Date: Sun, 26 Mar 1995 14:49:14 -0800 (PST) From: hfspc002@huey.csun.edu Here for any interested is the text of the montana "deviant sexual relations" statute, including amendments, notes, and commentary. ben -Begin- MONTANA CODE ANNOTATED *** THIS DOCUMENT IS CURRENT THROUGH THE 1993 1ST SPECIAL SESSION *** TITLE 45 CRIMES CHAPTER 5 OFFENSES AGAINST THE PERSON Part 5 Sexual Crimes Mont. Code Anno., @ 45-5-505 (1994) 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. >>> Mont. Code Anno., @ 45-5-505 (1994) (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. HISTORY: En. 94-5-505 by Sec. 1, Ch. 513, L. 1973; R.C.M. 1947, 94-5-505; amd. Sec. 7, Ch. 198, L. 1981; amd. Sec. 2, Ch. 175, L. 1991; amd. Sec. 7, Ch. 687, L. 1991. NOTES: CODE-NOTES: Cross-References Childhood sexual abuse -- statute of limitations for civil action, 27-2-216. Victim less than 16 years old -- extension of statute of limitations, 45-1-205. Definition of "deviate sexual relations", 45-2-101. Definition of "knowingly", 45-2-101. >>> Mont. Code Anno., @ 45-5-505 (1994) Definition of "sexual contact", 45-2-101. Definition of "without consent", 45-5-501, 45-5-511. Sexual abuse of children, 45-5-625. ANNO-NOTES Criminal Law Commission Comments Source: New. The section includes both homosexuality and bestiality. There has been a reduction in the penalty because it was felt that the severe penalty was more a product of revulsion than the social harm in fact committed. The Model Penal Code recommends that bestiality be made a misdemeanor. The Illinois Code contains no provision on the subject. Subsection (3) increases the penalty if the human-victim participant in the bestiality or homosexuality acts without consent. To appreciate the meaning and scope of "without consent" see sections 94-2-101(68) and 94-5-506(3) [now MCA, 45-5-501 and 45-5-511(3)]. Compiler's Comments >>> Mont. Code Anno., @ 45-5-505 (1994) 1991 Amendments: Chapter 175 deleted former (3) providing that a person convicted of deviate sexual conduct be imprisoned in the state prison for a term not exceeding 20 years or be fined an amount not exceeding $50,000, or both. Chapter 687 inserted (3) precluding the fact that a person seeks or receives treatment for HIV-related virus or other sexually transmitted disease from use as the basis of and admissibility in a prosecution. Amendment effective April 27, 1991. 1981 Amendment: Pursuant to sec. 7, Ch. 198, L. 1981, inserted language allowing the court to fine the offender a maximum of $50,000 in lieu of imprisonment or to punish the offender by both a fine and imprisonment. Annotator's Note: This section prohibits both bestiality and homosexuality. (See the definition of "deviate sexual relations", 45-2-101.) The common-law crime of embodied in R.C.M. 1947, 94-4118, is replaced by this section and is far different from it. At common law required some penetration. By definition "deviate sexual relations" may consist of a "sexual contact", defined at MCA, 45-2-101. "Sexual contact" requires only a touching and not a penetration. Thus, this section prohibits a broader range >>> Mont. Code Anno., @ 45-5-505 (1994) of deviate sexual acts between persons of the same sex and between persons and animals than did the old law. Case Notes Limited Agreement Not to Prosecute for Deviate Sexual Conduct -- Not Grant of Statutory Immunity -- Independently Derived Evidence Applicable: The Jefferson County Attorney contractually agreed not to prosecute Myrhow for criminal acts related to an investigation of deviate sexual conduct by Marks, of which Myrhow had knowledge. However, until other incidents came to light as part of a separate investigation, Myrhow at no time related that he was involved in other unrelated incidents of deviate sexual conduct, including an incident committed prior to the contractual agreement. Myrhow contended that the immunity granted for his information regarding Marks's conduct also extended to his own conduct. The District Court properly found that Myrhow had been granted de facto immunity from prosecution for acts directly related to the Mark's investigation, but that immunity was a limited, contractual, transactional immunity arising solely from the agreement not to prosecute, rather than from 46-15-331. The statutory immunity provided by 46-15-331 did not apply because that immunity is granted only when a witness is compelled to testify by court order, a circumstance inapplicable to this case. Because the evidence used to convict Myrhow was >>> Mont. Code Anno., @ 45-5-505 (1994) derived independently of the Marks investigation and independently of any immunized evidence Myrhow provided through his agreement with the County Attorney, the District Court correctly convicted Myrhow for deviate sexual conduct committed prior to the immunity agreement. St. v. Myrhow, 262 M 229, 865 P2d 231, 50 St. Rep. 1528 (1993). Admissibility of Expert Testimony in Assessing Credibility of Child Sexual Assault Victim: Expert testimony was admissible for the purpose of helping the jury assess the credibility of a child sexual assault victim since the jury had the discretion to accept or reject the testimony and the testimony merely enlightened the jurors on the subject without impinging on the jury's right to decide the victim's credibility. St. v. Geyman, 224 M 194, 729 P2d 475, 43 St. Rep. 2125 (1986), followed in St. v. French, 233 M 364, 760 P2d 86, 45 St. Rep. 1557 (1988), and in St. v. Donnelly, 244 M 371, 798 P2d 89, 47 St. Rep. 1600 (1990). See also St. v. Imlay, 249 M 82, 813 P2d 979, 48 St. Rep. 588 (1991), which overruled Donnelly with regard to augmentation of sentence for failure to admit guilt. Instructions: Where there was no specific reason to distrust the testimony of the complaining witness, it was not error to refuse an instruction that the witness's testimony should be viewed with caution since a sex offense is >>> Mont. Code Anno., @ 45-5-505 (1994) easily charged and difficult to disprove. St. v. Ballew, 166 M 270, 532 P2d 407 (1975). Constitutionality: In light of specificity of the definitions in section 94-2-101, R.C.M. 1947 (now 45-2-101), of the terms used in this provision, this section could not be said to be unconstitutionally vague. St. v. Ballew, 166 M 270, 532 P2d 407 (1975). Penetration: The infamous crime against nature prohibited by 94-4118, R.C.M. 1947 (since repealed) could be committed by penetration of the mouth. St. v. Dietz, 135 M 496, 343 P2d 539 (1959). Ambiguous testimony by 8-year-old victim as to whether anus was penetrated, uncorroborated by medical examination, was insufficient to support conviction of completed infamous crime against nature. St. v. Shambo, 133 M 305, 322 P2d 657 (1958). Corroboration of Victim: >>> Mont. Code Anno., @ 45-5-505 (1994) Corroborating evidence to the testimony of the victim showing only that victim, a young boy, slept with the defendant and stayed overnight at defendant's house on several occasions was insufficient to sustain conviction of violation of 94-4118, R.C.M. 1947 (since repealed), as it showed nothing more than opportunity to commit the crime. St. v. Gangner, 130 M 533, 305 P2d 338 (1957). Evidence that defendant and a teenage boy spent a great deal of time together, that defendant had made many gifts to the boy, that the boy had been nervous and lost his appetite, that defendant and the boy were in separate beds in the same room when arrested, and that boy had relaxed sphincter muscles of the anus was insufficient to corroborate boy's testimony as to perpetration of crime against nature on him. St. v. Keckonen, 107 M 253, 84 P2d 341 (1938). Law Review Articles Sex Offenses, Potter, 28 Me. L. Rev. 65 (1976). Collateral References 1. 81 C.J.S. 1, et seq. >>> Mont. Code Anno., @ 45-5-505 (1994) Validity of statute making a criminal offense. 20 ALR 4th 1009. >>>