Some Information on Montana sex crimes
This isn’t a philosophical meditation; it’s more of a crash course on sex crimes. Rape and sexual assaults are ugly. That’s why I use the ugly word “rape” rather than the sanitized legal definition, “sexual intercourse without consent.” As a lawyer, I realize, however, that legal definitions serve a purpose.
Over 25 years ago, as a first year law student, I also learned in a Missoula parking lot, that when you are confronted by a jerk who still has enough cognitive functioning left to fear the legal consequences of his actions, basic knowledge of crime definitions can be a deterrent.
My boyfriend had apparently stolen a guy’s parking spot at a Missoula shopping mall. As we got out of his truck, the other guy stopped his car right behind us, jumped out and rushed towards my boyfriend, yelling, “I’ll break your “f***ing jaw You f******bastard stole my parking spot.” He was irate. Must have had a really bad day. My boyfriend thought that he was about to be punched.
My reaction can probably only be explained by what years of law school, especially final exams, do to you. Having just spent hours, studying for my Criminal Law #101 final exam, I blurted out, “Under Montana Code Annotated, section 45, you just committed an assault. You are threatening bodily injury.“
That comment stopped the guy in his tracks, snapping him out of his anger and into his own lawyer mode. He immediately backed up, mumbling, ”No it’s not an assault. I said, I ‘would’ break his jaw. I didn’t say, I will…” And off he went. I never found out if he was a real lawyer. It was a strange experience.
The point of this excursion is that some basic legal knowledge could in some situations at some point help you to avoid violence if you are confronted with a would-be attacker who is still able to use his neo-cortex and who is afraid of legal consequences of his actions. Note all the qualifiers. With sexual violence, however, knowledge of what constitutes a crime and legal consent may play more of a role in prevention than in most other crimes.
Three Rivers Defense provides rape prevention training. See Self Defense and Personal Safety. 95 percent of self-defense is prevention – risk awareness, risk reduction, risk recognition, and risk avoidance. Only five percent (or whatever other small percentage you want to use for illustrative purposes) are physical self-defense.
Most women are sexually assaulted or raped by men they know in a location and in situations that they consider safe. With non-stranger sex crimes, knowledge of the basic elements of sex crimes may help you avoid rape or sexual assault.
You can look up Montana law yourself by googling Montana Code Annotated (MCA) or clicking on the links below. The code is updated every two years in uneven years. So as of the date of writing this Blog entry, we are using the 2011 version.
If you live in another State, you can go to www.findlaw.com and check your state’s crime definitions.
The exact definitions of sex crimes differ by state.
I’ll cover some basic Montana definitions.
These definitions are graphic and direct, which is necessary so that there is no misunderstanding about what the law considers a crime. It’s important to know what exactly the law means by terms such as “sexual intercourse without consent,” “sexual assault,” or “consent.”
Let’s start with “sexual intercourse without consent.”
MCA 45-5-201 defines “Sexual Intercourse without Consent” as sexual intercourse with another person without that person’s consent.
“Sexual Intercourse” is defined as vaginal, anal, or oral penetration by the penis and also, vaginal or anal penetration by any other body part or an object.”
“[A]ny penetration, however slight, is sufficient.” MCA 45-2- 201 (68) (b)
“Sexual Assault” is defined by MCA 45-5-202. A person who subjects another person to any “sexual contact” without consent commits sexual assault.
“Sexual contact” is defined as “touching of sexual or other intimate body parts to bodily injure, harass, or degrade another or to arouse or gratify the sexual response of either.” See, 45-2-101(67)
Such conduct includes sexual touching and fondling under or over clothes.
Our rape and sexual assault statutes apply to assaults on persons of the opposite sex or of the same sex as the offender.
Also, Montana law recognizes that a spouse can be the victim of a rape or sexual assault. Consent is always required.
The purpose of this Blog entry isn’t to prepare you for a criminal law exam. Basically, if you remember nothing else, just remember that no on has a right to touch you unless you agree to it. No one has a right to have any kind of sexual contact with you unless you agree to that specific type of contact. It doesn’t matter what happened before or what your relationship is, you can always say no.
But things aren’t always that simple when a situation is interpreted afterwards. Consent is usually the key issue in non-stranger rape and sexual assault cases. The State has to prove every element of the crime, including lack of consent, beyond a reasonable doubt. And that’s not always an easy task. That’s why prevention and clear communication are so important.
Some Basic Montana sex crime statutes:
For those of you who want to know more, here are the actual statutes:
MCA 45-2-101 (Definitions)
(67) “Sexual contact” means touching of the sexual or other intimate parts of the person of another, directly or through clothing, in order to knowingly or purposely: (a) cause bodily injury to or humiliate, harass, or degrade another; or
(b) arouse or gratify the sexual response or desire of either party.
(68) (a) “Sexual intercourse” means penetration of the vulva, anus, or mouth of one person by the penis of another person, penetration of the vulva or anus of one person by a body member of another person, or penetration of the vulva or anus of one person by a foreign instrument or object manipulated by another person to knowingly or purposely: (i) cause bodily injury or humiliate, harass, or degrade; or (ii) arouse or gratify the sexual response or desire of either party.
(b) For purposes of subsection (68)(a), any penetration, however slight, is sufficient.”
See also MCA 45-2-101.
45-5-502. Sexual assault. (1) A person who knowingly subjects another person to any sexual contact without consent commits the offense of sexual assault. (2) (a) On a first conviction for sexual assault, the offender shall be fined an amount not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both. (b) On a second conviction for sexual assault, the offender shall be fined an amount not to exceed $1,000 or be imprisoned in the county jail for a term not to exceed 1 year, or both. (c) On a third and subsequent conviction for sexual assault, the offender shall be fined an amount not to exceed $10,000 or be imprisoned for a term not to exceed 5 years, or both. (3) If the victim is less than 16 years old and the offender is 3 or more years older than the victim or if the offender inflicts bodily injury upon anyone in the course of committing sexual assault, the offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years, unless the judge makes a written finding that there is good cause to impose a term of less than 4 years and imposes a term of less than 4 years, or more than 100 years and may be fined not more than $50,000. (4) An act “in the course of committing sexual assault” includes an attempt to commit the offense or flight after the attempt or commission. (5) (a) Subject to subsections (5)(b) and (5)(c), consent is ineffective under this section if the victim is: (i) 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; (ii) less than 14 years old and the offender is 3 or more years older than the victim; (iii) 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 (iv) 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. (b) Subsection (5)(a)(i) does not apply if one of the parties is on probation or parole and the other party is a probation or parole officer of the supervising authority and the parties are married to each other. (c) Subsections (5)(a)(iii) and (5)(a)(iv) 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.
45-5-503. Sexual intercourse without consent. (1) A person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent. A person may not be convicted under this section based on the age of the person’s spouse, as provided in 45-5-501(1)(a)(ii)(D). (2) A person convicted of sexual intercourse without consent shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 2 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-219, 46-18-222, and subsections (3) and (4) of this section. (3) (a) If the victim is less than 16 years old and the offender is 4 or more years older than the victim or if the offender inflicts bodily injury upon anyone in the course of committing sexual intercourse without consent, the offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-219 and 46-18-222. (b) If two or more persons are convicted of sexual intercourse without consent with the same victim in an incident in which each offender was present at the location where another offender’s offense occurred during a time period in which each offender could have reasonably known of the other’s offense, each offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 5 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-219 and 46-18-222. (c) If the offender was previously convicted of an offense under this section or of an offense under the laws of another state or of the United States that if committed in this state would be an offense under this section and if the offender inflicted serious bodily injury upon a person in the course of committing each offense, the offender shall be: (i) punished by death as provided in 46-18-301 through 46-18-310, unless the offender is less than 18 years of age at the time of the commission of the offense; or (ii) punished as provided in 46-18-219. (4) (a) If the victim was 12 years of age or younger and the offender was 18 years of age or older at the time of the offense, the offender: (i) shall be punished by imprisonment in a state prison for a term of 100 years. The court may not suspend execution or defer imposition of the first 25 years of a sentence of imprisonment imposed under this subsection (4)(a)(i) except as provided in 46-18-222, and during the first 25 years of imprisonment, the offender is not eligible for parole. (ii) may be fined an amount not to exceed $50,000; and (iii) shall be ordered to enroll in and successfully complete the educational phase and the cognitive and behavioral phase of a sexual offender treatment program provided or approved by the department of corrections. (b) If the offender is released after the mandatory minimum period of imprisonment, the offender is subject to supervision by the department of corrections for the remainder of the offender’s life and shall participate in the program for continuous, satellite-based monitoring provided for in 46-23-1010. (5) In addition to any sentence imposed under subsection (2) or (3), after determining the financial resources and future ability of the offender to pay restitution as required by 46-18-242, the court shall require the offender, if able, to pay the victim’s reasonable medical and counseling costs that result from the offense. The amount, method, and time of payment must be determined in the same manner as provided for in 46-18-244. (6) As used in subsections (3) and (4), an act “in the course of committing sexual intercourse without consent” includes an attempt to commit the offense or flight after the attempt or commission.
45-5-511. Provisions generally applicable to sexual crimes. (1) When criminality depends on the victim being less than 16 years old, it is a defense for the offender to prove that the offender reasonably believed the child to be above that age. The belief may not be considered reasonable if the child is less than 14 years old. (2) Evidence concerning the sexual conduct of the victim is inadmissible in prosecutions under this part except evidence of the victim’s past sexual conduct with the offender or evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease that is at issue in the prosecution. (3) If the defendant proposes for any purpose to offer evidence described in subsection (2), the trial judge shall order a hearing out of the presence of the jury to determine whether the proposed evidence is admissible under subsection (2). (4) Evidence of failure to make a timely complaint or immediate outcry does not raise any presumption as to the credibility of the victim. (5) Resistance by the victim is not required to show lack of consent. Force, fear, or threat is sufficient alone to show lack of consent.
These are the legal definitions. Some are a bit convoluted. Don’t worry about remembering every detail, unless you are a law student, preparing for an exam.
Of course, if you want legal advice, talk to a lawyer. If you are in any kind of immediate danger and able to do so, call 911. Know your local crisis center 24/7 numbers. Program them into your phone.
Bottom Line – Consent is required
The bottom line is that no one may touch you without your consent. No one may touch you if you don’t want them to touch you. You can say no at any time, no matter what happened before. For example, if you go to someone’s apartment and agree to kissing and some intimate touching, you can still change your mind and say “No” to any progression, or to intercourse.
Also, when a person is drunk or under the influence of drugs, he or she may not be able to give legally valid consent.
An “incapacitated” person cannot give valid consent and without consent, sexual contact is sexual assault or rape, if there is penetration.
In sum, know that consent is required for any sexual contact and any progression of such contact. If your partner agreed to be kissed and touched in intimate areas,he or she hasn’t agreed to any more yet. So ask them and be direct, and if they don’t agree directly, you shouldn’t assume consent.
Decide before you go to a party or on a date, or otherwise spend time alone with someone, what you are and are not willing to do. Communicate directly and clearly, and match your actions with your words. Avoid ambiguity.
Also remember that contact that is not a sexual assault may still be a “simple” assault.
Montana simple and aggravated assault definitions:
45-5-201. Assault. (1) A person commits the offense of assault if the person: (a) purposely or knowingly causes bodily injury to another; (b) negligently causes bodily injury to another with a weapon; (c) purposely or knowingly makes physical contact of an insulting or provoking nature with any individual; or (d) purposely or knowingly causes reasonable apprehension of bodily injury in another. (2) A person convicted of assault shall be fined not to exceed $500 or be imprisoned in the county jail for any term not to exceed 6 months, or both.
For example, you are on a bus or at a football game, and a guy gropes your thigh. Is this touching of a “sexual or intimate body part” (sexual assault) or potentially “physical contact of an insulting or provoking nature” (simple assault)?
Montana law also defines “Aggravated Assault” in MCA 45-5-202. It is an assault that causes serious bodily injury, or uses physical force or contact and causes apprehension of serious bodily injury or death.
45-5-202. Aggravated assault. (1) A person commits the offense of aggravated assault if the person purposely or knowingly causes serious bodily injury to another or purposely or knowingly, with the use of physical force or contact, causes reasonable apprehension of serious bodily injury or death in another. (2) A person convicted of aggravated assault shall be imprisoned in the state prison for a term not to exceed 20 years and may be fined not more than $50,000, except as provided in 46-18-219 and 46-18-222.
Under Montana law, strangulation or attempted strangulation (often still inappropriately referred to in the media as “choking”) can be prosecuted as aggravated assault, a felony, or as attempted homicide. Strangulation is a very serious, potentially lethal, violent act. A victim should seek medical attention.
ISSUES RELATED TO CONSENT:
Was it consensual sexual intercourse?
Montana law considers three major issues in judging whether a sexual act is consensual:
- Was the victim old enough (16) to consent to sexual intercourse?
- Did the victim have the legal capacity (in addition to age) to consent?
- Did each partner agree to the sexual contact performed? If there is no valid consent the sexual act is a crime. If she agreed to have him touch her breasts and he forced her to have intercourse, there’s no valid consent.
Both partners need to remember:
- Don’t assume consent from silence or other conduct.
- Consent can be withdrawn at any time.
- If in doubt, always confirm consent before you act. If in doubt, ask.
- Be clear, direct, and unequivocal in expressing what you are consenting to and what you don’t want to do or don’t want him to do.
- If you are the “active” partner, if in doubt, ask directly.
Some more thoughts on the legal issues and statues referenced above:
- AGE: Are the participants old enough to consent to sex?
Each state sets a legal “age of consent.” This is the minimum age at which someone can legally consent to have sex. People below this age are considered children and cannot legally agree to have sex. In other words, even if the child or young person says “yes,” the law deems this consent legally invalid.
In Montana, you don’t have the legal capacity to consent to sexual intercourse until you are 16.
“I thought she was 16” is not considered a legal excuse. It can be a “legal defense.” I.e. the elements of the crime are met but the accused may have an affirmative defense.
Mistaken belief is no affirmative defense to sexual intercourse without consent if the child is younger than 14. MCA 45-5-511(1)
For example, if the girls was 13 years old, the alleged belief by the offender that she was over 16 will not be considered as an affirmative defense.
- CAPACITY: In addition to being at least 16, did both people have the legal capacity to consent?
States also define who has the legal capacity to consent beyond age. Montana law says this:
45-2-211. Consent as a defense. (1) The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense. (2) Consent is ineffective if: (a) it is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; (b) it is given by a person who by reason of youth, mental disease or defect, or intoxication is unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; (c) it is induced by force, duress, or deception; or (d) it is against public policy to permit the conduct or the resulting harm, even though consented to.
See, MCA 45-2-211
45-5-501. Definitions. (1) (a) As used in 45-5-503, the term “without consent” means:
(i) the victim is compelled to submit by force against the victim or another; or
(ii) subject to subsections (1)(b) and (1)(c), the victim is incapable of consent because the victim is:
(A) mentally defective or incapacitated;
(B) physically helpless;
(C) overcome by deception, coercion, or surprise;
(D) less than 16 years old;
Click in this link for the full text of MCA 45-5-501
Think about these scenarios:
- A woman gets so drunk at a party that she passes out. Does she have the capacity to consent? What if she is drunk but not passed out?
- A woman has dinner with a man she has dated for a few days. They are at his apartment. They have some wine and watch a movie. They are sitting on a couch and start kissing. She has taken a prescription drug that makes her fall asleep. She has never had any sexual contact with him before. He has undressed her and is touching her breasts when she wakes up.
- A young man is on a team bus. His arms are restrained by three other guys. They tell him to show them how strong he is and start fondling his genitals through his clothes.
Frequently Asked Questions:
I didn’t resist physically.
Withholding consent does not require resistance by the victim. MCA 45-5-511 (5) states, “Resistance by the victim is not required to show lack of consent. Force, fear, or threat is sufficient to show lack of consent.”
People respond to an assault in different ways. Some victims conclude under their particular circumstances that physical resistance would cause the attacker to become more violent.
Lack of consent can be expressed (saying “no”) or implied by the circumstances. Lack of consent may be implied if the person was drugged, was mentally incapable of consenting, or was afraid to object because of threats of physical harm.
I am/was in a relationship with my attacker.
Rape can occur when the offender and the victim have a preexisting relationship (sometimes called “date rape” or “acquaintance rape”), or when the offender is the victim’s spouse (“spousal rape”). It does not matter whether the offender is an ex-boyfriend, a spouse, or a complete stranger. It doesn’t matter if they had sex in the past. The key issue is valid consent.
But always keep in mind, that prevention is best. Some rapes or sexual assaults are not prosecuted because the prosecutors decide that they may not be able to prove all the elements of the crime beyond a reasonable doubt.
I don’t remember the assault.
Just because a victim doesn’t remember being assaulted doesn’t mean it didn’t happen and that it wasn’t rape. Memory loss can result from the ingestion of ”rape drugs” and from excessive alcohol consumption. (Alcohol is the most prevalent “rape drug.”) However, without clear memories or physical evidence, a prosecutor may not proceed because she may not be able to prove the elements of the crime beyond a reasonable doubt. Talk to your local crisis center or to your local police for guidance.
I was asleep or unconscious when it happened.
Rape can happen when the victim was unconscious or asleep. If a victim was asleep or unconscious, s/he didn’t give consent. Without consent, it is rape or sexual assault.
I was drunk or the attacker was drunk.
Alcohol and/or drugs are no excuse for the offender. The key question is still: did s/he consent or not? Regardless of whether s/he was drunk or sober, if the sex was non-consensual, it is rape or sexual assault. If s/he was so drunk or drugged that s/he passed out and was unable to consent, it was rape. Both people must be conscious and willing participants.
I was incapacitated.
The victim voluntarily uses alcohol or drugs and passes out or is awake but too drunk or high to consent. The issue is the same. For sexual contact not to be a crime, there has to be valid consent. But as a practical matter, it may in some cases be difficult to prosecute.
I thought “no,” but didn’t say it.
It depends on the circumstances. If she didn’t say “no” because she was legitimately scared for her life or safety, it may be rape. Sometimes a victim may decide it isn’t safe to resist physically or verbally; for example, when someone has a knife or gun or makes other threats.
Sources include: R.A.D. Systems, Basic Women’s Self Defense materials.
I don’t’ want to report what happened or what I saw because I’m a minor and police might charge me with an MIP:
Under Montana law, a minor that is reporting a sexual assault or rape cannot be charged with a Minor in Possession (MIP). Neither can a friend be charged that helps the victim to get medical assistance or other help or who reports a sex crime.
MCA provides: 45-5-624
(10) Information provided or statements made by a person under 21 years of age to a health care provider or law enforcement personnel regarding an alleged offense against that person under Title 45, chapter 5, part 5, may not be used in a prosecution of that person under this section. This subsection’s protection also extends to a person who helps the victim obtain medical or other assistance or report the offense to law enforcement personnel.
Rape is never the victim’s fault. It’s the rapist’s fault.
Victims should have access to sensitive and informed after-care and support.
For general prevention, let’s strive for a collaborative approach among individuals and agencies. Support broad systemic change to combat attitudes and behaviors that tolerate and minimize sexual and domestic violence.
From an individual self-defense and personal safety perspective, there’s a lot you can do to increase your and your friends’ safety and to avoid the risk of rape or sexual assault. Be aware, prepare, and if necessary defend.