Vermont: Statutory Civil Law

Civil Stalking Laws

Civil Stalking Laws
1. Introduction¹
  
  In situations in which a WMC victim is repeatedly harassed (including through electronic means), he or she may file a report his or her harasser for "civil stalking," and could also seek a civil stalking order to prevent further contact with the harasser.
2. Text of Statutes
  1. Vt. Stat. Ann. tit. 12, § 5131 - Definitions
    
    As used in this chapter:
    
    (1) “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.”
    
    (2) “Following” means maintaining over a period of time a visual or physical proximity to another person in such manner as would cause a reasonable person to have fear of unlawful sexual conduct, unlawful restraint, bodily injury, or death.
    
    (3) “Lying in wait” means hiding or being concealed for the purpose of attacking or harming another person.
    
    (4) “Nonphysical contact” includes telephone calls, mail, e-mail or other electronic communication, fax, and written notes.
    
    (5) “Sexually assaulted the plaintiff” means that the defendant engaged in conduct that meets elements of lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, sexual assault as defined in 13 V.S.A. § 3252, aggravated sexual assault as defined in 13 V.S.A. § 3253, use of a child in a sexual performance as defined in 13 V.S.A. § 2822, or consenting to a sexual performance as defined in 13 V.S.A. § 2823 and that the plaintiff was the victim of the offense.
    
    (6) “Stalk” means to engage in a course of conduct which consists of following or lying in wait for a person, or threatening behavior directed at a specific person or a member of the person’s family, and:
    
    (B) would cause a reasonable person to fear for his or her safety or would cause a reasonable person substantial emotional distress
    
    (7) “Stay away” means to refrain from knowingly:
    
    (A) initiating or maintaining a physical presence near the plaintiff;
    
    (B) engaging in nonphysical contact with the plaintiff directly or indirectly;
    
    (C) engaging in nonphysical contact with the plaintiff through third parties who may or may not know of the order.
    
    (8) “Threatening behavior” means acts which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or physical contact without consent.
  2. (2) Vt. Stat. Ann. tit. 12, § 5132 — Jurisdiction and Venue
    
    (a) The superior court shall have jurisdiction over proceedings under this chapter.
    
    (b) Proceedings under this chapter may be commenced in the county in which the plaintiff resides. If the plaintiff has left his or her residence to avoid being stalked or sexually assaulted, the plaintiff shall have the option to bring an action in the county of the previous residence or the county of the new residence.
  3. (3) Vt. Stat. Ann. tit. 12, § 5133 — Requests for an order against stalking or sexual assault
    
    (a) A person, other than a family or household member as defined in 15 V.S.A. § 1101(2), may seek an order against stalking or sexual assault on behalf of him or herself or his or her children by filing a complaint under this chapter. The plaintiff shall submit an affidavit in support of the order.
    
    (b) Except as provided in section 5134 of this title, the court shall grant the order only after notice to the defendant and a hearing. The plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant stalked or sexually assaulted the plaintiff.
    
    (c) In a hearing under this chapter, neither opinion evidence of nor evidence of the reputation of the plaintiff’s sexual conduct shall be admitted. Evidence of prior sexual conduct of the plaintiff shall not be admitted; provided, however, where it bears on the credibility of the plaintiff or is material to a fact at issue and its probative value outweighs its private character, the court may admit:
    
    (1) Evidence of the plaintiff’s past sexual conduct with the defendant.
    
    (2) Evidence of specific instances of the plaintiff’s sexual conduct showing the source or origin of semen, pregnancy or disease;
    
    (3) Evidence of specific instances of the plaintiff’s past false allegations of violations of 13 V.S.A. chapter 59 or 72.
    
    (d)
    
    (1) If the court finds by a preponderance of the evidence that the defendant has stalked or has been convicted of sexually assaulting the plaintiff, the court shall order the defendant to stay away from the plaintiff or the plaintiff’s children or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both. The court may consider the defendant’s past conduct as relevant evidence of future harm.
    
    (2) If the court finds by a preponderance of the evidence that the defendant has sexually assaulted the plaintiff and there is a danger of the defendant further harming the plaintiff, the court shall order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both. The court may consider the defendant’s past conduct as relevant evidence of future harm.
    
    (e) Relief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the plaintiff or the plaintiff’s children, or both. It is not necessary for the court to find that the defendant stalked or sexually assaulted the plaintiff during the pendency of the order to extend the terms of the order. The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstances.
    
    (f) No filing fee shall be required.
    
    (g) Every order under this chapter shall contain the name of the court, the name of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.
    
    (h) Form complaints and form orders for an “Order Against Stalking or Sexual Assault” shall be provided by the court administrator and shall be maintained by the clerks of the courts.
    
    (i) When findings are required under this section, the court shall make either written findings of fact or oral findings of fact on the record.
    
    (j) Every final order issued under this section shall bear the following language: “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”
    
    (k) Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904.”
    
    (l) A finding by the court pursuant to this chapter that the defendant stalked or sexually assaulted the plaintiff shall not be admissible in any subsequent civil proceedings for the purpose of establishing liability.
  4. Vt. Stat. Ann. tit. 12, § 5134 — Emergency relief
    
    (a) In accordance with the Vermont Rules of Civil Procedure, a person other than family or household member as defined in 15 V.S.A. § 1001(2) may file a complaint for a temporary order against stalking or sexual assault. Such complaint shall be filed during regular court hours. The plaintiff shall submit an affidavit in support of the order. The court may issue a temporary order under this chapter ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has stalked or sexually assaulted the plaintiff. The court may order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both.
    
    (b) Every order issued under this section shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge. Every order issued under this section shall state upon its face a date, time, and place that the defendant may appear to petition the court for modification or discharge of the order. This opportunity to contest shall be scheduled as soon as reasonably possible, which in no event shall be more than 10 days from the date of issuance of the order. At such hearings, the plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant stalked or sexually assaulted the plaintiff. If the court finds that the plaintiff has met his or her burden, it shall continue the order in effect and make such other orders as it deems necessary to protect the plaintiff or plaintiff’s children, or both.
    
    (c) Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.
    
    (d) Every order issued under this chapter shall bear the following language: “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”
    
    (e) Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904.”
  5. Vt. Stat. Ann. tit. 12, § 5135 — Service
    
    (a) A complaint or ex parte temporary order or final order issued under this chapter shall be served in accordance with the Vermont Rules of Civil Procedure and may be served by any law enforcement officer. Orders against stalking or sexual assault shall be served at the earliest possible time and shall take precedence over other summonses and orders, with the exception of abuse prevention orders issued pursuant to 15 V.S.A. chapter 21. Orders shall be served in a manner calculated to ensure the safety of the plaintiff. Methods of service which include advance notification to the defendant shall not be used. The person making service shall file a return of service with the court stating the date, time, and place that the order was delivered personally to the defendant.
    
    (b) If service of a notice of hearing issued under section 5133 or 5134 of this title cannot be made before the scheduled hearing, the court shall continue the hearing and extend the terms of the order upon request of the plaintiff for such additional time as it deems necessary to achieve service on the defendant.
  6. Vt. Stat. Ann. tit. 12, § 5136 — Procedure
    
    (a) Except as otherwise specified in this chapter, proceedings commenced under this chapter shall be in accordance with the Vermont Rules of Civil Procedure and shall be in addition to any other available civil or criminal remedies.
    
    (b) The court administrator is authorized to contract with public or private agencies to assist plaintiffs to seek relief and to gain access to superior court. Law enforcement agencies shall assist in carrying out the intent of this section.
    
    (c) The office of the court administrator shall ensure that the superior court has procedures in place so that the contents of orders and pendency of other proceedings can be known to all courts for cases in which an order against stalking or sexual assault proceeding is related to a criminal proceeding.
  7. Vt. Stat. Ann. tit. 12, § 5137 — Filing orders with law enforcement personnel; department of public safety protection order database
    
    (a) Police departments, sheriff’s departments, and state police district offices shall establish procedures for filing notice against stalking or sexual assault orders issued under this chapter and for making their personnel aware of the existence and contents of such orders.
    
    (b) Any court in this state that issues a notice against a stalking or sexual assault order under this chapter shall transmit a copy of the order to the department of public safety’s protection order database.
  8. Vt. Stat. Ann. tit. 12, § 5138 — Enforcement
    
    (a) Law enforcement officers are authorized to enforce orders issued under this chapter. A foreign abuse prevention order as defined in 15 V.S.A. § 1101 shall be accorded full faith and credit throughout this state and shall be enforced as if it were an order of this state. Law enforcement officers may rely upon a copy of any order issued under this chapter or any foreign abuse prevention order. Enforcement may include, but is not limited to, making an arrest in accordance with the provisions of Rule 3 of the Vermont Rules of Criminal Procedure.
    
    (b) In addition to the provisions of subsection (a) of this section, violation of an order issued under this chapter may be prosecuted as a criminal contempt under Rule 42 of the Vermont Rules of Criminal Procedure. The prosecution for criminal contempt may be initiated by the state’s attorney in district or superior court in the unit or county in which the violation occurred. The maximum penalty which may be imposed under this subsection shall be a fine of $1,000.00 or imprisonment for six months, or both. A sentence of imprisonment upon conviction for criminal contempt may be stayed in the discretion of the court. Pending the expiration of the time allowed for filing notice of appeal or pending appeal if any appeal is taken. After two years have passed from conviction under this subsection, the court may on motion of the defendant, expunge the record of the criminal proceeding and conviction unless the defendant has been convicted of a felon or misdemeanor involving moral turpitude or a violation of a protection order after such initial adjudication.
3. Cases
  1. Juel v. Brost, No. 2009-358, 2010 WL 7799900 (Vt. May 21, 2010)
    - Procedural Posture: Defendant appealed from order of protection issued under the civil stalking statute.
    - Law: civil stalking laws
    - Relevant Facts: Plaintiff, a teacher, obtained a protection order against the defendant, who had attended the teacher’s former collegiate employer in Iowa. She had obtained a no-contact order against him when they had both lived in Iowa. She had relocated to Vermont for a new job, and he was still in Iowa. During the hearing, she provided evidence that he had called her both at work and at home in the middle of the night. He also called her new employer in Vermont. The court determined that plaintiff had established by a preponderance of the evidence that over a six-year period, the defendant repeatedly contacted her over e-mail, regular mail, and telephone against her wishes, spoke to her about sexual matters, and threatened suicide if she continued to rebuff him. The court issued an order prohibiting the defendant from having any contact with the plaintiff for five years. The defendant appealed, asserting that his conduct was not “stalking” because he had never “threatened” the plaintiff.
    - Outcome: The court affirmed, explaining that the plaintiff had put forth sufficient evidence to show that the defendant had stalked her under the statute. Although the court had not yet considered the definition of “threatening behavior” under Vermont’s civil stalking laws, it had previously addressed similar language in the context of the criminal stalking statute. The court compared the facts of the case with other rulings in criminal stalking cases, and determined that defendant’s repeated attempts to contact the plaintiff sufficed to cause the plaintiff “to fear unlawful sexual conduct, unlawful restraint, bodily injury, and death,” especially given plaintiff’s testimony, which confirmed her fears.²
    - Special Notes: The court noted that in the context of criminal stalking (in contrast to civil stalking), a defendant need not make actual threats of violence against the victim to be found guilty—obsessive behavior causing a reasonable person to fear unlawful restraint could suffice.³
  2. Nichols v. Newton, No. 2010-160, 2010 WL 7773465 (Vt. Dec. 28, 2010)
    - Procedural Posture: Defendant appealed from lower court order granting a one-year order requiring him to stay away from the plaintiff’s daughter, a seventeen-year-old high school student.
    - Law: civil stalking laws
    - Relevant Facts: Defendant was a coach of both men’s and women’s sports teams at the girl’s high school, and he also assisted injured athletes, including the plaintiff’s daughter, as an assistant coach and trainer. Plaintiff sought relief under 12 V.S.A. § 5133 on behalf of her daughter, who received numerous inappropriate text messages from the defendant. At the hearing, the student testified that the defendant had started sending her text messages in December 2009, and that he had obtained her telephone number from a list the school provides to coaches and staff. His messages soon became sexually oriented, and she repeatedly advised him via text message that he should stop contacting her. She testified that “she was ‘kind of afraid that something might happen or that defendant might follow up on his messages,’” and she wanted nothing to do with him going forward.⁴ He testified that he had sent the text messages, but that he had only continued to contact her because he had wanted to discuss the situation and resolve any misunderstandings. The court granted a final order prohibiting him from contacting her for a year, finding that plaintiff had established that he had stalked her daughter, especially given the “coach-student relationship and the obvious power disparity between the two.”⁵ He appealed, arguing that plaintiff failed to establish that he had engaged in “threatening behavior.”⁶
    - Outcome: The court affirmed, finding that the evidence supported the lower court’s determination that the defendant had engaged in stalking by “threatening behavior” under the statute. The court explained that 13 V.S.A. § 3258 prohibits a person from engaging in a sexual act with a minor if the actor is 4 years older than the minor and is in a position of power. The court further determined that because it was undisputed that the defendant, through his texting, attempted to engage the student in a sexual relationship prohibited under Section 3258, and student reasonably feared her attempt to exploit her sexually, the trial court’s finding of stalking was supported by the record.
    - Special Notes: The court considered on appeal whether the defendant’s actions were “threatening behavior,” and whether they would cause a reasonable person in the student’s position substantial emotional distress.⁷
4. Practice Pointers
  
  To obtain a civil stalking order, a victim and the potential defendant need not have any past relationship. In contrast, a victim seeking protection from abuse by a “family or household member” must apply for a “relief from abuse” order.⁸
  
  The plaintiff has the burden of proving by a preponderance of the evidence that the defendant stalked or sexually assaulted the plaintiff.⁹
  
  If a defendant violates a protection order issued under the civil stalking laws, he or she can then be subject to criminal liability and may be subject to fines and imprisonment.¹⁰
  
  When a civil stalking order is issued, the court transmits a copy of the order to the department of public safety’s protection order database. Local law enforcement must establish procedures for making their personnel aware of the existence and contents of the order.
1. See supra Section C for more information relating to civil stalking and restraining orders. ↩
2. Juel v. Brost, No. 2009-358, 2010 WL 7799900, at *3-4 (Vt. May 21, 2010). ↩
3. Id. at *2. ↩
4. Nichols v. Newton, No. 2010-160, 2010 WL 7773465, at *2 (Vt. Dec. 28, 2010). ↩
5. Id. ↩
6. Id. ↩
7. Id. at *3. ↩
8. See supra Section C (“Restraining Orders”) (providing detailed information on relief from abuse orders). ↩
9. Vt. Stat. Ann. tit. 12, § 5133(d). ↩
10. Vt. Stat. Ann. tit. 12, § 5138. ↩
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Vermont: Statutory Civil Law

Contents

Civil Stalking Laws