[D]efender General Matt Valerio and the ACLU of Vermont have joined a growing chorus of opposition to a proposal to create a new crime for the failure to protect a child from neglect and abuse.
The law, as proposed in Section 2 of the wide-ranging child protection bill, S.9, is too broad in its scope and unnecessarily duplicates existing laws, critics say.
As written, the law holds caregivers responsible for causing a child bodily injury, sexual abuse or exposing them to drugs. It then takes the extra measure of holding caregivers accountable if he or she “knows, or reasonably should have known,” that the child was at risk of harm from another caregiver.
Allen Gilbert of Vermont ACLU on Thursday told the Senate Judiciary Committee the law could deputize anybody who comes into contact with a child in the state of Vermont.
“There are whole swaths of people who would be affected by this,” Gilbert said, pointing to school nurses as an example.
Gilbert recommended that lawmakers scrap the entire section. He is particularly concerned the law, with the threat of a 10 year prison sentence, would serve as a “heavy weapon” that would intimidate people into incriminating themselves.
Even if prosecutors do not use the law frequently, it could dissuade people from coming to authorities because they don’t understand how the law might be used against them.
Gilbert is also concerned about the complicated language in the bill, which could make it difficult for people to understand how they might be charged with a crime.
“That’s really a lot to ask of an average citizen of this state before he or she can understand what to do to not be charged with a crime,” Gilbert said.
Auburn Watersong of the Vermont Network Against Domestic Abuse and Sexual Violence says the failure to protect provision could inadvertently criminalize victims of domestic abuse.
“Domestic violence is the use and threat of force to control victims,” Auburn Watersong said to lawmakers, “and we need to ensure that our laws don’t inadvertently place the government in the role of using threat and force to control victims as well.”
A special legislative committee met last summer to examine the state’s child protection system after the deaths of two young children whose families had been in contact with the Department for Children and Families. S.9 was written in response to several investigations into the two deaths.
Attorney General Bill Sorrell recommended that the committee make it easier for prosecutors to proceed in abuse cases when neither parent is forthcoming about how a child sustained an injury.
Sandra Eastman was unwilling to tell officials how her daughter Dezirae died last February. Her boyfriend, Dennis Duby, is facing a second degree murder charge in Dezirae’s death.
Critics of the proposal say that failure to protect a child is covered by laws already on the books, including Valerio.
“I don’t think you need this,” Valerio told the committee Thursday. “I think the existing law covers it.”
The main opposition argues that the failure to protect proposal is sufficiently covered by 13 VSA 1304, a statute that addresses child abuse and neglect, as interpreted in a 2013 court decision, State v. Amsden.
Sen. Joe Benning, R-Caledonia, supports the intention behind the proposed failure to protect law, so long as the crime is not already covered by state statute.
“I’m not interested in duplicating it,” Benning said.
If the “failure to protect” section of S.9 is to be included, Benning thinks it needs some editing.
As written, the bill criminalizes the exposure of a child to a list of regulated drugs, including hallucinogenics, methamphetamines and marijuana. Benning, a longtime family court attorney, sees a glaring absence on the list.
“If you’re going in the direction of a laundry list,” Benning said, “then in my eyes, alcohol should be included in that laundry list.”
Speaking by phone Friday, Sen. Dick Sears, D-Bennington, the committee chairman, said he expects the section will stay in the bill, but the scope of who will be subject to the failure to protect provision will likely be narrowed.
He said he was surprised at DCF Commissioner Ken Schatz’s opposition to the failure to protect section because the department was part of the process as the bill was drafted. Schatz started the job in November.
“I think Section 2 is an important part of the bill, but not the most important part of the bill,” Sears said.
Sears emphasized that the 43-page draft legislation also calls for the implementation of consistent practices across the Department of Children and Families.
