MTPR

Lawmakers Debate Changes To Montana's Definition Of Rape

Jan 6, 2017

During the first week of the 2017 legislative session, senators have discussed a package of 5 bills that could change the future of how sex crimes are prosecuted in Montana. Three of those bills were heard in the Senate Judiciary Committee today, including one to change how state law defines rape.

Under current law, force must be present to convict someone of rape. But, Senator Diane Sands, a Missoula Democrat who is sponsoring the bill, says the best available research shows that force is not always present in rape:

"We all think, and many of us as women were certainly trained to defend ourselves, or think that we would fight back, or that we would flee. And yet what we know from the research and the experience of the last 40 years is that in many cases that is not the case."

Sen. Diane Sands (D) SD-49.
Credit Mike Albans

Sands say victims can just freeze up when they’re attacked because the situation is so strange and violating and usually by someone they know.

Missoula County Prosecutor Jennifer Clark describes why force isn’t always involved like this:

"That trauma response is the same as somebody who is in a car crash, in a shooting, sometimes even in war. That person experiences an extreme amount of fear. And when they experience that fear, the body dumps chemicals into their brain – it’s very fast and it's involuntary. They can’t control it and they can’t make a conscious decision. They go into a survival mode, much like the prey animals, a mouse or a rabbit, when a predator is present, where they will lay there and play dead until it’s safe."

Several witnesses and lawmakers testified that in the current state legal system, people can be raped, but Montana law doesn’t recognize it as a crime.

The bill proposal updates the definition of consent to make it clear that someone needs to say or do something that indicates they are a willing participant in sex.

Lawmakers supported that bill unanimously in the legislative interim. No one spoke in opposition of it today during the senate hearing.

Senators in the judiciary committee also heard a proposal that would allow termination of parental rights when a child is born as a result of rape.

Senator Sue Malek, a Democrat from Missoula, introduced her legislation:

"Women who are raped and decide to give birth to their child should not be forced to interact with their rapist and fight for custody," Malek said.

The bill would allow a woman to go into a civil court, show evidence she was raped, and end the rapists rights to the child. The accused rapist would still be allowed to protest the termination of rights.

Ole Olson with the Montana Department of Justice spoke in support of the bill:

"The statute that allows for termination of parental rights already recognizes that it's not the best interest of a child to be parented by someone who conceived that child through rape. All this does is take that principle that's already there and says let's put that in the control of the judge that is actually in control of the proceeding that is looking out for the best interest of the child. And it gives the parent an option to pursue that as well. Both those things don’t exist right now."

The third bill considered by senators on Friday would lengthen the statute of limitations for sex crimes against children to 20 years after a person turns 18 years old. 

Currently those limitations last 10 years after turning 18. 

Senator Diane Sands is the sponsor of the bill. She says there are many reasons why a victim might not come forward about a crime until decades after it happened.

"Victims often suppress that experience, particularly if they are young children or younger people and it is highly traumatic. They try to protect themselves, often by either completely suppressing it, and sometimes it does not come forward in the consciousness until many years later. Or, they are still in a circumstance where, say if it is family member, or turns out it is their dad's boss that makes it unsafe for that victim to come forward to law enforcement and make this charge."

During the legislative interim Senator Sands proposed doing away with the statute of limitations on sex crimes on kids all together, but was met with some opposition. So, she suggested the 20-year mark, as a compromise.

After asking clarifying questions about the proposed law, Senator Jennifer Fielder, a Republican from Thompson Falls, added some personal testimony.

Senator Jennifer Fielder (R) SD-7.
Credit Mike Albans

"Something happened to me when I was a girl. And I didn’t remember it until these kinds of conversations started coming up. I mean, I remembered it and kind of knew it was weird, but I didn’t know it was so wrong. But for me to learn that it was really wrong and that that person should be named, should be flagged, should be watched out for so that he can’t do it to other children, that memory was not triggered in me until these conversations started happening. So, I can attest that the testimony that was given today on this subject is true."

"Senator Fielder, I am so sorry for your experience," Senator Sands responded.

The Senate Judiciary committee will likely vote on all those bills next week.

They’ll also vote on bills proposed on changing sex offender registration law and penalties for teenagers who have consenting sex.

No one gave testimony in the committee hearing against any of the proposed changes in state law on sex crimes.

There are 2 bills in the House of Representatives that could also change state laws on sex crimes this session. One of those bills, that could outlaw giving out sexual images of a person without their consent, will have its first hearing next week.