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SENATE BILL NO. 29

INTRODUCED BY D. SANDS

BY REQUEST OF THE LAW AND JUSTICE INTERIM COMMITTEE

 

AN ACT GENERALLY REVISING LAWS RELATED TO SEXUAL CRIMES; PROVIDING FOR THE CRIME OF AGGRAVATED SEXUAL ASSAULT; REMOVING THE REQUIREMENT OF FORCE FROM THE DEFINITION OF "CONSENT"; REVISING PENALTIES FOR SEXUAL INTERCOURSE WITHOUT CONSENT; AMENDING SECTIONS 45-2-101, 45-5-501, 45-5-503, 46-18-219, 46-18-222, AND 46-23-502, MCA; AND PROVIDING AN APPLICABILITY DATE.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

 

     Section 1.  Aggravated sexual intercourse without consent. (1) A person who uses force while knowingly having sexual intercourse with another person without consent or with another person who is incapable of consent commits the offense of aggravated sexual intercourse without consent.

     (2) A person convicted of aggravated sexual intercourse without consent shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 10 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.

 

     Section 2.  Section 45-5-501, MCA, is amended to read:

     "45-5-501.  Definitions. (1) (a) As used in 45-5-502, 45-5-503, and [section 1], the term "without consent" "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) the victim is compelled to submit by force against the victim or another; or an expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn;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.

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

     (A)(i)  mentally disordered or incapacitated;

     (B)(ii) physically helpless;

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

     (D)(iv) less than 16 years old;

     (E)(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;

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

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

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

     (G)(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:

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

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

     (b)(c)  Subsection (1)(a)(ii)(E) (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.

     (c)(d)  Subsections (1)(a)(ii)(F) (1)(b)(vi) and (1)(a)(ii)(G) (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 subsection (1) [section 1], 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."

 

     Section 3.  Section 45-5-503, MCA, is amended to read:

     "45-5-503.  Sexual intercourse without consent. (1) A person who knowingly has sexual intercourse without consent with another person without consent or with another person who is incapable of consent 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)(1)(b)(iv).

     (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 not more than 20 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 in the course of committing a violation of this section 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.

     (7)  If as a result of sexual intercourse without consent a child is born, the offender who has been convicted of an offense under this section and who is the biological parent of the child resulting from the sexual intercourse without consent forfeits all parental and custodial rights to the child if the provisions of 46-1-401 have been followed."

 

     Section 4.  Section 46-18-219, MCA, is amended to read:

     "46-18-219.  Life sentence without possibility of release. (1) (a) Except as provided in subsection (3), if an offender convicted of one of the following offenses was previously convicted of one of the following offenses or of an offense under the laws of another state or of the United States that, if committed in this state, would be one of the following offenses, the offender must be sentenced to life in prison, unless the death penalty is applicable and imposed:

     (i)  45-5-102, deliberate homicide;

     (ii) 45-5-303, aggravated kidnapping;

     (iii) 45-5-503, sexual intercourse without consent;

     (iv)(iii) 45-5-625, sexual abuse of children; or

     (v)(iv) 45-5-627, except subsection (1)(b), ritual abuse of a minor; or

     (v) [section 1], aggravated sexual intercourse without consent.

     (b)  Except as provided in subsection (3), if an offender convicted of one of the following offenses was previously convicted of two of the following offenses, two of any combination of the offenses listed in subsection (1)(a) or the following offenses, or two of any offenses under the laws of another state or of the United States that, if committed in this state, would be one of the offenses listed in subsection (1)(a) or this subsection, the offender must be sentenced to life in prison, unless the death penalty is applicable and imposed:

     (i)  45-5-103, mitigated deliberate homicide;

     (ii) 45-5-202, aggravated assault;

     (iii) 45-5-302, kidnapping;

     (iv) 45-5-401, robbery; or

     (v)  45-5-603, aggravated promotion of prostitution.

     (2)  Except as provided in 46-23-210 and subsection (3) of this section, an offender sentenced under subsection (1):

     (a)  shall serve the entire sentence;

     (b)  shall serve the sentence in prison;

     (c)  may not for any reason, except a medical reason, be transferred for any length of time to another type of institution, facility, or program;

     (d)  may not be paroled; and

     (e)  may not be given time off for good behavior or otherwise be given an early release for any reason.

     (3)  If the offender was previously sentenced for either of two or three offenses listed in subsection (1), pursuant to any of the exceptions listed in 46-18-222, then the provisions of subsections (1) and (2) of this section do not apply to the offender's present sentence.

     (4)  The imposition or execution of the sentences prescribed by this section may not be deferred or suspended. In the event of a conflict between this section and any provision of 46-18-201 or 46-18-205, this section prevails.

     (5)  (a) For purposes of this section, "prison" means a secure detention facility in which inmates are locked up 24 hours a day and that is operated by this state, another state, the federal government, or a private contractor.

     (b)  Prison does not include a work release center, prerelease center, boot camp, or any other type of facility that does not provide secure detention."

 

     Section 5.  Section 46-18-222, MCA, is amended to read:

     "46-18-222.  Exceptions to mandatory minimum sentences, restrictions on deferred imposition and suspended execution of sentence, and restrictions on parole eligibility. Mandatory minimum sentences prescribed by the laws of this state, mandatory life sentences prescribed by 46-18-219, the restrictions on deferred imposition and suspended execution of sentence prescribed by 46-18-201(1)(b), 46-18-205, 46-18-221(3), 46-18-224, and 46-18-502(3), and restrictions on parole eligibility prescribed by 45-5-503(4), 45-5-507(5), 45-5-601(3), 45-5-602(3), 45-5-603(2)(b), and 45-5-625(4) do not apply if:

     (1)  the offender was less than 18 years of age at the time of the commission of the offense for which the offender is to be sentenced;

     (2)  the offender's mental capacity, at the time of the commission of the offense for which the offender is to be sentenced, was significantly impaired, although not so impaired as to constitute a defense to the prosecution. However, a voluntarily induced intoxicated or drugged condition may not be considered an impairment for the purposes of this subsection.

     (3)  the offender, at the time of the commission of the offense for which the offender is to be sentenced, was acting under unusual and substantial duress, although not such duress as would constitute a defense to the prosecution;

     (4)  the offender was an accomplice, the conduct constituting the offense was principally the conduct of another, and the offender's participation was relatively minor;

     (5)  in a case in which the threat of bodily injury or actual infliction of bodily injury is an actual element of the crime, no serious bodily injury was inflicted on the victim unless a weapon was used in the commission of the offense; or

     (6)  the offense was committed under 45-5-502(3), 45-5-503(4), 45-5-507(5), 45-5-601(3), 45-5-602(3), 45-5-603(2)(b), or 45-5-625(4), or [section 1] and the judge determines, based on the findings contained in a psychosexual evaluation report prepared by a qualified sexual offender evaluator pursuant to the provisions of 46-23-509, that treatment of the offender while incarcerated, while in a residential treatment facility, or while in a local community affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society, in which case the judge shall include in its judgment a statement of the reasons for its determination."

 

     Section 6.  Section 46-23-502, MCA, is amended to read:

     "46-23-502.  Definitions. As used in 46-18-255 and this part, the following definitions apply:

     (1)  "Department" means the department of corrections provided for in 2-15-2301.

     (2)  "Mental abnormality" means a congenital or acquired condition that affects the mental, emotional, or volitional capacity of a person in a manner that predisposes the person to the commission of one or more sexual offenses to a degree that makes the person a menace to the health and safety of other persons.

     (3)  "Municipality" means an entity that has incorporated as a city or town.

     (4)  "Personality disorder" means a personality disorder as defined in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders adopted by the American psychiatric association.

     (5)  "Predatory sexual offense" means a sexual offense committed against a stranger or against a person with whom a relationship has been established or furthered for the primary purpose of victimization.

     (6)  "Registration agency" means:

     (a)  if the offender resides in a municipality, the police department of that municipality; or

     (b)  if the offender resides in a place other than a municipality, the sheriff's office of the county in which the offender resides.

     (7)  (a) "Residence" means the location at which a person regularly resides, regardless of the number of days or nights spent at that location, that can be located by a street address, including a house, apartment building, motel, hotel, or recreational or other vehicle.

     (b)  The term does not mean a homeless shelter.

     (8)  "Sexual offender evaluator" means a person qualified under rules established by the department to conduct psychosexual evaluations of sexual offenders and sexually violent predators.

     (9)  "Sexual offense" means:

     (a)  any violation of or attempt, solicitation, or conspiracy to commit a violation of 45-5-301 (if the victim is less than 18 years of age and the offender is not a parent of the victim), 45-5-302 (if the victim is less than 18 years of age and the offender is not a parent of the victim), 45-5-303 (if the victim is less than 18 years of age and the offender is not a parent of the victim), 45-5-502 (if the offender is a professional licensed under Title 37 and commits the offense during any treatment, consultation, interview, or evaluation of a person's physical or mental condition, ailment, disease, or injury), 45-5-502(3) (if the victim is less than 16 years of age and the offender is 3 or more years older than the victim), 45-5-503, 45-5-504(2)(c), 45-5-504(3) (if the victim is less than 16 years of age and the offender is 4 or more years older than the victim), 45-5-507 (if the victim is less than 18 years of age and the offender is 3 or more years older than the victim or if the victim is 12 years of age or younger and the offender is 18 years of age or older at the time of the offense), [section 1], 45-5-601(3), 45-5-602(3), 45-5-603(1)(b) or (2)(b), 45-5-625, 45-5-704, or 45-5-705; or

     (b)  any violation of a law of another state, a tribal government, or the federal government that is reasonably equivalent to a violation listed in subsection (9)(a) or for which the offender was required to register as a sexual offender after an adjudication or conviction.

     (10) "Sexual or violent offender" means a person who has been convicted of or, in youth court, found to have committed or been adjudicated for a sexual or violent offense.

     (11) "Sexually violent predator" means a person who:

     (a)  has been convicted of or, in youth court, found to have committed or been adjudicated for a sexual offense and who suffers from a mental abnormality or a personality disorder that makes the person likely to engage in predatory sexual offenses; or

     (b)  has been convicted of a sexual offense against a victim 12 years of age or younger and the offender is 18 years of age or older.

     (12) "Transient" means an offender who has no residence.

     (13) "Violent offense" means:

     (a)  any violation of or attempt, solicitation, or conspiracy to commit a violation of 45-5-102, 45-5-103, 45-5-202, 45-5-206 (third or subsequent offense), 45-5-210(1)(b), (1)(c), or (1)(d), 45-5-212, 45-5-213, 45-5-302 (if the victim is not a minor), 45-5-303 (if the victim is not a minor), 45-5-401, 45-6-103, or 45-9-132; or

     (b)  any violation of a law of another state, a tribal government, or the federal government reasonably equivalent to a violation listed in subsection (13)(a)."

 

     Section 7.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 45, chapter 5, part 5, and the provisions of Title 45, chapter 5, part 5, apply to [section 1].

 

     Section 8.  Applicability. [This act] applies to crimes committed on or after [the effective date of this act].

- END -

 


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