People accused of crimes could not use their victim’s gender identity as a defense under a bill unanimously approved Thursday by the House Judiciary Committee.
The committee recommended that the House adopt H.128 to protect transgender and gender-nonconforming Vermonters. The measure will next move to the House floor for a vote, likely after next week’s Town Meeting Day recess.
The legislation would ensure that, if a victim were to be harmed after making a nonviolent romantic or sexual advance, the perpetrator couldn’t use their victim’s actual or perceived gender or sexual orientation as a defense.
Removed from the bill, however, was a requirement that the Department of State’s Attorneys and Sheriffs submit annual reports, starting next January, on any convictions for crimes motivated by a victim’s gender, gender identity or expression, or sexual orientation.
The department’s computer system can’t sort out that information, according to James Pepper of the Department of State’s Attorneys and Sheriffs.
For one thing, “hate crime” is an enhancement added to other charges, not its own unique charge, he said. “There’s not a huge number of hate crimes in Vermont, but it would take a huge amount of work to track that down, and there’s no way to automate it,” Pepper said.
He said his department is looking for new case management software that could solve at least part of the data collection problem. There’s a high likelihood that any such information the state did collect would be incomplete, and thus of little value, Pepper maintained.
An additional problem, he said, is that the bill also calls for demographic information — such as race, ethnicity, age and gender — for people involved in these kinds of cases, but Pepper said Vermont police don’t uniformly collect that information. Even when they do, it’s a mix of self-reported and officer-observed information, and possibly unreliable.
So, the committee eliminated the requirement for data reporting and attached it to a different bill it plans to consider later this session so that the rest of the legislation could move ahead unhindered.
Several lawmakers objected, saying the data collection might be onerous but was certainly possible. Rep. Barbara Rachelson, D-Burlington, said she didn’t want to enable the Department of State’s Attorneys and Sheriffs to tell lawmakers that the data collection was impossible, when it was actually just difficult.
“Other things that get funded with government funds don’t have the option of not collecting the data,” Rachelson said.
Another key point of debate was over language referring to a “nonviolent romantic or sexual advance.” When committee members originally discussed the bill, they asked for clarification on the word “nonviolent,” and a possible replacement was found: “unwanted, nonforcible.”
However, lawmakers feared that the word “unwanted” could be misconstrued to apply in situations where a victim originally wanted a defendant’s advances, but then, after learning of that person’s gender identity, determined the advances to be “unwanted.”
Only one witness testified against the bill: Rebecca Turner, an attorney in the Office of the Defender General. She said the limit on what a defendant could use as a defense would be a violation of the right to due process under the 14th Amendment. She said she was concerned about the “sweeping nature” of the bill.
However, legislative counsel Brynn Hare told the committee that her reading is that the bill wouldn’t interfere with due process at all, and states in fact have the right to limit certain types of evidence from being brought forward — an explanation that satisfied the committee.
Rep. Maxine Grad, D-Moretown, who chairs the Judiciary Committee, said she hopes that the Department of State’s Attorneys and Sheriffs can use next week’s Town Meeting Day recess to determine what data is obtainable now, and figure out a timeline for getting the rest of it. After the break, Grad said, she hopes the committee can move the bill along to the House, and then the Senate.
