Consent – Definition

Montana Code Annotated § 45-5-501

 

(1)(a) As used in 45-5-502, 45-5-503, and 45-5-508, the term “consent” means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact and is further defined but not limited by the following:
(i) an expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn;
(ii) a current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent; and
(iii) lack of consent may be inferred based on all of the surrounding circumstances and must be considered in determining whether a person gave consent.
(b) Subject to subsections (1)(c) and (1)(d), the victim is incapable of consent because the victim is:
(i) mentally disordered or incapacitated;
(ii) physically helpless;
(iii) overcome by deception, coercion, or surprise;
(iv) less than 16 years old;
(v) incarcerated in an adult or juvenile correctional, detention, or treatment facility or is on probation or parole and the perpetrator is an employee, contractor, or volunteer of the supervising authority and has supervisory or disciplinary authority over the victim, unless the act is part of a lawful search;
(vi) receiving services from a youth care facility, as defined in 52-2-602, and the perpetrator:
(A) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and
(B) is an employee, contractor, or volunteer of the youth care facility; or
(vii) admitted to a mental health facility, as defined in 53-21-102, is admitted to a community-based facility or a residential facility, as those terms are defined in 53-20-102, or is receiving community-based services, as defined in 53-20-102, and the perpetrator:
(A) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and
(B) is an employee, contractor, or volunteer of the facility or community-based service.
(c) Subsection (1)(b)(v) does not apply if the individuals are married to each other and one of the individuals involved is on probation or parole and the other individual is a probation or parole officer of a supervising authority.
(d) Subsections (1)(b)(vi) and (1)(b)(vii) do not apply if the individuals are married to each other and one of the individuals involved is a patient in or resident of a facility, is a recipient of community-based services, or is receiving services from a youth care facility and the other individual is an employee, contractor, or volunteer of the facility or community-based service.

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