People who engage in sexual activity with children under the age of 16 may be prosecuted for statutory rape in Montana.
In Montana, the age of consent is 16 years old. Montana’s lawmakers have deemed younger children unable to consent to sexual intercourse, in the same way that someone who is mentally incapacitated or unconscious is unable to consent to intercourse. (Mont. Code Ann. § 45-5-501 (2018).) In statutory rape cases, in Montana and elsewhere, the determinative fact is age of the victim, and it does not matter whether the underage person acquiesces to, or even pursues, the sexual relationship.
Of course, people who commit sex acts against others by force or without their consent can also be charged and convicted of sex crimes or assault or both. (For more information on Montana’s assault laws, see our articles on misdemeanor assault in Montana and aggravated felony assault in Montana.)
Sexual intercourse without consent. Under Montana’s laws, rape is called “sexual intercourse without consent” and the crime includes statutory rape. A person who engages in sexual intercourse with a child under the age of 16 commits the crime of sexual intercourse without consent. The crime is punished more severely if the defendant is four or more years older than the victim, and rape of a child under the age of 12 is punished very severely. For example, anyone who has sex with a 15-year-old could be convicted of statutory rape, but a 25-year-old could be punished with a longer prison term than a 17-year-old. (Mont. Code Ann. §§ 45-5-501, 45-5-503.)
Sexual assault. In Montana, sexual assault is a less serious crime than sexual intercourse without consent. A person commits sexual assault by engaging in any sexual conduct short of intercourse with a child under the age of 14 if the defendant is at least three years older. (Mont. Code Ann. § 45-5-502.)
For example, a 17-year-old who fondles a 13-year-old could be convicted of sexual assault.
People who invite or urge children under the age of 16 (or people posing as children) to participate in sexual conduct, or travel to meet children in order to engage in sexual conduct could be convicted of child enticement in Montana, even if no sexual contact (or personal meeting) ever occurs. Law enforcement officers routinely pose as children online and engage in sexually explicit talk with adults in order to arrest and convict these adults for child enticement. (Mont. Code Ann. § 455-625 (2018).)
Defendants charged with statutory rape have the usual defenses available to all criminal defendants, such as “Someone else committed this crime,” or “The alleged conduct did not occur.” One or more of the following defenses may also apply.
Many states have enacted “Romeo and Juliet” exceptions to statutory rape laws. Named for Shakespeare’s characters, these exceptions protect young people from criminal charges as a result of consensual sexual activity with other teens. Montana’s statutory rape law does not exempt teens from prosecution based on sexual intercourse, although they can be given a shorter prison term (see more about potential penalties below). (Mont. Code Ann. § 45-5-503 (2018).)
There is an exception for sexual conduct short of intercourse so long as the defendant is no more than three years older than the child. (Mont. Code Ann. § 45-5-502 (2018).)
In most states, it is not a defense to a charge of statutory rape that the defendant mistakenly believed the child to be of age, even if the child concealed or misstated his or her age and the mistake was a reasonable one. However, in Montana, it is a defense to statutory rape if the defendant believed the child to be 16 years old or older, so long as that belief was reasonable. The defense only applies when the child is 14 or 15 years old at the time of the offense. (Mont. Code Ann. § 45-5-511 (2018).)
People in Montana cannot be prosecuted for statutory rape on the basis of consensual sexual intercourse with their spouses. (Mont. Code Ann. §§ 45-5-501, 45-5-503 (2018).) The marital defense is a remnant of the marital rape exemption.
Sexual intercourse without consent is generally punishable by 20 years’ or life imprisonment, and a fine of up to $50,000. If the victim is at least 14 years old and the defendant was 18 years old or younger at the time of the sexual activity, the crime is punishable by no more than five years in prison and a fine of up to $10,000 if all of the following apply:
If the defendant is at least four years older than the child, the crime is punishable by four to 100 years’ or life imprisonment and a fine of up to $50,000. If the child is under the age of 12 and the defendant is over the age of 18, child rape is punishable by 100 years’ imprisonment. (Mont. Code Ann. § 45-5-503 (2018).)
Sexual activity short of intercourse with a child under the age of 14 is usually punishable by four years' to life imprisonment and a fine of up to $50,000. If the judge finds good reason to do so, the judge may make written findings and impose a term of less than four years. (Mont. Code Ann. § 45-5-502 (2018).)
In addition to prison sentences, Montana also authorizes chemical castration for some sex offenders. (Mont. Code Ann. § 45-5-512 (2018).)
People who are convicted of engaging in sexual activity with underage children are typically required to register as sex offenders under Montana’s laws. (Mont. Code Ann. §§ 46-23-502, 46-23-504, 46-23-506 (2018).)
A conviction for sexual assault or sexual intercourse without consent can have extremely serious consequences, including a lengthy prison term, chemical castration, and sex offender registration. If you are charged with a crime as a result of sexual activity with a person under the age of consent, you should talk to a criminal defense attorney in Montana. The law can change at any time, and an attorney can tell you what to expect in court based on the facts of your case and the assigned judge and prosecutor. An attorney can help you protect your rights and defend yourself in court.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated September 12, 2018