The Breadth of Relevance Under Vermont Rule of Evidence 401 in Sexual-Assault Prosecutions: Commentary on State v. Barratt

I. Introduction

State of Vermont v. Travis Barratt, No. 25-AP-034 (Vt. Nov. 7, 2025), is a non‑precedential three‑justice entry order of the Vermont Supreme Court arising from a sexual‑assault conviction. Although the order itself is expressly “not to be considered as precedent before any tribunal,” it provides a useful, focused illustration of several recurring evidentiary themes:

• the extremely low threshold for relevance under Vermont Rule of Evidence 401;
• the breadth of trial‑court discretion under Rules 401–402 in determining admissibility;
• the importance of properly preserving Rule 403 objections to avoid forfeiture on appeal; and
• the treatment of post‑assault therapy evidence offered to explain an apparent inconsistency in a complainant’s accounts.

The decision is especially significant for practitioners in sexual‑assault cases, where complainants often engage in therapy and where trauma‑related memory phenomena (such as “freezing” or “blacking out”) are common features of testimony. It underscores how such evidence can be admitted as relevant to credibility, and how defense counsel must articulate both relevance and prejudice objections if they wish to preserve them.

II. Case Background

A. Parties and Charges

The State charged defendant, Travis Barratt, with two counts of sexual assault under 13 V.S.A. § 3252(a)(1), alleging that he compelled the complainant to participate in sexual acts without her consent. A separate simple‑assault count was dismissed with prejudice before trial.

B. Factual Overview

The alleged assaults occurred during an October 2020 gathering at defendant’s home attended by:

• defendant and his girlfriend,
• the complainant,
• the complainant’s boyfriend, E.T., and
• their friend, J.W.

The group drank alcohol, listened to music, and socialized. Two key episodes formed the basis of the charges:

1. First incident (on the porch – oral sex). While on the back porch, after some horseplay between E.T. and J.W., complainant sat in a chair. Defendant exposed his penis, said “you want some of this?,” and, before she could respond, pulled her head toward him and placed his penis in her mouth. She did not consent, pushed him away, and stood up. J.W. later recalled seeing defendant approach complainant and complainant push him away, but he did not attach significance to it at the time.
2. Second incident (in the living room – oral sex and alleged vaginal penetration). Later, inside the house, defendant’s girlfriend went to bed upstairs. Complainant, E.T., and J.W. went to the living room to rest. E.T. passed out on the floor; J.W. left to smoke. Defendant entered, positioned himself in front of complainant lying on a couch (her head level with his groin), again exposed his penis, and placed it in her mouth. Without any indication of consent, complainant pulled her head away. Defendant then tugged down her sweatpants despite her saying “no” and trying to hold them up, and placed his penis in her vagina.

Complainant testified that at this point she “blacked out,” explaining that she felt weak, could not fight him off, and “froze.” The next thing she recalled was J.W. waking her, telling her that her pants were down. She cried, felt semen between her legs, and begged to be taken home. She did not seek immediate medical or law enforcement help.

C. Prior Statement and Therapy

In January 2021, complainant gave a written statement to police. In that statement she:

• described defendant putting his penis into her mouth the second time (on the couch), and then
• wrote that she “blacked out” thereafter,

but did not mention that defendant put his penis in her vagina.

By the time of the July 2024 trial, complainant testified to vaginal penetration after the point at which she had previously described “blacking out.” She also indicated that therapy after the incident helped her understand and recall more about what happened.

D. Trial, Verdict, and Appeal

After the evidence, the State formally elected theories for the two counts:

• Count 1: defendant placing his penis in complainant’s mouth without consent (first incident).
• Count 2: defendant placing his penis in complainant’s vagina without consent (second incident).

The jury convicted defendant on Count 1 (oral assault) and acquitted him on Count 2 (alleged vaginal penetration).

On appeal, defendant did not* challenge the sufficiency of the evidence or the instructions. Instead, he raised a narrow evidentiary challenge focused on complainant’s testimony that she had engaged in therapy after the incident:

• He argued under V.R.E. 402 that the fact of therapy was irrelevant and therefore inadmissible.
• He also attempted, on appeal, to argue that—even if relevant—the therapy evidence should have been excluded under V.R.E. 403 because its probative value was substantially outweighed by the danger of unfair prejudice.

The Supreme Court affirmed the conviction.

III. Summary of the Opinion

A. Preservation and Scope of Appellate Review

The Court first sorted out which evidentiary arguments had been properly preserved for review:

• At trial, defense counsel objected when complainant began to explain “blacked out” by referencing therapy, arguing that “any work complainant had done with a therapist was irrelevant.”
• Counsel did not argue that, even if relevant, the evidence should be excluded as unfairly prejudicial under Rule 403.

Citing State v. Muhammad, 2007 VT 36, and State v. Lyddy, 2025 VT 1, the Court held:

• The Rule 402 (relevance) objection was preserved; the Court would review the trial court’s determination of relevance.
• The Rule 403 (unfair prejudice) argument was forfeited because it was not raised below, and defendant did not ask the Supreme Court to review for plain error. Accordingly, the Court refused to address any Rule 403-based claim.

B. Relevance Under Rules 401–402

The Court then turned to the only preserved issue: whether complainant’s reference to therapy was relevant and thus admissible under Rule 402.

It emphasized:

• The trial court has broad discretion to decide relevance, reviewable only for abuse of discretion. (State v. Bernier, 157 Vt. 265 (1991); State v. LaGore, 2025 VT 41.)
• Under Rule 401, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than without it.
• The Reporter's Notes to Rule 401 adopt a “broad formulation” of relevance: evidence need not go directly to a formal element; it can relate to credibility or provide necessary background for the narrative of events.

Applying this standard, the Court held that the therapy reference was relevant:

• Defense counsel had attacked complainant’s credibility by pointing out the discrepancy between her January 2021 written statement (which mentioned only oral contact and “blacking out”) and her trial testimony (which added vaginal penetration).
• The State responded by asking complainant to clarify what she meant by “blacked out,” and she explained—referencing therapy—that she had not blacked out from alcohol, but had “frozen” in response to trauma, and that therapy discussions helped her recall further details from that period.
• This testimony therefore bore directly on her credibility and on explaining the apparent inconsistency between her prior statement and trial testimony.

Because credibility is plainly a “fact of consequence” under Rule 401, the Court found the testimony relevant and concluded that the criminal division had not abused its discretion by allowing the testimony.

C. Disposition

Finding no abuse of discretion under Rule 402 and declining to reach the unpreserved Rule 403 argument, the Supreme Court affirmed defendant’s conviction for sexual assault based on non‑consensual oral contact.

IV. Analysis

A. Precedents and Authorities Cited

1. State v. Muhammad, 2007 VT 36 (plain error and Rule 403)

Muhammad is cited for the basic preservation principle: a Rule 403 challenge must be specifically raised in the trial court, or it is forfeited absent plain error. In Muhammad, the defendant’s lack of a “specific objection” to the admission of certain evidence meant that his 403 claim was unpreserved; the Supreme Court would only consider whether its admission was plainly erroneous.

In Barratt, the Court borrows this reasoning:

• Defense counsel objected only on relevance grounds (Rule 402), not on unfair prejudice grounds (Rule 403).
• That failure triggered the Muhammad rule: the 403 claim is forfeited unless plain error is asserted and established.
• Since defendant did not even argue plain error on appeal, the Supreme Court would not examine 403 at all.

The citation highlights a recurring lesson: Rule 403 arguments are not automatically implied by a Rule 402 objection. Trial lawyers must invoke 403 explicitly and with some specificity.

2. State v. Lyddy, 2025 VT 1 (unpreserved arguments)

Lyddy is cited for the proposition that when an issue has not been preserved and the appellant does not argue plain error, the Supreme Court will simply not address it. It reflects a consistent modern insistence on issue preservation. In Barratt, this authority supports the Court’s refusal to entertain the late‑raised Rule 403 argument.

3. State v. Bernier, 157 Vt. 265 (1991) (relevance & trial court discretion)

Bernier stands for the “broad discretion” afforded trial courts in relevance determinations. By citing Bernier, the Court underscores:

• relevance is a low threshold question;
• trial courts are on the front lines, seeing the evidence in context; and
• appellate review is correspondingly deferential and limited to abuse of discretion.

4. State v. LaGore, 2025 VT 41 (abuse of discretion standard)

LaGore is cited for the test of abuse of discretion: appellate courts will not disturb an evidentiary ruling unless the trial court withheld its discretion or exercised it on “clearly unreasonable grounds.” This reaffirms that on appeal, the bar to reversing a trial court’s Rule 402 ruling is high.

5. Vermont Rules of Evidence 401–403 and the Reporter’s Notes

The Opinion draws heavily from the text of Rule 401 and its Reporter’s Notes:

• Rule 401: relevance exists if evidence has any tendency to make a consequential fact more or less probable.
• The Reporter’s Notes emphasize that:
  • Relevant facts are not limited to those that map neatly onto elements of a charge.
  • They include propositions “pertinent to credibility” and “background facts” that complete the narrative, even if not disputed.
• Rule 402: all relevant evidence is admissible unless another rule or law excludes it.
• Rule 403: relevant evidence may be excluded if its probative value is substantially outweighed by dangers such as unfair prejudice.

The Court’s reliance on the Reporter’s Notes is especially important. It signals an interpretive stance: Vermont’s evidence rules are to be applied with a generous concept of relevance, especially where credibility and narrative coherence are at stake.

B. The Court’s Legal Reasoning

1. The Preservation Problem: 402 vs. 403

The central structural feature of the Opinion is procedural: the Court’s analysis is sharply constrained by what was (and was not) preserved in the trial court.

At trial, the defense objected when complainant said, “Well, I had worked with a therapist after this, too,” arguing that therapy work was “irrelevant.” The prosecutor responded that therapy was relevant to clarify complainant’s use of “blacked out” in her prior statement. The trial court agreed, overruling the objection.

Critically:

• Defense counsel did not add that, even if marginally relevant, the testimony’s prejudicial impact (e.g., jurors might assume “she is in therapy, therefore she must have been victimized”) substantially outweighed its probative value.
• Counsel did not seek a limiting instruction confining the jury’s use of therapy evidence.

On appeal, defendant pivoted: his “main argument” was now that any probative value was outweighed by the risk of unfair prejudice under Rule 403. But because that theory had never been presented to the trial court, it was forfeited under Muhammad and Lyddy.

The Court’s refusal to treat a general “relevance” objection as implicitly incorporating a Rule 403 balancing argument is doctrinally important: a 402 objection is not the same as a 403 objection. Trial lawyers must say both if they mean both.

2. The Breadth of “Facts of Consequence” Under Rule 401

Defendant’s relevance argument was narrow: therapy was irrelevant “because it does not help prove any elements of the crime of sexual assault.” The Court rejected that framing, using the Reporter’s Notes to expand the focus beyond formal elements.

Under Rule 401:

• The “fact of consequence” need not be an element of the offense (e.g., penetration, lack of consent).
• It may be any fact that matters to the jury’s resolution of the case, including:
  • witness credibility,
  • explanation of apparent inconsistencies, and
  • background necessary to understand the sequence of events.

In Barratt, credibility was the fulcrum of the case:

• The State’s and defendant’s accounts were flatly contradictory: he claimed complainant willingly engaged in oral sex twice and denied vaginal penetration; she claimed both oral assaults were non‑consensual and that vaginal penetration occurred.
• Defense counsel specifically attacked her truthfulness by highlighting a prior omission—her 2021 statement failed to mention vaginal penetration and simply said she “blacked out.”

The State’s redirect sought to rehabilitate her by asking what she meant by “blacked out.” Her explanation — that “blacked out” was shorthand she used before understanding that she had “frozen,” and that therapy helped her recall more detail—directly addressed why her earlier account was incomplete and how her memory evolved. That, the Court concluded, makes the therapy reference relevant to credibility.

3. Distinguishing Weight from Admissibility

Although not discussed explicitly, the Opinion implicitly recognizes the distinction between:

• Admissibility (a low bar under Rule 401–402: “any tendency” to affect a matter of consequence), and
• Weight (how persuasive the evidence ultimately is, which is for the jury).

Therapy evidence might be modest in probative force; jurors could reasonably be skeptical that therapy a year later truly explains an omission. But under Rule 401, that modest probative force is enough to clear the threshold. Any dispute about how much it should matter goes to weight, not admissibility.

4. Potential 403 Concerns—Left Unresolved

The Opinion does not reach Rule 403, but the posture invites reflection on what was not decided. Defendant’s appellate concern was that mentioning therapy might cause jurors to assume:

• the complainant was “damaged” by something serious (implicitly, the assault), and therefore defendant likely did assault her.
• a therapist must have validated her account, lending an aura of expert endorsement.

These are classic “unfair prejudice” arguments: the evidence may invite emotional or inferential leaps beyond its limited logical relevance (i.e., to explain why she previously said “blacked out” and remembered less).

However, because defense counsel did not raise 403 at trial and did not seek plain‑error review on appeal, the Court has no occasion to balance:

• the probative value of the therapy reference in clarifying memory and explaining inconsistency, against
• its potential to improperly bolster complainant’s story or appeal to sympathy.

Thus, while Barratt holds that therapy references of this type can be relevant, it does not establish that they will always (or even usually) survive a properly preserved Rule 403 challenge in other cases. That issue remains open for fuller appellate treatment.

C. Impact and Practical Significance

1. For Trial Courts

Even though this is a non‑precedential entry order, it is an instructive reading of Rules 401 and 402:

• Courts may admit brief references to a complainant’s therapy when:
  • the defense has put credibility directly in issue, and
  • the therapy reference is used narrowly to clarify memory or explain inconsistencies.
• The decision affirms a trial judge’s power to see such evidence as part of the “full range of background facts” and as germane to credibility, per the Reporter’s Notes to Rule 401.
• It also reinforces that appellate courts will rarely second‑guess such discretionary calls on pure relevance grounds.

2. For Prosecutors

The Opinion implicitly authorizes certain uses of post‑assault therapy evidence in sexual‑assault cases:

• When impeached with an omission or inconsistent statement, a complainant may explain that trauma and subsequent therapy helped her better understand or remember what happened.
• The key is to tie the therapy reference directly to a contested issue such as:
  • the meaning of phrases like “blacked out,” and
  • the evolution of her recall.

Strategically, prosecutors should:

• Keep therapy references as brief and non‑detail‑oriented as possible to avoid 403 problems and privilege issues.
• Emphasize that the therapy is not being offered to prove the truth of what the complainant said in therapy (to avoid hearsay/vouching issues), but to explain her subjective understanding and memory.

3. For Defense Counsel

Barratt is a cautionary tale for the defense:

• A general “relevance” objection (402) is insufficient to preserve an “unfair prejudice” argument (403). Counsel must:
  • explicitly cite Rule 403, and
  • articulate the specific prejudice they fear (e.g., improper bolstering of credibility).
• When therapy evidence is allowed, consider:
  • requesting a limiting instruction (e.g., the jury may consider the fact of therapy only to understand the witness’s testimony about her memory, and may not assume the therapist verified the truth of her account), and
  • cross‑examining on the timing and content of therapy to argue that new details are manufactured or suggestive rather than genuine recollection.

Defense counsel should also recognize that once they use a prior omission or inconsistency to attack a complainant’s credibility, the State will often be allowed considerable room to rehabilitate the witness, including with testimony about how trauma and therapy affected recall.

4. For Future Sexual‑Assault Litigation

Even as a persuasive (not binding) authority, Barratt suggests several trends in Vermont practice:

• Courts are receptive to trauma‑related explanations for delayed or incomplete disclosure and for the evolution of a complainant’s narrative.
• Therapy evidence, in limited form, can be used to translate lay terms like “blacked out” into trauma‑related phenomena such as “freezing,” without automatically being deemed irrelevant.
• Debates will likely shift away from whether this evidence is relevant (it usually will be) to how far it may go before it becomes unfairly prejudicial, misleading, or effectively vouching.

V. Complex Concepts Simplified

A. Relevance vs. Unfair Prejudice (Rules 401, 402, 403)

1. What is “relevance”?

Under Rule 401, evidence is “relevant” if it has any tendency—even a small one—to make a consequential fact more or less likely. Two key points:

• The tendency can be slight; the evidence does not have to be strong or conclusive.
• The “fact of consequence” includes not only elements of the crime, but also issues like:
  • whether a witness is telling the truth, and
  • whether an apparent inconsistency can be reasonably explained.

In Barratt, the fact that complainant had worked with a therapist after the incident was relevant because it helped explain:

• what she meant by “blacked out,” and
• why she might have remembered more details later than she wrote in January 2021.

2. What is “unfair prejudice”?

“Unfair prejudice” under Rule 403 means a risk that evidence will push the jury to decide based on improper considerations—emotion, bias, or speculation—rather than on the actual issues. For example:

• Jurors might think: “She’s in therapy, so she must have been seriously harmed, therefore the defendant must be guilty.”
• Or: “If a therapist was involved, the complainant’s story must have been verified by a professional.”

Rule 403 requires courts to weigh probative value against such risks. But in Barratt, that weighing never formally occurred, because 403 was not raised.

B. Preservation of Objections and Plain Error

1. Preserving an objection

To “preserve” an issue for appeal, a party must:

• object at the time the issue arises in the trial court, and
• state the specific legal ground (e.g., “403 unfair prejudice,” not just “I object”).

If a party objects only on one ground (e.g., irrelevance under 402), it generally cannot raise a different ground (e.g., 403 prejudice) for the first time on appeal.

2. Plain error

“Plain error” is a narrow exception allowing an appellate court to correct obvious, serious mistakes that affect the fairness or integrity of the proceedings, even if no proper objection was made at trial. It is rarely applied.

In Barratt, defendant did not argue that admitting the therapy reference was plain error, so the Court declined to consider that possibility.

C. Trauma, “Freezing,” and “Blacking Out”

The case also touches on how trauma can affect memory and behavior:

• Complainant initially wrote that she “blacked out” after defendant put his penis in her mouth the second time.
• At trial, she explained that she did not mean an alcohol‑induced loss of consciousness, but rather a trauma response in which she felt weak, could not fight, and “froze.”
• She testified that therapy helped her understand this response and recall more details from the period during which she had “essentially frozen.”

From an evidentiary standpoint, this explanation helps the jury understand:

• why a victim might not immediately report or fully describe all details of an assault, and
• how her description of events could legitimately become more detailed over time without necessarily implying fabrication.

VI. Conclusion

State v. Barratt is a tightly focused evidentiary decision that, while non‑precedential, illuminates several important themes in Vermont criminal practice. It reaffirms the very broad concept of relevance under Vermont Rule of Evidence 401, especially in relation to witness credibility and narrative explanation, and underscores the substantial discretion vested in trial courts by Rule 402.

The Opinion also serves as a procedural reminder: challenges based on unfair prejudice under Rule 403 are not preserved by a generic relevance objection. Counsel must specifically raise 403 and, if they fail to do so, must explicitly seek plain‑error review on appeal or forfeit the argument altogether.

Substantively, the case illustrates how post‑assault therapy can be used—within limits—by the State to contextualize a complainant’s evolving memory and to respond to impeachment based on prior omissions or inconsistent statements, particularly in the sensitive context of sexual‑assault prosecutions. At the same time, by leaving Rule 403 questions open, the Court implicitly acknowledges that therapy evidence, if expanded beyond such limited purposes, may raise serious concerns about unfair prejudice and improper bolstering.

Overall, Barratt reinforces a doctrinal baseline: evidence tied to how a witness understands, processes, and recalls an alleged traumatic event will ordinarily meet Vermont’s generous relevancy threshold, especially when credibility has been squarely attacked. Future disputes are likely to focus less on whether such evidence is relevant at all, and more on how trial courts should balance its probative value against potential prejudice under Rule 403 in cases where that issue is properly preserved.