Vermont Statutory Criminal Law

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  2. Eavesdropping

    1. Introduction

      Vermont has passed no law specifically addressing interception of communications, but the Vermont Supreme Court has held that an individual has a heightened expectation of privacy in the home and warrantless recording/electronic monitoring of communications in a person’s home is an unlawful invasion of privacy.1

    2. Text of the Statutes

      Not applicable (see above—Vermont has no specific law on point).

    3. Cases

      1. State v. Brooks, 601 A.2d 963 (1991)

        • Procedural Posture: Defendant’s interlocutory appeal from motion to suppress.

        • Law: Article 11 of the VT Constitution

        • Relevant Facts: Plaintiff appealed denial of his motion to suppress, which was obtained when police—without a warrant—electronically overheard and recorded his conversation with a “bugged” police informant, on the grounds that his rights under Chapter I, Article 11 of the Vermont Constitution.2 Plaintiff argued that he enjoyed a reasonable expectation of privacy in his car.3

        • Outcome: The court affirmed the denial of the motion to suppress because plaintiffs “do not enjoy a reasonable expectation in a public parking lot.”4 The court then further discussed its distinction between privacy within the home, and outside.5

        • Special Notes: Justice Morse dissented, asserting that he would have suppressed because he believed the Court’s ruling would “allow government officials unbridled discretion to eavesdrop electronically and record conversations held outside the home.”6

    4. Practice Pointers

      Because there is no Vermont-specific statute on eavesdropping, federal case law and persuasive authority will be key for victims seeking to prove their case.

    1. See “Electronic Surveillance Laws,” National Conference of State Legislatures (“NCSL”), available at http://www.ncsl.org/issues-research/telecom/electronic-surveillance-laws... (last visited May 20, 2013). 

    2. Article 11 of the Vermont Constitution states: “That the people have a right to hold themselves, their houses, papers, and possessions, free from search and seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.” See supra note 1. 

    3. Brooks, 601 A.2d at 964. 

    4. Id. at 963. 

    5. Id. at 964-65. 

    6. Id. at 965 (Morse, J., dissenting). 

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  3. Telephonic Harassment/Breach of Peace

    1. Introduction

      In situations in which a WMC victim is harassed by phone, email, text message, or some other electronic mode of communication under certain specified circumstances, the State may pursue a charge of disturbing the peace by use of telephone or other electronic communications. Intent is presumed if obscene or lewd language is used or a person makes repeated anonymous communications.1

    2. Text of the Statutes

      1. Vt. Stat. Ann. tit. 13, § 1027 – Disturbing peace by use of telephone or other electronic communications

        (a) A person who, with intent to terrify, intimidate, threaten, harass, or annoy, makes contact by means of a telephonic or other electronic communication with another and (i) makes any request, suggestion or proposal which is obscene, lewd, lascivious or indecent; (ii) threatens to inflict injury or physical harm to the person or property of any person; or (iii) disturbs, or attempts to disturb, by repeated anonymous telephone calls or other electronic communications, whether or not conversation ensues, the peace, quiet or right of privacy of any person at the place where the communication or communications are received shall be fined not more than $250.00 or be imprisoned not more than three months or both. If the defendant has previously been convicted of a violation of this section or of an offense under the laws of another state or of the United States which would have been an offense under this act if committed in this state, the defendant shall be fined not more than $500.00 or imprisoned for not more than six months or both.

        (b) An intent to terrify, threaten, harass or annoy may be inferred by the trier of fact from the use of obscene, lewd, lascivious, or indecent language or the making of a threat or statement or repeated anonymous telephone calls or other electronic communications as set forth in this section and any trial court may in its discretion include a statement to this effect in its jury charge.

        (c) An offense committed by use of a telephone or other electronic communication device as set forth in this section shall be considered to have been committed at either the place where the telephone calls originated or at the place where the communication or communications or calls were received.

    3. Cases

      1. State v. Hastings, 330 A.2d 87 (Vt. 1974)

        • Procedural Posture: Defendant appealed his conviction for disturbing the peace by use of telephone.

        • Law: disturbing the peace by use of telephone or electronic communication

        • Relevant Facts: Defendant was convicted by a jury under V.S.A. tit. 13, § 1027(b). However, on appeal, he argued that the criminal complaint failed to allege the specific language which conveyed the “obscene proposal, suggestion, or request,” that was required under the statute’s plain language.2

        • Outcome: The court reversed and remanded based on its determination that the complaint was inadequately drafted—it merely recited the statutory language, but did not “inform the defendant and the court of the conduct or language supposedly amount to a breach of the peace.”3

        • Special Notes: The court observed that the complaint needed to specify the conduct at issue, and that a conviction cannot stand when the evidence makes no reference to the “specific acts” at issue being alleged.4 “A conviction cannot be sustained upon a different theory than that on which the case has been tried.”5

      2. State v. Wilcox, 628 A.2d 924 (Vt. 1993)

        • Procedural Posture: Defendant appealed from his conviction.

        • Law: disturbing the peace by use of telephone or electronic communication

        • Relevant Facts: The alleged victim received a call from the defendant, who apparently wished to complain to the victim’s husband, a town selectman, about perceived injustices he had suffered at the hands of the town. The caller identified himself, and the wife recognized his voice from previous calls. Although she told him she could not help, they spoke for twenty minutes before she hung upon him after he asked her how she’d “like to be shot.”

        • Outcome: The court reversed and remanded. The court explained that when viewed most favorably to the state, it had failed to put forth sufficient evidence to conclude that the defendant made the call with an intent to harass and intimidate. However, the statute does not require that a victim only be harassed or threaten another.6

        • Special Notes: The court ultimately concluded that a reasonable jury could not have found that defendant had initially called the selectman’s home with the intent to threaten.7

      3. State v. Wyrocki, 38 A.3d 63 (Vt. 2012)

        • Procedural Posture: Defendant appealed from his conviction under the statute.

        • Law: disturbing the peace by use of telephone or electronic communication

        • Relevant Facts: Defendant was charged with making repeated and anonymous terrifying, intimidating, threatening, harassing, or annoying telephone calls. The facts alleged that victim, Ms. Emilo, received two telephone calls on her cell phone in quick succession while she was at work. Although her cell phone had caller ID, she could not view the caller’s number, because it registered as “withheld.” Upon answering the call, Ms. Emilo recognized defendant’s voice—defendant was her son’s girlfriend of six years. After Ms. Emilo answered, defendant “unleashed a series of profanity-laced insults at her, including: “I hope you’re happy,” “You fucking bitch,” “He’s going to die in jail,” “I hope you die,” and “I hope you run your car into a tree and fucking die.” Unbeknownst to Ms. Emilo, her son had been removed from defendant’s apartment earlier that day and taken to jail because of Ms. Emilo’s report to the Vermont Housing Authority that he was living with defendant in violation of the defendant’s housing agreement. After a bench trial, the defendant was convicted under 13 V.S.A. § 1027a. She appealed her conviction arguing, among other things, that the trial court erred in finding that her calls were “anonymous” because Ms. Emilio knew that defendant was the person calling her.

        • Outcome: The court reversed the conviction because defendant’s calls were not “anonymous” within the meaning of the statute. The court explained that Ms. Emilo had recognized defendant’s voice, and “[u]nder any definition, a call cannot be anonymous when the author is known to the listener. It is therefore a necessary condition of §1027 anonymity that the person taking the call does not know the sender.”8

        • Special Notes: The court noted that its decision left open “whether calling repeatedly and hanging up before the listener can identify a caller could support a conviction under the act.”9

    4. Practice Pointers

      A WMC victim may be unable to use this statute in circumstances in which there is evidence that the caller had not initially intended to threaten him or her during the call.10

      A WMC victim may also be unable to use this statute against an “anonymous” caller where that caller is actually known to and identified by the victim.11

    1. Vt. Stat. Ann. tit. 13 § 1027(b). 

    2. State v. Hastings, 330 A.2d 87, 88 (Vt. 1974). 

    3. Id. 

    4. Id. at 89 (“A respondent is entitled to know before he makes his defense what specific acts of his the state relies upon as constituting the offense charge against him in order that he may properly meet the charge.”). 

    5. State v. Wilcox, 628 A.2d 924, 926 (Vt. 1993). 

    6. Id. 

    7. Id. at 927. 

    8. State v. Wyrocki, 38 A.3d 63, 66 (Vt. 2012). 

    9. Id. at 66 n.1. 

    10. See, e.g., Wilcox, 628 A.2d at 926. 

    11. See, e.g., Wyrocki, 38 A.3d at 66. 

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  4. Extortion

    1. Introduction

      A person who publishes or threatens to publish intimate photos or videos of a WMC victim with the intention of forcing the victim into conduct he or she would not have otherwise performed may be charged with extortion.

    2. Text of the Statutes

      1. Vt. Stat. Ann. tit. 13, § 1701 — Extortion and Threats: Definition and penalty

        A person who maliciously threatens to accuse another of a crime or offense, or with an injury to his or her person or property, with intent to extort money or other pecuniary advantage, or with intent to compel the person so threatened to do an act against his or her will, shall be imprisoned not more than three years or fined not more than $500.00, or both.

    3. Cases

      1. State v. Harrington, 260 A.2d 692 (Vt. 1970)

        • Procedural Posture: Defendant appeal from his conviction for extortion for lack of jurisdiction.

        • Law: attempted extortion

        • Relevant Facts: Defendant was an attorney practicing in Vermont. He was consulted by Mrs. Morin, the wife of the alleged victim, Mr. Morin. Mr. and Mrs. Morin lived in New Hampshire at the time. The couple had separated because of domestic abuse, and Mrs. Morin sought a divorce and a settlement in which she would receive a piece of the $500,000 value of their marital estate. After significant planning, defendant worked with Mrs. Morin, his associates, and a third party, Mrs. Mazza, to bug Mr. Morin’s conversation and set him up to commit adultery with Mrs. Mazza. The defendant photographed Mr. Morin in a compromising position with Mrs. Mazza in her motel room. He then drafted a letter to Mr. Morin in Littleton, New Hampshire, requesting that he pay $175,000 to Mrs. Morin to settle their divorce. If Mr. Morin refused, defendant threatened to release the photographs of Mr. Morin’s adultery, which would weigh heavily against him in any divorce proceeding.

        • Outcome: The court affirmed the court’s jurisdiction and the jury verdict finding defendant guilty of attempted extortion in Vermont. The court explained that even though the letter was received in Littleton, New Hampshire through the mail, “[w]hen the respondent mailed the letter to [Mr. Morin] the overt act, designed to accomplish the ultimate purpose was committed. The communication left his control. And with the mailing, the ability to revoke or interrupt was out of reach. The extortion failed, but the attempt was made. Since the crucial act was done here, our courts have jurisdiction to determine whether it was done with a criminal purpose.”1

        • Special Notes: Where a crime occurs in more than one jurisdiction, multiple courts may have jurisdiction to determine whether the alleged crime was done with a criminal purpose.

      2. State v. Galusha, 665 A.2d 595 (Vt. 1995)

        • Procedural Posture: State appeal from the dismissal of attempted extortion charge against defendant.

        • Law: attempted extortion

        • Relevant Facts: The State’s information alleged that defendant delivered a letter to victim, a female minor, in which he threatened to disclose a sexually explicit videotape to the minor’s parents and custodian unless she agreed to continue their sexual relationship. The videotape showed defendant and the minor engaged in sexual acts. The lower court construed the term “injury to the person” in the statute was only physical injury, and did not include damage to one’s reputation or mental well-being. The State appealed.

        • Outcome: The court reversed and remanded, determining that the legislature had not intended to restrict the scope of the statute to only “physical” injury. “If the legislature had intended ‘injury to the person’ to mean only bodily injury, it would have used the term bodily or physical injury. We realize that the line between mental and physical health under today’s common knowledge is not easily separated. Hence, limiting the phrase to encompass only threats of physical harm has no reasonable basis in policy and undermines the purpose of the law. The context of extortion, with its emphasis on the use of fear to compel a victim to submit to the extortionist’s will.”2

        • Special Notes: The court also noted that it was “not persuaded . . . that a person of ordinary intelligence would not understand that videotaping sexual acts with a minor and then threatening the minor with disclosure to compel her to continue the sexual relationship is forbidden by the laws of this state.”3

    4. Practice Pointers

      The Vermont Supreme Court has specifically held that for purposes of the extortion statute, “injury” includes damage to one’s reputation or mental well-being.4 Accordingly, attempts to extort a WMC victim with threats of disclosing intimate photos or videos falls squarely in the realm of the law.

    1. State v. Harrington, 260 A.2d 692, 697 (Vt. 1970) (internal citations omitted). 

    2. State v. Galusha, 665 A.2d 595, 597 (Vt. 1995). 

    3. Id. 

    4. See Id. 

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  5. Identity Theft

    1. Introduction

      A WMC victim could potentially seek relief from the state under this statute where a defendant transfers his or her personal identifying information to others without his or her consent. For instance, if the defendant used her name and identifying information or photograph online to falsely advertise the victim as providing sexual services on Craigslist, etc., this could apply.

    2. Text of the Statutes

      1. Vt. Stat. Ann. tit. 13, § 2030 — Identity Theft

        (a) No person shall obtain, produce, possess, use, sell, give, or transfer personal identifying information belonging or pertaining to another person with intent to use the information to commit a misdemeanor or a felony.

        (b) No person shall knowingly or recklessly obtain, produce, possess, use, sell, give, or transfer personal identifying information belonging or pertaining to another person without the consent of the other person and knowingly or recklessly facilitating the use of the information by a third person to commit a misdemeanor or a felony.

        (c) For the purposes of this section, “personal identifying information” includes name, address, birth date, Social security number, motor vehicle personal identification number, telephone number, financial services account number, savings account number, checking account number, credit card number, debit card number, picture, identification document or false identification document, electronic identification number, educational record, health care record, financial record, credit record, employment record, e-mail address, computer system password, or mother’s maiden name, or similar personal number, record or information.

        (d) This section shall not apply when a person obtains the personal identifying information belonging or pertaining to another person to misrepresent the person’s age for the sole purpose of obtaining alcoholic beverages, tobacco, or another privilege denied based on age.

        (e) It shall be an affirmative defense to an action brought pursuant to this section, to be proven by a preponderance of the evidence, that the person had the consent of the person to whom the personal identifying information relates or pertains.

        (f) A person who violates this section shall be imprisoned for not more than three years or fined not more than $5,000.00, or both. A person who is convicted of a second or subsequent violation of this section involving a separate scheme shall be imprisoned for not more than 10 years or fined not more than $10,000.00, or both.

    3. Cases

      Research is ongoing. There are no Vermont cases citing the law, and no Vermont cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      Nothing relevant at this time.

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  6. Voyeurism

    1. Introduction

      A WMC victim could press charges for voyeurism if another intentionally invades the victim’s privacy by viewing or recording the “intimate areas” of the victim without the victim’s knowledge or consent.

    2. Text of the Statutes

      1. Vt. Stat. Ann. tit. 13, § 2605 — Voyeurism

        (a) As used in this section:

        (1) “Bona fide private investigator or bona fide security guard” means an individual lawfully providing services, whether licensed or unlicensed, pursuant to 26 V.S.A. §§ 3151 and 3151a.

        (2) “Female breast” means any portion of the female breast below the top of the areola.

        (3) “Circumstances in which a person has a reasonable expectation of privacy” means circumstances in which a reasonable person would believe that his or her intimate areas would not be visible to the public, regardless of whether that person is in a public or private area. This definition includes circumstances in which a person knowingly disrobes in front of another, but does not expect nor give consent for the other person to photograph, film, or record his or her intimate areas.

        (4) “Intimate areas” means the naked or undergarment-clad genitals, pubic area, buttocks or female breast of a person.

        (5) “Place where a person has a reasonable expectation of privacy” means:

        (A) a place in which a reasonable person would believe that he or she could disrobe in privacy, without his or her undressing being viewed by another; or

        (B) a place in which a reasonable person would expect to be safe from unwanted intrusion or surveillance.

        (6) “Surveillance” means secret observation of the activities of another person for the purpose of spying upon and invading the privacy of the person.

        (7) “View” means the intentional looking upon another person for more than a brief period of time, in other than a casual or cursory manner, with the unaided eye or a device designed or intended to improve visual acuity.

        (b) No person shall intentionally view, photograph, film, or record in any format:

        (1) the intimate areas of another person without that person’s knowledge and consent while the person being viewed, photographed, filmed or recorded is in a place where he or she would have a reasonable expectation of privacy; or

        (2) the intimate areas of another person without that person’s knowledge and consent and under circumstances in which the person has a reasonable expectation of privacy.

        (c) No person shall display or disclose to a third party any image recorded in violation of subsections (b), (d) or (e) of this section.

        (d) No person shall intentionally conduct surveillance or intentionally photograph, film, or record in any format, a person without that person’s knowledge and consent while the person being surveilled, photographed, filmed, or recorded is in a place where he or she would have a reasonable expectation of privacy within a home or residence. Bona fide private investigators and bona fide security guards engaged in otherwise lawful activities within the scope of their employment are exempt from this subsection.

        (e) No person shall intentionally photograph, film, or record in any format a person without that person’s knowledge and consent while that person is in a place where a person has a reasonable expectation of privacy and that person is engaged in a sexual act as defined in section 3251 of this title.

        (f) This section shall apply to a person who intentionally views, photographs, films or records the intimate areas of a person as part of a security or theft prevention policy or program at a place of business.

        (g) This section shall not apply to:

        (1) a law enforcement officer conducting official law enforcement activities in accordance with state and federal law; or

        (2) official activities of the department of corrections, a law enforcement agency, the agency of human services, or a court for security purposes or during the investigation of alleged misconduct by a person in the custody of the department of corrections, a law enforcement agency, the agency of human services, or a court.

        (h) This section is not intended to infringe upon the freedom of the press to gather and disseminate news as guaranteed by the First Amendment to the Constitution of the United States.

        (i) It shall be an affirmative defense to a violation of subsection (b) of this section that the defendant was a bona fide private investigator or bona fide security guard conducting surveillance in the ordinary course of business, and the violation was unintentional and incidental to otherwise legal surveillance. However, an unintentional and incidental violation of subsection (b) of this section shall not be a defense to a violation of subsection (c).

        (j) For a first offense, a person who violates subsections (b), (d), or (e) of this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both. For a second or subsequent offense, a person who violates subsection (b), (d), or (e) of this section shall be imprisoned not more than three years or fined not more than $5,000.00, or both. A person who violates subsection (c) of this section shall be imprisoned not more than 5 years or fined not more than $5,000.00, or both.

    3. Cases

      1. State v. Devoid, 8 A.3d 1076 (Vt. 2010)

        • Procedural Posture: On appeal from defendant’s conviction for “attempted voyeurism.”

        • Law: voyeurism

        • Relevant Facts: Defendant Devoid was the female complainant’s neighbor who resided on the first floor of their shared apartment building in a secluded area. There was a window in the complainant’s bathroom shower overlooking a parking lot used by building residents. The bottom of the window was at the level of the complainant’s mid-chest. When she moved in, her landlord suggested that she cover the window with a shower curtain to protect it from water damage. She did not do so, and she did not think anyone could see her through the window. In September 2008, the complainant saw the defendant for a few moments standing in the parking lot looking at her bathroom window while she showered. Shortly thereafter, she saw him watching her shower a second time, but on this occasion, he stared at her window for three minutes with his hand on his crotch. She went to her bedroom and photographed him with her cell phone. Later that day, the complainant asked her roommate (the same height as the complainant) to stand in the shower. She went to the parking lot and looked up into the bathroom window to determine whether anyone could see her from the ground. The parties disagreed on what complainant saw when she looked up and whether defendant could see any part of complainant’s body actually protected by the voyeurism statute. The complainant reported the incident, and the state charged the defendant with voyeurism. The case went to trial, and defense counsel moved for judgment of acquittal, arguing that the evidence was insufficient to conclude either that the defendant intended to view the intimate areas of complainant’s body, or that he actually did so.1 The jury sent a note to the judge during deliberations, stating: “If we think that he is guilty of trying; but was not able to see her nipples. What kind of verdict do we give? We have not proven that he saw anything. But we believe he was trying.”2 In response, and over the defendant’s objection, the judge issued a supplemental instruction on attempt. The returned a verdict finding defendant guilty of attempted voyeurism, and the judge held that there was sufficient evidence to support the conviction. The defendant appealed.

        • Outcome: The court reversed the finding of attempted voyeurism, holding that the jurors could not find the defendant guilty of attempted voyeurism because his actions did not constitute an overt act of attempted voyeurism. The court rejected the state’s theory that defendant’s looking at the window was a sufficient overt act, and stressed that the state failed to provide sufficient evidence of defendant’s intent to view complainant’s intimate areas.3 The court explained that because of the position of the window, in looking at the window, defendant “necessarily knew that he could not complete the crime, and thus his conduct was equivocal” and did not support a guilty verdict for attempt.4

        • Special Notes: The concurrence also added that the trial court erred by providing the additional jury instruction on attempt in response to the jurors’ question because it violated the rights of the defendant by providing the jury with an alternate theory without giving defendant the opportunity to present a counter argument. The court explained that the judge’s actions deprived the defendant of his right and ability to defend himself, and “effectively distorted defendant’s closing argument into an expression of frustration and denied him the opportunity to address the novel charge against him. It upended his entire theory of the case, and he had virtually no ability to respond to it.”5

    4. Practice Pointers

      If there is a question as to whether a defendant acts intentionally to view a victim’s intimate areas, a defendant cannot be found guilty of voyeurism because it is a “specific intent” crime.

    1. State v. Devoid, 8 A.3d 1076, 1077 (Vt. 2010). 

    2. Id. 

    3. Id. at 1081. 

    4. Id. at 1082. 

    5. Id. at 1086 (Skoglund, J., concurring). 

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  7. Stalking

    1. Introduction

      In situations in which a WMC victim is repeatedly harassed, the State may charge a defendant with stalking. This law may apply to situations of cyberstalking and cybercrime, both of which are becoming increasingly common.

    2. Text of the Statutes

      1. Vt. Stat. Ann. tit. 13, § 1061 — Definitions

        (1) “Stalk” means to engage in a course of conduct which consists of the following, lying in wait for, or harassing, and:

        (A) serves no legitimate purpose; and

        (B) would cause a reasonable person to fear for his or her physical safety or would cause a reasonable person substantial emotional distress

        (2) “Course of conduct” means a pattern of conduct composed of two or more acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of “course of conduct.”

        (3) “Following” means maintaining over a period of time a visual or physical proximity to another person in such a manner as would cause a reasonable person to have a fear of unlawful sexual conduct, unlawful restraint, bodily injury or death.

        (4) “Harassing” means actions directed at a specific person, or a member of the person’s family, which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including but not limited to verbal threats, written telephonic, or other electronically communicated threats, vandalism or physical contact without consent.

        (5) “Lying in wait” means hiding or being concealed for the purpose of attacking or harming another person.

      2. Vt. Stat. Ann. tit. 13, § 1062 — Stalking

        Any person who intentionally stalks another person shall be imprisoned not more than two years or fined not more than $5,000.00, or both.

      3. Vt. Stat. Ann. tit. 13, § 1063 — Aggravated Stalking

        (a) A person commits the crime of aggravated stalking if the person intentionally stalks another person, and:

        (1) such conduct violates a court order that prohibits stalking and is in effect at the time of the offense; or

        (2) has been previously convicted of stalking or aggravated stalking; or

        (3) has been previously convicted of an offense an element of which involves an act of violence against the same person; or

        (4) the person being stalked is under the age of 16 years; or

        (5) had a deadly weapon, as defined in section 1021 of this title, in his or her possession while engaged in the act of stalking.

        (b) A person who commits the crime of aggravated stalking shall be imprisoned not more than five years or be fined not more than $25,000.00, or both.

        (c) Conduct constituting the offense of aggravated stalking shall be considered a violent act for the purposes of determining bail.

    3. Cases

      1. State v. Ellis, 979 A.2d 1023 (Vt. 2009)

        • Procedural Posture: Defendant appealed his conviction for the misdemeanor of intentional stalking following a jury trial.

        • Law: criminal stalking laws

        • Relevant Facts: The state filed charges against defendant Ellis based on his behavior towards and treatment of victim Sarah over the course of about a year. Sarah and Ellis were friends, but over time, Ellis began attempting to contact Sarah via email, over the phone, and in person, and she grew increasingly uncomfortable. She finally clarified that she did not want to have further contact with him, and he should stop trying to get in touch. However, although he stopped calling her, he persisted in trying to contact her through other means. The defendant never threatened to harm Sarah physically or mentally. The jury found the defendant guilty of misdemeanor stalking, and he appealed.

        • Outcome: The court reversed and remanded. The court explained that the theory of the case did not depend on threats by the defendant or the victim’s fear. Rather, the theory on the objective component was that “defendant’s conduct had become so persistent over such an extended period, and defendant ignored demands that he stop contact with the victim, that a reasonable person would fear that he would ‘actually physically restrain the victim to force her to listen to him and to have contact with him.’”1 The court then noted that “when unwanted persistence reaches obsession after warnings to stop, a reasonable person would have a fear of escalation to physical violence,”2 but that in this case, the facts were not extreme enough to warrant such fear. The court noted that the defendant was only on “clear notice” that the victim did not want him to contact her for about a month, and that as he was just a high school student “the behavior of defendant was often more awkward than deliberate.”3

        • Special Notes: Notably, although the court recognized that Sarah could have feared the defendant, it contextualized the episodes as more “acceptable” for awkward and emotional teenagers: “[W]e are reluctant to criminalize interactions that are highly emotional but are not likely to be precursors of violence. However, we recognize the emotional distress felt by the victim, and encourage anyone in such circumstances to seek the assistance of persons in a position of authority, including the police, in order to send a clear message that the unwanted conduct must stop.”4

      2. State v. Hinchliffe, 987 A.2d 988 (Vt. 2009)

        • Procedural Posture: Defendant appealed his conviction for stalking his ex-wife.

        • Law: criminal stalking laws

        • Relevant Facts: Defendant and the victim were formerly married, and they have two children. They had a weekly phone call on Sunday night to discuss the children, and the arrangement was successful until spring 2007, at which point, the contact between the defendant and the victim began to change, and their discussions were often no longer child-focused. Defendant began to contact the victim more frequently, leaving messages for her on her cell phone, work phone and home phone, and sending her text messages frequently. Their discussions often escalated, and led to defendant yelling and calling the victim names. The defendant’s aggressive behavior continued via phone, text and email, and she finally filed a complaint against him. She testified at trial that although he had never threatened her or been violent toward her, she knew that he had been violent to an ex-girlfriend, which caused her to fear for herself. The trial court determined that although he had not directly threatened the victim, the jury could find that his conduct could cause a reasonable person to fear bodily injury given the context of his actions: “if a defendant’s conduct taken in its totality is threatening by body language, by tone of voice and other evidence of threatening behavior on the part of an individual, then that is sufficient under the statute. And certainly, there’s evidence of that type of conduct in his case.”5 Defendant appealed from his conviction.

        • Outcome: On appeal, the court affirmed finding that the evidence of defendant’s violence in his prior relationship was properly admitted to show that the victim’s fear was reasonable: “The complainant’s knowledge of defendant’s assault on his ex-girlfriend was a key component of the State’s case that the complainant’s fear was reasonable. While the complainant also testified that she was afraid and outlined how her behavior had changed as a result of the stalking there were no overt threats of violence to explain why defendant’s incessant contacts caused her to fear him. The complainant’s knowledge of defendant’s prior conduct gave the jury further context for evaluating whether the complainant’s fear was reasonable.”6

        • Special Notes: Once again, context is key to determining whether a victim’s “fear” is “reasonable.”

    4. Practice Pointers

      When a WMC victim seeks assistance from the state to pursue charges of stalking against a defendant, a key element will be context. The court will consider several aspects of the parties’ relationship in its evaluation, including, but not limited to, their age, whether the threats were made in public or in private, etc. The more facts suggesting that a victim’s fear was “reasonable,” the better the odds that the Court will find in the State’s favor.

    1. State v. Ellis, 979 A.2d 1023, 1029 (Vt. 2009). 

    2. Id. at 1030. 

    3. Id. at 1030-31. 

    4. Id. at 1031. 

    5. State v. Hinchliffe, 987 A.2d 988, 993 (Vt. 2009). 

    6. Id. at 998. 

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  8. Assault

    1. Introduction

      In situations in which a WMC victim is physically assaulted, the State may charge a defendant with simple assault or aggravated assault. A WMC victim subject to violence at the hands of a defendant may ask the State to bring charges under this statute while bringing other related claims of his or her own against the defendant.

    2. Text of the Statutes

      1. Vt. Stat. Ann. tit. 13, § 1021 — Definitions

        For the purpose of this chapter:

        (1) “Bodily injury” means physical pain, illness or any impairment of physical condition.

        (2) “Serious bodily injury means:

        (A) bodily injury which creates any of the following:

        (i) a substantial risk of death;

        (ii) a substantial loss or impairment of the function of any bodily member or organ;

        (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.

        (3) “Deadly weapon” means any firearm, or other weapon, device, instrument, material or substance, whether animate or inanimate which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.

      2. Vt. Stat. Ann. tit. 13, § 1023 — Simple Assault

        (a) A person is guilty of simple assault if he or she:

        (1) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or

        (2) negligently causes bodily injury to another with a deadly weapon; or

        (3) attempts by physical menace to put another in fear of imminent serious bodily injury.

        (b) A person who is convicted of simple assault, shall be imprisoned for not more than one year or fined not more than $1,000.00, or both, unless the offense is committed in a fight or scuffle entered into by mutual consent, in which case a person convicted of simple assault shall be imprisoned not more than 60 days or fined not more than $500.00 or both.

      3. Vt. Stat. Ann. tit. 13, § 1024 — Aggravated Assault

        (a) A person is guilty of aggravated assault if the person:

        (1) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or

        (2) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

        (3) for a purpose other than lawful medical or therapeutic treatment, the person intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to the other person without the other person’s consent a drug, substance, or preparation capable of producing the intended harm; or

        (4) with intent to prevent a law enforcement officer from performing a lawful duty, the person causes physical injury to any person; or

        (5) is armed with a deadly weapon and threatens to use the deadly weapon on another person.

        (b) A person found guilty of violating a provision of subdivision (a)(1) or (2) of this section shall be imprisoned for not more than 15 years or fined not more than $10,000 or both.

        (c) A person found guilty of violating a provision of subdivision (a)(3), (4) or (5) of this section shall be imprisoned for not more than five years or fined not more than $5,000, or both.

        (d) Subdivision (a)(5) of this section shall not apply if the person threatened to use the deadly weapon:

        (1) In the just and necessary defense of his or her own life or the life of his or her husband, wife, civil union partner, parent, child, brother, sister, guardian or ward;

        (2) In the suppression of a person attempting to commit murder, sexual assault, aggravated sexual assault, burglary or robbery; or

        (3) In the case of a civil or military officer awfully called out to suppress a riot or rebellion, prevent or suppress an invasion, or assist in serving legal process, in suppressing opposition against him or her in the just and necessary discharge of his or her duty.

        (4) Subsection (d) of this section shall not be construed to limit or infringe upon defenses granted at common law.

      4. Vt. Stat. Ann. tit. 13, § 1042 — Domestic Assault

        Any person who attempts to cause or willfully or recklessly causes bodily injury to a family or household member, or willfully causes a family or household member to fear imminent serious bodily injury shall be imprisoned not more than 18 months or fined not more than $5,000.00, or both.

      5. Vt. Stat. Ann. tit. 13, § 1043 — First degree aggravated domestic assault

        (a) A person commits the crime of first degree aggravated domestic assault if the person:

        (1) attempts to cause or willfully or recklessly causes serious bodily injury to a family or household member; or

        (2) uses, attempts to use or is armed with a deadly weapon and threatens to use the deadly weapon on a family or household member; or

        (3) commits the crime of domestic assault and has previously been convicted of aggravated domestic assault.

        (b) A person who commits the crime of first degree aggravated domestic assault shall be imprisoned not more than 15 years or fined not more than $25,000.00, or both.

        (c) Conduct constituting the offense of first degree aggravated domestic assault under this section shall be considered a violent act for the purpose of determining bail.

      6. Vt. Stat. Ann. tit. 13, § 1044 — Second degree aggravated domestic assault

        (a) A person commits the crime of second degree aggravated domestic assault if the person:

        (1) commits the crime of domestic assault and such conduct violates:

        (A) specific conditions of a criminal court order in effect at the time of the offense imposed to protect that other person;

        (B) a final abuse prevention order issued under Section 1103 of Title 15;

        (C) an order against stalking or sexual assault issued under chapter 178 of Title 12; or

        (D) an order against abuse of a vulnerable adult issued under chapter 69 of Title 33.

        (2) commits the crime of domestic assault; and

        (A) has a prior conviction within the last 10 years for violating an abuse prevention order issued under section 1030 of this title; or

        (B) has a prior conviction for domestic assault under section 1042 of this title.

        (b) A person who commits the crime of second degree aggravated domestic assault shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

        (c) Conduct constituting the offense of second degree aggravated domestic assault under this section shall be considered a violent act for the purpose of determining bail.

    3. Cases

      Research is ongoing. There are no Vermont cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      Nothing relevant at this time.

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  9. Mischief

    1. Introduction

      A WMC victim who has an ex-lover or spouse who intentionally damages his or her property to try to punish them or victimize them for ending a relationship, etc., could file a report of “mischief,” so the state can pursue the charge.

    2. Text of the Statute and Elements of a Claim

      1. Vt. Stat. Ann. tit. 13, § 3701 — Unlawful mischief

        (a) A person who, with intent to damage property, and having no right to do so or any reasonable ground to believe that he or she has such a right, does any damage to any property which is valued in an amount exceeding $1,000.00 shall be imprisoned for not more than five years or fined not more than $5,000.00 or both.

        (b) A person who, with intent to damage property, and having no right to do so or any reasonable ground to believe that he or she has such a right, does any damage to any property which is valued in an amount exceeding $250.00 shall be imprisoned for not more than one year or fined not more than $1,000.00 or both.

        (c) A person who, having no right to do so or any reasonable ground to believe that he or she has such a right, intentionally does any damage to property of any value not exceeding $250.00, shall be imprisoned for not more than six months or fined not more than $500.00 or both.

        (d) A person who, with intent to damage property, and having no right to do so or any reasonable ground to believe that he or she has such a right, does any damage to any property by means of an explosive shall be imprisoned for not more than five years or fined not more than $5,000.00 or both.

        (e) For the purposes of this section, “property” means real or personal property.

        (f) A person who suffers damages as a result of a violation of this section may recover those damages together with reasonable attorney’s fees in a civil action under this section.

    3. Cases

      1. State v. Breznick, 356 A.2d 540 (Vt. 1976)

        • Procedural Posture: Defendant’s appeal from conviction of mischief.

        • Law: mischief

        • Relevant Facts: The defendant’s estranged wife filed a complaint claiming that someone had slashed the four tires of her car. The officer investigating the claim contacted the defendant, who voluntarily agreed to accompany the officer to police headquarters. Defendant was convicted of mischief. On appeal, one of defendant’s arguments was that the lower court erred because there was “no proof of the value of the property damaged.”1

        • Outcome: The court affirmed. In response to defendant’s argument regarding the value of the damaged property, the defendant stated that the state need not prove the actual amount of the damage done to obtain a conviction. As long as there is “credible evidence” of damage inflicted rendering something valueless, that suffices to establish mischief.2

        • Special Notes: The court explained that “value” for the purposes of the statute refers “the amount of damage inflicted, so that an offender will be subject to punishment proportionate with the quantum of damage inflicted as opposed to the value of the property damaged.”3 Because there was credible evidence that tires “of some value were rendered valueless,” that sufficed.4

    4. Practice Pointers

      Nothing relevant at this time.

    1. State v. Breznick, 356 A.2d 540, 543 (Vt. 1976). 

    2. Id. 

    3. Id. 

    4. Id. 

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  10. Trespass & Takings

    1. Introduction

      It is possible, but unlikely, that a WMC victim could bring a claim for criminal trespass if a defendant intrudes on his or her dwelling perhaps in an effort to stalk the victim, or could bring a claim for unlawful taking if the defendant absconds with the victim’s property valued at more than $100.00. Notably, in the context of a WMC victim, the “property” in question may be intimate photographs or video-recordings, which do not maintain a pecuniary value to the public, and a defendant would not necessarily meet the requirements to commit an unlawful “taking” under the law.

    2. Text of the Statutes

      1. Vt. Stat. Ann. tit. 13, § 3833 — Unlawful taking of tangible personal property; penalty

        A person who without the consent of the owner, takes and carries away or causes to be taken and carried away any tangible personal property with the intent of depriving the owner temporarily of the lawful possession of his or her property shall be fined nor more than $100.00. This section shall not be construed to limit or restrict prosecutions for larceny or theft.

      2. Vt. Stat. Ann. tit. 13, § 3705 — Unlawful trespass

        (a) A person shall be imprisoned for not more than three months or fined not more than $500.00, or both, if, without legal authority or the consent of the person in lawful possession, he or she enters or remains on any land or in any place as to which notice against trespass is given by:

        (1) Actual communication by the person in lawful possession or his or her agent or by a law enforcement officer acting on behalf of such person or his or her agent; or

        (2) Signs or placards so designed and situated as to give reasonable notice.

        (b) Prosecutions for offenses under subsection (a) of this section shall be commenced within 60 days following the commission of the offense and not thereafter.

        (c) A person who enters a building other than a residence, whose normal access is locked, or a residence in violation of an order of any court of competent jurisdiction in this state shall be imprisoned for not more than one year or fined not more than $500.00, or both.

        (d) A person who enters a dwelling house, whether or not a person is actually present, knowing that he or she is not licensed or privileged to do so shall be imprisoned for not more than three years or fined not more than $2,000.00, or both.

    3. Cases

      Research is ongoing. There are no Vermont cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      As noted above, it is highly unlikely that a WMC victim would use either of these statutes in reporting a defendant’s wrongdoing against him or her. However, where a defendant commits a trespass or a taking in addition to committing other crimes against the victim, they may be relevant.

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  11. Hate Crimes

    1. Introduction

      Where a WMC victim is specifically targeted because of his or her race, color, religion, ancestry, nationality, gender, sexual orientation, or mental, physical or sensory handicaps, these laws may provide additional relief.

    2. Text of the Statutes

      1. Vt. Stat. Ann. tit. 13, § 1454 – Statement of purpose

        The legislature finds and declares that it is the right of every person to enjoy the public peace and that sense of security and tranquility afforded by the protection of the law, and that wrongful activities motivated by hatred toward particular classes or groups of persons invade that protection. It is not the intent of this chapter to interfere with the exercise of rights protected by the constitutions of this state or the United States and the legislature recognizes the constitutional rights of every citizen to harbor and express beliefs on any subject and to associate with others who share similar beliefs.

      2. Vt. Stat. Ann. tit. 13, § 1455 – Hate-motivated crimes

        A person who commits, causes to be committed or attempts to commit any crime and whose conduct is maliciously motivated by the victim’s actual or perceived race, color, religion, national origin, sex, ancestry, age, service in the armed forces of the United States, handicap as defined by 21 V.S.A. § 495d(5), sexual orientation or gender identity shall be subject to the following penalties:

        (1) If the maximum penalty for the underlying crime is one year or less, the penalty for a violation of this section shall be imprisonment for not more than two years or a fine of not more than $2,000.00 or both.

        (2) If the maximum penalty for the underlying crime is more than one year but less than five years the penalty for a violation of this section shall be imprisonment for not more than five years or a fine of not more than $10,000.00 or both.

        (3) If the maximum penalty for the underlying crime is five years or more, the penalty for the underlying crime shall apply; however, the court shall consider the motivation of the defendant as a factor in sentencing.

      3. Vt. Stat. Ann. tit. 13, § 1457 – Civil liability and enforcement

        Independent of any criminal prosecution or the result thereof, any person suffering damage, loss or injury as a result of conduct prohibited by section 1455 or 1456 of this title may bring an action for injunctive relief, compensatory and punitive damages, costs, and reasonable attorney’s fees, and other appropriate relief against any person who engaged in such conduct.

    3. Cases

      1. State v. Ladue, 631 A.2d 236 (Vt. 1993)

        • Procedural Posture: Defendant appealed from conviction for hate crime.

        • Law: hate crimes statute

        • Relevant Facts: Defendant pled guilty to aggravated assault motivated by his perception of the victim’s sexual orientation. He was sentenced to 2.5 to 6 years for the aggravated assault and 1 to 4 years for the hate-motivated crime. Defendant argued that imposing criminal penalties solely because of the thoughts that motivated his criminal acts violates the First Amendment. Defendant also argued that the statute violates the federal and state equal protection guarantees.

        • Outcome: The court affirmed. The U.S. Supreme Court has already addressed the First Amendment issue and held that penalty-enhancement statutes based on motivation are not overbroad, and do not chill one’s First Amendment rights.1 The court also rejected the defendant’s equal protection claim because the act does not treat similarly situated victims differently. Rather, it protects victims and society from crimes motivated by hate, whether this hate is directed at minority or majority members of a class.

        • Special Notes: The statute authorizes an enhanced sentence.

    4. Practice Pointers

      Nothing relevant at this time.

    1. State v. Ladue, 631 A.2d 236, 237 (Vt. 1993) (citing Wisconsin v. Mitchell, 508 U.S. 476, 113 S. Ct. 2193, 2202 (1993)). 

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