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Should Vermont adopt Jessica's Law?

07/17/2008

By Maxine Grad

As we as a state try to grieve the tragic loss of a child's life due to a horrific crime, the question of should Vermont adopt Jessica's Law has been brought forth.

The attached "Responsible Policy for Supporting Survivors of Sexual Violence" by Sarah Kenney, Vermont Network Against Domestic and Sexual Violence, and Jennifer Poehlmann, Vermont Center for Crime Victim Services, is an op-ed that appeared in papers in 2006 when the Legislature debated mandatory minimum sentences or Jessica's Law. In it, they state why Jessica's Law has the unintended consequences of letting sex offenders go free, traumatizes, re-victimizes and harms victims.

I am sharing this information with the hope to educate the public in the way my committee was educated during the months we looked at this issue. At first, I was in favor of mandatory minimums. Why wouldn't anybody be? many of us asked. However, once we heard from the victims, victims advocates, prosecutors and defense attorneys, I understood that mandatory minimums don't work. I ask that you read this piece from the folks that work with the victims. It is still their position as some of you may have heard on VPR and they will be submitting another editorial this week restating their position.

In the following weeks I will provide you with more information on what has changed in the past 4 to 10 years in sentencing and corrections policy that lead me to believe that this type of crime would not have happened under the changes the Legislature has made.

Certainly, we should always ask if there is more we can do.

I thank you for taking the time to read this very helpful information at a time when our communities have been struck with grief, fear and shock.  Rep. Maxine Grad
 

Responsible Policy for Supporting Survivors of Sexual Violence


By Sarah Kenney, Vermont Network Against Domestic and Sexual Violence,  and Jennifer Poehlmann, Vermont Center for Crime Victim Services
 
At first blush, mandatory minimum prison sentences seem to be a natural response to short sentences for sex offenders. However, we have learned that mandatory minimum prison terms are not the answer; in fact, the imposition of these terms may result in unintended negative consequences for victims.
 
Victim advocates in prosecutors' offices and in nonprofit organizations in Vermont work every day with victims of sexual violence who feel they have not received justice from our legal system. These advocates see firsthand the impact of sexual violence on victims, and the courage and strength it takes for individual victims to participate in even the most minimal ways in a grueling process that is often re-traumatizing. The question is not whether we need longer sentences, it's how best to achieve this goal.
 
The House has proposed a sentencing structure under which perpetrators of certain crimes of sexual violence will automatically receive a maximum sentence of life; judges will not have the discretion to impose anything less than life. If an offender completes treatment and appropriate programming, then he or she is eligible for release into the community but is still subject to lifetime supervision by the Department of Corrections. This provides an incentive for offenders to comply with programming and supervision requirements and provides for a lifetime of accountability that's sorely lacking for most offenders in our current system. Additionally, the DOC has the authority to keep a person incarcerated if he or she poses a high degree of risk. Lifetime sentences for sex offenders send a clear message to offenders, victims and communities that perpetrators of sexual violence deserve lifelong consequences.  

The Vermont Network Against Domestic and Sexual Violence and the Vermont Center for Crime Victim Services support the bill that passed the House and we oppose mandatory minimum prison sentences. We know that the complexities of these crimes and the specific vulnerabilities of many victims -- especially children -- require our system to be responsive and flexible. The "one size fits all" approach of mandatory minimum prison sentences can have many negative consequences that may actually serve to decrease public safety.  
 
• Mandatory minimum sentences virtually eliminate the incentive for defendants to agree to any plea bargain, meaning that many more crimes of sexual violence will result in trials. We know that when these cases go to trial, the outcome is much more likely to be an acquittal. Currently in Vermont, over 60 percent of crimes of sexual violence that go to trial result in an acquittal -- and these are the cases that prosecutors believe to be the strongest.  
Perhaps more importantly, this will force many more victims to be subjected to a deposition and trial they might otherwise have had the option to avoid. The dynamics of these trials are vastly different than for other crimes, as the defense strategy must focus on proving the victim to be a liar and destroying his or her credibility. The only alternative to proceeding to trial then becomes dismissing the case or charging the perpetrator with a lesser crime. Under this scenario, it is conceivable that if a parent of a 4-year-old victim does not want her child to go through a trial, the person who sexually abused the child could walk away with their case dismissed or perhaps merely a misdemeanor conviction for simple assault. These outcomes do not serve the best interests of victim or community safety.
 

•  While plea bargains do not always result in the best outcome, there are many reasons a plea is often much better than having vulnerable victims subjected to the trauma of a lengthy trial process. Most sex offenders pick victims who they know either cannot come forward or will not be believed if they tell someone. Additionally, these crimes are often reported some time after the incident happened, making them more challenging to prosecute. Very often a plea bargain which achieves the certainty of conviction, even if for a lower sentence, is the best possible outcome that prosecutors can obtain given the victim's fear and trauma and the facts of a case.

 
•  In Vermont in 2005, 99 percent of crimes of sexual violence reported to law enforcement were perpetrated by someone known to the victim; the majority of these were against family members and friends. These survivors may be hesitant to come forward if they know that the perpetrator will automatically face a very long prison sentence: They may fear the reaction of their family and friends if they are responsible for sending that person to jail for a long time; the survivor may be a child who doesn't want the parent or relative that they love sent to jail for many years but simply wants him or her to find treatment and discontinue the behavior. For all these individuals, the flexibility of our current system at least allows for the option that appropriate sentences can be crafted that take into account victims' concerns.
 
•  In other states, prosecutors and judges have gotten around long mandatory minimum sentences by charging perpetrators with lower level offenses that don't carry the mandatory prison term. We want perpetrators of sexual violence to be convicted for what they actually did -- we want them on the sex offender registry if they should be and we want their criminal record to provide a full picture of their crimes.
 
We have not arrived at this position in a vacuum. No one who works in Vermont's criminal justice system has spoken out in support of the sentencing provisions in Jessica's Law. These provisions are new and we have yet to understand the full impact of this law on victims of sexual violence. Before we rush to do something in the name of victims of these crimes, we owe it to them to at least make sure that we will actually help them.  
 
Grad (D) represents Moretown, Roxbury and Northfield in the Vermont Legislature. She lives in Moretown.
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