HELENA – A legislative panel is considering changes to Montana's laws on sex crimes by updating the meaning of sexual consent and combating the scourge of explicit photos and videos posted without authorization on the Internet.
Some Montana lawmakers say the state's sexual assault laws are antiquated and may need to be changed amid evolving social realities. At the same time, the ubiquity of camera-equipped cellphones has opened a new front on sexual misconduct.
"We need to deal with what sexual assault means in a contemporary context," said Sen. Diane Sands, a Democrat from Missoula who is the former executive director of the Montana Women's Lobby.
Sands said concerns over sexual assaults on college campuses, date rapes and other forms of misconduct spurred her to ask the Law and Justice Interim Committee to consider legislation.
Among the changes discussed Wednesday is possible legislation that could make a sexual act illegal if there was no explicit consent given by participants.
Current laws are inadequate because they focus too much on the standard of force in deciding whether a sexual assault has been committed, said Suzy Boylan, a member of the special victims unit at the Missoula County Attorney's Office. Instead, she argued, the law should focus more broadly on the issue of affirmative consent.
Sex should not be deemed consensual under the law, she told the legislative panel, unless there was an overt expression of agreement.
But public defender Jennifer Streano told the panel that the proposal could shift the burden of proof to a defendant. Instead of a presumption of innocence, she said, there would be a presumption of guilt – unless a defendant can prove that there was explicit consent before a sexual act.
Legislators said the proposal merited further study.
The panel also said it would further study legislation that would add Montana to the growing list of states – at least 26, so far – that have outlawed the distribution of sexually explicit pictures and videos without the subject's consent.
The practice, commonly referred to as "revenge porn," has become a growing concern in an era when teenagers and young adults are using social media to push beyond the boundaries of good taste and privacy.
"It's become a much wider problem, and it could happen to any of us," said Robin Turner, the public and legal director for the Montana Coalition Against Domestic and Sexual Violence.
Turner helped draft the law under consideration by the legislative committee.
The proposal would criminalize the unauthorized distribution of nonconsensual porn and punish offenders with a $500 fine and jail time of up to six months. In addition, it could expose them to civil litigation with penalties of at least $10,000 and attorney's fees.