Sexual Intercourse Without Consent

Luebeck, Hammar, McCarty & Goldwarg – Criminal Defense Attorneys

Luebeck, Hammar, McCarty & Goldwarg is a Bozeman, Montana law firm with trial attorneys specializing in defending Montana Sexual Intercourse Without Consent and sexual offense crimes. The attorneys at Luebeck, Hammar, McCarty & Goldwarg routinely handle sex crime cases across the State of Montana. Contact our firm for more information as to how we can assist you in your case. Below are some common frequently asked questions (FAQs) we receive from our clients.

• What is a Sexual Intercourse Without Consent Charge in Montana?
• Why is it Important to Retain an Experienced Criminal Defense Attorney?
• What Should I Bring to My First Meeting With Your Office?
• What are Some of the Potential Penalties for Sexual Intercourse Without Consent?
• If the Victim is at Least 14 Years of Age and the Offender is 18 Years of Age or Younger:
• Are These the Only Penalties I May Face for a Sexual Intercourse Without Consent Conviction?
• If I am Convicted of Sexual Intercourse Without Consent, will I be Subject to the Mandatory Minimum Sentences?
• I Didn’t Do Anything Wrong! Why Did I Get Arrested?
• What Can I Expect From Your Firm?
• Why Choose Our Firm?

What is a Sexual Intercourse Without Consent Charge in Montana?

Sexual Intercourse Without Consent is the law criminalizing conduct in which a person engages in “sexual intercourse” with another person without his or her consent or or with another person who is incapable of consent. The generic terms for such conduct include “rape” and “statutory rape.” “Statutory rape” is a generic term used to describe the law in Montana criminalizing conduct in which a person engages in sexual intercourse with an individual under the age of 16 regardless of whether the individual “consented” to the sexual encounter as Montana law provides that an individual under the age of 16 is incapable of consent.

Why is it Important to Retain an Experienced Criminal Defense Attorney?

Montana Sexual Intercourse Without Consent defense involves unique and complicated legal issues, the understanding of medical and psychiatric evidence, governmental forensic interviewing techniques, anatomy and physiology, forensic evidence related to medical investigation examinations (sometimes referred to prejudicially as “rape kits”) and interpretation of medical evidence regarding penetration and injuries resulting from sexual intercourse.

At Luebeck, Hammar, McCarty & Goldwarg, our attorneys have years of experience representing clients in Sexual Intercourse Without Consent and sex offense cases and keep up on the latest scientific research and trial techniques. As a client of our firm, you will benefit from our attorneys’ experience in bringing Montana Sexual Intercourse Without Consent cases to trial, challenging unlawful police procedures and practices, analyzing and scrutinizing physical, medical and psychiatric evidence that can often point to a person’s innocence rather than guilt—in direct contrast to the opinion of the investigating detectives and officers—and negotiating favorable resolutions to your case with the prosecuting attorney.

What Should I Bring to My First Meeting With Your Office?

You should bring all of the court-related documents you have received from law enforcement and the court. This may include the charging documents (e.g., Felony Information and Affidavit of Probable Cause,) a copy of your bond conditions if you have seen a judge, and the document informing you of your next court hearing.

What are Some of the Potential Penalties for Sexual Intercourse Without Consent?

The potential penalties for conviction of Sexual Intercourse Without Consent are among the most severe in the Montana criminal law and depend on the nature of the conduct involved and the age of the alleged victim. The following potential penalties are by no means all-inclusive. There are numerous factors that can increase or decrease the potential penalties to this charge that are too extensive for the purposes of this FAQ:

If the age of the victim is 18 years or older:

• Life imprisonment or by imprisonment in the state prison for a term of not more than 20 years and may be fined not more than $50,000.

If the age of the victim is less than 16 years old and the offender is 4 or more years older than the victim:

• Life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years and may be fined not more than $50,000.

If the offender inflicts bodily injury upon anyone in the course of committing sexual intercourse without consent:

• Life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years and may be fined not more than $50,000.

If two or more persons are convicted of sexual intercourse without consent with the same victim in an incident in which each offender was present at the location where another offender’s offense occurred during a time period in which each offender could have reasonably known of the other’s offense:

• Each offender: Life imprisonment or by imprisonment in the state prison for a term of not less than 5 years or more than 100 years and may be fined not more than $50,000.

If the offender was previously convicted of Sexual Intercourse Without Consent or of an offense under the laws of another state or of the United States that if committed in Montana would be a sexual offense in Montana and if the offender inflicted serious bodily injury upon a person in the course of committing each offense:

• Punished by death as provided in Montana Code Annotated sections 46-18-301 through 46-18-310, unless the offender is less than 18 years of age at the time of the commission of the offense or punished by life imprisonment.

If the age of the victim is 12 years of age or younger and the offender is 18 years of age or older at the time of the offense:

• Imprisonment in a state prison for a term of 100 years, may be fined an amount not to exceed $50,000, and shall be ordered to enroll in and successfully complete the educational phase and the cognitive and behavioral phase of a sexual offender treatment program provided or approved by the department of corrections.
• The court may not suspend execution or defer imposition of the first 25 years of a sentence of imprisonment and during the first 25 years of imprisonment, the offender is not eligible for parole.
• If the offender is released after the mandatory minimum period of imprisonment, the offender is subject to supervision by the department of corrections for the remainder of the offender’s life and shall participate in the program for continuous, satellite-based monitoring provided for in Montana code annotated 46-23-1010.

If the Victim is at Least 14 Years of Age and the Offender is 18 Years of Age or Younger:

Imprisonment in the state prison for a term of not more than 5 years and may be fined not more than $10,000 if:

(a) the offender has not previously been found to have committed or been adjudicated for a sexual offense.

(b) a psychosexual evaluation of the offender has been prepared and the court finds that registration is not necessary for protection of the public and that relief from registration is in the public’s best interest; and

(c) the court finds that the alleged conduct was consensual as indicated by words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact.

Are These the Only Penalties I May Face for a Sexual Intercourse Without Consent Conviction?

No. There are many other possible penalties you can face if you are convicted of Sexual Intercourse Without Consent in Montana. For example, there are additional requirements for sexual offender treatment and sex offender registration. Once you meet with one of our attorneys the other possible penalties will be discussed with you in detail in addition to your possible defenses.

If I am Convicted of Sexual Intercourse Without Consent, will I be Subject to the Mandatory Minimum Sentences?

Not necessarily. In some cases, Montana law provides exceptions to the mandatory minimum sentences for Sexual Intercourse Without Consent. Once you have met with one of our criminal defense attorneys, the possibility of avoiding the mandatory minimum sentences will be discussed with you in addition to your possible defenses to the charged conduct.

I Didn’t Do Anything Wrong! Why Did I Get Arrested?

Defending Sexual Intercourse Without Consent charges can be challenging. Sexual Intercourse Without Consent charges typically involve allegations of “he said, she said,” and the accused and the alleged victim are the only witnesses to the charged offense. Often the alleged victim “makes up” the allegations to seek revenge on the accused or has other ulterior motives for lying to the police. If the alleged victim or his or her parents or guardians are successful in convincing the prosecutor to charge you with a crime, you’re only option is to aggressively contest the veracity of the alleged victim’s statements and evidence in court.

Below are some common reasons that person may be falsely accused of Sexual Intercourse Without Consent that may be pertinent to your case:

Accusations of Sexual Intercourse Without Consent involving another adult:

Wrongful accusations are not uncommon and are made for a variety of reasons. Sometimes the accuser will later regret a consensual sexual encounter and may accuse the other out of regret or embarrassment. Sometimes the accuser, because of his or her level of intoxication, cannot fully recall that he or she provided consent to the conduct or understand that his or her behavior was consistent with consent. Other times the accusations are motivated by a desire to obtain custody of children (e.g., in marital divorce or child custody proceeding), to seek revenge for the accused ending a romantic relationship with the alleged victim, or due to the alleged victim’s psychiatric or mental health condition.

Accusations of Sexual Intercourse Without Consent involving an individual under the age of 16 where the accused and the alleged victim are close to the same age (statutory rape):

Motives to falsely accuse are as diverse as human nature. Ulterior motives are often present in false accusation statutory rape cases where the accused and the alleged victim are close to the same age. For example, an accuser may falsely accuse an individual based on some ulterior motive, such as being rejected by his or her high school crush. Other incidents may involve a parent who strongly dislikes his or her child’s boyfriend or girlfriend and is motivated to disrupt the relationship, not fully understanding the nature of the relationship or the legal ramifications of making such allegations.

Montana law provides that a person is incapable of consent if the person is less than 16 years old. The practical effect of this statute is that a person of any age can be charged with Sexual Intercourse Without Consent if he or she engaged in sexual intercourse with someone 15 years or younger. The law does not even provide for an exception where two individuals under the age of 16 engage in sexual intercourse with one another nor does it provide guidance on which individual to charge.

A defense to this particular allegation involves establishing that the alleged victim was not actually under the age of 16 at the time of the alleged offense. Another potential defense involves the individual relying on the misrepresentation by the alleged victim as to his or her age. Montana law provides that, when criminality depends on the victim being less than 16 years old, it is a defense for the accused to prove that the offender reasonably believed the child to be above that age. However, such belief is not a defense where the child is less than 14 years old.

Accusations of Sexual Intercourse Without Consent involving an adult and an individual under the age of 16:

Sexual Intercourse Without Consent cases involving false accusations of child sexual abuse are among the most difficult cases in the criminal law to defend. Children garner such a high level of sympathy that prosecutors and juries cannot help but feel empathy for the child, which can interfere with their objectivity and ability to consider evidence of innocence.

Parents, guardians and persons engaging in childcare are particularly susceptible to being falsely accused of sexual abuse. Misunderstandings, ulterior motives on the part of the adult accuser, and child custody battles can often form the basis for a false accusation of sexual abuse.

Improper police investigations can often lead to tainted evidence and inadvertent or intentional manipulation of the child witness. The State often employs a child forensic examiner who interviews the child as to the alleged misconduct in an attempt to obtain a sex abuse “disclosure.” Such interviews are often unduly suggestive and/or conducted in such a manner to elicit a false disclosure of sexual abuse. This type of investigatory taint was highlighted in the infamous “McMartin Preschool case” in which the McMartin family was charged for sexually abusing children at their preschool. PBS’ Frontline provides an excellent summary of the case. According to Frontline:

As time went on, the accusations [against the McMartins] mushroomed from sexual abuse to include stories of bizarre satanic rituals, where the McMartins mutilated animals and forced the children to touch corpses, in hidden underground passageways beneath the school. No such passageways were ever found.

…

[The case] is still cited today as a symbol of the dangers and difficulty of using children’s testimony.

For more information, you can view Frontline’s entire article regarding the McMartin case and other problematic child sex prosecutions here. Ultimately, none the McMartin family members were convicted although one member spent five years in jail while another spent two.

Other reasons for false accusations of child sexual abuse involve, but is by no means limited by:

• Children engaging in fantasy but reporting the fantasy as reality.
• Children falsely accusing a person of abuse to garner attention.
• Children falsely accusing a person as a result of a psychiatric or mental illness.
• Parents misinterpreting a child’s innocuous statement as a disclosure of sexual abuse due to hyper-vigilance.

Simply put, child sexual abuse is a concern of every parent or guardian and such fears can lead to false accusations of sexual abuse.

What Can I Expect From Your Firm?

You can expect us to represent you at all court-related phases of your case and aggressively advocate on your behalf. Our firm has extensive experience defending Sexual Intercourse Without Consent cases and will work with you to expose the weaknesses and misunderstandings that form the basis of the prosecutor’s case. Often support for your defense is discovered after analyzing the police officer’s written reports, child forensic interviews, audio and video recordings, or through witness interviews. We will explore all alternatives to successfully resolve your case prior to trial and, if necessary, try your case before a judge and jury.

Why Choose Our Firm?

Our attorneys realize that the vast majority of clients arrested for Sexual Intercourse Without Consent have little or no prior criminal history or involvement with police. Consequently, we understand the stress our clients endure when they are accused of a crime and our attorneys are committed to helping you through the process and serving as a strong advocate who is on your side. Considering that attorneys have extensive experience in this area, our attorneys are in an ideal position to look at your predicament with empathy and understanding. At Luebeck, Hammar, McCarty & Goldwarg, we are committed to treating you with the respect and dignity that you deserve and look forward to serving you in your time of need.

If you are accused of committing the offense of Sexual Intercourse Without Consent or another sex crime in Montana, contact our firm to speak to one of our criminal defense attorneys. Luebeck, Hammar, McCarty & Goldwarg is comprised of a dedicated team of Montana trial lawyers committed to protecting your constitutional and legal rights and helping you navigate the Montana criminal justice system.

Call us today for a free telephone consultation with one of our attorneys and an appointment with our firm.