- CR27-521. Sexual Exploitation of a Minor (misdemeanor), 13 V.S.A. § 3258(a), (01/08/21)
- CR27-526. Sexual Exploitation of a Minor (felony), 13 V.S.A. § 3258(c), (01/08/21)
Reporter’s Note
The statute criminalizing sexual exploitation of a minor “is intended to protect minors between the ages of sixteen and eighteen who are the victims of sex acts perpetrated by persons who are in a position of power, authority, or supervision over the minors by virtue of specified undertakings, thereby creating an imbalance in the relationship that effectively deprives the minors of being able to consent to the sex acts.” State v. Graham, 2016 VT 48, ¶ 15, 202 Vt. 43. The defendant must have been in the position of power, authority, or supervision at the time of the sex act. Id. ¶¶ 14–19 (charges against defendant-teacher properly dismissed because they occurred with high school student during summer break when defendant was between school employment contracts). See also State v. Nelson, 2020 VT 94, ¶ 35 (listing elements of crime). The statute defines both a felony and a misdemeanor offense. The Committee has prepared model instructions for both.
The statute contains no explicit intent element, and the same is true of the model instructions. In listing the elements of this crime in Nelson, the Supreme Court did not include an intent element. Id. However, the Court has also recognized a “presumption in favor of requiring an element of mens rea in criminal statutes.” State v. Richland, 2015 VT 126, ¶ 9, 200 Vt. 401; see also State v. Stanislaw, 153 Vt. 517, 523 (1990) (explaining that “the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo–American criminal jurisprudence[,] . . . [and] unless expressly provided otherwise by the legislature, . . . a crime is composed of an act and an intent, which concur at a point in time” ) (emphasis added) (quotations and citations omitted); State v. Beayon, 158 Vt. 133, 135 (1992) (observing that we often have “implied guilty intent as an element when none was expressly provided by the statute”). Additionally, the Court has recognized a felony/misdemeanor distinction in deciding whether an offense requires an intent element or is instead a strict liability offense. See State v. Witham, 2016 VT 51, ¶ 14, 202 Vt. 97 (describing “the severity of the punishment” as the most important factor). Without further direction from the Supreme Court as to whether the sexual exploitation of a minor statute requires an intent element (as to either its felony or misdemeanor version), the Committee leaves it to the trial courts to decide this issue in appropriate cases.