Editor’s note: This piece from the SCOV Law Blog is by Andrew Delaney.
State v. Graham, 2016 VT 48
[J]ulianne Graham was charged with three counts of sexual exploitation of a minor. Here’s the thing: generally, in Vermont, 16 is the age of consent (one can also marry one’s cousin legally in Vermont but that’s a topic for another day). That means that if a 17-year-old high school student and a 25-year-old college student want to date, and, ahem, other stuff, it’s not a problem. But there’s an exception. And that’s when the older person is four years or more older and “in a position of power, authority, or supervision” over the 16- to 18-year-old minor. This applies to teachers, camp counselors and others — the statute is fairly broad. But what happens on summer break in a school-year-only contract situation?
Beginning in 2012, Ms. Graham was employed on a school-year basis by Chittenden South Supervisory Union (CSSU) as a paraeducator and then for the next two years as a program assistant. She worked with K.S., the alleged victim, in a school program during the 2013-14 school year, and in May 2014, her supervisors told her she couldn’t work with him anymore because she “was spending an inappropriate amount of time with him to the detriment of the other students in the program.” So K.S. was transferred to another program. Ms. Graham no longer had supervision over him.
It’s important to note here that Ms. Graham’s employment was always on a school-year basis. She did not have a summer position, nor did she have any supervisory role over students in the summer of ’14.
In early 2015, the State charged Ms. Graham with three counts of sexual exploitation of a minor under the statute referenced above for acts that allegedly occurred “on or about the summer of 2014.” There was a reference to her school position thrown in to meet the supervisory requirement.
Ms. Graham filed a motion to dismiss, arguing that the State couldn’t prove beyond a reasonable doubt that she was in a supervisory position in the summer of 2014; that she was undertaking a responsibility to provide for the instruction of minors; or that she abused her supervisory position to engage in a sex act with K.S.
There was a motion hearing with three State witnesses. The trial court dismissed the case on the basis that a plain reading of the statute requires “the actor to be in a position of power, authority, or supervision at the time of the sex act,” and that wasn’t the case here. Ms. Graham was not actually employed by the CSSU during the summer. While the trial court acknowledged that there would probably be criminal liability during the school year, in this case it was outside the scope of the job and the statute.
The State appeals.
The SCOV notes that the standard on a motion to dismiss is pretty favorable to the State. Simply put, the State just has to show that it has some stuff that meets the elements of the charges. It doesn’t have to be ironclad. But there’s got to be something.
The SCOV concludes that the purpose of the statute is to protect those between 16 and 18 from an imbalance of power that negates the ability to consent. The formal relationship has to be in place at the time of the sex act.
The State argues that it should’ve been up to the jury to decide whether Ms. Graham was in a supervisory position. The State asserts that Ms. Graham received certain employment benefits for which she didn’t have to pay premiums and that she wouldn’t have been eligible for unemployment during the summer because she knew she was going back to the job. For good measure, the State throws in that she “may have been subject to certain school policies during the summer.”
The SCOV is not impressed. The evidence shows that Ms. Graham was a school-year employee. Residual carryover benefits and an inability to collect unemployment — assuming that’s the case — do not an employee make. That pitch goes nowhere.
The State also argues that whether or not Ms. Graham was an employee that summer doesn’t resolve the issue. It contends that by taking responsibility to instruct minors in previous years, that has placed her in a supervisory role — summer break notwithstanding; use of the present-tense “is notwithstanding.” It’s a subtle argument, and the State also notes that because the statute also covers volunteers, whose roles may be more loosely defined, that this is a reasonable interpretation.
The SCOV says: “The State reads too much into the statute.” Then we get into gerunds and present tense and … well, I’m just going to leave this here and let you read it in all its glory:
The State agrees that the actor must be in a position of supervision at the time of the sex act, but contends that the Legislature’s use of the gerund “undertaking” does not preclude construing the statute to include circumstances in which the actor gained the position of supervision by virtue of having undertaken past instructional responsibilities. In so arguing, the State notes that the gerund form of the verb need not indicate the present tense—for example, as in, “thank you for reading my brief.” Tellingly, in making this argument, the State consistently uses the verb phrase “having undertaken”—a phrase that the Legislature could have used, but did not, and which arguably would have provided some support for the State’s position.
You can tell it’s an election year. The SCOV concludes that the purpose of the statute is to protect those between 16 and 18 from an imbalance of power that negates the ability to consent. The formal relationship has to be in place at the time of the sex act. The SCOV points to a couple statutes from other states that impose criminal liability after the trust relationship has ended and says, more or less, “Hey, if the Legislature wanted to do that, it could’ve. But it didn’t.”
At most, the statute is ambiguous in the State’s view. And the SCOV points out that ambiguity would get resolved in favor of the accused according to the rule of lenity. So there’s that.
The SCOV is careful to point out that this construction doesn’t mean that weekends and off-hours acts won’t lead to criminal liability. Nor does the minor have to be in a class or activity directed by the actor. The statute is still plenty broad. It’s simply under these facts that the SCOV is going to interpret the statute as not reaching this conduct.
On a serious note, dear readers, if the gender roles in this case were reversed, do you think the result would have been the same?
