The first half of the 2021-22 biennium concluded last Friday. Despite legislating remotely, the General Assembly accomplished a great deal. The House Judiciary Committee, on which I serve, had a busy session, moving several important bills through the legislative process, some of which I highlight here.  

            Addressing Sexual Assault in Vermont:  The legislature passed H.183, which revises and clarifies our laws addressing consent to sexual activity, including the impact of alcohol consumption. The law will eliminate confusion as to when consent to sexual activity has not or cannot be given. The bill also creates a Campus Sexual Harm Task Force to confront the high number of sexual assaults that take place on our college campuses.

Eliminating the “Trans Panic Defense”:  In some states, courts have allowed defendants to rely on a “trans panic defense” to have assault charges against them lessened or dismissed altogether. The defense is a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction towards the victim.  Act 18 prohibits the use of such a defense in Vermont.

Penalties for Hate-motivated Crimes: Act 34 updates Vermont’s response for crimes motivated by hate, which provides an enhanced penalty that a prosecutor can charge in addition to the underlying crime. To apply the enhancement, the law had provided that a prosecutor must prove that a crime was maliciously motivated by the victim’s race, color, religion, national origin, sex, ancestry, age, service in the U.S. Armed Forces or the National Guard, disability, sexual orientation, gender identity, or perceived membership in any such group. Act 34 eases the burden for prosecutors by providing that the person need not be maliciously motivated; rather the person need be simply motivated in whole or in part by the victim’s inclusion in one of the protected categories.

Clarifying Police Use of Force: Last year, the legislature enacted Acts 147 and 165 that together provided statutory standards for police use of force, including lethal force. This year, the legislature passed Act 27, which clarified that law enforcement may use chokeholds only when lethal force is justified. Under the law, before use of a chokehold or other deadly force can be justified, its use must be objectively reasonable and necessary to defend against an imminent threat of death or serious bodily injury and there must be no reasonable alternative to the use of deadly force to prevent death or serious bodily injury. The use of a chokehold must cease as soon as the subject no longer poses an imminent threat of death or serious bodily injury.

Mental Health and Criminal Justice:  The legislature passed S.3, which clarifies provisions related to court proceedings in criminal cases that address either the defendant’s sanity at the time the offense was committed or the defendant’s competency to stand trial for the offense.  Under current law, if an individual is found not guilty by reason of insanity or incompetent to stand trial and is a danger to self or others, the person is committed to the custody of the Department of Mental Health for treatment.  Current law provides no way for the crime victim to be made aware when the person returns to the community. S.3 closes that gap by creating a system of victim notification in these cases.  In addition, the bill creates a forensic working group to identify gaps in mental health coverage and procedures in Vermont’s criminal justice system and to make recommendations as to whether a new forensic treatment facility is necessary to house individuals who have been committed to the custody of the Department of Mental Health.

Punishing Sexual Exploitation of Children: Act 29 makes simulation of sexual conduct with a child illegal. Before Act 29 became law, explicit depictions of sexual exploitation of children were illegal only if physical contact is shown. Material that suggested sexual exploitation, but where the child and adult are inches apart or where the camera angle is such that physical contact is implied but not visible, was not against the law. Act 29 makes such conduct a crime. The Judiciary Committee worked on additional bills that the legislature passed, including Act 26 repealing the statute of limitations for civil actions based on childhood physical abuse and H.87 establishing a classification system for criminal offenses.

The following is the report that I delivered on the floor of the House for Senate bill S.3.

S. 3 contains a number of provisions related to court proceedings in criminal cases that address either: (1) the defendant’s sanity at the time the offense was committed; or (2) the defendant’s competency to stand trial for the offense.

The first point to understand about S.3 is that while the insanity defense and a defendant’s competency to stand trial both concern a criminal defendant’s mental health status, the two concepts are very different. 

The insanity defense concerns the defendant’s mental health status at the time the offense was committed. A person is not guilty by reason of insanity if, as the result of a mental illness, the person either could not understand that their conduct was criminal or could not conform their conduct to the requirements of the law.  It is a complete defense if a person is found not guilty by reason of insanity; the person is not guilty and cannot be charged with the crime again.

A defendant’s competency to stand trial is different. It concerns the defendant’s mental health status at the time of the trial, not at the time the offense was committed.  And the standard is different. A defendant is incompetent to stand trial if they are unable to understand the criminal charges or are unable to participate meaningfully in their own defense.  Also, unlike the insanity defense, a person found incompetent to stand trial can be brought to trial for the offense later, after the person regains competency. 

Current law describes in great detail the court procedures related to both the insanity defense and competency to stand trial.  S.3 proposes several amendments to these procedures.  I’ll explain the first three sections of the bill chronologically, in the order in which the procedures occur when sanity or competency are at issue.

Section 1 of S.3 can be found on page 2417 of today’s calendar.  This section deals with the psychiatric examinations that must occur when the question of the defendant’s sanity or competency has been raised in a criminal proceeding. There are separate examinations, one for sanity at the time of the offense and one for competency to stand trial. The current statute requires that both examinations take place, so there must be an evaluation of both the defendant’s sanity and the defendant’s competency.

Because sanity and competency are two different questions, however, it is common for only one of them to be raised in a particular case.  Subsection (a) rewords the statute to make clear that there may be examinations that evaluate the defendant’s sanity, or the defendant’s competency, or both.

Subdivision (c)(1) clarifies that the examinations will be conducted either by: (1) a psychiatrist (if the person‘s insanity or incompetency is the result of a mental illness); or (2) a psychiatrist and a psychologist (if the person‘s insanity or incompetency is the result of a developmental disability).  

This subdivision also addresses who receives the report after the examination is completed. Currently, the report goes to the State’s Attorney and the respondent’s attorney if the respondent is represented by counsel.  The bill expands the distribution list to include the respondent, the Commissioner of Mental Health and the Department of Disabilities, Aging, and Independent Living, or DAIL.

Subdivision (c)(2) addresses those cases where issues have been raised regarding both the defendant’s sanity at the time of the offense and the defendant’s competency to stand trial, and the court has ordered an examination on each one. In these cases, Subdivision (c)(2) requires that an examination of the defendant’s sanity should only be undertaken if the defendant is first found competent to stand trial, unless the defendant requests that the examinations occur concurrently. This language follows model language established by the American Bar Association.

If the sanity evaluation does not occur at the same time as the competency evaluation, the provision requires the psychiatrist or psychologist to make a reasonable effort to collect and preserve any evidence necessary to form an opinion as to sanity. If the defendant does regain competency to stand trial in the future, a sanity evaluation may then be required to determine whether the defendant may be not guilty by reason of insanity.  This provision ensures that, at that time, necessary evidence has been preserved for the sanity evaluation.

Section 2

In Section 2, we move to the next step of the proceedings.  This section concerns the court proceeding required after a defendant has been found either to have been insane at the time of the offense or to be currently incompetent to stand trial.

After such a finding, the court holds a hearing to determine whether the person is a danger to self or others.  If a danger to self or others, the person must be committed to the Department of Mental Health for treatment. If the person‘s insanity or incompetency is the result of a developmental disability and the person is a danger to self or others, the person is committed to the Department of Aging and Independent Living.

Currently, the statute provides that the person’s criminal defense counsel continues to represent the person at the hearing regarding whether they are a danger to self or others.  But this hearing is no longer a criminal proceeding to determine whether the defendant is guilty of a crime.  It is a separate commitment proceeding to determine what, if any, treatment the person needs to protect the safety of the person and the public. An attorney assigned from the Defender General’s Office is not an expert in a such a proceeding.  Accordingly, section 2 provides that the person is entitled to have counsel appointed from Vermont Legal Aid, whose attorneys have significant experience in representing people in such hearings.  A person who would prefer to be represented by a private attorney can still choose to do so.

Section 2 also provides that the Department of Mental Health and, if applicable the Department of Aging and Independent Living, are entitled to appear at this particular proceeding and call witnesses.

Section 3

Moving to Section 3 of the bill and moving along in the chronology of the proceedings.

If the court does find the person is a danger to self or others and commits the person to the custody of the Department of Mental Health for treatment, current law provides no way for the crime victim to be made aware when the person returns to the community. Section 3 closes that gap by creating a system of victim notification in these cases.  

Under Section 3,the victim notification requirement applies if a person has been committed to the custody of the Department of Mental Health after either (1) having been found not guilty by reason of insanity or (2) having been found incompetent to stand trial. Notification is not required if the criminal case has been dismissed because these are typically minor matters such as shoplifting where notice to the victim is not necessary.

When notice to the crime victim is required, the Commissioner of Mental Health must provide it whenever one of 3 circumstances occurs.

First, the Commissioner must provide notice at least 10 days before the person is discharged from the custody of the Department of Mental Health, or at least 10 days before the person is discharged to the community for treatment under what is called an order of non-hospitalization.

Second, notice is required at least 10 days prior to the expiration of a commitment order if the Commissioner decides not to seek continued treatment of the person.  This ensures that notice is provided even when there has not been a formal discharge if the person will be returning to the community.  

And third, notice is required any time the person elopes from the custody of the Department of Mental Health. “Elope” is the term used in the mental health statutes for when a person escapes from the Department’s custody.

If notice of the action is required, the Commissioner must notify the State’s Attorney of the county where the prosecution originated, or the Attorney General if that office prosecuted the case.  The State’s Attorney or Attorney General must then provide notice of the action to any victim of the offense who has not opted out of receiving notice.

Section 4

Turning to Section 4 of the Bill.

When a defendant provides notice that sanity at the time of the offense is an issue in the case, Vermont Rule of Criminal Procedure 16.1 permits the prosecution to ask the court to allow its own psychiatrist or other expert to conduct a mental examination of the defendant.  However, the Rule does not permit the prosecution to request its own exam when the defendant’s competency to stand trial is at issue.  Section 4 does so, adding new language that permits the prosecution to ask the court to allow its own psychiatrist to examine the defendant when the court-ordered examiner has found the defendant incompetent to stand trial.

I will briefly review sections 5 through 7.  Your Judiciary Committee worked closely with the Health Care Committee on these sections of the bill and they reflect recommendations from that Committee as well as the Committee on Corrections and Institutions.  In my report, I will only briefly summarize these sections. After my report on behalf of the Judiciary Committee and after the report of the Committee on Appropriations, the Representative from Northfield will provide further details regarding these sections.

Section 5 requires the Department of Corrections and the Department of Mental Health to jointly submit a report to the General Assembly by January 1, 2022.  The report must contain an inventory and evaluation of the mental health services provided by the entity with whom the Department of Corrections contracts for health care services.

Section 6 requires the Department of Mental Health to convene a Forensic Care working Group of interested stakeholders to provide recommendations on issues related to mental health and the criminal justice system.

Section 7 adds two members to the Joint Legislative Justice Oversight Committee, the first of whom is a member of the House Committee on Health Care and the second of whom is a Senator chosen at-large.

Section 8 provides that the act shall take effect on July 1, 2021.

The Committee heard from the following witnesses:

	General Counsel, Department of Mental Health
	Impacted Citizen, Bennington
	Training Coordinator, Team Two, Vermont Care Partners, which is an organization that provides training for law enforcement and mental health crisis workers.
	Member from Northfield
	Member from Bennington
	Executive Director, Center for Crime Victim Services
	Legislative Counsel, Office of Legislative Counsel
	Deputy Commissioner, Department of Mental Health
	Chief Superior Judge, Vermont Judiciary
	Impacted Citizen, Colorado
	Director of Mental Health Law Project, Vermont Legal Aid
	Defender General, Vermont Defender General’s Office
	Founder, MadFreedom
	President, Vermont Medical Society
	Deputy Director, Vermont Network Against Domestic & Sexual Violence
	Supervising Attorney, Disability Rights Vermont
	Assistant Attorney General, Vermont Attorney General’s Office