In re Appeal of Tinker
Annotate this Case
In re Appeal of Tinker (96-012); 165 Vt 621; 686 A.2d 946
[Opinion Filed 09-Oct-1996]
ENTRY ORDER
SUPREME COURT DOCKET NO. 96-012
JUNE TERM, 1996
In re Appeal of Wanda Tinker } APPEALED FROM:
}
}
} Human Services Board
}
}
} DOCKET NO. 13,716
In the above-entitled cause, the Clerk will enter:
The Department of Aging and Disabilities appeals an order of the Human
Services Board reversing the Department's decision to substantiate an
allegation of abuse against Wanda Tinker. The Department challenges the
Board's holding that the charge of abuse of a disabled adult, see 33 V.S.A.
§ 6902(1), could not be substantiated unless Tinker knew or should have
known of the alleged victim's disability. We affirm.
This case arises out of an altercation between members of a local
rescue squad. Both Tinker and the alleged victim, L., were members of the
squad. Following a verbal confrontation between Tinker and L., Tinker
observed L. looking through the drawers of a desk for certain supplies.
Tinker's jacket was lying on top of the desk. L. testified that Tinker
grabbed her jacket off the desk and swung it around hard, striking L. in
the side of the head. A zipper or snap on the jacket struck L. just below
the eye, and she yelled out in pain. According to Tinker, she merely
picked up the jacket to put it on, and if it hit L., it was an accident.
The area beneath L.'s eye became swollen and discolored. L. decided
to call the police and press charges against Tinker. The police
investigated, photographing the wound and interviewing witnesses. The
police processed the complaint as an assault. Because L. is disabled (she
suffers from a degenerative disk disease and receives disability benefits),
the police referred the matter to the Department for investigation as a
report of abuse. See 33 V.S.A. §§ 6902-6941 (reports of abuse of elderly
and disabled adults). The Department substantiated the report, see id. §
6906(c), and Tinker applied to the Board for a fair hearing. See id. §
6906(d).
The hearing officer, in his recommendation to the Board, found that
Tinker had provoked the incident and that she intentionally and recklessly
swung her jacket at L.'s face. The Board agreed that the evidence
supported those findings. Nonetheless, the Board reversed the decision to
substantiate the report of abuse on the ground that the evidence did not
support a finding that Tinker was aware of L.'s status as a disabled adult.
In effect, the Board read into the definition of "abuse" in § 6902(1)(A) an
"element that an alleged perpetrator knew, or should have known, that [the]
`victim' was, in fact, a `disabled adult.'"
The Department argues that the Board erred by interpreting "abuse" to
include the element of knowledge. The statute reads, in relevant part:
"Abuse" means:
(A) Any treatment of an elderly or disabled adult which
places life, health or welfare in jeopardy or which is likely to
result in impairment of health;
(B) Any conduct committed with an intent or reckless
disregard that such conduct is likely to cause unnecessary harm,
unnecessary pain or unnecessary suffering to an elderly or disabled
adult . . . .
33 V.S.A. § 6902(1). The Department maintains that these provisions impose
strict liability for abuse of an elderly or disabled adult. With respect
to § 6902(1)(B), that claim is inconsistent with the language of the
statute; the provision contains an explicit scienter requirement. Unless a
perpetrator knows, or should know, of a victim's age or disability, the
perpetrator cannot act with an intent to cause harm to such a person, or
with reckless disregard of causing such harm. On its face, however, §
6902(1)(A) is silent as to a perpetrator's knowledge of a victim's age or
disability status.
"When the Legislature is silent as to the mens rea required for a
particular offense, this Court will not simply assume that the statute
creates a strict liability offense, but will try to determine the intent of
the Legislature." State v. Audette, 149 Vt. 218, 221, 543 A.2d 1315, 1317
(1993), overruled in part on other grounds, State v. Sargent, 156 Vt. 463,
465, 594 A.2d 401, 402 (1991). The Department analogizes this case to
State v. Searles, where we refused to imply knowledge of age as an element
of the crime of sexual assault on a minor. 159 Vt. 525, 529, 621 A.2d 1281, 1283 (1993). Statutory rape, however, "has traditionally been
considered a strict liability offense, where `mistake as to the age of an
underage participant has been accorded no defensive significance.'" Id. at
527, 621 A.2d at 1283 (quoting Model Penal Code § 213.6 cmt. 2 (1980)).
The crime of abuse of an elderly or disabled person does not carry this
history. Nor is this a case where the Legislature has clearly chosen other
elements of the crime as a substitute for intent. See State v. Roy, 151
Vt. 17, 26, 557 A.2d 884, 890 (1989).
The Department is correct that the relatively light penalty imposed
for a violation of § 6902(1)(A) could support a conclusion that the
Legislature intended to create a strict liability offense. See Roy, 151
Vt. at 25, 557 A.2d at 889 (one factor in determining whether Legislature
intended to create strict liability offense is severity of punishment);
Audette, 149 Vt. at 222, 543 A.2d at 1317 (lighter possible punishment
makes it more likely that Legislature intended to impose liability without
fault). A substantiated report of abuse as defined by § 6902(1)(A) does
not give rise to criminal penalties; rather, the person found to have
committed the abuse will be included in a registry that can be accessed by
employers (such as nursing homes and hospitals) who hire individuals to
care for elderly or disabled adults.(FN1) 33 V.S.A. § 6911; see id. § 6913.
We nonetheless agree with the Board that, given the purpose of the
abuse statute and the registry established by § 6911, the Legislature did
not intend to permanently identify and stigmatize a person who engages in
abusive conduct, however minor or isolated, against an individual whose
impairment is neither apparent nor known to the perpetrator. Conduct such
as Tinker's, although unfortunate and unwise, is not a basis for
effectively excluding Tinker from employment in hospitals, nursing homes,
and similar facilities. We conclude that a report of abuse as defined by §
6902(1)(A) cannot be substantiated absent evidence that the perpetrator
knew, or should have known, of the alleged victim's status as an elderly or
disabled adult.
The Department further argues that the Board improperly made
additional findings of fact instead of remanding the case to the hearing
officer to make findings as to Tinker's knowledge of L.'s disability. We
disagree with the Department's characterization of the Board's decision.
The Board merely noted that the evidence did "not support a finding . . .
that the petitioner was aware of L.'s status as a disabled adult." The
Board was not obligated to remand the case to allow the Department to
present additional evidence. As the findings reasonably support the
Board's conclusions, the Board's decision will stand. See In re Orzel, 145
Vt. 355, 359, 491 A.2d 1013, 1015 (1985) (agency's conclusions of law will
be upheld on appeal if fairly and reasonably supported by findings of
fact).
Affirmed.
----------------------------------------------------------------------------
Footnotes
FN1. A violation of § 6902(1)(B) may be punished by a fine of not
more than $10,000 and/or imprisonment for not more than eighteen months.
See 33 V.S.A. § 6913(a).
------------------------------------------------------------------------------
Concurring and Dissenting
GIBSON, J., concurring and dissenting. The majority construes 33
V.S.A. § 6902(1)(A) (abuse of elderly and disabled adults) to require
knowledge that the victim is elderly or disabled. This construction is
contrary to the statute's plain language and purpose. Because I believe
the Legislature intended subsection (A) of the abuse statute to impose
strict liability on abusers, I dissent.
The Department of Aging and Disabilities concluded that Wanda Tinker's
actions toward L. constituted abuse under 33 V.S.A. § 6902(1), which
states:
"Abuse" means:
(A) Any treatment of an elderly or disabled adult which
places life, health or welfare in jeopardy or which is likely to
result in impairment of health;
(B) Any conduct committed with an intent or reckless
disregard that such conduct is likely to cause unnecessary harm,
unnecessary pain or unnecessary suffering to an elderly or disabled
adult . . . .
(Emphasis added.) I agree with the majority that a charge of abuse cannot
be substantiated under subsection (B) unless the offender knew or should
have known the victim was elderly or disabled; the subsection contains an
explicit scienter requirement. The Human Services Board properly reversed
the Department with regard to the charge under this provision.
Subsection (A), however, contains no explicit scienter requirement.
The plain language clearly shows that the Legislature intended (B) to
include an intent element and (A) to impose strict liability. This
contrast in language parallels the contrast in penalties. Subsection (A),
for instance, is a civil offense, whereas subsection (B) is a criminal
offense. A violation of (A) results in the abuser's name being placed and
maintained on a registry with the Department; upon request, such
information is available to an employer of caretakers for elderly and
disabled adults if the request is accompanied by a release from the
employee or prospective employee. See 33 V.S.A. § 6911(c)(3). A violation
of (B) is also recorded on the Department registry, but in addition, may
result in criminal prosecution and a fine of $10,000 or imprisonment for as
long as eighteen months, or both. See id. § 6913(a).
The most important factor in determining whether the Legislature
intended to impose strict liability is the severity of the punishment.
State v. Audette, 149 Vt. 218, 222, 543 A.2d 1315, 1317 (1988), overruled
in part on other grounds, State v. Sargent, 156 Vt. 463, 465, 594 A.2d 401,
402 (1991). The substantially lighter penalty for subsection (A)
violations indicates that the Legislature intended to create a
strict-liability offense. See id. (the lighter the punishment, the more
likely Legislature meant to impose strict liability).
Most importantly, the majority construes the statute in a manner that
defeats its purpose, which is to "protect elderly and disabled adults." 33
V.S.A. § 6901. According to the majority, "[c]onduct such as Tinker's,
although unfortunate and unwise, is not a basis for effectively excluding
Tinker from employment in hospitals, nursing homes, and similar
facilities." Ante, at 2. I disagree. Conduct such as Tinker's is
precisely the type of conduct that endangers people in hospitals and
nursing homes. A person with a short temper who cannot control her
behavior, even over a minor incident, should not be working with elderly or
disabled adults, who are more vulnerable to abuse and often require
considerable patience. The Department properly substantiated the charge of
abuse, warranting that Tinker's name be maintained on the registry.
The majority also misstates the abuse statute by declaring that "the
Legislature did not intend to permanently identify and stigmatize a person
who engages in abusive conduct, however minor or isolated." Ante, at 2
(emphasis added). The registry is confidential. See 33 V.S.A. § 6911(a)
("Information obtained through reports and investigations shall remain
confidential."). Even employers of caretakers for elderly and disabled
adults must obtain a signed release from a person to obtain his or her
records. Id. § 6911(c)(3). Moreover, "[a] person may at any time apply to
the department for expungement of his or her name from the registry." Id.
§ 6911(e) (emphasis added). The statute does not "permanently identify and
stigmatize a person." It protects elderly and disabled adults from
caretakers who are ill-suited to the position.
The abuse statute reflects our enhanced concern for the protection and
well-being of elderly and disabled adults. Cf. State v. Searles, 159 Vt.
525, 528, 621 A.2d 1281, 1283 (1993) (Vermont law reflects enhanced concern
for protection of minors by imposing strict liability for sexual acts with
minor). "This Court [should] not imply a mental requirement . . . `when
the statutory language cuts against such a result and the policy behind the
statute would be defeated.'" Id. at 527, 621 A.2d at 1283 (quoting State
v. Roy, 151 Vt. 17, 25, 557 A.2d 884, 889 (1989)).
I respectfully dissent.
BY THE COURT:
Concurring & Dissenting:
_________________________________ _______________________________________
Ernest W. Gibson III, Associate Justice Frederic W. Allen, Chief Justice
_____________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
