The approaching legislative session means change and revision to the laws of Montana. One of those changes could impact the laws surrounding the definition of consent in rape cases.
Under current Montana law, a “person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent.” Mont. Code Ann. § 45-5-503.
The term “without consent” is defined as where “the victim is compelled to submit by force.” Mont. Code Ann. § 45-5-501.
Now, Senate Bill 28, a bill from the Law and Justice Interim Committee and carried by Sen. Diane Sands, D-Missoula, would change the definition of consent in Montana to remove the requirement of “force.”
The reason behind this change is that a common response to the trauma of rape is for a victim to freeze instead of fighting back. Because of this, “force” in the traditional sense, is not usually present in rape cases.
Senate Bill 28 seeks to remove the text “by force.” Instead, the text would read “an expression of lack of consent through words or conduct means there is no consent or that the consent has been withdrawn.”
It is important to recognize that the change in the definition of “without consent” does not change the State’s burden of proof at trial. Instead, the change relates to the factors that allow for a prosecution of rape.
When force is present, the bill creates the crime of aggravated sexual assault. That crime would carry a more severe sentence of 10-100 years in prison and fines of up to $50,000. The current minimum for sexual intercourse without consent in Montana is two years.