In Montana, it is a crime to assault a member of your family or your partner. It is also a crime in Montana to violate a domestic violence protective order.
Partners and family members include parents, children, and siblings related by blood, marriage, or adoption; spouses, former spouses, people who have children together, and people of the opposite sex who are dating or who have dated.
(Mont. Code Ann. § 45-5-206.)
Partner or Family Member Assault
In Montana, a person commits the crime of partner or family member assault (also called domestic violence) by:
- causing bodily injury
- negligently causing bodily injury with a weapon, or
- creating reasonable apprehension of bodily injury against a partner or family member.
(Mont. Code Ann. § 45-5-206.)
People act negligently when they fail to be aware of or consider the risk their behavior poses to others. Negligent behavior is always a gross departure from how a reasonable person would act.
For example, firing a gun inside your house and hitting your boyfriend would be negligent and would be considered domestic violence. Other examples of domestic violence include hitting your child and threatening to hit your wife if the threat creates a reasonable fear of injury.
Arrests for Domestic Violence
Under Montana’s laws, if a person calls the police and alleges domestic violence, the responding officer should arrest the defendant if the defendant injured the victim, used or threatened to use a weapon, or violated a protective order. The officer must also seize any weapons the defendant used or threatened to use.
If the officer does not make an arrest, the officer must file a written report, explaining why no arrest was made.
(Mont. Code Ann. §§ 46-6-311, 46-6-601, 46-6-603.)
A protective order (also called a restraining order) is a court order requiring one person (the respondent) to not contact and stay away from another person (the petitioner). It is a crime in Montana to violate a protective order.
Under Montana’s laws, a person can file a petition for a protective order against a partner or family member who has committed a violent crime against the petitioner (such as assault, sexual assault, stalking, kidnapping, intimidation, or arson) or from whom the petitioner reasonably fears bodily injury. A parent, guardian, or other representative may file a petition on behalf of a child.
The petition should be filed in family court if there is already a pending family court case (such as a divorce or custody matter). Otherwise, the petition can be filed in any court.
(Mont. Code Ann. §§ 40-15-102, 40-15-201, 45-5-626.)
Temporary protective orders
If the court finds that the petitioner is in danger of harm if the court does not act immediately, the court can issue a temporary protective order. The temporary order can:
- prohibit the respondent from committing or threatening to commit any violent acts
- prohibit the respondent from harassing, contacting, or otherwise communicating with the petitioner or another family member
- prohibit the respondent from removing any child from the court’s jurisdiction
- order the respondent to stay away from the petitioner, or the petitioner's residence, school, workplace, or other specified place
- exclude the respondent from the petitioner’s residence
- prohibit the respondent from possessing any firearm used to commit assault
- prohibit the respondent from transferring, hiding, or disposing of any property
- transfer possession and use of any residence, automobile, or other personal property
- require the respondent to attend counseling, including treatment for alcohol or drug abuse, and
- order any other relief necessary for the petitioner’s safety.
Ex parte orders. The court may issue an order without notice to the respondent and without the defendant appearing in court. Known as “ex parte” orders, these are granted only when waiting for the respondent to receive notice will endanger the petitioner. An ex parte order may remain in effect only for 20 days or less.
(Mont. Code Ann. §§ 40-15-201, 40-15-202.)
Permanent protective orders
A hearing on the temporary protection order must be held within 20 days, although the hearing may be continued for a good reason and the temporary order remains in effect until the hearing. At the hearing, the court decides whether to continue, change, or make permanent the temporary order. If the order is continued, it may be in effect for a set time or forever. The court can include any relief that could be part of a temporary protective order and can also prohibit the respondent from contacting or coming near any minor family member who was abused, witnessed abuse, or was endangered by the respondent’s abuse.
(Mont. Code Ann. § 40-15-204.)
Stalking in Violation of a Protective Order
Violating a protective order may also be considered stalking if the respondent repeatedly follows or contacts the petitioner and causes emotional distress or reasonable fear of bodily injury.
(Mont. Code Ann. § 45-5-220.)
Partner or family member assault. The first offense is punishable by 24 hours to one year in jail and a fine of $100 to $1,000. The second offense is punishable by 72 hours to one year in jail and a fine of $300 to $1,000. Third and subsequent offenses are punishable by 30 days in jail to five years in prison and a fine of $500 to $50,000. For the purpose of determining punishment, in addition to considering prior convictions for domestic violence, the court will also consider:
- any conviction in another state for assault against a family member, and
- any Montana conviction for assault with a weapon against a family member.
The court must also order the defendant to participate in a counseling assessment, at the defendant’s expense. If counseling is warranted, the defendant must complete at least 40 hours of counseling.
Violating a protective order. The first offense is punishable by up to six months in jail and a fine of up to $500. The second offense is punishable by 24 hours to six months in jail and a fine of $200 to $500. Third and subsequent offenses are punishable by ten days in jail to two years in prison and a fine of $500 to $2,000.
Stalking in violation of a protective order is punishable by up to five years’ imprisonment and a fine of up to $10,000. The court can also order the defendant to pay the victim for medical expenses, counseling, and any other costs incurred.
(Mont. Code Ann. §§ 45-5-206, 45-5-220, 45-5-626.)
Getting Legal Advice and Representation
If you are charged with domestic violence, or violating a protective order, or served with a petition for a protective order, you should contact a Montana criminal defense attorney immediately. A protective order or a criminal conviction can have serious consequences. A criminal defense attorney will be able to help you navigate the court system and obtain the best possible outcome for you under the circumstances.