The consequences and prosecution of sexual assault and other sexual crimes are determined at the state level. Montana is one state that is looking to overhaul their sexual assault definitions to be more clear and concise.
A legislative committee is discussing a proposed category of bills that will revise the current sentencing for those convicted of sexual assault. Legislators are considering omitting things like the requirement for victims to prove that there was physical force used against them for sexual assault cases.
The current statutes are being reevaluated because of the recent incidents at the University of Montana. Senator Diane Sands believes that the way the University handles sexual assault cases needs to be reexamined, as do the laws at the state level.
Sands believes that now is the best time to examine these issues and the best sexual harassment lawyer to step in. Now that the nation is shining a light on the case, it is clearer to focus and see. At the state level, many sexual assault cases expire because there are very specific things that must be proven. If you don’t have all the components to a sexual assault case, many prosecutors will turn you away, saying that there isn’t enough evidence for a prosecution, and therefore they can’t do anything.
At the helm is the question of how to define “consent.” Montana is one of many states that is trying to overhaul the definition of consent and how to prove that it was given or not. Consent is presumed to be given by “yes,” but it does not have to be said verbally; there are other forms of “yes” that the law considers, like nonverbal cues or the absence of saying “no.”
The problem is that if someone is incapacitated, or unable to “say” or verbalize “no,” it would not appear that they are saying “yes.” Only lawfully does that make any real sense. The definition of consent is one of the problems that have arisen at the University of Montana. Students who couldn’t prove that they said “no,” or who were not physically forced to have sexual relations, were presumed to have said “yes.” That is simply not a fair determination. Therefore, it allowed a lot of sexual assault cases to go unprosecuted.
Other issues being debated are the use of distribution of recordings or images that are sexually explicit. Things like “revenge porn,” especially in the case where the victim is a minor, are not against the law. Legislatures are asking to revamp juvenile rules, making even those under the age of 18, responsible for their actions.
Consent is a very difficult component of sexual assault in any case. Montana’s current definition that there must be a show of force is simply outdated and doesn’t relate to many instances of sexual assault cases. It makes it legal to have sexual intercourse with someone who is passed out or incapacitated, as long as they didn’t say no and you didn’t show any physical signs of harm or restraint. That puts victims on trial and puts the burden of proof in the victim’s hands.
There are also cases where people will give consent when inebriated and simply forget or feel remorse in the morning for the act. Those cases make changing the statutes just as problematic and unfair. When you are talking about ruining someone’s future and life, the blur in definitions is difficult to decipher. If you don’t revamp consent, you could be letting sexual offenders slide, if you do, you could risk finding someone guilty of a crime they didn’t commit.
The incidents at the University of Montana are happening on campuses around the United States. When you have young adults who are experimenting with alcohol and are unsupervised, sometimes without the maturity or the moral compass yet to have the freedom afforded, you can run into some really sticky situations that blur the lines. What is for sure is that one wrong move, one bad night and one miscommunication on both ends can end in tragedy for two people.
It’s a hard line to draw, and sometimes the only ones who really know what happens between two people when no one is around to witness the event, have very different recollections. Their experiences are different, their feelings are different, and their recollections are not always consistent or realistic. If general and sweeping changes are made, it could swing the pendulum in the opposite direction, which is not always better in the long-run.