Committee weighs H.41 changes on burial, transport and desecration of dead bodies; defenders urge narrower penalties

Marshall Paul, deputy defender general and chief juvenile defender at the Office of the Defender General, told the Judiciary Committee that his office has not found a factual gap that requires new aggravated offenses in H.41 and urged separating permitting errors from serious criminal conduct.

"From our office's perspective, the aggravated offenses are not necessary," Paul said, describing a review of case law and interviews with long-serving public defenders. He said existing charges such as obstruction of justice and accessory statutes already reach conduct intended to conceal a crime.

The committee heard that Vermont's current law on private burials (Title 18 ' '5211) is unusually permissive. Paul said Vermont allows people to file a death certificate and bury a relative on private land without the involvement of a funeral director and with minimal permitting: "The permitting process for transporting a torch, preparing a corpse, and burying a corpse on private property is actually less of a permitting process than it takes to put a garden shed in your backyard." He added that the present penalty for failing to comply with the filing requirement is a five-year felony, which his office considers disproportionate for administrative permitting errors.

Paul outlined an amendment his office drafted that would split the statute into two subsections: a top-tier felony targeting aggravated conduct (desecration and other serious acts) and a lower-tier, fine-only offense for permitting violations. He said the proposed fine for permit errors would replace felony exposure: "If your permit says you're gonna do it on 19th, but the 19th is rainy and you decide to do it on 20th, that's technically a 5 year felony. And so that's why our office's position was that shouldn't be a felony. It shouldn't even be a misdemeanor. It should be a fine only offense."

Kim McManus of the Department of State's Attorneys and Sheriffs told the committee prosecutors understand the bill's aim to address desecration of a corpse, but raised drafting questions the committee should resolve. McManus urged the panel to confirm whether the bill needs an explicit definition of "corpse" or should use the phrase "dead body of a person" to make clear the law applies only to human remains. She also suggested substituting "'act or conduct'" for "'assault'" in the aggravated subsection because "assault" typically presupposes a living victim and may misfit the intended conduct.

On mental state, committee members and witnesses debated "intentionally" versus "knowingly." McManus said intentionally is a higher mens rea that requires proof of a person's conscious objective: "Intentionally ... is seen as a higher mental state than knowingly ... the prosecutor has to show more of the person's mental state to prove intentionally versus knowingly." Marshall Paul said his office generally prefers a more limited set of intent terms to reduce juror confusion and recommended "intentionally" for the provision targeting deliberate concealment of a crime.

Committee members raised several policy and practical concerns: whether moving the new offense from Title 18 to Title 13 (the general criminal title) would be preferable; whether mandatory minimums are appropriate; whether the five-year felony attached to the permit requirement produces unintended strict-liability effects for grieving families; and whether parts of the proposed aggravated language would be redundant with obstruction and accessory statutes. The committee also asked staff to check whether existing statutes already criminalize sexual acts involving a corpse (a representative queried whether a necrophilia statute exists or could be covered by other provisions).

Those present agreed the committee should refine the drafting rather than move immediately to a final vote. Several members asked legislative counsel to: confirm whether "corpse" is defined elsewhere; consider replacing "assault" with "act or conduct" or a cross-reference; and explore moving the new aggravated offense into Title 13 while keeping the permitting/procedure provisions in their existing location. The committee spokesman said it will return to H.41 for more testimony and revisions, and that staff would prepare revised language to fix Title 18 ' '5211 and to reconcile permitting with criminal penalties.

Ending

The committee did not take a final vote on H.41. Lawmakers instructed legislative counsel to draft options that (1) preserve a felony for truly aggravated, intentional desecration or concealment tied to obstructing prosecution, (2) convert permitting-technical violations into a lower-level fine-only offense, and (3) clarify statutory language ("dead body of a person," defined mens rea, and a cross-reference for conduct definitions). The panel scheduled further consideration and additional testimony, including from a judge and legislative counsel, before returning to H.41.