2013 Montana Legislature
UNAPPROVED DRAFT BILL -- Subject to Change Without Notice!
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A BILL FOR AN ACT ENTITLED: "AN ACT REVISING LAWS RELATED TO DEVIATE SEXUAL CONDUCT; REVISING THE DEFINITION OF "DEVIATE SEXUAL RELATIONS"; AND AMENDING SECTIONS 45-2-101 AND 45-5-505, MCA."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 45-2-101, MCA, is amended to read:
"45-2-101. General definitions. Unless otherwise specified in the statute, all words must be taken in the objective standard rather than in the subjective, and unless a different meaning plainly is required, the following definitions apply in this title:
(1) "Acts" has its usual and ordinary meaning and includes any bodily movement, any form of communication, and when relevant, a failure or omission to take action.
(2) "Administrative proceeding" means a proceeding the outcome of which is required to be based on a record or documentation prescribed by law or in which a law or a regulation is particularized in its application to an individual.
(3) "Another" means a person or persons other than the offender.
(4) (a) "Benefit" means gain or advantage or anything regarded by the beneficiary as gain or advantage, including benefit to another person or entity in whose welfare the beneficiary is interested.
(b) Benefit does not include an advantage promised generally to a group or class of voters as a consequence of public measures that a candidate engages to support or oppose.
(5) "Bodily injury" means physical pain, illness, or an impairment of physical condition and includes mental illness or impairment.
(6) "Child" or "children" means any individual or individuals under 18 years of age, unless a different age is specified.
(7) "Cohabit" means to live together under the representation of being married.
(8) "Common scheme" means a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan that results in the repeated commission of the same offense or that affects the same person or the same persons or the property of the same person or persons.
(9) "Computer" means an electronic device that performs logical, arithmetic, and memory functions by the manipulation of electronic or magnetic impulses and includes all input, output, processing, storage, software, or communication facilities that are connected or related to that device in a system or network.
(10) "Computer network" means the interconnection of communication systems between computers or computers and remote terminals.
(11) "Computer program" means an instruction or statement or a series of instructions or statements, in a form acceptable to a computer, that in actual or modified form permits the functioning of a computer or computer system and causes it to perform specified functions.
(12) "Computer services" include but are not limited to computer time, data processing, and storage functions.
(13) "Computer software" means a set of computer programs, procedures, and associated documentation concerned with the operation of a computer system.
(14) "Computer system" means a set of related, connected, or unconnected devices, computer software, or other related computer equipment.
(15) "Conduct" means an act or series of acts and the accompanying mental state.
(16) "Conviction" means a judgment of conviction or sentence entered upon a plea of guilty or nolo contendere or upon a verdict or finding of guilty of an offense rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.
(17) "Correctional institution" means a state prison, detention center, multijurisdictional detention center, private detention center, regional correctional facility, private correctional facility, or other institution for the incarceration of inmates under sentence for offenses or the custody of individuals awaiting trial or sentence for offenses.
(18) "Deception" means knowingly to:
(a) create or confirm in another an impression that is false and that the offender does not believe to be true;
(b) fail to correct a false impression that the offender previously has created or confirmed;
(c) prevent another from acquiring information pertinent to the disposition of the property involved;
(d) sell or otherwise transfer or encumber property without disclosing a lien, adverse claim, or other legal impediment to the enjoyment of the property, whether the impediment is or is not of value or is or is not a matter of official record; or
(e) promise performance that the offender does not intend to perform or knows will not be performed. Failure to perform, standing alone, is not evidence that the offender did not intend to perform.
(19) "Defamatory matter" means anything that exposes a person or a group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or to injury to the person's or its business or occupation.
(20) "Deprive" means:
(a) to withhold property of another:
(ii) for such a period as to appropriate a portion of its value; or
(iii) with the purpose to restore it only upon payment of reward or other compensation; or
(b) to dispose of the property of another and use or deal with the property so as to make it unlikely that the owner will recover it.
(21) "Deviate sexual relations" means nonconsensual sexual contact or sexual intercourse between two persons of the same sex, an adult and a child of the same sex, or any form of sexual intercourse with an animal.
(22) "Document" means, with respect to offenses involving the medicaid program, any application, claim, form, report, record, writing, or correspondence, whether in written, electronic, magnetic, microfilm, or other form.
(23) "Felony" means an offense in which the sentence imposed upon conviction is death or imprisonment in a state prison for a term exceeding 1 year.
(24) "Forcible felony" means a felony that involves the use or threat of physical force or violence against any individual.
(25) A "frisk" is a search by an external patting of a person's clothing.
(26) "Government" includes a branch, subdivision, or agency of the government of the state or a locality within it.
(27) "Harm" means loss, disadvantage, or injury or anything so regarded by the person affected, including loss, disadvantage, or injury to a person or entity in whose welfare the affected person is interested.
(28) A "house of prostitution" means a place where prostitution or promotion of prostitution is regularly carried on by one or more persons under the control, management, or supervision of another.
(29) "Human being" means a person who has been born and is alive.
(30) An "illegal article" is an article or thing that is prohibited by statute, rule, or order from being in the possession of a person subject to official detention.
(31) "Inmate" means a person who is confined in a correctional institution.
(32) (a) "Intoxicating substance" means a controlled substance, as defined in Title 50, chapter 32, and an alcoholic beverage, including but not limited to a beverage containing 1/2 of 1% or more of alcohol by volume.
(b) Intoxicating substance does not include dealcoholized wine or a beverage or liquid produced by the process by which beer, ale, port, or wine is produced if it contains less than 1/2 of 1% of alcohol by volume.
(33) An "involuntary act" means an act that is:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion; or
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
(34) "Juror" means a person who is a member of a jury, including a grand jury, impaneled by a court in this state in an action or proceeding or by an officer authorized by law to impanel a jury in an action or proceeding. The term "juror" also includes a person who has been drawn or summoned to attend as a prospective juror.
(35) "Knowingly"--a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when the person is aware of the person's own conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that the result will be caused by the person's conduct. When knowledge of the existence of a particular fact is an element of an offense, knowledge is established if a person is aware of a high probability of its existence. Equivalent terms, such as "knowing" or "with knowledge", have the same meaning.
(36) "Medicaid" means the Montana medical assistance program provided for in Title 53, chapter 6.
(37) "Medicaid agency" has the meaning in 53-6-155.
(38) "Medicaid benefit" means the provision of anything of pecuniary value to or on behalf of a recipient under the medicaid program.
(39) (a) "Medicaid claim" means a communication, whether in oral, written, electronic, magnetic, or other form:
(i) that is used to claim specific services or items as payable or reimbursable under the medicaid program; or
(ii) that states income, expense, or other information that is or may be used to determine entitlement to or the rate of payment under the medicaid program.
(b) The term includes related documents submitted as a part of or in support of the claim.
(40) "Mentally defective" means that a person suffers from a mental disease or defect that renders the person incapable of appreciating the nature of the person's own conduct.
(41) "Mentally incapacitated" means that a person is rendered temporarily incapable of appreciating or controlling the person's own conduct as a result of the influence of an intoxicating substance.
(42) "Misdemeanor" means an offense for which the sentence imposed upon conviction is imprisonment in the county jail for a term or a fine, or both, or for which the sentence imposed is imprisonment in a state prison for a term of 1 year or less.
(43) "Negligently"--a person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when the person consciously disregards a risk that the result will occur or that the circumstance exists or when the person disregards a risk of which the person should be aware that the result will occur or that the circumstance exists. The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Gross deviation" means a deviation that is considerably greater than lack of ordinary care. Relevant terms, such as "negligent" and "with negligence", have the same meaning.
(44) "Nolo contendere" means a plea in which the defendant does not contest the charge or charges against the defendant and neither admits nor denies the charge or charges.
(45) "Obtain" means:
(a) in relation to property, to bring about a transfer of interest or possession, whether to the offender or to another; and
(b) in relation to labor or services, to secure the performance of the labor or service.
(46) "Obtains or exerts control" includes but is not limited to the taking, the carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property.
(47) "Occupied structure" means any building, vehicle, or other place suitable for human occupancy or night lodging of persons or for carrying on business, whether or not a person is actually present, including any outbuilding that is immediately adjacent to or in close proximity to an occupied structure and that is habitually used for personal use or employment. Each unit of a building consisting of two or more units separately secured or occupied is a separate occupied structure.
(48) "Offender" means a person who has been or is liable to be arrested, charged, convicted, or punished for a public offense.
(49) "Offense" means a crime for which a sentence of death or of imprisonment or a fine is authorized. Offenses are classified as felonies or misdemeanors.
(50) (a) "Official detention" means imprisonment resulting from a conviction for an offense, confinement for an offense, confinement of a person charged with an offense, detention by a peace officer pursuant to arrest, detention for extradition or deportation, or lawful detention for the purpose of the protection of the welfare of the person detained or for the protection of society.
(b) Official detention does not include supervision of probation or parole, constraint incidental to release on bail, or an unlawful arrest unless the person arrested employed physical force, a threat of physical force, or a weapon to escape.
(51) "Official proceeding" means a proceeding heard or that may be heard before a legislative, a judicial, an administrative, or another governmental agency or official authorized to take evidence under oath, including any referee, hearings examiner, commissioner, notary, or other person taking testimony or deposition in connection with the proceeding.
(52) "Other state" means a state or territory of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
(53) "Owner" means a person other than the offender who has possession of or other interest in the property involved, even though the interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.
(54) "Party official" means a person who holds an elective or appointive post in a political party in the United States by virtue of which the person directs or conducts or participates in directing or conducting party affairs at any level of responsibility.
(55) "Peace officer" means a person who by virtue of the person's office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses while acting within the scope of the person's authority.
(56) "Pecuniary benefit" is benefit in the form of money, property, commercial interests, or anything else the primary significance of which is economic gain.
(57) "Person" includes an individual, business association, partnership, corporation, government, or other legal entity and an individual acting or purporting to act for or on behalf of a government or subdivision of government.
(58) "Physically helpless" means that a person is unconscious or is otherwise physically unable to communicate unwillingness to act.
(59) "Possession" is the knowing control of anything for a sufficient time to be able to terminate control.
(60) "Premises" includes any type of structure or building and real property.
(61) "Property" means a tangible or intangible thing of value. Property includes but is not limited to:
(a) real estate;
(c) commercial instruments;
(d) admission or transportation tickets;
(e) written instruments that represent or embody rights concerning anything of value, including labor or services, or that are otherwise of value to the owner;
(f) things growing on, affixed to, or found on land and things that are part of or affixed to a building;
(g) electricity, gas, and water;
(h) birds, animals, and fish that ordinarily are kept in a state of confinement;
(i) food and drink, samples, cultures, microorganisms, specimens, records, recordings, documents, blueprints, drawings, maps, and whole or partial copies, descriptions, photographs, prototypes, or models thereof;
(j) other articles, materials, devices, substances, and whole or partial copies, descriptions, photographs, prototypes, or models thereof that constitute, represent, evidence, reflect, or record secret scientific, technical, merchandising, production, or management information or a secret designed process, procedure, formula, invention, or improvement; and
(k) electronic impulses, electronically processed or produced data or information, commercial instruments, computer software or computer programs, in either machine- or human-readable form, computer services, any other tangible or intangible item of value relating to a computer, computer system, or computer network, and copies thereof.
(62) "Property of another" means real or personal property in which a person other than the offender has an interest that the offender has no authority to defeat or impair, even though the offender may have an interest in the property.
(63) "Public place" means a place to which the public or a substantial group has access.
(64) (a) "Public servant" means an officer or employee of government, including but not limited to legislators, judges, and firefighters, and a person participating as a juror, adviser, consultant, administrator, executor, guardian, or court-appointed fiduciary. The term "public servant" includes one who has been elected or designated to become a public servant.
(b) The term does not include witnesses.
(65) "Purposely"--a person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is the person's conscious object to engage in that conduct or to cause that result. When a particular purpose is an element of an offense, the element is established although the purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. Equivalent terms, such as "purpose" and "with the purpose", have the same meaning.
(66) (a) "Serious bodily injury" means bodily injury that:
(i) creates a substantial risk of death;
(ii) causes serious permanent disfigurement or protracted loss or impairment of the function or process of a bodily member or organ; or
(iii) at the time of injury, can reasonably be expected to result in serious permanent disfigurement or protracted loss or impairment of the function or process of a bodily member or organ.
(b) The term includes serious mental illness or impairment.
(67) "Sexual contact" means touching of the sexual or other intimate parts of the person of another, directly or through clothing, in order to knowingly or purposely:
(a) cause bodily injury to or humiliate, harass, or degrade another; or
(b) arouse or gratify the sexual response or desire of either party.
(68) (a) "Sexual intercourse" means penetration of the vulva, anus, or mouth of one person by the penis of another person, penetration of the vulva or anus of one person by a body member of another person, or penetration of the vulva or anus of one person by a foreign instrument or object manipulated by another person to knowingly or purposely:
(i) cause bodily injury or humiliate, harass, or degrade; or
(ii) arouse or gratify the sexual response or desire of either party.
(b) For purposes of subsection (68)(a), any penetration, however slight, is sufficient.
(69) "Solicit" or "solicitation" means to command, authorize, urge, incite, request, or advise another to commit an offense.
(70) "State" or "this state" means the state of Montana, all the land and water in respect to which the state of Montana has either exclusive or concurrent jurisdiction, and the air space above the land and water.
(71) "Statute" means an act of the legislature of this state.
(72) "Stolen property" means property over which control has been obtained by theft.
(73) A "stop" is the temporary detention of a person that results when a peace officer orders the person to remain in the peace officer's presence.
(74) "Tamper" means to interfere with something improperly, meddle with it, make unwarranted alterations in its existing condition, or deposit refuse upon it.
(75) "Telephone" means any type of telephone, including but not limited to a corded, uncorded, cellular, or satellite telephone.
(76) "Threat" means a menace, however communicated, to:
(a) inflict physical harm on the person threatened or any other person or on property;
(b) subject any person to physical confinement or restraint;
(c) commit a criminal offense;
(d) accuse a person of a criminal offense;
(e) expose a person to hatred, contempt, or ridicule;
(f) harm the credit or business repute of a person;
(g) reveal information sought to be concealed by the person threatened;
(h) take action as an official against anyone or anything, withhold official action, or cause the action or withholding;
(i) bring about or continue a strike, boycott, or other similar collective action if the person making the threat demands or receives property that is not for the benefit of groups that the person purports to represent; or
(j) testify or provide information or withhold testimony or information with respect to another's legal claim or defense.
(77) (a) "Value" means the market value of the property at the time and place of the crime or, if the market value cannot be satisfactorily ascertained, the cost of the replacement of the property within a reasonable time after the crime. If the offender appropriates a portion of the value of the property, the value must be determined as follows:
(i) The value of an instrument constituting an evidence of debt, such as a check, draft, or promissory note, is considered the amount due or collectible. The figure is ordinarily the face amount of the indebtedness less any portion of the indebtedness that has been satisfied.
(ii) The value of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation is considered the amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.
(iii) The value of electronic impulses, electronically produced data or information, computer software or programs, or any other tangible or intangible item relating to a computer, computer system, or computer network is considered to be the amount of economic loss that the owner of the item might reasonably suffer by virtue of the loss of the item. The determination of the amount of economic loss includes but is not limited to consideration of the value of the owner's right to exclusive use or disposition of the item.
(b) When it cannot be determined if the value of the property is more or less than $1,500 by the standards set forth in subsection (77)(a), its value is considered to be an amount less than $1,500.
(c) Amounts involved in thefts committed pursuant to a common scheme or the same transaction, whether from the same person or several persons, may be aggregated in determining the value of the property.
(78) "Vehicle" means a device for transportation by land, water, or air or by mobile equipment, with provision for transport of an operator.
(79) "Weapon" means an instrument, article, or substance that, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury.
(80) "Witness" means a person whose testimony is desired in an official proceeding, in any investigation by a grand jury, or in a criminal action, prosecution, or proceeding."
Section 2. Section 45-5-505, MCA, is amended to read:
"45-5-505. Deviate sexual conduct. (1) A person who knowingly engages in deviate sexual relations or who causes another to engage in deviate sexual relations commits the offense of deviate sexual conduct.
(2) A person convicted of the offense of deviate sexual conduct shall be imprisoned in the state prison for any term not to exceed 10 years or be fined an amount not to exceed $50,000, or both.
(3) The fact that a person seeks testing or receives treatment for the HIV-related virus or another sexually transmitted disease may not be used as a basis for a prosecution under this section and is not admissible in evidence in a prosecution under this section."
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