WARNING: The legislature recently revised the VAPO statute to add the mental element of “intentionally.” 2017, No. 44, § 3, eff. July 1, 2017. As a result, the reporter’s note below is not completely accurate. Courts and attorneys should review the current version of the statute, 13 V.S.A. § 1030, before instructing on a VAPO charge.
- CR22-301. Violation of Abuse Prevention Order, 13 V.S.A. § 1030 (10/12/20)
The instruction, as drafted, does not include a mental element. The text of the statute, 13 V.S.A. § 1030, does not refer to any mental element. 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 rea. Id. 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.”
However, it is not clear that an instruction on general intent is helpful to the jury. The committee believes that, in most cases, giving the instruction is not helpful. See further discussion of “general intent” in the notes under Chapter 6 — Mental Elements.
In the case where a defendant innocently violates an order by inadvertently encountering the other person on the street, where the order prohibits coming within a certain distance of the other, an instruction on general intent would not solve the problem. Instead, the solution to this problem is to draft the orders using more specific language. For example, a defendant could be ordered not to knowingly come within a certain distance of the other person. Under that scenario the State would have to prove that the defendant knew or should have known that he or she was coming within the prohibited distance, to show a violation of the order. However, an instruction requiring the State to prove that the defendant knowingly violated the order would differ from an instruction on the mental element known as “general intent.” If the attorneys in a given case believe that the court should instruct the jury on general intent, the attorneys should submit their request to the judge, along with a proposed instruction. V.R.Cr.P. 30.
The definition of “harassing” derives from 13 V.S.A. § 1061(4), the former statutory definition in the context of stalking. 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 and CR10-421. The definition of “following” derives from State v. Malshuk, 2004 VT 54, 177Vt. 475.