What do Vermont’s New Sexual Consent Laws Mean?
On July 1st, 2021, Vermont got a new legal definition of sexual consent, thanks to Act 68, a nine-page piece of legislation packed with updates clarifying the prosecution of sexual assault. The new law replaces a definition of consent passed 40 years ago: “words or actions by a person indicating a voluntary agreement to engage in a sexual act.”
Updated for the 21st century, consent now means “the affirmative, unambiguous, and voluntary agreement to engage in a sexual act, which can be revoked at any time.” In addition to this reconsideration of consent, Act 68 establishes an intercollegiate council aimed at preventing sexual harm on Vermont’s campuses. It also seeks to disambiguate the presence of alcohol and drugs in incidents of sexual assault. Crucially, the act states that engaging in sexual activity with a person unable to give consent due to intoxication is sexual assault.
The new definition of consent is far closer to the one we at WomenSafe teach to students across Addison County. The definition we use considers imbalances of power, the consumption of drugs and alcohol, as well as the fact that consent can be changed and revoked at any point during a sexual encounter. Still, when I first heard the news about Act 68, I was wary. How much does one phrase, buried in mounds of other important laws, matter in changing what consent means in people’s everyday lives? How do we measure the success of this law when we know that the legal system is only one way in which survivors seek justice? To find out to what extent Act 68 might impact our multi-faceted effort to end sexual and domestic violence, I talked to State Senator Ruth Hardy, who played an integral role in passing Act 68, and Kim McManus, the Deputy State’s Attorney who prosecutes domestic and sexual violence cases in Addison County. After our conversations, I’m cautiously optimistic about what this law proposes for survivors seeking justice through the courts. But for real change, for consent to be accepted in the fabric of our society as a necessary component of any sexual act, we have further to go.
Why now?
Senator Hardy and I discussed Act 68 over Zoom on a cloudy summer day in June. She spoke passionately about this bill and her role in its passage. Senator Hardy made her own experience as a sexual assault survivor public for the first time on the Senate floor earlier this year in an effort to remind her colleagues how close sexual violence is to us all. “For them to know that another senator had personal experience with it, and I said it on the senate floor, is powerful and important and starts to put more of a face on the situation for my colleagues,” she said.
I asked her why this was the year for the definition of consent and sexual assault to change in Vermont law. She cited three primary reasons: the #MeToo movement, which has put sexual harm at the top of the agenda for several years, the presence of women in positions of power in Vermont’s legislative committees, and input from community stakeholders that painted a desperate need for updates to an antiquated system. A “well-timed” walkout conducted by students at University of Vermont, according to Senator Hardy, pushed legislators to establish and fund the intercollegiate council.
The Vermont Campus Sexual Harm Task Force, of which our own Executive Director at WomenSafe is a member, released a report to the legislature in May 2020. The report proposed the intercollegiate council and detailed the need for better practices to support survivors and prevent sexual violence. The task force also called for better information sharing and data collection. Although Act 68 does not address the task force’s request that all Vermont universities be required to collect data on sexual harm, it does require state law enforcement agencies to make publicly available data about stalking, sexual assault, and the number and outcomes of these cases as they are referred to law enforcement. Numbers can never tell the full story of sexual harm, but they can be used to paint part of the picture and hold our systems accountable. Domestic and sexual violence both thrive in silence, but when we can prove that sexual assault is happening, and that it affects women, people of color, and queer people at higher rates, we can demand change. I see in Act 68 the opportunity for the conversation around sexual assault to begin in earnest.
Effects on Prosecution - Survivor focused?
When I heard about Act 68, I wondered if it would help survivors get the justice that they seek, whatever that may be. Our legal system is notoriously unfriendly to survivors and can be retraumatizing, especially because the conviction rate for sexual assault is extremely low. Sexual assault remains the most underreported crime, for these reasons and many more. Whether or not Act 68 encourages more survivors to come forward remains to be seen. At the very least, it may make our current legal system work better for survivors. McManus, who prosecutes sexual assault cases in Addison County, believes that under the new definitions of consent and sexual assault, her arguments will be easier to make.
She expects that it will remove the scrutiny placed on survivors to be “perfect victims,” to somehow “prove” to the court their unwillingness to have sex. The law now requires “affirmative, unambiguous, and voluntary agreement” for consent to be present. Thus, for example, a “fawn” reaction to trauma, which occurs when the survivor “cooperates,” for lack of a better term, with the perpetrator until they can reach safety, cannot be used against the survivor.
Those who are incapable of giving consent include people unable to understand the situation, those who are incapable of resisting or communicating “unwillingness,” and those incapacitated by substance use. It is sexual assault, as well, to have sex with someone who is somehow declining to participate or is communicating unwillingness in some way. In addition, defendants will now be placed under more scrutiny. It will no longer be enough in court for them to say they didn’t know the plaintiff was incapable of giving consent. It is now possible to argue that the defendant “reasonably should have known” that the plaintiff was incapable, because of, for example, signs of intoxication or unwillingness.
I hope that this law changes the culture of victim blaming even beyond the courtroom. Ms. McManus is most excited to see how Act 68 might evolve the way our society views consent by attacking the cultural beliefs that make sexual assault a deeply rooted problem. Though the survivor still has the burden of proof in the courtroom, the new law may shift the focus to the agreement established before sex about what each person was consenting to. These changes will hopefully filter out of the courtroom through news about cases successfully litigated in favor of the survivor and impact the way we view the role of consent in our lives.
What now?
Senator Hardy admits that Act 68 is not perfect: “This [bill] tries to erase some ambiguity but it can’t erase all ambiguity.”
Issues will remain about substance use and mental disability. What does incapability to consent really look like, especially if both parties were under the influence of drugs and alcohol at the time of the assault?
It is also essential to remember that justice looks different to every survivor. This bill has been passed at a time when the legal system is reforming to prevent Vermonters from entering prisons. If Act 68 increases convictions, how do we adopt criminal justice reforms while also putting in place measures to protect survivors and deliver justice? How do we include survivors in this discussion to consider their own diverse conceptions of justice?
Read more about Act 68 here: Senate approves updated sexual consent laws - VTDigger
Emma Auer (she/her)