MONTPELIER — A bill intended to update the state’s sexual assault criminal statute with a new definition of consent accounting for the role of alcohol and other drugs is on course to be voted out of the Senate Judicial Committee on Friday.
The bill, H. 183, had a questionable future when the Committee last discussed it on Friday. Lawmakers were frustrated with the language in the House proposal. That frustration was not well-received by the bill’s House supporters.
But a second effort, and some inspiration from a state thousands of miles away, have revived the bill’s prospects for passage as the session wanes. Over the weekend, legislative counsel Michele Childs and Washington County State’s Attorney Rory Thibault worked on updating the bill with consent language adopted from Oklahoma’s criminal statute.
Committee members liked the language, adopted in 2016, because they found it direct and unambiguous on the question of consent.
The bill’s provisions for increased forensic nursing and data collection on sexual assaults appeared likely to make the cut when the bill is voted on Friday morning. But a proposed intercollegiate sexual assault council, which Sen. Philip Baruth indicated Friday he does not support, seems unlikely to be included.
As the bill passed the House, sexual consent was defined as “words or actions by a person indicating a knowing and voluntary agreement to engage in a sexual act.” That’s nearly the same as the current statute, with the only change the additional word “knowing.”
The House version also proposed multiple instances of when consent cannot be given: When the person lacks understanding of consent, is impaired by alcohol and other drugs, or as a result of physical force or intimidation.
The Oklahoma-inspired language now before the committee defines consent as “words or actions by a person indicating a voluntary agreement to engage in a sexual act the affirmative, unambiguous and voluntary agreement to engage in a sexual act or conduct defined under section 2601 of this title which can be revoked at any time.”
Baruth, D-Chittenden, preferred the new approach.
“If there is any lack of clarity or any doubt about a person’s ability to consent the act can’t go forward,” he said of the Oklahoma language. “It’s not only a ‘yes’ and voluntary, it’s clear between the parties.
“My problem with the first draft was articulating throughout what consent was not,” Baruth added. “That work was very important and it was half the equation. But it kept pointing me back to the need to update the consent language with the affirmative statement of what consent is. I think this does that in an efficient way.”
As was the case Friday, when the committee last discussed the bill, Assistant Attorney General David Scherr said the office is concerned changes to the consent definition would affect current prosecutions.
“It may be that the proposal is exactly the right way to move forward. But before we feel comfortable saying that we would need to do a lot more research on how this has operated in fact,” Scherr said.
But Baruth and committee chairperson Sen. Dick Sears, D-Bennington, indicated they wanted to move the bill forward. And when Sen. Jeanette White, D-Windham, suggested that the bill could be voted out without that new definition, Sears made clear it was a must.
“The current law governing consent is over 40 years old. We would be leaving that alone if we didn’t change section 1,” Sears said. “I thought that was one of the most important things we should be doing.”
Sarah Robinson, deputy director of the Vermont Network Against Domestic and Sexual Violence, also appreciated the inclusion of “unambiguous language” as well as the understanding that consent can be revoked at any time. “On the face of it this could be a marked improvement over the current definition.”
But Robinson and Thibault offered warnings that a “totality of the circumstances” clause was unnecessary because it is already part of established court procedure. That clause could allow for the introduction of evidence such as what the victim was wearing or their sexual history, Robinson said.
Committee member Sen. Joe Benning, R-Caledonia, a defense lawyer, advocated for including that language. “I understand [Robinson] has concerns, but I don’t want to hamstrung some quirky factual circumstance I should be able to argue in front of a jury that rational consent was given.”
Sears indicated the committee would vote on that decision Friday, and then vote to move out the bill. He also expects that the House and Senate versions of the bill might proceed to a conference committee, which would be tasked with reaching a compromise.