2016 VT 52
By Elizabeth Kruska
My favorite class in college was Forest Ecology. The professor was a white-haired bundle of energy in his 70s who ate apples by the bushel and could outrun 20-year olds through just about any forest. He taught the class partly through song. The first song he sang to the class was from the train scene from The Music Man, with emphasis on the line “you gotta know the territory.” The reason, of course, is that if you know where you are, you can figure out what’s going on around you.
What does this have to do with juvenile court? Whether you’re in a forest or in Vermont’s criminal code, you’ve got to know where you are to figure out what’s going on around you. As it turns out, in this case, as in The Music Man, “it ain’t what it was, but you gotta know the territory.” When you’re reading statutes, it’s known as reading them in pari materia. Statutes on the same subject are read together to resolve inconsistencies. You have to be able to see the forest for the trees, and vice versa.
Jump in the wayback machine to the early 1900s to when the Vermont Legislature wrote Vermont’s statutes on prostitution. They outlawed prostitution. They also defined lewdness as “open and gross lewdness.” Because that’s clear.
Anyway, the statute has gone through lots of machinations over the years. In 1933, the definition of prostitution was broadened. Assignation was defined. Sex trafficking became illegal. Lewdness remained “open and gross lewdness.” Justice Skoglund calls this definition “splendidly helpful,” and from a snark standpoint, I give her an A+.
Because legislative bodies can’t stop talking about sex, they tackled the prostitution statutes again in 1947. This time, they made a whole new crime which separated a “lewdness” crime from “lewd and lascivious” behavior. The second involved “willfully and lewdly” committing an act (lewdness, I guess) against a child under the age of sixteen. The definitions remained the same, including the “splendidly helpful” definition mentioned above.
In 1949, the then Supreme Court of Vermont had to deal with the vagaries that are this statute. A Mr. Ploof was charged with a lewd act from the prostitution statute for allegedly committing lewd and lascivious acts upon a woman. Mr. Ploof was apparently convicted, and appealed, arguing that the statute was vague, because it didn’t tell him what’s illegal. Then-SCOV said he was right, and reversed his conviction. Mr. Ploof’s case stands for the proposition that someone charged under that particular section of the statute has to have not just engaged in lewdness, but that it had to be done in the context of prostitution. Otherwise, the statute doesn’t fit.
Zooming forward through our sex-crimes-history lesson, lots of things that had previously been illegal, like adultery, abortion, obscene books and picture shows, were once criminal but have been decriminalized, showing that the law changes with the societal morals. The law still has not helpfully defined what “lewdness” is.
What is clear, though, is that Vermont has two separate chunks of statutes that use the concept of “lewdness.” One is the one SCOV discusses at length in this opinion. This is the one nestled within the prostitution statute. It’s a misdemeanor and only says it outlaws lewdness. The other chunk of lewdness statutes are the lewd and lascivious conduct statutes, and those reside in a different subchapter of the chapter on sex crimes. Those are felonies and also, you guessed it, outlaw lewdness.
The evolution of the use of these statutes over the years is that the misdemeanor lewd act has been used as a bit of a catch-all. It had not been uncommon to see a person charged with the misdemeanor lewd act out of the prostitution statute instead of a lewd and lascivious charge. There are lots of reasons for this, not the least of which is that lewd and lascivious conduct is a felony and has different sex offender registration requirements. And sometimes, quite honestly, the facts of a case probably fit the definition of lewdness, but are not felony-level bad behavior.
Oh, and here’s another thing. Because the legislature has still not actually defined lewdness beyond “open and gross lewdness” for either the misdemeanor lewd act or for the felony-level lewd and lascivious conduct, everybody uses the same guidance from various cases, which point to what society deems as inappropriate to determine if something is lewd or not.
So, let’s circle the wagons and get back to K.A., who was twelve and he got into some trouble. K.A. and some other kids were playing foursquare after school one day. He started bothering a girl, S.K. She was wearing a winter coat that had zippered pockets. K.A. tried to put his hands into S.K.’s coat pockets. She said no, but he did it anyway. Then he started pulling her over to a snowbank and said that if she didn’t kiss him he was going to throw her into the snowbank. Ultimately, neither of those things happened, and he pulled her back toward the school, still with his hands in her coat pockets. At one point he may have also tried to put his hands into the waistband of her pants, but couldn’t because she was wearing a belt. A teacher saw all of this and told K.A. to take his hands out of her coat pockets.
I am not making this up. The state then filed a delinquency petition against K.A., alleging simple assault and a misdemeanor-level prohibited act. This is the kind of prohibited act that lives within the prostitution statute, as discussed above. K.A. had a merits hearing—essentially a bench trial—on the charges and a judgment of acquittal was entered on the simple assault, but not on the lewdness.
The State then moved to amend the charge to an attempted lewd act, saying that K.A. attempted to engage in lewdness by trying to put his hands into the waistband of her pants. The court apparently found against K.A. and found a delinquency.
K.A. appealed, saying essentially, “Are you actually kidding that this is an attempted lewd act?” (This is why I don’t do appellate work.) K.A. didn’t challenge the fact of which statute was used—the misdemeanor lewd act, all nestled in its bed in the prostitution statutes, as opposed to the felony-level non-prostitution lewd act. Because asking for a felony instead of a misdemeanor is like asking for broccoli instead of ice cream; it’s just not done. And before someone comments and says, “but broccoli is good!” to you I say, save it. You will not convince me of broccoli’s merit over ice cream. It is a vile weed and will be discussed no further. But turning back to sex instead of broccoli (which is not a phrase I ever thought I’d write), because of the lewd act having been turned into a catch-all, probably nobody would think to challenge it because it probably seemed like it was fine that it was the charge the State thought was available.
Where were we? Oh, right. So, SCOV looks at the facts, and the charge, and says that K.A. doing what he did during the afterschool foursquare game wasn’t prostitution. So, why on earth was this kid ever charged with a delinquency having to do with lewdness related to prostitution? It’s because, in the estimation of SCOV, this was charged without knowing the territory (of the statute, that is). SCOV finds this absurd, and after going through the analysis of the statute’s history, decides that this just doesn’t fit, so they reverse the finding. I wish they had acquitted, so I could use Johnnie Cochran’s line, but I do have to stay true to the opinion.
But wait, there’s just a little bit more. They also say that the State could have decided to charge lewd and lascivious conduct with a child. But they analyze the statute, and decide that probably they can’t figure out how a twelve-year old could engage in lewd-and-lascivious conduct, since that charge requires that the act be done with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the person or the child. Since we’re talking about twelve-year olds, SCOV says it’s hard to tell how they’d identify their respective “lusts, passions, or sexual desires.”
So, to sum up, SCOV wants people charged with the right crimes from the right statute chunks, because to do otherwise simply doesn’t make any sense. Because why? Because you gotta know the territory.