Hate Crimes, Sex Laws and Police in Vermont
Sexual orientation and gender identity are protected characteristics under Vermont’s hate crimes laws.
Questions & Answers (Accurate as of May 26, 2011)
Does Vermont have a hate crimes law?
Yes. Vermont law imposes increased penalties for crimes committed because of hatred or animus toward the victim’s actual or perceived race, color, religion, national origin, sex, ancestry, age, service in the U.S. armed forces, handicap, sexual orientation, or gender identity.86
In addition to being subject to criminal prosecution, the Attorney General’s office may seek civil penalties from a perpetrator of up to $5000 (payable to the state) plus costs and attorney’s fees for every violation of the criminal hate crimes statute and for violations of any injunctions imposed (see discussion below).87
How does the law define what is a hate crime?
The hate crimes law applies to “[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…, sexual orientation or gender identity.”88
According to the Attorney General’s office, assaults, unlawful mischief (damage or destruction of property), telephone harassment and disorderly conduct (by public yelling of threats and abuse) are the most common hate crimes in Vermont.89
Where can I call if I think I’ve been a victim of a hate crime?
In addition to contacting the local police, you may contact the Civil Rights Unit of the Attorney General’s Office at (802) 828-5511 or firstname.lastname@example.org. Be sure to explain all of the factors that make you think this was a crime of bias.
What other options do I have if I think I have been the victim of a hate crime?
Victims of hate crimes can also file a civil claim in the Superior Court of the county where they live or where the crime occurred.90 These claims can seek:
- an order to stop the hate-motivated behavior and restrict the perpetrator’s ability to contact you in any way;
- money damages to compensate for the injury caused by the crime;
- money damages to punish the perpetrator;
- costs and attorney’s fees; and
- any other relief the court thinks is appropriate.
Through this process, you have the right to obtain very similar protections to those available to domestic violence victims. (See discussion above). If you have been the victim of a hate crime or of a stalker, you can go to Superior Court and quickly obtain a preliminary order providing protection from the perpetrator of the hate crimes. This order may:
- prohibit the perpetrator from committing any crime against you or other people;
- prohibit the perpetrator from contacting you; and
- prohibit the perpetrator from coming near you, your home, or other places where you are likely to be (i.e. workplace, homes of family members, etc.).
This preliminary order will remain in effect for a period of time set by the court up to 120 days, or until there is a final decision in the case.91
A final order can be issued for up to two years, but the court can extend the order for any amount of time if it finds it is necessary to protect the victim. Violating these kinds of orders is a crime, subject to immediate arrest, imprisonment and fines.92
In what ways might the recently passed federal hate crimes law help to investigate and prosecute hate crimes?
The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act93 was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009. It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.
First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:
- investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
- grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
- grants to combat hate crimes committed by juveniles.
In providing assistance to local and state authorities, the priorities are hate crimes:
- where the offender(s) has committed crimes in more than one state, or
- that occur in rural areas which do not have the resources needed to prosecute such crimes.
Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest, the Act authorizes the federal government to prosecute the case. The Federal Bureau of Investigation (FBI) encourages victims of hate crimes to file a report with the FBI as well as local and state authorities. The Boston FBI field office can be reached at 617-742-5533.
The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles. This is the first federal law to explicitly extend legal protections to transgender persons.
Does Vermont have a sodomy law?
No. Although Vermont once had a “fellation” law94, the legislature repealed that statute in 1977. Consensual, sexual activity between adults in private is not a crime anywhere in the U.S.
If it’s not illegal for gay people to have sex, why are gay people still getting arrested?
Gay people are subject to the full range of laws to which non-gay people are subject, such as those that criminalize sex in public, forcible sex, or sex with minors. Commercial sex, i.e. prostitution, is also illegal.
Most gay people arrested for sexual activity are arrested for activity occurring in a public setting. The law regarding lewd and lascivious conduct prohibits “open and gross lewdness and lascivious behavior.”95 This law targets sexual activity that is obvious and not concealed, and requires no more than one witness. 96 This one witness can be anyone, including the person who complains about the conduct or the police.
This law has been applied to people having sexual encounters in public. Bear in mind that sexual activity should not be illegal simply because it takes place outdoors, in parked cars, or on public lands. A great deal depends on the overall circumstances (i.e. time of day, level of seclusion).97
The State has a legitimate law enforcement interest in protecting the general public from open displays of sex – whether between people of the same sex or of a different sex. Socializing and expressions of same-sex affection that does not involve the touching of genitals or buttocks or exposure of those is not illegal, however, regardless of where it occurs. No one should be arrested or hassled for foot-tapping, hand-holding, cruising, talking, flirting, or non-sexual touching.
As a practical matter, regardless of one’s rights, having sex in a public venue or outdoors is a risky business.
Does Vermont have a “sex offender registry” type of law?
Yes. Every state now has such a law, although the terms differ from state to state. The Vermont Criminal Information Center (VCIC) of the Department of Public Safety has maintained a sex offender registry since 1996. It participates in the National Sex Offender Registry Program managed by the Federal Bureau of Investigation.
What types of crimes are deemed to be “sex offenses”?
As you would expect with a law designed to ensnare dangerous and violent predators, most of the crimes involve violence or sex with children. However, if someone is convicted of a single offense under the lewd and lascivious conduct statute, they are considered a sex offender subject to the registration requirements.98
In addition, Vermont law allows the state to request that a person be designated as a sexually violent predator within ten days after that person is convicted of sexual assault or aggravated sexual assault. The court decides this at the time of sentencing and requires clear and convincing evidence that the convicted sex offender suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.99
How can I found out what charges I have been convicted of?
You can contact your local police, or call the VCIC, (802) 244-8727, to request a form to get a copy of your criminal records. You will need to fill out the form and return it to:
VCIC, Department of Public Safety
103 South Main Street
Waterbury, VT 05671
What if my conviction is really old? Or in another state?
The sex offender registration laws only apply to 100:
- those convicted of a sex offense in Vermont on or after July 1, 1996;
- those convicted in Vermont or another state before July 1, 1996, but a) released from incarceration on or after that date, or b) being supervised in the community as of that date; and
- those convicted or released from confinement in another state on or after July 1, 1986 and who establish residence in Vermont on or after July 1, 1996.
What obligations are imposed on “sex offenders”?
Upon conviction and prior to sentencing, a sex offender must provide the court with their name, date of birth, general physical description, current address, social security number, fingerprints, current photograph and current employment.101
When a sex offender is sentenced to probation or an alternative sentence under community supervision, or when a sex offender is about to be released from prison, the Department of Corrections forwards to the Department of Public Safety the above listed information, as updated, as well as the address upon release, the name, address and phone number of the local department of corrections in charge of monitoring the sex offender, and documentation of any treatment or counseling received.102
A sex offender is required to report to the Department of Public Safety annually within ten days of each anniversary of the person’s date of release. A person who has been deemed to be a sexually violent predator must report to the Department every 90 days. If a person in either of these categories changes addresses, s/he must report to the Department within three days. Upon relocating to another state, the person must notify the Department and register with the new state’s law enforcement agency within three days if the new state has a registration requirement.103 The Department will then notify the local law enforcement agency.104
How long do these registration requirements last?
Except in the circumstances discussed below, this registration requirement continues for a sex offender until ten years have passed since the person was released from prison or discharged from parole, supervised release or probation, whichever is later.105
The registration requirement continues for the person’s life if s/he had at least one prior conviction for a sex offense in another jurisdiction, if s/he was convicted of sexual assault or aggravated sexual assault (unless the age of the victim was the basis for the conviction), or if s/he was determined to be a sexually violent predator. 106 After ten years, however, a person required to register for life can petition the district court for a termination of notification such that information about him or her is no longer given to local law enforcement and the surrounding community.107
Who may obtain information from the registry?
The information in the registry may be disclosed for any legal purpose, including for use by local, state and federal law enforcement agencies for purposes of law enforcement activities; state and federal governmental agencies conducting confidential background checks; and any employer authorized by law to request records and information from the VCIC where the disclosure to such an employer is necessary to protect the public. A person required to register may also access the information contained in the registry for purposes of reviewing the accuracy of any record relating to him or her. The identity of a victim of an offense requiring registration shall not be released.108
In addition, the public can gain access to information about people required to register as sex offenders from the Departments of Corrections of Public Safety or from local law enforcement agencies when the requestor can state a specific concern about his or her personal safety or that of his or her family.109
What if my conviction is overturned?
A person whose conviction is reversed or dismissed is no longer subject to registration requirements and any information about him or her in the registry relating to that conviction shall be removed and destroyed. Further, anyone to whom that information was sent shall be notified and required to remove and destroy the information as well. 110
What is the age of consent for sexual activity?
Generally, the age of consent for sexual activity is 16.111 The statutory rape law does not apply, however, to consensual sexual activity between two people under the age of 16.112
I have been told by police to “move along” from public areas. Is that legal?
Not necessarily. If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity. Public places belong to everyone. They are also likely to be places of public accommodation to which anti-discrimination laws apply. Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct.113
What should LGBT people expect from interactions with police?
The presence of individuals who appear to be gay, lesbian, bisexual or transgendered—whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason—should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other park or rest area patron.
Police may, of course, approach a person, and make inquiries, but even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, that alone does not constitute grounds for the person to be arrested. A police officer may generally only stop a person briefly for purposes of investigation if s/he has “reasonable suspicion” that a crime has been committed or is about to be committed.114 In addition, in some circumstances, police officers without reasonable suspicion of criminal activity are permitted to intrude on a person’s privacy to carry out “community care-taking” functions, such as aiding people in need of assistance.115 These intrusions must be objectively reasonable and based on specific articulable facts.116
An arrest can only occur upon “probable cause” that a crime has been committed.117 When an encounter with the police becomes too intrusive to qualify as an investigatory stop, as described above, the encounter may be deemed a full scale arrest and must be justified by probable cause.118
What can I do if I believe the police have treated me improperly?
Complaints may be made to any individual police department for matters concerning its officers. Many departments have their own Internal Affairs Divisions that receive and investigate civilian complaints against police officers.
Complaints to the Vermont State Police may be made to:
The Office of the Director
Vermont State Police Headquarters
103 South Main Street
Waterbury, VT 05671
In addition, complaints about police harassment based on sexual orientation or gender identity may also be filed with the Vermont Human Rights Commission.
In some cases, an individual may decide to pursue a lawsuit—because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can make attorney referrals.
8613 V.S.A. § 1455.
8713 V.S.A. § 1466.
8813 V.S.A. § 1455.
9013 V.S.A. § 1457.
9113 V.S.A. § 1461.
9213 V.S.A. §§ 1461, 1465
93See H.R. 2647 at http://thomas.loc.gov/cgi-bin/query/F?c111:6:./temp/~c111X7TYvf:e1999565:
94See State v. La Forrest, 71 Vt. 311 (1899).
9513 V.S.A. § 2601.
96State v. Benoit, 158 Vt. 359 (1992).
97See State v. Franzioni, 100 Vt. 373 (1927) (sexual conduct on fairgrounds grandstand at night was not “open and gross” because it was concealed from everyone else).
98For a full list of the offenses, see 13 V.S.A. § 5401.
9913 V.S.A. § 5405.
100Public Act 124, § 3 (1995).
10113 V.S.A. § 5403.
10213 V.S.A. § 5404.
10313 V.S.A. § 5407 (a).
104 13 V.S.A. § 5411.
10513 V.S.A. § 5407 (e).
10613 V.S.A. § 5407 (f).
10713 V.S.A. § 5411.
10813 V.S.A. § 5402.
10913 V.S.A. § 5411.
11013 V.S.A. § 5413.
11113 V.S.A. § 3252.
112In re G.T., 170 Vt. 507, 518 (2000).See also 13 V.S.A § 3252(c) (No person shall engage in a sexual act with a child who is under the age of 16, except: (1) where the persons are married to each other and the sexual act is consensual; or (2) where the person is less than 19 years old, the child is at least 15 years old, and the sexual act is consensual.)
113See Kent v. Dulles, 357 U.S. 116, 126 (1958); see generally Vt. Const. Ch. 1, art. 11 (search and seizure regulated).
114State v. Schmitt, 150 Vt. 503, 507 (1988); State v. Phillips, 140 Vt. 210, 215 (1981) (police can make brief investigatory stop based on reasonable suspicion to ask a few questions, but further detention must be based on consent or probable cause); Terry v. Ohio, 392 U.S. 1, 16 (1968).
115State v. Marcello, 157 Vt. 657, 658 (1991).
116State v. Burgess, 163 Vt. 259, 262 (1995
117Vt. R. Crim. P. 3(a)
118State v. Chapman, 800 A.2d 446, 449 (Vt. 2002).