Expanding “Violence” Beyond Physical Force: State v. Shores and Preventive Detention for Lewd or Lascivious Conduct with a Child

I. Introduction

The Vermont Supreme Court’s decision in State v. Cody Shores, 2025 VT 62, marks a significant development in Vermont’s bail jurisprudence and constitutional law. The case addresses whether the felony offense of lewd or lascivious conduct with a child under 13 V.S.A. § 2602(a)(1) qualifies as a “felony, an element of which involves an act of violence against another person” for purposes of Vermont Constitution Chapter II, § 40(2) and its statutory analog, 13 V.S.A. § 7553a. That determination controls whether a defendant charged with this offense can even be considered for preventive detention without bail.

The case arose after Cody Shores was charged with one count of lewd or lascivious conduct with a child. The State moved to hold him without bail under § 7553a, asserting that the crime is a violent felony within the constitutional exception to the general right to pretrial release. The trial court rejected this argument, relying on earlier authority that had treated this offense as non-violent despite later legislative language to the contrary, and released the defendant on conditions.

On appeal, the core legal question was narrow but consequential: does lewd or lascivious conduct with a child have “an element which involves an act of violence” within the meaning of § 40(2) and § 7553a? Answering that question required the Court to revisit and ultimately overrule prior precedent, to clarify the meaning of “violence” in the bail context, and to explain the relationship between legislative declarations and constitutional constraints.

II. Summary of the Opinion

Writing for a unanimous Court, Justice Eaton holds:

The term “violence” in Vermont Constitution ch. II, § 40(2) and 13 V.S.A. § 7553a is not limited to physical force or physical contact. It includes “the abusive or unjust use of power” and conduct that forcibly interferes with another’s personal freedom.
The felony of lewd or lascivious conduct with a child under 13 V.S.A. § 2602(a)(1) inherently involves such an abusive and unjust use of power and therefore has an element that “involves an act of violence against another person” for bail purposes.
The Court expressly overrules the single-Justice decision in State v. Madigan, which had concluded that lewd or lascivious conduct with a child was not a crime of violence because the statute does not always require physical touching.
Legislative language in § 2602(f) declaring that “[c]onduct constituting the offense of lewd or lascivious conduct with a child … shall be considered a violent act for the purpose of determining bail” is not constitutionally determinative, but is consistent with and supports the Court’s own interpretation of “violence.”
Because the trial court erred in holding that the offense was categorically non-violent, the Supreme Court reverses and remands so that the criminal division may properly consider the State’s request to hold the defendant without bail under § 7553a.

The decision solidifies a broad, victim-centered understanding of “violence” in Vermont bail law and extends the reach of preventive detention to a core category of child sexual exploitation offenses.

III. Constitutional and Statutory Framework

A. Vermont’s General Right to Bail and Its Exceptions

Vermont’s Constitution strongly protects pretrial liberty. Chapter II, § 40 provides the general rule that “[a]ll persons shall be bailable by sufficient sureties,” and 13 V.S.A. § 7554(a) implements this by mandating that a person charged with an offense “shall … be ordered released pending trial,” subject to appropriate conditions.

However, § 40 creates two key exceptions:

Capital / life-imprisonment exception – A person accused of an offense “punishable by death or life imprisonment” may be held without bail where “the evidence of guilt is great.” This is mirrored in 13 V.S.A. § 7553.
Violent felony preventive-detention exception – After a lengthy amendment process (1991–94), § 40(2) allows hold-without-bail for a defendant accused of:
- a felony,
- an element of which involves an act of violence against another person,
- where the evidence of guilt is great, and
- where the court finds, by clear and convincing evidence, that release poses a substantial threat of physical violence and no conditions can reasonably prevent that violence.

The second exception—preventive detention for violent felonies—is the one at issue in Shores. It is codified in 13 V.S.A. § 7553a in language closely tracking § 40(2).

B. Preventive Detention and “Element” of Violence

For a crime to qualify under § 40(2)/§ 7553a, the Court must determine whether:

the offense is a felony; and
an element of the offense “involves an act of violence against another person.”

In State v. Filippo, 172 Vt. 551 (2001) (mem.), the Court defined “element” in this context as “those constituent parts of a crime which must be proved by the prosecution to sustain a conviction” and held that § 7553a refers to statutory elements, not the factual evidence in a particular case. Thus, a court may not deem a crime “violent” for bail purposes simply because the particular defendant’s conduct was violent; the violence must be embedded in the required elements of the offense.

C. Legislative Designations of “Violent” Offenses

While the meaning of § 40(2) is ultimately a constitutional question for the Court, the Legislature has, over time, enacted statutes declaring certain offenses to be “violent” for bail purposes.

In 1993, while the constitutional amendment was moving through the required biennial sessions, the Legislature designated aggravated stalking and first- and second-degree aggravated domestic assault as “violent” for bail purposes. 1993, No. 95, § 1.
Lewd or lascivious conduct with a child was not initially so designated. But after the 2011 single-Justice decision in Madigan held that it was not a crime of violence, the Legislature amended § 2602 in 2015 to add subsection (f), expressly stating that “[c]onduct constituting the offense of lewd or lascivious conduct with a child … shall be considered a violent act for the purpose of determining bail.” 2015, No. 43, § 1.

These legislative moves form an important part of the backdrop for Shores, but the Court is careful to reaffirm that the Legislature cannot “alter, abolish, or infringe any part of [the] Constitution” (Vt. Const. ch. II, § 6) by redefining constitutional terms; legislative declarations may be persuasive but not controlling.

IV. Detailed Analysis of the Opinion

A. Standard of Review and Method of Constitutional Interpretation

The Court reiterates that interpreting the Vermont Constitution and companion statutes presents pure questions of law reviewed de novo. (Brigham v. State, 2005 VT 105, ¶ 10; Downing, 2020 VT 101, ¶ 8.) It emphasizes:

Constitutional provisions are not interpreted using the same “legislative intent” tools applicable to statutes (Peck v. Douglas), because constitutional amendments must traverse a multi-step process involving both legislative votes and popular ratification (Vt. Const. ch. II, § 72).
The Court’s aim is to “discover and protect the core value” that animates the provision and “give meaning to the text in light of contemporary experience.” (State v. Misch, 2021 VT 10, ¶ 9.)
Analysis begins with the text, understood in its historical context, and is informed by Vermont case law and (where helpful) analogous state practice, though the diversity of state bail provisions limits the relevance of external models.

Thus, although the Court considers legislative enactments and their history, it insists that the judiciary retains ultimate responsibility to define constitutional terms such as “violence.”

B. Defining “Violence” Under § 40(2) and § 7553a

1. Initial construction in State v. Madison

In State v. Madison, 163 Vt. 360 (1995), the Court first confronted what “act of violence” means in the preventive-detention context, in deciding whether sexual assault qualifies.

Relying on dictionary definitions, the Court held in Madison that “violence” encompasses:

“physical force employed so as to violate, damage, or abuse”; and
“the abusive or unjust use of power.”

Applying this understanding, the Court concluded that the “touching and invasion of the victim’s body against her will” inherent in sexual assault fell squarely within both meanings. Importantly, Madison rejected a cramped view that would limit “violence” to overt physical blows; it recognized that sexual violations are violent because they wield power in a way that violates bodily autonomy and personal security.

2. The narrower approach in Madigan and its limitations

In State v. Madigan, No. 2011-103, 2011 WL 4974812 (Vt. Mar. 25, 2011) (unpub. mem.), a single Justice departed from Madison’s broad approach when considering whether lewd or lascivious conduct with a child was a violent crime under § 7553a.

Key features of the Madigan reasoning:

It rejected the “abusive or unjust use of power” component of the Madison definition, concluding that in § 7553a “violence” should refer to physical violence only.
It stressed that § 2602 does not necessarily require physical touching between defendant and child. Because the offense can be completed without such contact, Madigan concluded that not every violation of the statute involved an act of violence, and therefore the offense as a whole could not be deemed a “crime of violence” for bail purposes.
It noted the absence, at that time, of legislative language explicitly classifying lewd or lascivious conduct with a child as a violent act for bail.

Madigan thus introduced two limiting ideas: (1) “violence” in § 7553a means physical violence; and (2) there must be an element requiring physical contact. Shores ultimately rejects both.

3. Reaffirmation and extension in Bryan and Perron

In the years following Madigan, the Court repeatedly embraced the broader Madison conception of violence.

In State v. Bryan, 2016 VT 16, the Court considered whether sexually touching a minor violated a no-violence condition of probation. Drawing again from major dictionaries, the Court reiterated that:

“violence” can mean the exercise of physical force that violates or forcibly interferes with personal freedom; and
violent acts are those “characterized by unjust or improper force” and may be understood “with reference to [their] effect on [the recipient].”

Applying this framework, Bryan held that sexually touching a minor is violent because:

the defendant “oppressively, unjustly, and corruptly exploited the power imbalance” between himself and the minor; and
the young age of the victim and the sexual nature of the acts rendered them an “unjust and improper use of force.”

Bryan distinguished Madigan by reading Madison and Madigan together to mean that, in the bail context, a sexual offense involving a minor needed an element of physical contact to qualify as violent. That contact requirement, however, was later eroded.

In State v. Perron, No. 24-AP-163, 2024 WL 3416096 (Vt. July 12, 2024) (unpub. mem.), the Court addressed whether threatening to use a deadly weapon under 13 V.S.A. § 1024(a)(5) qualified as an act of violence. The offense did not require physical contact, but the Court held that:

the “threatened use of a possessed deadly weapon against another person is precisely the sort of abusive and unjust use of power” encompassed by § 7553a; and
there is “no sound basis to conclude that the term ‘violence’ under § 7553a demands actual physical contact.”

Perron explicitly disagreed with the suggestion in Madigan that “violence” demands physical touching, and it underscored that limiting violence to such situations would produce “absurd consequences” by excluding intrinsically violent conduct (e.g., armed threats) from preventive detention.

4. Shores: Synthesizing and clarifying the definition of “violence”

Building on Madison, Bryan, and Perron, Shores solidifies the following propositions:

“Violence” is broad. It includes “physical force employed so as to violate, damage, or abuse,” and also “abusive or unjust uses of power”—particularly where such conduct interferes with another’s personal freedom or bodily integrity.
No categorical physical-contact requirement. Physical touching is not a necessary ingredient of “violence” for § 40(2)/§ 7553a. Conduct such as an armed threat (as in Perron) or coercive sexual control over a child can be violent even without touching the victim’s body.
Victim-centered, effects-focused analysis. Whether conduct is violent is evaluated in significant part “with reference to its effect on [the recipient]”—recognizing that psychological, sexual, and autonomy violations are forms of violence, especially when visited upon children.

Defendant’s argument for a narrow construction of “violence” based on the strong liberty interests at stake is acknowledged but rejected. The Court reasons that an artificially narrow definition (limiting violence to physical contact) would exclude plainly serious harms from the preventive-detention regime, contrary to the constitutional amendment’s purpose of preventing further harm by those credibly accused of violent crimes.

C. Applying the Definition to Lewd or Lascivious Conduct with a Child

Having defined “violence,” the Court turns to the elements of lewd or lascivious conduct with a child. Under § 2602(a)(1), the offense occurs when a person:

“willfully and lewdly commits any lewd or lascivious act upon or with the body … of a child under the age of 16 years,”
with the intent of arousing or gratifying the lust, passions, or sexual desires of the actor or the child.

Several doctrinal points about § 2602 are significant:

In State v. Squiers, 2006 VT 26, the Court held that whether an act is “lewd” depends on the “nature and quality of the contact” as judged by community standards, together with the required specific sexual intent.
In State v. Beaudoin, 2008 VT 133, the Court emphasized that § 2602 is “aimed at preventing the sexual exploitation of children.” The statute’s focus is protection from exploitation, not mere prohibition of indecency.
State v. Wiley, 2007 VT 13, and State v. Johnson, 158 Vt. 344 (1992), establish that the offense does not always require direct physical contact by the defendant. The element of acting “upon or with the body” can be satisfied when the defendant causes the child to touch his or her own body in a sexually stimulating manner.

With these elements in view, the Court in Shores reasons as follows:

Inherent exploitation and power abuse. Lewd or lascivious conduct with a child “necessarily requires an oppressive, unjust, and corrupt exploitation of an adult-child power imbalance.” Because minors cannot legally consent (State v. Thompson, 150 Vt. 640 (1989)), any such sexualized conduct is, by definition, nonconsensual and exploitative.
Invasion of bodily privacy and integrity. As the Court explained in In re A.P., 2020 VT 86, the harm from lewd or lascivious conduct arises from an “invasion of an individual’s bodily privacy or integrity, or other cognizable interest.” That invasion is present whether the defendant directly touches the child or exerts sexual control by causing the child to act on their own body.
Violence without necessary touching. Even when there is no physical touching by the defendant, a lewd act “upon or with the body” of a child, undertaken to gratify sexual desires, constitutes an abusive and unjust use of power that interferes with the child’s bodily autonomy and personal freedom. This aligns with the Court’s broad definition of “violence.”

The Court explicitly reaffirms Perron’s conclusion that conduct which “forcibly interferes with personal freedom” can amount to the kind of “abusive or unjust use of power” contemplated by § 7553a, even absent physical contact. The essence of the offense—even in non-contact forms—is a coercive sexual imposition on a child’s body and autonomy, which the Court holds is inherently violent.

D. Treatment of Prior Precedent and Overruling Madigan

A critical component of the opinion is the explicit overruling of Madigan.

The Court notes that it does not “lightly overrule precedent,” but it is “not slavish” to prior decisions when they are clearly incorrect or inconsistent with the broader jurisprudential framework (State v. Haynes, 2019 VT 44, ¶ 24). It provides two principal reasons:

Institutional weight. Madigan was a single-Justice bail decision, not a full-Court, precedential opinion. By tradition, such emergency or single-Justice rulings carry less stare decisis weight, particularly on broad constitutional questions.
Doctrinal inconsistency and error. Madigan relied on a narrow physical-force conception of violence and imposed a physical-contact requirement that was “at odds with both prior and subsequent decisions,” notably Madison, Bryan, and Perron. It erroneously truncated the Madison definition by discarding the “abusive or unjust use of power” dimension.

The Court therefore concludes that Madigan was wrongly decided and that lewd or lascivious conduct with a child, properly understood, is a crime whose elements involve an act of violence.

E. Role of Legislative Declarations: § 2602(f), Beldiman, and Separation of Powers

During the bail hearing below, the trial court relied on a recent single-Justice decision in State v. Beldiman, No. 25-AP-211, 2025 WL 1993825 (Vt. July 16, 2025) (unpub. mem.), which had concluded that aggravated stalking is not a crime of violence despite a statute analogous to § 2602(f) declaring it a “violent act” for bail purposes. In Beldiman, the Court reasoned that such a provision was a “nullity” because the Legislature cannot, by fiat, “imput[e] an element of violence into [an] offense” that does not otherwise contain one, given the constitutional constraints of § 40(2) and the separation-of-powers provision in ch. II, § 6.

Against this backdrop, Shores treats § 2602(f) with nuance:

The Court acknowledges that it is not the Legislature’s prerogative to define the constitutional term “violence” in a way that expands or contracts constitutional protections. The meaning of § 40(2) remains a judicial question (Turner v. Shumlin, 2017 VT 2, ¶ 21).
At the same time, the Court views the 2015 amendment to § 2602(f) as “instructive and persuasive, but not determinative.” It shows legislative recognition of the intrinsically violent nature of lewd or lascivious conduct with a child and aligns with the statute’s protective purpose, but it does not itself control constitutional interpretation.
The Court’s reasoning in note 5 clarifies that Madigan was decided primarily on the Court’s own understanding of violence, and that the absence of a legislative designation at that time merely “accorded” with that view; the later legislative designation cannot independently rewrite § 40(2).

In short, the Court maintains the principle articulated in Beldiman—the Legislature cannot “impute” an element of violence into an offense purely for bail purposes—but distinguishes Shores by showing that, properly construed, § 2602 already contains an element that involves an act of violence. The legislative designation in § 2602(f) is consistent with, rather than a substitute for, that constitutional analysis.

V. Precedents Cited and Their Influence

The opinion weaves together a number of prior Vermont cases, each playing a distinct role:

State v. Madison, 163 Vt. 360 (1995).
The foundational case on defining “violence” under § 40(2)/§ 7553a. It establishes the broad definition that includes both physical force and “abusive or unjust use of power,” and holds that sexual assault is a crime of violence. Shores heavily relies on and extends this framework.
State v. Madigan, 2011 WL 4974812 (Vt. Mar. 25, 2011) (single Justice).
A single-Justice decision holding that lewd or lascivious conduct with a child is not a crime of violence because the offense does not necessarily involve physical touching. Shores explicitly overrules Madigan as doctrinally inconsistent and wrongly decided.
State v. Bryan, 2016 VT 16.
Reaffirms the broad, dictionary-based definition of “violence” and holds that sexually touching a minor is violent conduct, focusing on the exploitation of a power imbalance. Shores uses Bryan to underscore that sexual exploitation of a minor is inherently violent as an abusive and unjust use of power.
State v. Perron, 2024 WL 3416096 (Vt. July 12, 2024) (unpub. mem.).
Holds that threatening to use a deadly weapon is an act of violence even though it does not require physical contact. Crucially, Perron rejects any categorical physical-contact requirement under § 7553a. Shores builds on this to confirm that lewd or lascivious conduct with a child can be violent even in non-contact scenarios.
State v. Watson, 2012 WL 6827284 (Vt. Oct. 3, 2012) (unpub. mem.).
Describes the “creation of fear of imminent serious bodily injury” as an “abusive or unjust use of power” under § 7553a. This supports Shores’s view that psychological terror or coercion can also be violent.
State v. Filippo, 172 Vt. 551 (2001) (mem.).
Clarifies that “element … involving an act of violence” refers to the statutory elements of the offense, not the evidence in a particular case. Shores follows this rule in focusing on the elements of § 2602(a)(1), not the specific allegations against Shores.
State v. Squiers, 2006 VT 26; State v. Johnson, 158 Vt. 344 (1992); State v. Beaudoin, 2008 VT 133; In re A.P., 2020 VT 86.
These cases elaborate the nature of lewd or lascivious conduct with a child, the meaning of “lewd” conduct, and the harm it causes (invasion of bodily privacy and integrity). Shores uses them to show that the statute is centrally concerned with sexual exploitation of children and that its elements inherently involve a coercive intrusion on the child’s body and autonomy.
State v. Beldiman, 2025 WL 1993825 (Vt. July 16, 2025) (unpub. mem.).
Although not overruled, Beldiman’s principle that the Legislature cannot constitutionally “impute” an element of violence into an offense is reaffirmed in principle. Shores harmonizes this by holding that § 2602’s own elements already satisfy the constitutional standard; the legislative designation in § 2602(f) is helpful but not controlling.

VI. Impact and Future Implications

A. Immediate Impact on Bail Proceedings in Child-Sex Cases

The most direct effect of Shores is that defendants charged with lewd or lascivious conduct with a child under § 2602(a)(1) are now clearly within the class of offenses that may qualify for preventive detention under § 40(2)/§ 7553a. Going forward:

Trial courts can no longer dismiss hold-without-bail requests on the ground that this offense is categorically non-violent.
The State still bears the burden to show:
- that the “evidence of guilt is great” on the charge; and
- by “clear and convincing evidence” that the defendant’s release poses a “substantial threat of physical violence to any person” and that no conditions can reasonably prevent it.
Shores addresses only the threshold “crime of violence” element; it does not predetermine the outcome on dangerousness or conditions in any given case.

Nonetheless, the decision will likely lead to more frequent State motions for hold without bail in cases involving sexual exploitation of children, particularly where the alleged conduct is non-contact (and thus previously might have been argued to fall outside the violent-felony category).

B. Broader Definition of “Violence” and Its Reach

By cementing a broad, power-based understanding of violence and rejecting any categorical physical-contact requirement, Shores has implications beyond the particular offense at issue:

Other non-contact but coercive offenses. Crimes involving coercive control, exploitation, or psychological terror—especially against vulnerable populations—may be more readily characterized as involving acts of violence if the statutory elements reflect abusive power.
Probation and conditions-of-release litigation. Following Bryan, the broader definition of violence means that violations of “no violent or threatening behavior” conditions may encompass a wider range of sexual or coercive conduct than traditional physical assaults.

Legislative drafting.

C. Balance Between Child Protection and Personal Liberty

Preventive detention is a serious incursion on the presumption of innocence and the right to pretrial liberty. Shores acknowledges this context but ultimately prioritizes the constitutional amendment’s objective “to permit pretrial detention, in appropriate circumstances, of those accused of violent crimes so as to prevent further harm to the victims of the crimes and to others” (Madison, 163 Vt. at 363).

By classifying lewd or lascivious conduct with a child as a violent felony, the Court signals that the State’s interest in protecting children from sexual exploitation justifies including these offenses in the preventive-detention regime. The actual use of hold without bail remains constrained by the “evidence of guilt is great” and “substantial threat of physical violence” requirements, which continue to protect defendants against automatic detention.

D. Future Litigation Questions

Shores also raises, or leaves room for, several future doctrinal questions:

Scope of “abusive or unjust use of power.” How far does this concept extend? For example, will it be applied to non-sexual exploitation crimes (e.g., certain forms of human trafficking, coercive control, or serious stalking) where physical contact may never occur?
Consistency with Beldiman. While Shores does not overrule Beldiman, future full-Court decisions may need to clarify the precise boundary between permissible legislative guidance (as in § 2602(f)) and unconstitutional attempts to declare non-violent offenses “violent” in order to expand preventive detention.
Application to other child-related offenses. The reasoning—that exploitation of a child’s vulnerability and invasion of bodily autonomy are inherently violent—could inform whether other child-related offenses (e.g., certain pornography or solicitation offenses) involve acts of violence for bail purposes, depending on their elements.

VII. Complex Concepts Simplified

For clarity, several key legal concepts in the opinion can be simplified as follows:

Preventive detention / “hold without bail” – When a court orders a defendant to stay in custody before trial, not because of punishment, but to prevent serious harm (here, “physical violence”) that the court believes is likely if the defendant is released.
Element of an offense – A specific fact or component that the prosecution must prove beyond a reasonable doubt to convict someone of a crime. For example, for § 2602(a)(1), it is an “element” that the victim is under 16 and that the conduct is lewd and sexual in nature.
“Act of violence” under § 40(2)/§ 7553a – Not limited to hitting, punching, or obvious physical attacks. It includes abusive or unjust uses of power that violate a person’s bodily integrity, autonomy, or personal freedom, such as coercive sexual exploitation of a child or armed threats.
“Evidence of guilt is great” – A higher-than-probable-cause standard the State must meet to justify hold without bail; the evidence must be very strong that the defendant committed the charged crime.
“Clear and convincing evidence” – A standard of proof requiring the State to show that something (here, the threat of physical violence and the inadequacy of conditions) is highly probable, though not as certain as “beyond a reasonable doubt.”
Stare decisis and overruling precedent – Stare decisis is the principle that courts generally follow their prior decisions. However, a court can overrule prior precedent when it concludes that the earlier decision is wrong or incompatible with later developments. Shores does this with Madigan.
Single-Justice vs. full-Court decisions – Single-Justice decisions (often in emergency or bail matters) are typically less authoritative than full-Court opinions, especially on broad constitutional questions; this made it easier for the Court to reconsider and overrule Madigan.
Separation of powers and constitutional supremacy – The Legislature can define crimes and express policy preferences, but it cannot change the meaning of the Constitution. Where a statute (like § 2602(f)) conflicts with constitutional limits, the Constitution controls, and the Court must independently interpret constitutional terms like “violence.”

VIII. Conclusion

State v. Shores is a pivotal decision in Vermont’s bail and constitutional law. It firmly rejects a narrow, purely physical conception of “violence” in favor of a broad, victim-focused understanding that encompasses abusive and unjust uses of power, particularly in the context of child sexual exploitation. By holding that lewd or lascivious conduct with a child is a felony whose elements include an act of violence, the Court brings this offense squarely within the class of crimes for which preventive detention may be considered under Vermont Constitution ch. II, § 40(2) and 13 V.S.A. § 7553a.

The opinion overrules the restrictive single-Justice decision in Madigan, aligns Vermont’s “violence” jurisprudence with the broader principles articulated in Madison, Bryan, and Perron, and carefully delineates the respective roles of the Legislature and the judiciary in defining constitutional terms. While the decision expands the pool of defendants who may be held without bail in serious child-exploitation cases, the rigorous evidentiary requirements for preventive detention remain intact.

In the broader legal landscape, Shores underscores that the law treats the coercive sexual exploitation of children as a form of violence, even when physical touching is absent. It affirms that the constitutional commitment to individual liberty coexists with a strong mandate to shield vulnerable victims from further harm by those credibly accused of violent wrongdoing.