Fraser v. Sleeper, No. 284-5-04 Wncv (Toor, J., Sep. 20, 2005)



[The text of this Vermont trial court opinion is unofficial. It has been reformatted from
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                                      STATE OF VERMONT
                                    WASHINGTON COUNTY, SS

                                             │
PAUL FRASER,                                 │
 Plaintiff                                   │
                                             │       SUPERIOR COURT
 v.                                          │       Docket No. 284-5-04 Wncv
                                             │
KERRY SLEEPER,                               │
 Defendant                                   │
                                             │


         RULING ON MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT

       This case is brought by Paul Fraser (“Fraser”), who was convicted of a sex offense in

New York in 1999. He is now a resident of Vermont, and argues that he should not have to

register on the sex offender registry here. Defendant, the Commissioner of Public Safety

(“Commissioner”), has filed a motion to dismiss. Plaintiff has filed a motion for summary

judgment. Oral argument was held on September 12.

                                         Findings of Fact

       In 1998, a computer repair shop found pornographic images on Fraser’s computer,

leading to criminal charges against Fraser. In 1999, Fraser was convicted after trial of two counts

of possessing a sexual performance of a child, a violation of New York law. N.Y.P.L. § 263.16.

He was a social worker, and claimed that he had obtained the materials pursuant to his work. The
judge ruled that such bona fide use was not a defense to the charges. The New York statute reads

as follows:

         A person is guilty of possessing a sexual performance by a child when,
         knowing the character and content thereof, he knowingly has in his possession
         or control any performance which includes sexual conduct by a child less than
         sixteen years of age.

N.Y.P.L. § 263.16.

       Fraser later moved to Vermont. Vermont’s sex offender statute requires persons moving

to the state who have been convicted of a sex offense elsewhere to register as sex offenders here.

However, the obligation to register applies only if the offense in question would also be an

offense in Vermont. The statute states that a person who moves here must register if:

         [he] has been convicted in any jurisdiction of the United States . . . for a sex
         crime the elements of which would constitute a crime under subdivision
         (10)(A) or (B) of this section if committed in this state.

13 V.S.A. §§ 5401(10)(C) and 5407(a)(1). The referenced subdivisions include the crime of

sexual exploitation of children, which encompasses possession of child pornography. Id. §§

5401(10)(B)(v), and 13 V.S.A. § 2827.

       Fraser did register as a sex offender in Vermont. He subsequently asked the

Commissioner to remove his name from the registry. The Commissioner declined. Fraser then

brought this action under V.R.C.P. 75, seeking mandamus and declaratory relief.

       Fraser argues that the acts for which he was convicted would not constitute a crime in

Vermont, and therefore the registration requirement does not apply to him. The Vermont statute

prohibiting possession of child pornography states as follows:

         No person shall, with knowledge of the character and content, possess any
         photograph, film or visual depiction, including any depiction which is stored
         electronically, of sexual conduct by a child or of a clearly lewd exhibition of a
         child’s genitals or anus.



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13 V.S.A. § 2827(a). There is, however, a “bona fide use” provision in the statute. It reads in

relevant part as follows:

           This section does not apply:
           (1) if the depiction was possessed for a bona fide medical, psychological,
               social work, legislative, judicial or law enforcement purpose, by a
               physician, psychologist, social worker, legislator, judge, prosecutor, law
               enforcement officer, or other person having such a bona fide interest in the
               subject matter[.]

Id. § 2827 (b). The statute also provides for two unrelated affirmative defenses which may be

raised by a defendant. Id. § 2827(c).

       Fraser argues that because of the “bona fide use” exception in the Vermont statute, he

could not have been convicted in Vermont and therefore the New York conviction is not one “the

elements of which would constitute a crime . . . if committed in this state.” 13 V.S.A. § 5401

(10)(C).

                                        The Motion to Dismiss

       The Commissioner has moved to dismiss the complaint, arguing that it fails to state a

claim upon which relief can be granted. What the court must determine is whether “the

elements” of the New York crime for which Fraser was convicted would or would not

“constitute a crime” in Vermont. 13 V.S.A. § 5401(10)(C).

       It is undisputed that both the New York and the Vermont statute have two elements in

common. The State must prove (1) that the defendant possessed child pornography, and (2) that

the defendant had knowledge of its character. What is disputed is who must prove whether the

possession was for a bona fide purpose.

       The Commissioner argues that the “bona fide use” provision in the Vermont law is in the

nature of an affirmative defense, not an element of the crime. Thus, regardless of whether Fraser




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might have prevailed in Vermont under the “bona fide use” provision, the Commissioner argues,

because the elements of the crimes are the same, registration is mandated.

       Fraser responds that the “bona fide use” provision is not an affirmative defense but,

instead, an element the State must negate as part of the charge itself.




       As our Supreme Court has made clear, a court’s “primary objective in construing a

statute is to effectuate the Legislature’s intent.” Wesco, Inc. v. Sorrell, 2004 Vt. 102, ¶ 14, ___

Vt. ___ (2004). In doing so, “we initially look to the statute’s language.” Id.

       The Commissioner’s argument is buttressed by the fact that the statute does not expressly

say “the State must prove there was not a bona fide use.” Generally, statutory exceptions that do

not state whether they are elements or affirmative defenses are interpreted as affirmative

defenses. See, e.g., United States v. Kloess, 251 F.3d 941, 945 (11th Cir. 2001) (courts generally

interpret “exceptions to criminal liability” as “affirmative defenses”); United States v. Hartsock,

347 F.3d 1, 6 (1st Cir. 2003) (“Courts confronting statutory exceptions . . . generally treat them

as affirmative defenses to the underlying crime.”)

       The court agrees that if all that were before it were the first two subsections of the statute,

it would construe the “bona fide use” exception as an affirmative defense. See United States v.

McArthur, 108 F.3d 1350, 1353 (11th Cir. 1997) (“a narrow proviso to a more general statutory

offense is more likely to be an affirmative defense than an element of the offense.”).

       Here, however, there are not merely two subsections. Instead, there is a third subsection

which expressly delineates two “affirmative defenses” to the statute, which must be asserted and

proved by the defendant. 13 V.S.A. § 2827(c)(“In any prosecution arising under this section, the



                                                  4
defendant may raise any of the following affirmative defenses, which shall be proven by a

preponderance of the evidence . . .”).

       It is a basic tenet of statutory construction that “[w]here the Legislature includes

particular language in one section of a statute but omits it in another section of the same act, it

is generally presumed that the Legislature did so advisedly.” Hopkinton Scout Leaders

Association v. Guilford, 2004 VT 2, ¶ 8, 176 Vt. 577, 579 (2004). See also, Grenafege v.

Department of Employment Security, 134 VT. 288, 290 (1976) (“simply put, where the

legislature meant ‘wages’ to mean those earned in subject employment it said so, and . . .

where it did not say so it intended no such restriction”); Sosa v. Alvarez-Machain, ___ U.S.

___, 124 S. Ct. 2739, 2754 n.9 (2004), citing 2A N. Singer, Statutes and Statutory

Construction § 46:06, p. 194 (6th ed. 2000) (“‘when the legislature uses certain language in

one part of the statute and different language in another, the court assumes different meanings

were intended.’”).

       This principle of statutory construction leads to but one conclusion here: because the

Legislature has expressly designated certain matters as affirmative defenses and not so

designated “bona fide use,” it is presumed to have intended a distinction. Thus, “bona fide use”

is not an affirmative defense, but an element of the crime.

       This conclusion is strengthened by the fact that the Legislature chose to draft a similar

section of the same chapter in a notably different manner. In the statute prohibiting “promoting a

recording of sexual conduct,” an identical “bona fide use” provision exists but is expressly made

an affirmative defense:

         In any prosecution arising under this section, the defendant may raise any of
         the following affirmative defenses:
               (1) that the recording was promoted for a bona fide medical,
                    psychological, social work, legislative, judicial or law enforcement


                                                  5
                       purpose, by or to a physician, psychologist, social worker,
                       legislator, judge, prosecutor, law enforcement officer, or other
                       person having such a bona fide interest in the subject matter[.]


13 V.S.A. § 2824(b). Thus, the conclusion is clear: the Legislature knew how to make “bona fide

use” an affirmative defense, and it did not do so in the section at issue here.

        The Commissioner nonetheless cites cases that urge courts to ignore the plain language of

a statute if the plain language leads to an “absurd result manifestly unintended by the

Legislature.” State v. Thompson, 174 Vt. 172, 176 (2002). However, there is nothing to suggest

that the plain language here leads either to an absurd result or to one not intended by the

Legislature. As neither party has found any legislative history,1 the court can only guess as to the

reasons for the distinction between the “promoting” and “possession” statutes. However, there

could easily have been reasoned grounds for placing the burden on the State in one statute and on

the defendant in the other. Principally, the Legislature could well have concluded that possession

was of less severity than promotion, and that before possession charges were filed against

professionals doing their job, such as prosecutors or police officers, the State should have the

burden of investigating whether a bona fide purpose existed. Thus, the court finds nothing absurd

in interpreting the two statutes as having been intentionally drafted differently.

        Nor does the court find it absurd or inconsistent with the statute to place on the State the

burden of disproving “bona fide use.” First, it would be a simple matter to determine whether a

putative defendant was within the limited categories of professionals to whom the provision

applies. Second, determining whether the person had any claim to bona fide use would not be an


        1
           Fraser cites an “Act Summary” available on the internet, which states that “[i]t is the state’s burden to
prove that none of these exceptions apply.” 1999, No. 122 (Adj. Sess.), Act Summary (available at
www.leg.state.vt.us/DOCS/2000/ACTS/ACT122SUM). However, it is unclear by whom or when this was drafted,
as counsel for Fraser conceded at oral argument. Without more information about its source, the court declines to
consider this as valid legislative history.


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unworkable task – interviews of the person’s employer would likely resolve the issue quickly in

many cases. If, for example, a police officer claimed to have pornographic materials as part of

his job, one would expect that the police department could soon determine whether this was or

was not a legitimate claim by reviewing the officer’s assignments. While other cases, such as this

one, might be less straightforward, the court cannot conclude that the potential burden on the

State renders the Legislature’s choice of burden allocation “absurd” or clearly inconsistent with

the statute.

        Thus, the court is compelled to conclude that the Legislature meant what it said when it

used different terminology in the different subsections of the statute. For the foregoing reasons,

the Commissioner’s motion to dismiss is denied.

                               The Motion for Summary Judgment

        Fraser moves for summary judgment, arguing that he is a social worker and possessed the

pornography in question for valid professional purposes. The Commissioner has asked for thirty

days from this court’s ruling on the motion to dismiss before responding.

        On first blush, it would appear that it is not necessary to determine whether Fraser did or

did not have a “bona fide” reason for possessing the pornography for which he was convicted.

The court has concluded above that the Legislature has placed in the Vermont statute an

additional element the State must prove that is not included in the New York statute – that the

defendant was not a bona fide user. Whether the two states’ statutory elements are the same

appears to be the only issue posed by the registration statute. If so, it would appear that summary

judgment for Fraser is appropriate without further factual analysis. However, the court will grant

the Commissioner’s request for additional time to respond so that these issues can be fully

briefed.



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                                            Order

       1. The Commissioner’s motion to dismiss is denied.

       2. The Commissioner shall have until October 21 to file any response to Plaintiff’s

          motion for summary judgment.

Dated at Montpelier this 20th day of September, 2005.


                                            _____________________________
                                            Helen M. Toor
                                            Superior Court Judge




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