‘Acquiescence is not consent. Going along is not consent.’
ST. ALBANS CITY — Former Franklin County Senator Norm McAllister changed his plea the night before his trial was scheduled to begin. He accepted a plea agreement reducing his felony sexual assault charge to a misdemeanor lewd and lascivious conduct charge.
McAllister pleaded no contest to that charge and two other misdemeanor counts of prohibited acts. The lewd and lascivious conduct charge relates to an incident in which McAllister “inserted more than two fingers of one hand into the vagina” of a woman without her consent. The prohibited acts charges stem from the woman’s complaint that the victim reported McAllister had brought a man to her apartment and charged that man to have sex with her. He was also accused of engaging in sexual acts with her in exchange for reductions in her rent while the woman lived on McAllister’s property.
A no contest plea, officially written nolo contendere, the Latin, means the defendant accepts punishment for the charges but does not legally admit guilt. By not admitting guilt, McAllister is in a better position to defend himself in a separate civil lawsuit brought by the woman in question.
An additional prohibited act charge involving another victim, now deceased, remains unresolved. McAllister is accused of pressuring that woman to have sex with him in exchange for her son’s rent.
Just what McAllister’s punishment will be remains to be determined. Each prohibited act charge carries a maximum sentence of one year or a $100 fine. The lewd and lascivious conduct charge carries a maximum sentence of five years and/or a $300 fine. Both state prosecutors and McAllister’s defense attorneys will be free to argue for any legal sentence at McAllister’s sentencing hearing. A date for that hearing has not yet been set.
In addition to whatever sentence McAllister will face, Judge Martin A. Maley ordered McAllister undergo a psychosexual evaluation and register as a sex offender.
Maley also ordered a pre-sentence investigation, investigating McAllister’s personal history to determine if he has extenuating circumstances, reducing the harshness of his sentence, or a criminal history warranting a harsher sentence.
The case shifted in the State’s favor during the drawing of McAllister’s jury Tuesday morning, when Maley ruled that “acquiescence” and “consent” are not legally synonymous.
John Lavoie, the State’s lead prosecutor, told Maley the State had become aware defense attorneys David Williams and Brooks McArthur planned to argue that the woman in question “acquiesced” to a sexual relationship with McAllister. “Acquiescence” is defined as “the reluctant acceptance of something without protest.” Some dictionaries consider the word synonymous with “consent,” which is defined as “giving permission for something to happen.”
But not the encyclopedia of Vermont law. “Acquiescence is not consent,” Lavoie said. “Going along is not consent.”
Williams argued that Lavoie couldn’t say that, because doing so suggested Lavoie was speaking of a legal principle rather than dictionary definitions. Williams challenged Lavoie to cite a Vermont Supreme Court case defining the difference.
“Well then we can take five minutes and crack a book,” Lavoie replied.
The court took 20 minutes, but when the attorneys returned, Lavoie had his citations, specifically State v. Smith, a 2015 case in which the court overruled defense attorneys attempting to rely on the word “acquiescence,” citing Vermont statutes defining legal sexual consent as “words or actions indicating voluntary agreement to a sexual act” and that “lack of consent can be shown without proof of resistance.”
Williams came back with the dictionary definition of the word. Maley ruled that the defense could not use the word “acquiescence,” in the process undermining what appeared to be the defense’s strategy: asserting that even if the woman in question had not enjoyed the sexual acts performed with McAllister, she had, however reluctantly, agreed to perform them.
Evidence in the case includes recordings of phone conversations between McAllister and the victim in which he complained about her lack of enjoyment, stating, “I understand why you felt that way, but it was not much of a turn on. And you feel guilty. You know, I mean I did sort of like I’m forcing you.”
Later he asked the victim, “Well, didn’t you feel like I was making you do something you didn’t want to do?”
McAllister also said in the recording, “I knew you couldn’t wait to get away from me and that’s not a good feeling.”
On the recordings, as reported in court documents, the victim speaks of her fear of losing her home if she refused McAllister, her landlord. She also asks, “Do you feel bad that you hurt me?”
McAllister replies: “Yeah, I didn’t mean to.”
Despite that statement, they also discuss a sexual act in which McAllister persisted despite the fact that the victim was in tears.
Lavoie explored the concept of consent during jury selection. He asked the potential jurors if they required “proof of resistance” in cases of sexual assault. Lavoie said that when he began practicing law decades ago, “unless someone was beat up and bleeding, that was not proof of a rape, societally. We have to prove a lack of consent, but we don’t have to prove resistance. You don’t even have to resist verbally.”
One potential juror said that argument left a lot of grey area.
“You have sex with your wife,” Lavoie said.
“Yes,” the man replied.
“But are there certain things you could do, sexually, that would not be good?”
“Oh yes!” the man replied. “If I went off script I know things would go south!”
Later Lavoie used a “cutesy movie example,” as he put it. “Someone who has sex for money still has the right to say no,” he said. “Who saw Pretty Woman? What’s the one thing she wouldn’t do? She wouldn’t kiss on the mouth.”
“Just because something is okay on Monday doesn’t mean it’s okay on Friday,” Lavoie said. He spent nearly two hours asking the would-be jury questions, trying to determine potential jurors’ impartiality towards the issues at hand.
Lavoie’s questioning was so thorough, Williams had little to ask the potential jurors. Williams asked if they could handle the “some would say ‘shocking’” language in recorded phone conversations between McAllister and two of his alleged victims. According to police transcripts, McAllister told the woman in question “I knew I was forcing you to do something you didn’t want to do,” and that her pregnancy “put the kibosh” on his plans to use her as a prostitute serving workers on area farms.
“Do you think if somebody talks using explicit, ugly language, they’re criminally liable for the language itself?” Williams asked. Potential jurors did not struggle with the question. They seemed to have a harder time with Williams’ next question: “Can you think of any relationship where someone could enter a consensual relationship, such as a coach and a player, a professor and a student, a priest and a member of their parish, and suddenly change their mind and say it was not consensual?”
Potential jurors nodded. Some said yes. But Williams was unable to elicit the sense of enthusiastic clarity Lavoie instilled in the would-be jury.
The court completed the “onerous” jury selection, as Maley described it, by 4 p.m., all for nothing. Maley signed McAllister’s plea agreement just over an hour later.