CR 28-104. Cruelty to a Child (misdemeanor), 13 V.S.A. § 1304(a) (06/15/16). Where the statute refers to a person who “wilfully assaults, ill treats, neglects or abandons or exposes [the] child,” the instruction ties the element of wilfulness to each of the possible specific allegations. The Vermont Supreme Court has stated, in reviewing a complaint of abandonment: “It was essential that the complaint allege that the abandonment was wilful and that it was done in a manner to cause the child unnecessary suffering or to endanger its health.” State v. Greenough, 116 Vt. 277, 281 (1950). In this context, “neglect” is not synonymous with “negligence.” See also the instruction on corporal punishment as a defense to a charge of cruelty by assault.
The previous version of the statute referred to “a child under ten years of age,” but in the most recent amendment to the statute, the Legislature removed the “under ten years of age” language and left the term “child” undefined. See 2015, No. 60, § 25, eff. July 1, 2015. Given that there is no other definition of “child” in the statutes that explicitly applies to 13 V.S.A. § 1304, it is unclear at what age one qualifies as a “child” for purposes of this crime. The revised instructions follow the statutory language. In a case where the child’s age is an issue, the court will need to determine if further elaboration is necessary.
CR 28-111. Cruelty to a Child (felony), 13 V.S.A. § 1304(b) (06/15/16). The felony version of the crime was added by the Legislature to cover situations where the child dies, suffers serious bodily injury, or is subject to sexual conduct. See 2015, No. 60, § 25. In appropriate cases, further elaboration of legal causation may be necessary. In that event, the court might consider inserting the general instruction on causation, CR09-051.
CR28-161. Cruelty to Animals, 13 V.S.A. § 352(4) (03/03/06). Parts of this instruction were drafted in connection with the trial in State v. Stevens, 1481-11-01 Wrcr (DiMauro, J.). Ms. Stevens was charged under 13 V.S.A. § 352(4), which is a strict liability offense. See State v. Gadreault, 171Vt. 534 (2000). She was found not guilty on all counts.
The committee has also prepared jury interrogatories for the charge of cruelty to animals, again originally drafted in connection with the trial in State v. Stevens, 1481-11-01 Wrcr (DiMauro, J.). The form derives from the earlier case State v. Gadreault, 171 Vt. 534 (2000), where Judge Cheever presided over the trial. When the State charges the defendant with various options under the statute, stated in the disjunctive, either the State must prove all of the options beyond a reasonable doubt, or the jury must complete jury interrogatories to insure that any verdict is unanimous. For discussion of this issue, see State v. McDermott, 135 Vt. 47, 50-52 (1977). The form may be repeated and used for multiple counts.
CR28-911. Abuse of a Vulnerable Adult, 13 VSA § 1376(a) (04/04/07).
CR60-201. Furnishing Alcohol to a Minor, 7 V.S.A. § 658(a)(1) (12/12/16).
CR60-206. Enabling Consumption of Alcohol by a Minor, 7 V.S.A. § 658(a)(2) (12/12/16). In State v. Richland, 2015 VT 126, ¶¶ 5–21, the Supreme Court held that, for the offense of enabling the consumption of alcohol by a minor, the term “knowingly” modifies the age element of 7 V.S.A. § 658(a)(2), and therefore the State must prove that the defendant knew the minor was under age 21. Thus, while furnishing or selling alcohol to a minor is a strict liability offense, see State v. Kerr, 143 Vt. 597, 605 (1983); 7 V.S.A. § 658(a)(1); CR60-201, the crime of enabling is not.