Consent Laws
Montana

The term “consent” means words or overt actions indicating a freely given arrangement to have sexual intercourse or sexual contact and is further defined, but not limited by the following:

• An expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn;
• 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
• Lack of consent may be inferred based on all of the surrounding circumstances and must be considered in determining whether a person gave consent.

The victim is incapable of consent because the victim is:

• mentally disordered or incapacitated;    
• physically helpless;    
• overcome by deception, coercion, or surprise;    
• less than 16 years old;    
• incarcerated in an adult or juvenile correctional, detention, or treatment facility or is on probation, conditional release, 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;
• this 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.
• receiving services from a youth care facility, and the perpetrator:
• has supervisory or disciplinary authority over the victim or is providing treatment to the victim; andemployee, contractor, or volunteer of the youth care facility; or
• is an employee, contractor, or volunteer of the youth care facility; or
• (This does 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.)

• admitted to a mental health facility, a community-based facility or a residential facility, or is receiving community-based services and the perpetrator:
• has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and
• is an employee, contractor or volunteer of the facility or community-based service.
• (This does 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.)
• a program participant in a private alternative adolescent resident or outdoor program and the perpetrator is a worker affiliated with the program:
• (This does not apply if the individuals are married to each other and one of the individuals involved is a program participant and the other individual is a worker affiliated with the program.)
• a client receiving psychotherapy services and the perpetrator:
  • Is providing or purporting to provide psychotherapy services to the victim; or
  • Is an employee, contractor, or volunteer of a facility that provides or purports to provide psychotherapy services to the victim and the perpetrator has supervisory or disciplinary authority over the victim;
  • (This does not apply if the individuals are married to each other and one of the individuals involved is a psychotherapy client and the other individual is a psychotherapist or an employee, contractor, or volunteer of a facility that provides or purports to provide psychotherapy services to the client.)
• a student of an elementary, middle, junior high or high school, whether public or nonpublic, and the perpetrator is not a student of an elementary, middle, junior high or high school and is an employee, contractor, or volunteer of any school who has ever had instructional, supervisory, disciplinary, or other authority over the student in a school setting:
  • (This does not apply if the individuals are married to each other.)
• a witness in a criminal investigation or a person who is under investigation in a criminal matter and the perpetrator is a law enforcement officer who is involved with the case in which the victim is a witness or is being investigated;
  • (This does not apply if the individuals are married to each other.)  
• a parent or guardian involved in a child abuse or neglect proceeding and the perpetrator is:
• Employed by the department of public health and human services for the purposes of carrying out the department’s duties and
• Directly involved in the parent or guardian’s case or involved in the supervision of the case.

Mont. Code Ann. § 45-5-501(1).

Yes, consent is defined to mean words or overt actions indicating a '"freely given agreement" to have sexual intercourse or contact.  Mont. Code Ann. § 45-5-501(1)(a).  In addition, resistance by the victim is not required to show lack of consent. Force, fear, or threat is sufficient alone to show lack of consent. Mont. Code Ann. § 45-5-511(5).

16 years old. Mont. Code Ann. § 45-5-501(1)(b)(iv).

Yes. Consent is ineffective under the sexual assault statute (Mont. Code Ann. § 45-5-502) if the victim is less than 14 years old and the offender is 3 or more years older than the victim. Mont. Code Ann. § 45-5-502(5)(a)(ii).

No, nothing in statutory or case law to suggest an impact.

Yes. “Without consent” means the victim is incapable of consent because the victim is mentally disordered or incapacitated (note that "mentally disordered" and "incapacitated" are not defined in the statute). Mont. Code Ann. § 45-5-501(1)(b)(i).

Yes. “Without consent” means the victim is incapable of consent because the victim is physically helpless (note that "physically helpless" is not defined in the statute). Mont. Code Ann. § 45-5-501(1)(b)(ii).

Yes. “Without consent” means the victim is incapable of consent because the victim is mentally disordered or incapacitated. Mont. Code Ann. § 45-5-501(1)(b)(i).

Yes. Consent is ineffective if: it is given by a person who by reason of youth, mental disease, disorder, or intoxication is unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense.  Mont. Code Ann. § 45-2-211(2)(b). 

Yes. For purposes of sexual intercourse without consent statute (Mont. Code Ann. § 45-5-503), “without consent” means the victim is incapable of consent because the victim is:

• incarcerated in an adult or juvenile correctional, detention, or treatment facility or is on probation, conditional release, 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;
• receiving services from a youth care facility and the perpetrator: 
  (I) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and (II) is an employee, contractor, or volunteer of the youth care facility; or
• admitted to a mental health facility, a community-based facility or a residential facility or is receiving community-based services and the perpetrator: (I) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and (II) is an employee, contractor, or volunteer of the facility or community-based service.

Mont. Code Ann. § 45-5-501(1)(b)((v),(vi), (vii).  However, the above do not apply if the individuals are married, and (1) one of the individuals involved is on probation, conditional release, or parole and the other individual is a probation or parole officer of a supervising authority; or (2) 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. Mont. Code Ann. § 45-5-501(1)(c)-(d).

Similarly, consent is ineffective under the sexual assault statute (Mont. Code Ann. § 45-5-502(5)) if the victim is:

• 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;   
• receiving services from a youth care facility 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
• admitted to a mental health facility, a community-based facility or a residential facility or is receiving community-based services 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. 

Mont. Code Ann. § 45-5-502(5)(a).  However, the above do not apply if the individuals are married. Mont. Code Ann. § 45-5-502(5)(b)-(c).

Additionally, consent is ineffective under the sexual assault statute (Mont. Code Ann. § 45-5-501) if the victim is:

• a witness in a criminal investigation or a person who is under investigation in a criminal matter and the perpetrator is a law enforcement officer who is involved with the case in which the victim is a witness or is being investigated.
• (This does not apply if the individuals are married to each other.)
• a program participant in a private alternative adolescent resident or outdoor program and the perpetrator is a worker affiliated with the program.
• (This does not apply if the individuals are married to each other and one of the individuals involved is a program participant and the other individual is a worker affiliated with the program.)
• a student of an elementary, middle, junior high or high school, whether public or nonpublic, and the perpetrator is not a student of an elementary, middle, junior high or high and is an employee, contractor, or volunteer of any school who has ever had instructional, supervisory, disciplinary, or other authority over the student in a school setting
• (This does not apply if the individuals are married to each other.)
• a parent or guardian involved in a child abuse or neglect proceeding and the perpetrator is:
• Employed by the department of public health and human services for the purposes of carrying out the department’s duties; and
• Directly involved in the parent or guardian’s case or involved in the supervision of the case.
• a client receiving psychotherapy services and the perpetrator:
• Is providing or purporting to provide psychotherapy services to the victim; or
• Is an employee, contractor, or volunteer of a facility that provides or purports to provide psychotherapy services to the victim and the perpetrator has supervisory or disciplinary authority over the victim.
• (This does not apply if the individuals are married to each other and one of the individuals involved is a psychotherapy client and the other individual is a psychotherapist or an employee, contractor, or volunteer of a facility that provides or purports to provide psychotherapy services to the client.)

Mont. Code Ann. § 45-5-501(1(b)(viii)-(xi)

Yes. The consent of a victim to conduct charged to constitute an offense or to the result thereof is a defense. Mont. Code Ann. § 45-2-211(1).

However, consent is “ineffective” if:

• it is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense;
• it is given by a person who by reason of youth, mental disease or disorder, or intoxication is unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense;
• it is induced by force, duress, or deception;
• it is against public policy to permit the conduct or the resulting harm, even though consented to; or
• for offenses under 45-5-502 (sexual assault), 45-5-503 (sexual intercourse without consent), 45-5-508 (aggravated sexual intercourse without consent), 45-5-601 (patronizing prostitute), or Title 45, chapter 5, part 7 (human trafficking) if it is given by a person who the offender knew or reasonably should have known was a victim of human trafficking, as defined in 45-5-701, or was subjected to force, fraud, or coercion, either of which caused the person to be in the situation where the offense occurred.

No. State v. Gould, 273 Mont. 207, 219, 902 P.2d 532, 540 (1995).