Vermont lawmakers ask if anti-stalking bill would limit free speech

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MONTPELIER >> Vermont lawmakers are grappling with where to draw the line between obnoxious behavior and stalking and considering whether it's a crime to cause emotional distress or if emotional distress must be tied to the threat of physical harm for there to be a crime.

The bill, House Bill 818, is a response to the concerns of victim advocates who say the state's anti-stalking law is not working. Some 700 Vermonters went to court last year to seek orders that someone stop stalking them, and less than 25 percent were approved, said Auburn Watersong, who represents the Vermont Network Against Domestic and Sexual Violence.

Seven other states have adopted parts of model legislation drafted by a national victims' rights group that seeks to strengthen stalking laws, Watersong said.

But judges who've testified to the Vermont House Judiciary Committee say they worry that defining stalking too broadly could bring a huge new workload into an already overburdened court system.

"When you ask me are we expanding it to boorish behavior, we're getting pretty close," Judge Brian Grearson, chief of Vermont's Superior Court judges, said in an interview Tuesday. "It's sometimes difficult to (distinguish) between harassment, bullying and a real threat of physical harm. That's what makes this legislation difficult."

Superior Court Judge Helen Toor was even more blunt in a letter she sent to the committee last month.

"Currently, something such as a man touching his genitals over his pants in a suggestive way would not qualify (as stalking) because the definitions require more significant sexual conduct," Toor wrote. "The proposed amendments would change this by allowing an order for any sort of 'lewd and lascivious conduct' ... Fraternity parties may be a whole new court docket."

Allen Gilbert, executive director of the American Civil Liberties Union's Vermont chapter, said in an interview he worries that too many restrictions on communications between one person and another could impinge on free speech rights.

Toor seconded his concern. "If whatever I say 'would cause a reasonable person substantial emotional distress,' it is a violation of this statute," she wrote. "This is extremely broad. Any time one person says something nasty about someone else this could get them into court."

Grearson offered the committee a compromise that sought to tie emotional distress to a particular threat or violent behavior. But Gail Zatz, also speaking for the Vermont Network, argued against tying it to a threat of violence. Bad-mouthing someone to her employer could cause the emotional distress of fearing a lost job, she said.

The committee hoped to finish work on the bill this week.

Committee Chairwoman Rep. Maxine Grad, D-Moretown, sought to assuage concerns that civil liberties be addressed.

"I think we'll be very deliberative and careful not to be too broad and still try to address the type of behavior that is meant to be addressed by the statute," she said.


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