Act No. 58
(S.125)
Criminal procedure; sex offenders; sex offender registry
This act contains a significant number of measures intended to enhance the sex offender registry, improve the prosecution of sex offenders, and address a range of other criminal procedure issues.
The act adds to the sex offender registry persons convicted in federal court of certain federal sex offenses, and persons who commit one of the new offenses established in this act or in No. 1 of the Acts of 2009: aggravated sexual assault of a child, sex trafficking, or sexual exploitation of a minor. The act also adds to the registry adults who reside in Vermont who are currently or were required to register as sex offenders in another state before moving here, except that conduct which is criminal only because of the age of the victim does not require the offender to register if he or she was under the age of 18 and the victim was at least 12 years old at the time of the offense.
The act establishes a presumption that every sex offender knows and understands his or her obligations under the registry statute, and provides that a sex offender is deemed to have received the address verification form from the registry if the offender's name appears on the automated list generated by the registry. The act also provides that an affidavit by the registry administrator which describes an offender's failure to comply with registry provisions is prima facie evidence of the violation.
The act adds to the Internet sex offender registry persons who commit the following offenses: aggravated sexual assault of a child (offense created in Act No. 1); sexual assault; slave trafficking of a minor; sex trafficking (offense created in this act); sexual exploitation of a minor; any offense regarding the sexual exploitation of children; lewd or lascivious conduct with a child or a second or subsequent conviction for voyeurism unless the sex offender review committee determines that the offender has successfully reintegrated into the community; and sexual abuse of a vulnerable adult.
The act adds to the Internet sex offender registry persons convicted in federal court of certain federal sex offenses. The act also adds to the Internet registry adults who reside in Vermont who are currently or were required to register as sex offenders in another state before moving here, except that conduct which is criminal only because of the age of the victim does not require the offender to register if he or she was under the age of 18 and the victim was at least 12 years old at the time of the offense, and except that information shall only be posted electronically if the offense for which the person was required to register in the other jurisdiction was a felony or a misdemeanor punishable by six months or more of imprisonment.
The act requires offenders to submit annually a new photograph for inclusion on the Internet sex offender registry and requires the registry to be searchable by the offender's city and town (currently it is searchable by county only). The act requires the department of corrections to evaluate all sex offenders under department supervision to determine if the offender is high-risk by September 1, 2009, and requires that the Internet registry state whether each offender who appears on it has been designated high-risk by the department. The registry must also indicate if a person has not been subject to a risk assessment, and state that such a person is presumed to be high-risk.
The Internet registry requirements established by the act apply to persons convicted on or after the act's effective date, and to persons convicted prior to the act's effective date who are under department of corrections' supervision. The requirements also apply to persons convicted prior to the act's effective date who are not under department of corrections' supervision if the person is still subject to sex offender registry requirements, unless the sex offender review committee determines that the person has successfully reintegrated into the community. The act establishes a procedure for offenders to petition the committee for such a determination.
Effective July 1, 2010, the act requires the Internet sex offender registry to include each offender's address (currently only the offender's town of residence appears) if: the offender has been designated high-risk by the department of corrections; the offender has not complied with sex offender treatment; there is an outstanding warrant for the offender's arrest; or the offender's name is on the Internet for an offense committed in another jurisdiction which required the person's address to be on the Internet in that jurisdiction. This provision regarding offender addresses does not take effect until the state auditor, in consultation with the department of public safety and the department of information and innovation technology, has provided a favorable performance audit regarding the Internet sex offender registry to the senate and house committees on judiciary, the house committee on corrections and institutions, and the joint legislative corrections oversight committee .
The act requires the probate court to ask the department of public safety if a person seeking a name change is on the sex offender registry. If the person's name does appear on the registry, the person cannot change his or her name unless the court finds, after permitting the department of public safety to appear, that there is a compelling purpose for doing so.
The act creates two new offenses related to sex trafficking. The first criminalizes any trafficking of minors for purposes of engaging in a commercial sex act, and the second, which applies to minors and adults, criminalizes benefitting from using force, fraud, or coercion to cause a person to engage in a commercial sex act. A commercial sex act is defined as any sex act on account of which anything of value is promised to, given to, or received by any person. The act also provides sex trafficking victims with defenses to prostitution and other criminal charges.
The act creates a new crime to address the increasing frequency "sexting," which occurs when a minor takes a nude or semi-nude photograph of himself or herself and sends it via electronic transmission, usually a cell phone and typically unsolicited, to another minor. The new crime prohibits a minor from knowingly and voluntarily and without threat or coercion using a computer or electronic communication device to transmit an indecent visual depiction of himself or herself to another person, and prohibits any person from possessing such a visual depiction. A violation of the statute by a minor shall mean the minor must be charged as a juvenile proceeding in family court, and the charge does not subject the minor to sex offender registry requirements. Prosecutions may still be brought for other crimes if the facts warrant, including child pornography violations for second or subsequent offenses. The act also directs the sexual violence prevention task force to provi de information to schools and other organizations on the risks of sexting.
The act removes the criminal statute of limitations for prosecutions of aggravated sexual assault of a child, and extends the limitations period for other sexual offenses from six to ten years after the date the offense is reported.
The act requires the commissioner of corrections to provide each offender with a copy of his or her sentence calculation, and adds the defender general to the list of recipients of the department's calculation of each defendant's potential shortest and longest lengths of incarceration. A study committee is created to examine sentence computation issues, including alternative methods to address computation that would reduce calculation and computation errors and provide clarity to the offender at the time of sentencing regarding the offender's earliest and latest possible release dates.
The act permits the Vermont Crime Information Center (VCIC) to forward fingerprints taken at the time of a person's arrest to the National Crime Information Center (NCIC) for inclusion in its database. Currently, VCIC may only send fingerprints taken at the time of arrest to NCIC for purposes of identifying the person, and may not send fingerprints for inclusion in the NCIC database until after a person has been arraigned.
The act permits, pursuant to a court order issued ex parte, a state or federal prosecutor to inspect an inmate's file, reports, and records as part of a criminal investigation if the court finds that the records may be relevant to the investigation. Information in the records may be used for any lawful purpose but may not otherwise be made public.
The act establishes an expedited hearing procedure to be used when the department of corrections orders an inmate to be served special management meals (nutraloaf). In order to overrule the Vermont Supreme Court's decision in Borden v. Hoffman, the act provides that the service of special management meals is not to be construed as punishment and is therefore not subject to the procedural requirements that apply when an inmate is punished by the department.
The act requires the department of public safety to report to the senate and house committees on judiciary by December 15, 2009 on the management, staffing, funding, and operation of the sex offender registry, as well as on actions taken to communicate with other agencies regarding information placed on the registry, and on the implementation of the provision in this act regarding inclusion of offender addresses on the Internet sex offender registry.
In order to facilitate regional arraignments, which save transportation costs by permitting a defendant to be arraigned in the district where he or she is arrested rather than the district in which he or she resides, the act permits one county's deputy state's attorney to prosecute cases in other counties if the deputy's oath is filed in the other county clerk's office.
The act requires the joint legislative corrections oversight committee to consider: (1) how to employ strategies that facilitate community reintegration but do not unduly burden the services and budgets of communities with a large number of supervisees; and (2) issues related to the operation of the sex offender Internet registry, including the accuracy of the information it contains. The committee is required to include recommendations on these issues in its annual report to the general assembly.
The act permits a law enforcement agency to retain its own records when a court expunges the records related to a registrable sex offense for which a defendant has completed a deferred sentence. Under current law, such an expungement order generally requires expungement of all records related to the offense.
Date Signed by the Governor: June 1, 2009
Effective Date: July 1, 2009, except for: (1) Sec. 22 (technical correction to hearsay rule for child victim) and Sec. 26 (retention of records expunged upon completion of deferred sentence in registrable sex offense cases), which are effective July 2, 2009; and (2) Sec. 14 (placement of offender addresses on Internet registry), which is effective July 1, 2010, provided that this section does not take effect until the state auditor, in consultation with the department of public safety and the department of information and innovation technology, has provided a favorable performance audit regarding the Internet sex offender registry to the senate and house committees on judiciary, the house committee on corrections and institutions, and the joint legislative corrections oversight committee.