In the Wake of Tragedy,
Vermont Considers
Overhaul of Sex Offender Laws

by Cindy Ellen Hill

In June 2008, 12-year-old Brooke Bennett of Braintree was murdered in Randolph. As of this writing, Michael Jacques, her uncle, has been charged in federal court with her kidnapping, but has not yet stood trial for the offense.

[Editor’s note: According to an October 1 news report from the Rutland Herald, Michael Jacques has now been indicted on additional charges in the Bennett case:
A federal grand jury has indicted the uncle of 12-year-old Brooke Bennett, charging him with drugging, sexually assaulting and smothering her with a plastic bag, prosecutors said Wednesday.
The grand jury in Rutland also handed up "special findings" against Michael Jacques, 42, of Randolph, making him eligible for the death penalty if convicted on the charge of kidnapping with death resulting.
It also indicted him on five child pornography counts, and charged that he coerced another girl, 14, into helping him with the abduction.]

“The horrific circumstances surrounding [Bennett’s] abduction and death amount to one of the most heinous crimes ever committed in our state,” wrote Senate President Pro Tem Peter Shumlin (D-Windham) in his letter to Senate Judiciary Committee Chairman Richard Sears (D-Bennington). “This terrible tragedy also raises significant questions for our criminal justice system, given that the sole suspect in Brooke Bennett’s murder, her uncle Michael Jacques, was released from Department of Corrections supervision early after being convicted of a prior sexual offense.”

Bennett’s case – especially the oft-cited information that Jacques, 42, had a prior sexual offense conviction when he was 26, for which he was released early – has led to a broad public outcry for an overhaul of Vermont’s sex offender laws.

Suggestions include a push for adopting a “Jessica’s Law” with high mandatory minimum sentences for child sex offenders, as well as enhanced sex offender registries, residency restrictions, and lifetime supervision by tracking with electronic GPS units. Sears’ committee is holding a series of hearings through the fall considering all of these options, with a final report scheduled for release in November.

Less frequently reported, however, is that Jacques’ release from probation was in accordance with then-existing statutes and Department of Corrections (DOC) policies; that Jacques’ prior conviction was for rape of an 18-year-old adult; and that, since Jacques’ release from probation in 2004, Vermont’s sexual offender laws and sentencing structures have already been significantly rewritten. Reports have also overlooked that this case was a murder, which is already subject to the highest legal prescriptions in the statute books.

So would any of the wholesale revisions to Vermont’s already recently revised sex offense laws have made any difference for Brooke Bennett?

“I think what we have is a case of political overreaction,” says Joan Eckley, a retired DOC caseworker who ran the pretreatment sex offender program at the Marble Valley Correctional Center in Rutland for over a decade. That overreaction, Eckley believes, is predicated on cultivated fear.

“We have a whole culture of fear in this country,” Eckley says. “We need to let our present [sex offender] laws percolate through and assess how they work. The best decisions are not made immediately after a major tragedy like this.”

While Vermont has the lowest homicide rate in the country, we are not immune to the horror of murder. The state has seen the abduction, sexual assault, and murder of, for example, 15-year-old Paulette Crickmore by Edwin Towne in 1986, 21-year-old Michelle Gardener-Quinn by Brian Rooney in 2006, and 31-year-old Laura Winterbottom by Gerald Montgomery in 2005 – as well as the horrific, drug-infused, random beating death of St. Michael’s College student Atsuko Ikeda by Jacob Sexton in 2000 – to name just a few.

Early Release or Adequate Time Served?

Much of the current sense of urgency arises from the assertion that Jacques was wrongly released early from probation on a prior sex offense conviction. But court docket sheets, as well as documents from both the DOC and judges involved in Jacques’ earlier case, tell a more complex story.

Jacques pled guilty in July 1993 to the rape and kidnapping of an 18-year-old woman. He entered into a plea agreement with the State for a sentence of six to 20 years, split to serve six years with credit for a year of time already served.

Jacques successfully completed his in-house sex offender treatment and otherwise served his jail time without major incident. Thus he was released from jail to probation at the expiration of his minimum sentence in 1997, approximately four and a half years from first being incarcerated.
At that time, sentences could be reduced in two ways: with good time and earned time. Good time reduced sentencing as long as an inmate remained out of trouble (So-called “good time” is a statutory reduction to an inmate’s incarcerative sentence, usually expressed in terms of a certain number of days reduced per year, with the reduction predicated on the inmate meeting minimum conduct standards. Every state in the country as well as the federal system has enacted ‘good time’ statutes at one point or another, often as a means of redressing prison crowding.) Earned time allowed inmates to “earn” time off his/her sentence by doing good deeds such as donating blood, or engaging in volunteer work.

Since then, Vermont has eliminated good time and required that earned time reductions be applied to the maximum sentence only, so convicted offenders must serve the full term of their minimum sentences. The rules regarding sentencing calculations and time allotments were well known to prosecutors and courts alike at the time of Jacques’ conviction, however, and minimum sentences in plea agreements were adjusted to account for the fact of anticipated good time reductions. Jacques’ release from prison, therefore, was not early under the rules then in effect.

Once released to probation, Jacques successfully completed outpatient sex offender treatment, with a glowing letter of recommendation from the treatment provider. He had only one minor probation violation – failure to promptly report a change of address when he moved in with his fiancée, whom he later wed. For that infraction, he served four days on a work crew.

In September 2004, the state denied Jacques’ petition for release from probation. Judge Amy Davenport directed 18 more months on probation, stating that absent any probation violations, Jacques would be eligible for release from probation in July 2006.

Jacques did not file a new petition for discharge from probation until December 2006. At that point, neither the State nor the DOC filed any objection. Jacques was released from probation on December 5, 2006, after more than nine years of probation. This was, according to Davenport’s response to Senate Judiciary Committee inquiries in a letter dated September 9, 2008, “considerably in excess of the time normally required under DOC guidelines for duration of probation that were in effect at that time. (The DOC guideline for duration of supervision was half the incarcerated sentence.)”

The report of “early” release was probably spawned by an erroneous assumption that a split six- to 20-year sentence meant Jacques should have been on probation until the expiration of the full 20 years. But this is not how probation worked in Vermont then, and it is not how probation works in Vermont now. A person in Vermont remains on probation until they are released from probation. Release could happen in a significantly shorter time than suspended maximum sentence. On the other hand, it could also happen in a significantly longer time. Under the rules in place at the time, and under all the criteria still applied today in making probation release decisions, Jacques was not released early, but rather in an appropriate, possibly even cautiously long, timeframe.

Current Sex Offender Laws in Vermont

In the years between the date Jacques was released from incarceration and the date of the death of his niece, Vermont has been slowly and deliberately revamping its sex crimes laws. The state’s sentencing structure was adjusted to include a concept called “indeterminate life sentencing” in which most sex offenders get a life imprisonment maximum, although that maximum may be suspended from being served in incarceration. It does, however, create a presumption of long-term supervision, and authorizes the State to reincarcerate the individual for life for any future criminal violation.

Recent changes in Vermont law also restructured the statutory rape laws. Statutory rape is a legal determination that sexual acts by people under a stated age of consent cannot be considered legal, even if there was no coerciveness or violence involved. For many years, the statutory age of consent in Vermont was 16, with no other legal provisions surrounding that cutoff age. This meant a young man of 18 with a 15-year-old girlfriend with whom he shared an intimate relationship was engaged in a felony act of rape, regardless of the young woman’s sentiments on the subject. Thus a young man in Vermont could find himself prosecuted under just such a scenario, especially when the circumstances were reported by, say, the young woman’s disapproving parents. The young man would then find himself placed in a sex offender treatment program for pedophiles, despite the fact that he was not exactly in the same psychological condition as a man of 50 who was sexual abusing a nine-year-old relative.

The specter of placing such young people on a sex offender registry sparked revision of Vermont’s statutory rape laws to bring them into closer synch with those of several surrounding states. The new law leaves the age of consent at 16, but exempts from the statutory rape definition the consensual intimate relations of any person 15 or over with any person under 19.

Statutory rape laws also exempt married couples. In Vermont, persons can marry with the consent of no one beyond their intended spouse at the age of 18. However, with a parent’s written consent (signed on the marriage license at the town clerk’s office), they can marry at 16, and with a judge’s consent, they can marry at 14.

Under the new Vermont statutory rape statute, there is no mandatory minimum sentence, and the maximum sentence is an advisory 20 years. The offense does entail lifetime sex offender registration and community notification, unless the offender is less than six years older than the victim and the victim is at least 14, in which case it entails only a 10-year sex offender registration and community notification.

Finally, the age of consent laws do not apply to persons in a position of entrustment. The age of consent for persons under the offender’s care is 18. If an offender engages in sexual acts with a person in their care who is under 18, the matter is charged as a special category of standard sexual assault without regard to consent, with the same three-year advisory minimum and indeterminate life mandatory maximum as for ordinary sexual assault.

Under Discussion

The three most significant changes under consideration by the Legislature in the wake of the Bennett case are adopting a Jessica’s Law, civil confinement, and expanding the Adam Walsh Act. In addition, individual communities are considering residency restrictions for sex offenders.

“Jessica’s Laws” are named for a young Florida girl, Jessica Lunsford, who was raped and murdered in 2005 by John Couey, a previously convicted sex offender. In the outrage that followed, Florida adopted comprehensive legislation, including a 25-year mandatory minimum sentence and lifetime electronic monitoring of persons convicted of lewd and lascivious conduct with a child under 12; rape of a child under 12 in Florida carries a sentence of death or life without parole. Similar laws, emphasizing high minimum sentences and electronic monitoring for life for persons convicted of sex offenses against young children have been adopted in 42 states. A pending federal bill, the Jessica Lunsford Act, would, if passed, greatly limit federal law enforcement grant funds to states that did not have in effect substantive electronic monitoring programs for child sex offenders.

A Jessica’s Law in Vermont would have had no effect on Jacques’ status prior to Bennett’s murder because his prior sex offense was not against a child, but an adult. He is presently facing federal charges, so a Vermont-level Jessica’s Law would have no impact. Hypothetically, had Jacques been charged in state court, a Vermont Jessica’s Law might have applied but would have been effectively subsumed by the murder charge sentencing terms.

Sex offender management professionals warn that raising the mandatory minimum sentences for sex offenders might well have considerably darker unintended consequences. “My major concern is that you’ll have more deaths,” Eckley says. “These guys would say so in group. ‘If the mandatory sentences go up, you’re better off murdering them.’ And some of these guys are master manipulators. These are, after all, people who can convince a 10-year-old not to tell. But when the mandatory minimum being talked about is higher than for murder, we will have more tragic events.”

Civil confinement requires convicted sex offenders to participate in a psychiatric hearing at the conclusion of their criminal sentence to determine if they can be released into the community or held in a wing of psychiatric institution, potentially for life. New York adopted a civil confinement law in 2007.

“With lifetime civil commitments, you waste all your treatment dollars on that, it blows your budget for anything else,” says Eckley. “It’s not the time to be doing that. Right now the state is cutting the defender budgets, cutting the prosecutor’s budgets, they are talking about cutting the courts back to four days a week. It’s going to take forever to get people to court.”

The Adam Walsh Act was federal legislation passed in 2006 that created a National Sex Offender Registry. It requires states to register offenders using a set, federally-prescribed form, and make the information publicly accessible online, including the offender’s photo and employment history. It also requires electronic monitoring of offenders by use of a GPS unit. Failure of an offender to comply with registration and reporting requirements can result in federal criminal charges. The act creates three tiers of offenders, with the length of time on the registry and subject to electronic monitoring, as well as the frequency of in-person reporting, dependent on the nature of the offense of conviction.

The Adam Walsh Act has been declared unconstitutional by one federal district court judge, and another federal judge in Nevada has blocked enactment of that state’s Adam Walsh Act until the federal statute’s constitutionality has been resolved.

Closer to home, Barre passed Vermont’s first residency restriction ordinance, precluding convicted sex offenders from residing within 1,000 feet of a school or recreational facility. Rutland followed suit with a similar ordinance shortly thereafter. Burlington is presently considering residency restrictions.

Eckley says that residency restriction ordinances are based on a misconception that sexual assaults on children are perpetrated by strangers who lurk in schools and parks. “But 90 percent of these offenses happen in the home. It is not ‘stranger danger,’” she says.

According to testimony by Dr. Jill Levenson, associate professor of human studies at Lynn University in Florida, to the Senate Judiciary Committee, federal statistics indicate that 93 percent of child sexual assaults are perpetrated by someone known to the child – 34 percent by a family member and 59 percent by family acquaintances. Less than seven percent of child sexual assaults are perpetrated by strangers.

Residency restrictions are being hotly debated around the country, with many studies pointing out that residency restriction laws often effectively bar an offender from the city altogether, and at the least usually vastly restrict affordable housing options. Combined with community notification procedures that frequently result in loss of the offender’s job and housing, residency restrictions seem suited to increasing stressors and mental health pressures, which increase risk of recidivism.

What Works?

In the environment of fear and vengeance following a tragedy like Bennett’s murder, it is human nature to attempt to discern the failure in the system and at all costs fix it. But it is also important to assess where the system has succeeded – to determine what works, so that an array of functional lights are not eliminated along with those that have failed the community.

Eckley’s pretreatment sex offender program at Marble Valley Correctional Center in Rutland saw countless successes for every failure, by following principles of one-on-one human contact with offenders, and an attitude of attention and helpful intervention. “Our program concentrated on getting people out of denial and getting them accustomed to the group setting,” she says.

One simple tool Eckley used on her block was sexual autobiographies. “We’d have them write an autobiography of their sexual history from day one. It was designed to make them look at how their sexual life was different from other people’s, and to find patterns in their behavior and what was happening in their life.” Encouraging self-assessment, and the opportunity to talk about it, opened many doors for the inmates, the majority of whom have gone on to productive lives.

Levenson’s testimony noted that while sex offenders are four times more likely to be arrested again for new sex crimes, the overwhelming majority of new sex crimes – 87 percent – were committed by other types of criminals compared with just 13 percent by previously identified sex offenders.

“Several recidivism studies indicate that most recidivists are apprehended within the first few years at large, and that risk decreases as offenders spend more time in the community offense-free,” she wrote to the Judiciary Committee.

“I see many of my former charges still in my community,” Eckley says. “One man from my program who then went on to St. Albans, he does a lot of volunteer work with offenders, comes and speaks at various groups, helps ex-offenders find housing and jobs. He used to come back into the jail to volunteer but that was difficult. Corrections isn’t big on ex-offenders mingling with current offenders.”

Eckley agrees that the state needs more supervision of sex offenders in the community, but prefers human interaction to electronic monitoring, residency restrictions, and other technological interventions.

“There are so many successes, but it takes a lot of one-on-one contact to make that happen, and that’s not what we’re about right now in Corrections or in our society,” she says. “We need more people contact. People contact works. But it’s not quantifiable.”

Eckley also sees a large gap that has been created since the DOC turned from competency-based release from incarceration to a more mechanical reckoning of time in treatment to establish eligibility for release.

“Before 1997, treatment for violent and sex offenders was competency-based. They had to meet certain competencies, have plans in place before they could be released. Then they went to a time-only strategy: you do 18 months in incarcerative treatment and then you’re out,” she notes. “Now they’ve moved all sex offender release decisions to a central staffing office, and my understanding from the Probation Officers I’ve talked to is that no one is being recommended for parole anymore. But that will only backlog the system.

“Sex offenses are not on the increase; if anything they are on the decrease, but now every offense has this heightened reaction,” Eckley adds. According to Bureau of Justice statistics, child sex offense rates nationally are down 51 percent since 1990. With sex offender treatment programs emphasizing one-on-one interaction, recidivism rates, already considerably lower than most people assume, dropped 40 percent; and adult rapes nationally went from 2.5 per thousand in 1973 to less than 0.5 per thousand in 2005.

“We are doing a better job on managing these offenses than we think, [than] we are willing to admit,” Eckley believes. “We have pretty recently-revised sex offender laws. We have a new sentencing structure. We need to let those work, give them time.”

But for those who have had a loved one suffer the horrible fate dealt to Brooke Bennett, waiting may not seem a tolerable course of action. No statistical probability can comfort anyone who sees a beloved child murdered. One such death is one too many, and so the question remains for the Vermont public and Legislature to determine: would any of the proposed legal changes have precluded Brooke Bennett’s death? And will anything the Legislature can do prevent the next one? And if not – what will?

Cindy Ellen Hill is an attorney and freelance writer in Middlebury.