The Montana Legislature is considering an overhaul of sexual assault statutes this session as result of a bipartisan interim committee's work. One change in particular would make it easier to prosecute sexual assault cases involving an intoxicated victim, according to Deputy County Attorney Jason Marks.
Marks says SB 29, sponsored by Sen. Diane Sands (D-Missoula), is momentous in part because it removes physical force from the definition of rape. SB 29 also changes the definition of "mentally incapacitated" to a new standard that could prove crucial in future cases.
The law currently defines "mentally incapacitated" as "temporarily incapable of appreciating or controlling the person's own conduct." Marks says that's a high legal hurdle to pass when it comes to proving that a victim was too drunk to consent to sex. About half of all rapes prosecuted by the county involve alcohol use by the offender, victim, or both.
"In order to prosecute someone for raping someone who was intoxicated and unable to consent, we basically have to prove that they were intoxicated to the point that they were non-responsive, basically passed out," Marks says.
SB 29 replaces "mentally incapacitated" with "substantially impaired" due to drugs or alcohol. Marks says the difference allows for situations where a victim might have been able to walk and talk, but was nonetheless in a state of blackout or otherwise too drunk to consent.
"I'm very much in support of changing that definition to, I think, what we would agree is someone who is not in a position to give consent as we would understand it," Marks says.
So far, sex crime statute reform is garnering bipartisan support, including from state Sen. Nels Swandal, R-Wilsall, who sat on the Law and Justice Interim Committee. The committee's work includes efforts to remove parental rights from rapists, reduce penalties on juveniles convicted of statutory rape and extending the statute of limitations on child rape.
Swandal doesn't think the provisions of SB 29 lessen the burden of proof for the prosecution, but they do reflect a more modern understanding of how sexual assault occurs.
"It's pretty apparent that our consent statutes are antiquated," Swandal says. "I had several of these cases as a judge, and the prosecution often had a very difficult time proving the offense under current statute."
Swandal says he expects SB 29 and its related bills to pass the Senate and House, although he's not ruling out the possibility of amendments as the bills are discussed.
"I think they'll pass, probably pretty much as presented," he says.