Violation of Abuse Prevention Order (VAPO)

Reporter’s Note

The instruction contains an element of general intent.  The text of the statute, 13 V.S.A. § 1030, does not refer to any mental element of specific intent.  The State does not have to prove that the defendant intended to violate the order, or even that the defendant knew his or her conduct would violate the order.  State v. Crown, 169 Vt. 547 (1999).  A person who is served with an abuse prevention order “has the responsibility to read and understand the order and conform his [or her] conduct to it.”  State v. Mott, 166Vt. 188, 197 (1997).

In Mott, the Supreme Court expressed approval of the instruction the trial court had given on the mens reaId. at 197 (“trial court correctly charged on the mens rea element”).  That instruction, which is quoted on pages 195-96, essentially requires a showing that the defendant knew he was sending his letter, and that it wasn’t a mistake, an accident, or a misunderstanding.  The concept that the defendant knew what he was doing reflects the requirement of “general intent.”

The prior version of this instruction, dating back to 2005, did not explicitly include a general intent element because the text of the statute at that time did not refer to any mental element. After the legislature added the word “intentionally” in a 2017 amendment, see 2017, No. 44, § 3, the Committee explicitly incorporated a general intent element to track the statutory language.  This should solve the problem presented by cases where, for example, a defendant innocently violates an order by inadvertently encountering the other person on the street, and where the order prohibits coming within a certain distance of the other.

The definition of “harassing” derives from 13 V.S.A. § 1061(4) (as it existed prior to its amendment in 2015, Adj. Sess., No. 162, § 5, eff. July 1, 2016), the former statutory definition in the context of stalking.  See State v. Waters, 2013 VT 109, ¶ 27, 195 Vt. 233 (concluding that “in the absence of any elaboration in the RFA order regarding the intended definition of ‘harassment’ or the type of conduct prohibited, the most appropriate touchstone for defining the term in the context of a VAPO prosecution is the definition in Vermont’s stalking statute”).  This definition is more specific, and requires a greater showing than the broad definition which the Supreme Court criticized in State v. Goyette, 166 Vt. 299 (1997). There are alternative definitions of “harassing” in CR10-418, CR10-421, and CR27-611.  The definition of “following” derives from State v. Malshuk, 2004 VT 54, 177 Vt. 475.