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Sex offense case exposes legal loophole

February 18, 2011

Staff Writer
BENNINGTON — Vermont lawmakers have labored for years to crack down on offenders who commit serious crimes, including sex offenses. But a case involving sexual assaults allegedly committed by a boy that weren’t reported until he became a man has highlighted what some believe is a gaping hole in the system.

Bennington County State’s Attorney Erica Marthage has tried for nearly a year to file two aggravated sexual assault charges against a young man — who is now 19 — for alleged offenses he committed at the age of 13.

But Bennington Superior Court criminal division Judge David Howard has ruled the case cannot be heard in his court because of the offender’s age at the time of the offense. Judge Karen Carroll, who presides over the county’s juvenile court, has also rejected the case, saying her court does not have jurisdiction because the young man is now an adult.

Marthage, whose latest effort to pursue the case in family court was rejected by Carroll earlier this month, said she is now in a position that she may not be able to prosecute the case. And worse, she said, she must explain why to the family.

“It’s terrible. It is just so terrible. I can’t even tell you,” Marthage said.


The case file in District Court has been sealed through an order issued by Howard. All records in juvenile court are sealed by statute. And the alleged victims in the case declined to discuss the case with the Banner. Some basic information about the case has been confirmed by various sources, however.

The accused offender was 13 when aggravated sexual assault and lewd and lascivious behavior allegedly occurred. The two alleged victims were younger than 10 at the time. The case came to light years later when it was disclosed that one of the alleged victims was contemplating suicide. The case was referred to the Bennington County Child Advocacy Center and investigated by the Special Victims Unit.


Vermont law spells out an intricate system for how juvenile offenders are to be handled. Title 33 of the Vermont State Statutes provides a breakdown of court jurisdiction for juvenile offenders between the ages of 10 and 14, 15 to 16 and 17 to 18. The statutes allow for some cases to be transferred from juvenile court to district criminal court, and vice versa, but the type of offense is also a factor.

Vermont has a classification of crimes known in the judicial system as a “big 12” offense, or listed crime. Those major crimes include murder, manslaughter, arson causing death and sexual assault, among others.

According to existing law, if an offender is between the ages of 16 and 18, any offense can be transferred to juvenile court from district court. If the offender is between the ages of 14 and 16 and charged with a “big 12” offense the case “may” be moved to juvenile court. Cases in which a juvenile between the ages of 10 and 14 is charged with a listed crime must originate in juvenile court.

But the law makes no provision for cases that for one reason or another are not immediately disclosed. In this case, the alleged offender is now over the age of 18 and is alleged to have committed a “big 12” offense. According to orders by Howard and Carroll, who both reject jurisdiction, state law apparently provides no venue for the case to be heard.

Bennington attorney David F. Silver, who represents the alleged offender, said the letter of the law is clear and was correctly interpreted and applied by both Howard and Carroll.

“When the statutes are clear it’s not up to the court to come up with some complicated procedure to deal with laws that they don’t like,” Silver said.

Judges can only interpret what is laid out in law, he said, which provides two possibilities. The Legislature either intended that an offender cannot be prosecuted for a crime after reaching the age of 18 — “a de facto statute of limitations,” or, the Legislature “never anticipated the situation,” Silver said.

Changes to Title 33, first passed in 1967, have been made in recent years, Marthage said, including a provision to not start the clock on the statute of limitations for some crimes until disclosure is made. But “we didn’t address the fact that some of the cases that should start in juvenile court are going to be too old for juvenile court to have jurisdiction over them,” she said.


Documents related to the case are not public because it has been sealed. But a person familiar with the case, and who has read Howard’s October order rejecting the case, said the order makes clear that the district court believes “it is the age at the date of the alleged offense that controls the jurisdiction.”

The order also makes clear that Howard “does not believe that filing in family court would require immediate dismissal due to lack of jurisdiction,” the person familiar with the case said.

Howard’s ruling also cited cases from other states, including New Hampshire and Washington, where similar situations have arisen.

But Silver said Howard was not briefed by either side, and that parts of the order were not “necessary” for Howard to reach his legal conclusion.

“I would hope that if the state really looked carefully at Judge Howard and Judge Carroll’s opinion they would recognize that both those judges were absolutely right,” Silver said. “I totally respect and appreciate the fact that the state doesn’t like the outcome of the application of the statutes. In my view, the proper way to go about changing that is to appeal to the Legislature.”

“I recognize that this is an important issue,” Silver added. “Where I disagree with the state, and I disagree very strongly, is I believe this is an issue for the Legislature and not for the [Vermont] Supreme Court.”

Carroll’s most recent order essentially contradicts Howard’s findings, leaving the case in limbo. Her decision, according to a person familiar with the case, cites Title 33, section 5103 of the Vermont Statutes, which states that juvenile court “jurisdiction over a child shall not be extended beyond the child’s 18th birthday.”

The law, as interpreted by the two judges, “does create a huge loophole,” Marthage said.


The Legislature has taken notice. Bennington County Democratic state Sen. Dick Sears, the chairman of the Senate Judiciary Committee, is working with the family to amend existing laws to address the situation.

Marthage is also working with lawmakers to change the law. She said she’s not yet ready to give up on the current case, though. A notice of appeal to the Vermont Supreme Court has already been filed, according to Marthage.

Sears, meanwhile, has submitted a bill, with the support of Sen. Vince Illuzzi, R-Essex/Orleans, himself a county prosecutor, and Senate President Pro Tem John Campbell, D-Windsor. The legislation seeks “to clarify the authority of the state to institute criminal proceedings against an adult who committed a crime while a minor.”

“When they passed this legislation they fully intended … that the juvenile court would have the latitude to hear it, that they would not have set up a system that gave it no venue,” Sears said, echoing Marthage’s sentiments. “I just can’t imagine … that that Legislature ever intended for this to occur.”

The bill states that “the General Assembly never intended the juvenile procedures statutes to be used to permit a person who commits a crime to escape the consequences of that behavior simply by turning 18 before the state has filed charges against the person.”

The bill clarifies Title 33 to allow for offenders who committed crimes as minors but became adults before it was disclosed to face charges in juvenile court.

Sears said during a recent hearing on the bill in the Senate Judiciary Committee that clarification is needed because the existing law, as interpreted by Howard and Carroll, leaves open the possibility that other cases may arise and justice could be denied because of the statutes.

“If we were talking about a murder and the same judges were making the same rulings, a murder could not be charged,” he said.

Marthage, in an interview, expressed similar concerns.

“It’s the state’s position that it was never the intention of the legislators to preclude somebody who, for example, commits a murder at the age of 13 from being prosecuted … if we don’t solve who did it until they’re 23,” Marthage said. “That would essentially mean that somebody that commits a murder at 13, as long as you can hang on until you’re 18, you get away with it.”

The parents of the alleged victims also testified, pleading for a correction to the law.

“There’s really no direct path, so I believe what really needs to happen is just clear definition of the law,” the father said. “Closure can’t happen when cases go on and on like this and there’s really no clear direction.”

“We would ask … that this be considered. Certainly we’re passionate about it because we don’t want to see another family go through what we’ve been going through,” the father added.


Not everyone is on board with Sears’ proposed legislation.

Defender General Matthew Valerio, who oversees the state’s network of public defenders that represents most juvenile offenders, said the bill as originally proposed raised significant concerns because it could allow prosecutors “to charge 12-year-olds as adults if you just wait long enough.”

“I think that is just completely contrary with what the aspirations of the juvenile statutes are,” Valerio told the committee. “The results that this family has encountered … I think needs to play out in the Supreme Court before you can make real decisions about whether the statute as written is flawed,” Valerio said.

The treatment of an adult defendant who committed crimes as a minor must be carefully considered, Silver said. “We have in our society a consensus that a child who commits a crime, depending on the circumstances, has a very different level of moral and criminal culpability than adults. Of course, it depends on the circumstances,” Silver said.

Marthage, meanwhile, said she understands the concerns. She said she wants the loophole that allows crimes to go unpunished to close, but also understands the need to treat defendants fairly.

“The overriding responsibility of the entire system is for justice for everybody involved. Not just the victims but society as a whole, the person who is the offender,” Marthage said.

Any change to the law must consider that juvenile offenders are often granted different treatment programs and different sentences than adult offenders, Marthage said.

Sears’ said his bill will allow defendants who turn 18 before their crime is disclosed to be treated as a youthful offender if they are under 23. A juvenile court judge would have to treat the defendant as a youthful offender or transfer the case, based on several factors, to criminal court. If neither action is taken the case would be dismissed. Among the factors to be considered are “[w]hether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner,” according to a draft of the bill.


The bill will take immediate effect upon passage, Sears said. But even if the bill is signed into law it is unlikely to impact the case pending in Bennington, he said. “Hopefully, this family’s tragedy will be addressed in the appeal process,” Sears said.

The family’s help, although difficult, will help others from experiencing the same situation, he said.

“Their input will certainly help prevent future problems,” Sears said. “I am indebted to the family for bringing this gap in Vermont to light. That’s the important thing. If this family hadn’t been willing to bring this to light (the legislation) probably wouldn’t have happened.”

Contact Neal P. Goswami at

5 Comments leave one →
  1. laura permalink
    February 20, 2011 1:27 pm

    Gooooood read!!! Crazy how the system works!

    • LIZ ODDY permalink
      May 24, 2016 11:20 pm


  2. C. Peter permalink
    January 30, 2012 9:37 pm

    Good read? Is that entertaining to you? It’s Not crazy – Its criminal, I could tell you more stories about how this system is broken and abused. Largely in part with “some” of the “Players” as they Act of “Justice” they should be in Hollywood. There is Attorneys attending cocktail parties with Attorneys and court members. Attorneys sleeping with their clients, what an injustice! You know who they are – look around, not hard to find. Cases being discussed outside the court room with premature outcomes. Attorneys choosing judges they want for their case to present, to give them full advantage. It goes on and on. It’s scary how obvious it is and still getting away with it. Thinking they are all Above the Law. This is happening right here in Bennington and Rutland County. Post that in the Banner! This is what needs Real Attention, so cases like mentioned above don’t keep happening over and over. That’s where an Investigation is needed! Anyone care to investigate – need some leads?

  3. LIZ ODDY permalink
    May 24, 2016 11:19 pm



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