenders shall be posted on the internet for the duration of time for which they are subject to notification requirements under section 5401 et seq. of this title.

(h)  Posting of the information shall include the following language:  “This information is made available for the purpose of complying with 13 V.S.A. § 5401 et seq., which requires the Department of Public Safety to establish and maintain a registry of persons who are required to register as sex offenders and to post electronically information on sex offenders.  The registry is based on the legislature’s decision to facilitate access to publicly available information about persons convicted of sexual offenses.  EXCEPT FOR OFFENDERS SPECIFICALLY DESIGNATED ON THIS SITE AS HIGH-RISK, THE DEPARTMENT OF PUBLIC SAFETY HAS NOT CONSIDERED OR ASSESSED THE SPECIFIC RISK OF REOFFENSE WITH REGARD TO ANY INDIVIDUAL PRIOR TO HIS OR HER INCLUSION WITHIN THIS REGISTRY AND HAS MADE NO DETERMINATION THAT ANY INDIVIDUAL INCLUDED IN THE REGISTRY IS CURRENTLY DANGEROUS. THE MAIN PURPOSE OF PROVIDING THIS DATA ON THE INTERNET IS TO MAKE INFORMATION MORE EASILY AVAILABLE AND ACCESSIBLE, NOT TO WARN ABOUT ANY SPECIFIC INDIVIDUAL.  If you have questions or concerns about a person who is not listed on this site or you have questions about sex offender information listed on this site, please contact the Department of Public Safety or your local law enforcement agency. Please be aware that many nonoffenders share a name with a registered sex offender.  IF YOU HAVE QUESTIONS OR CONCERNS ABOUT A PERSON WHO IS NOT LISTED ON THIS SITE OR YOU HAVE QUESTIONS ABOUT SEX OFFENDER INFORMATION LISTED ON THIS SITE, PLEASE CONTACT THE DEPARTMENT OF PUBLIC SAFETY OR YOUR LOCAL LAW ENFORCEMENT AGENCY.  PLEASE BE AWARE THAT MANY NONOFFENDERS SHARE A NAME WITH A REGISTERED SEX OFFENDER.  Any person who uses information in this registry to injure, harass, or commit a criminal offense against any person included in the registry or any other person is subject to criminal prosecution.”

(i)  The department shall post electronically general information about the sex offender registry and how the public may access registry information.  Electronically posted information regarding sex offenders listed in subsection (a) of this section shall be organized and available to search by the sex offender’s name and the sex offender’s county of residence.

(j)  Any member of the public who seeks to access information on specific sex offenders on the sex offender website shall register on the website. Registration information about site users shall not be public.  The website shall require the person’s name and address and shall require the person to acknowledge that he or she has read the following disclaimer:  “THE IDENTIFYING INFORMATION REGARDING A REGISTERED USER OF THIS SITE IS MAINTAINED PURSUANT TO LAW AND IS CONFIDENTIAL AND NOT SUBJECT TO PUBLIC DISCLOSURE. THE INFORMATION IS COLLECTED TO IDENTIFY A PATTERN OR PRACTICE OF MISUSE OF SEX OFFENDER REGISTRATION INFORMATION SUCH AS THE COMMISSION OF A CRIME AGAINST A REGISTERED SEX OFFENDER OR ANY ATTEMPT TO PORTRAY FALSELY AN INDIVIDUAL AS A SEX OFFENDER. USING AND SHARING SEX OFFENDER INFORMATION RESPONSIBLY TO ENSURE THE SAFETY OF YOURSELF, YOUR FAMILY, AND YOUR COMMUNITY IS NOT A PATTERN OR PRACTICE OF MISUSE.”

(k)  The department shall adopt rules for the administration of this section and shall expedite the process for the adoption of such rules.  The department shall not implement this section prior to the adoption of such rules.

(l)(k)  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.

* * * Approval of Residence * * *

Sec. 30.  28 V.S.A. § 710 is added to read:

§ 710.  APPROVAL OF RESIDENCE

(a)  Before approving a residence for a sex offender who is being released from confinement or whom the court has released on a probationary sentence or an alternative sentence under community supervision by the department, the commissioner or the commissioner’s designee shall give careful consideration to the proximity of the residence to any risk group associated with the offender.

(b)  For purposes of this section, “sex offender” shall have the same meaning as in subdivision 5401(10)(B) of Title 13.

* * * Removal from Sex Offender Registry * * *

Sec. 31.  13 V.S.A. § 5411(e) is amended to read:

(e)  After 10 years have elapsed from the completion of the sentence, a person required to register as a sex offender for life pursuant to section 5407 of this title may petition the district court for a termination of community notification, including the internet.  The state shall make a reasonable attempt to notify the victim of the proceeding, and consider victim testimony regarding the petition.  If the registrant was convicted of a crime which requires lifetime registration, there shall be a rebuttable presumption that the person is a high-risk sex offender.  Should the registrant present evidence that he or she is not a high-risk offender, the state shall have the burden of proof to establish by a preponderance of the evidence that the person remains a high risk to reoffend.  The court shall consider whether the offender has successfully completed sex offender treatment.  The court may require the offender to submit to a psychosexual evaluation.  If the court finds that there is a high risk of reoffense, notification shall continue.  The Vermont Rules of Civil Procedure shall apply to these proceedings.  A lifetime registrant may petition the court to be removed from the registry community notification requirements once every 60 months.  The presumption under this section that a lifetime registrant is a high-risk offender shall not automatically subject the offender to increased public access to his or her status as a sex offender and related information under subdivision (c)(1)(E) of this section or section 5411a of this title.

Sec. 32.  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