Lawyers Flag Concerns in Vermont Statehouse Sexual Harassment Policy | Off Message

Lawyers Flag Concerns in Vermont Statehouse Sexual Harassment Policy


Vermont Statehouse - FILE
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The Vermont legislature’s legal team has raised a host of concerns about the process for handling allegations of sexual harassment in the Statehouse.

Under current policy, a panel of five lawmakers presides over complaints in the House. Among the shortcomings of such an approach: witnesses aren't able to file complaints; panel decisions can’t be appealed; the process is almost entirely confidential and the panel consists only of legislators.

In total, the Office of Legislative Council flagged a dozen significant concerns in a memo it drafted last week at the request of House Speaker Mitzi Johnson (D-South Hero). Johnson said Wednesday that she'll work with the House Sexual Harassment Prevention Panel to make changes to the policy in the upcoming session.

Vermont lawmakers are facing questions about sexual misconduct — and their methods for addressing it — after a torrent of allegations nationwide, and some at home, including a complaint filed against a sitting senator last session. Legislators have refused to provide any information about the nature of the complaint or the senator's identity.

The legal analysis specifically addressed the House’s sexual harassment prevention policy, though many of the points apply to the Senate's policy as well. The lawyers recommended that both chambers adopt the same policy.

The memo noted that the House policy appears to place an undue burden on victims to stop their perpetrators’ behavior, while giving them less say than their perpetrators in determining how complaints are resolved.

In less serious cases, the victim has previously had to confront the perpetrator for the behavior to be considered sexual harassment. Furthermore, the policy explicitly encourages victims to resolve complaints informally by bringing their concerns directly to the alleged assailant.

“Under some circumstances, requiring a complainant to indicate lack of consent, or that behavior is unwelcome, may be difficult if there is a power imbalance between the perpetrator and subject,” the memo stated.

When the panel does adjudicate a complaint, it “may only enter into a confidential stipulation if the accused agrees, but apparently there is no requirement that the complainant also agree. The panel will proceed to a hearing if the accused rejects a confidential stipulation, but the complainant has no similar right to ‘veto’ the confidential stipulation or demand a hearing.”

Lawyers also raised concerns about the secrecy surrounding the panel: “On one hand, confidentiality protects the privacy of the complainant and accused. However, confidentiality may also shield repeat offenders, disguise systemic problems, feed an impression that little if anything is done in response to complaints, erode faith in the policy and panel, and discourage victims from coming forward.”

To make the process more palatable for potential victims, they suggested allowing the victim to bring a “support person” to panel hearings and providing them with an avenue for appealing panel decisions — something that doesn’t exist today.

More clarity about how the hearings work might help, too. “Once a hearing begins, it is unclear if the complainant can call witnesses or present evidence, and whether the panel will be neutral or will assume the role of presenting the evidence against the accused,” the memo stated.

The Legislative Council also pointed out that representatives don’t necessarily have the expertise to rule on sexual harassment cases, and the fact that they make up the entire panel "may create an impression that the ‘deck is stacked’ against a complainant who is not a representative."

The legislature might consider delegating the task of investigating complaints to an attorney or expert, the memo suggested.

Speaker Johnson said she's particularly interested in "expanding the panel to include non-representatives and ensuring that the victim has access to a clear process and support person." She's also arranging a training for the panel members "to ensure they are trained and equipped to do their job" in addition to a training for all House members, which will take place next month.