Dick Sears

State Sen. Dick Sears of Bennington talks during a committee meeting at the Statehouse in Montpelier in January of 2020.

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MONTPELIER — A bill updating Vermont’s sexual assault law is scheduled to be taken up again by the Senate Judiciary Committee on Wednesday, with the hope that revised language on consent will allow the bill to move forward.

The bill, H.183, was passed by the House by voice vote in March. It would update state law to clarify that sexual consent cannot be granted “when the other person is incapable of consenting to the sexual act due to substantial impairment by alcohol, drugs, or other intoxicants and that condition is known or reasonably should be known by the person.”

But members of the committee raised questions about the House definition of consent, and whether it needed to be rewritten.

The way those questions were raised troubled supporters of the bill in the House, who were concerned that the bill might be delayed until next year, or that important pieces of the bill might be shed in the process.

Supporters including the bill’s primary sponsor, Rep. Sarah Copeland Hanzas, and Speaker Jill Krowinski, reacted to Sen. Dick Sears’ acknowledgement while considering options that he was “fried,” and to Sen. Philip Baruth’s comments about the Senate needing to re-work the House’s bill language on a short turnaround.

“I guess it depends on whether we think it’s important for the survivor who is raped tomorrow or next month or in August to go unrecognized, and to continue to see a lack of justice,” Copeland Hanzas told VTDigger.org.

But advocates and lawmakers defended the process as both expected and necessary, given the importance of getting it right — and said so during Friday’s hearing, and the days that followed.

“While we supported the language the House ultimately passed we very much always expect [the Senate] to take a fresh look at any bill they get and consider it. That’s exactly what’s happening in the Senate right now,” said Sarah Robinson, the deputy director of the Vermont Network Against Domestic and Sexual Violence.

During the hearing, Robinson had suggested the committee table the consent language for summer study and approve the remainder.

“Changes to consent law are not something we can afford to get wrong,” Robinson said Tuesday. “Our priority is ensuring that whatever changes the legislature makes are well informed and were clear about the impact about those changes are going to have on victims and survivors.”

Sears, D-Bennington, pointed out that the committee committed to reworking the consent language and moving the bill to the Senate floor.

“You’re talking about crimes with a three-year minimum and lifetime maximum or a 10-year minimum and a lifetime maximum. We want to make sure we get it right and not end up having people who are not guilty convicted of crimes because we made a mistake,” Sears said Monday. “So the consent issue is very important to get it right. I think we can do that. “

SENSE OF URGENCY

Friday, Sears, said though the bill “has a lot of reasonableness,” there were areas where it needs work — including a clause that allows the courts to consider the “totality of the circumstances” in sexual assault cases.

After looking at the House’s proposed language (which, according to Copeland Hanzas is based on a military definition), and considering wording used by other states, Sears voiced frustration with the process.

“I understand what people are trying to get at here,” Sears said as committee members and legislative counsel Michele Childs listened and read the various state statutes.

“I like Oklahoma,” Sears added, referring to that state’s consent statute. “But you say if we use Oklahoma, we confuse [Vermont] case law.”

Childs replied that the committee could hear from prosecutors, defense lawyers and survivor advocates to find out if that was the case. And then Sears acknowledged the process had ground him down.

“I’m fried, to be honest with you,” he said.

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Baruth said he empathized with Sears.

“I feel as though it’s not unusual for the House to put us in a position where we get things that are controversial or tough to deal with and we have no time left,” Baruth said. ”I feel like this bill needs more work.”

By the end of the session, the committee had agreed to have Washington County State’s Attorney Rory Thibault and Childs revise the consent definition.

They had also heard from Robinson, and from David Scherr of Vermont Attorney General T.J. Donovan’s office. Scherr advised the committee to take its time, saying “significant changes to consent definition happening quickly would be of concern to our criminal division with respect to potential unintended consequences.”

Sunday, Senate President Pro Tem Becca Balint said she spoke with Sears and with stakeholders about the situation, and that Sears had been reaching out to constituents over the weekend.

“What [Sears] meant was, it was the end of the week, we’ve been dealing with a lot of hard topics,” Balint said of his “fried” comment. “And so he is committed to taking up the bill and working with the chair on the House Judiciary Committee, Maxine Grad, to get to get a bill out of committee and onto the floor before the end of the session.”

She echoed Sears in saying no one wants to make a mistake in criminal statute that leads to unintended consequences. She also understands how survivors of sexual assault, and supporters of the bill, feel about a potential delay.

“I know for survivors of sexual trauma, whatever we do is not going to be fast enough. I know that and I think that’s what weighs on so many of us is that it feels like it’s coming too late,” Balint said. “Unfortunately it is the downside of the legislative process. It’s slow going, it’s messy. It takes all kinds of twists and turns and people in moments lose faith that we’re going to be able to get it done. But I think we will.”

Copeland Hanzas said Monday if the Legislature were meeting in person, she has “no doubt” a cafeteria conversation could arrive at the correct language quickly.

That said, “Too many sexual assault survivors are told they have no avenue for justice because they had been drinking. And to put it a little more bluntly, too many young men believe it’s okay to rape women who are intoxicated or passed out, because there’s little chance of being caught,” Copeland Hanzas added. “I can’t even fathom why the urgency of getting this corrected doesn’t seem to weigh into the conversation.”

CONSENT RECONSIDERED

The bill seeks to update the definition of sexual consent, and make explicit in the law that consent cannot be given when a person is under the influence of alcohol or other drugs, or otherwise incapable. It also specifies that lack of resistance does not constitute consent, and neither does submission resulting from intimidation or force.

Also included in the bill are funds for expanding access to forensic nursing for sexual assault survivors, a data collection requirement to chart the incidence of sexual assaults, and an Intercollegiate Sexual Violence Prevention Council to create a coordinated response to campus sexual assaults in Vermont.

Baruth was skeptical that the council needed seven years or state funding, as proposed by the House, to do that work. Robinson said she hoped the Senate would keep it, as did Copeland Hanzas.

“Suggesting that there is no role for the state to play in asking higher education institutions to convene an ongoing effort to prevent sexual assault is just plain cruel. You don’t have to ask more than a handful of college-age women to understand that sexual assault is rampant,” she said, adding that the impact of those assaults is often serious and long-lasting.

Rep. Sara Coffey, D-Windham 1, an additional sponsor of the bill and a co-chair of the women’s caucus, was pleased to see the bill will be taken up again Wednesday.

“It’s an extremely important piece of legislation. And, and we have to remember why we’re here. Because, as women, and as mothers of daughters, we know that there are issues around date rape,” Coffey said.

“I really hope that they can hold on to the meat of the matter, which is defining consent,” she added. “I think it would be unfortunate if they pass something that didn’t have that in it. But I hope that they will.”

Greg Sukiennik covers Vermont government and politics for New England Newspapers. Reach him at gsukiennik@reformer.com.

Greg Sukiennik has worked at all three Vermont News & Media newspapers and was their managing editor from 2017-19. He previously worked for ESPN.com, for the AP in Boston, and at The Berkshire Eagle in Pittsfield, Mass.