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Montana rape law updated to clarify "without consent" provision - KXLH.com | Helena, Montana

Montana rape law updated to clarify "without consent" provision

Posted: 11/23/2017 12:23:00 -07:00 Updated:

An update to Montana's rape law is making the definition of consent much clearer, according to Missoula Deputy County Attorney Suzy Boylan.

As of October 1, Montana law changed the definition of consent to have sex.

The presence of "yes," physically or verbally, is now required to have consensual sex, and the absence of "no" does not mean that a person wants to have sex.

That's a big change from when the old law was written, which did not take into account new information about how victims sometimes respond during and after an assault, or any unwanted sexual contact.

Supporters of the new state law say the old statute did not take into account the victim's natural reaction to freeze during an attack, instead of fighting back.

“Before, 'without 'consent was force, or a victim who was in a position of being incapable of giving consent because of age or because of extreme intoxication or physical helplessness,” Boylan said. “What those statues didn’t catch were the victims who were freezing and not saying really 'yes' or 'no,' and offenders take advantage of that.”

“We now have a definition that I think is clearer for everyone. It’s not just for the criminal justice system...it’s for everyone,” Boylan said.

Part of the language of this bill comes from the Uniform of Code of Military Justice, stating that clothing and previous relationships are not indicative of consent.

Here is the relevant portion of Montana Code; the italicized section is new:

45-5-501. Definitions. (1) (a) As used in 45-5-50245-5-503, and 45-5-508, the term "consent" means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact and is further defined but not limited by the following:

(i) an expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn;

(ii) a current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent; and

(iii) lack of consent may be inferred based on all of the surrounding circumstances and must be considered in determining whether a person gave consent.

(b) Subject to subsections (1)(c) and (1)(d), the victim is incapable of consent because the victim is:

(i) mentally disordered or incapacitated;

(ii) physically helpless;

(iii) overcome by deception, coercion, or surprise;

(iv) less than 16 years old;

(v) incarcerated in an adult or juvenile correctional, detention, or treatment facility or is on probation or parole and the perpetrator is an employee, contractor, or volunteer of the supervising authority and has supervisory or disciplinary authority over the victim, unless the act is part of a lawful search;

(vi) receiving services from a youth care facility, as defined in 52-2-602, and the perpetrator:

(A) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and

(B) is an employee, contractor, or volunteer of the youth care facility; or

(vii) admitted to a mental health facility, as defined in 53-21-102, is admitted to a community-based facility or a residential facility, as those terms are defined in 53-20-102, or is receiving community-based services, as defined in 53-20-102, and the perpetrator:

(A) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and

(B) is an employee, contractor, or volunteer of the facility or community-based service.

(c) Subsection (1)(b)(v) does not apply if the individuals are married to each other and one of the individuals involved is on probation or parole and the other individual is a probation or parole officer of a supervising authority.

(d) Subsections (1)(b)(vi) and (1)(b)(vii) do not apply if the individuals are married to each other and one of the individuals involved is a patient in or resident of a facility, is a recipient of community-based services, or is receiving services from a youth care facility and the other individual is an employee, contractor, or volunteer of the facility or community-based service.

(2) As used in 45-5-508, the term "force" means:

(a) the infliction, attempted infliction, or threatened infliction of bodily injury or the commission of a forcible felony by the offender; or

(b) the threat of substantial retaliatory action that causes the victim to reasonably believe that the offender has the ability to execute the threat.

(3) As used in 45-5-502 and this section, the following definitions apply:

(a) "Parole":

(i) in the case of an adult offender, has the meaning provided in 46-1-202; and

(ii) in the case of a juvenile offender, means supervision of a youth released from a state youth correctional facility, as defined in 41-5-103, to the supervision of the department of corrections.

(b) "Probation" means:

(i) in the case of an adult offender, release without imprisonment of a defendant found guilty of a crime and subject to the supervision of a supervising authority; and

(ii) in the case of a juvenile offender, supervision of the juvenile by a youth court pursuant to Title 41, chapter 5.

(c) "Supervising authority" includes a court, including a youth court, a county, or the department of corrections.

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