- Associated Press - Wednesday, February 22, 2017

HELENA, Mont. (AP) - A legislative committee has unanimously endorsed a bill meant to close a loophole in Montana law that allows 16- and 17-year-olds to be charged with incest involving a parent.

The measure approved by the House Judiciary Committee on a 19-0 vote Wednesday clarifies that a person who is younger than 18 cannot be charged with incest if the other person involved is at least four years older.

The bill, sponsored by Rep. Jenny Eck, D-Helena, next goes to the House floor.

The Montana Supreme Court suggested addressing the loophole in July while upholding an Anaconda-Deer Lodge County man’s conviction and life sentence for plying his 17-year-old daughter with methamphetamine and having sex with her in 2013. The Associated Press is not identifying the man to avoid identifying his daughter.

He argued his conviction should be overturned because jurors were not cautioned about trusting the girl’s testimony because she could have been charged as an accessory.



The court found that the girl actually could have been charged with incest because she said she was a willing participant and was over the legal age of consent, which is 16. The prosecutor did not charge her.

Justice Beth Baker’s concurring opinion suggested lawmakers revisit the law, saying it really can’t be interpreted any other way.

“Applied to consenting adults or to siblings, the statute properly treats both actors in an incestuous relationship as responsible for the offense,” Baker wrote. “And the statute rightly makes a stepson’s or stepdaughter’s consent ineffective if the child is under 18.

“But when, as here, a father has sexual intercourse with his underage natural daughter, her consent to the act makes her his partner in crime,” Baker wrote.

Robin Turner with the Montana Coalition Against Domestic and Sexual Violence testified Wednesday that the current law makes it more difficult for victims to come forward.

Turner read from a letter written by Ellen Donohue, who prosecuted the Anaconda-Deer Lodge County case. Donohue’s letter said the girl went through the ordeal of testifying about her most private, embarrassing and shameful moments, and after her father was found guilty, he filed an appeal and tried to blame her.

Donohue assured the girl she would not be charged, but that did not ease her fear that she would be arrested, Turner told committee members.

Assistant Attorney General Ole Olson testified in support of the bill, saying because it’s technically possible to charge a 16- or 17-year-old it creates avenues for appeal. He noted a 1997 case in which a Lincoln County man argued that because he was charged and his adopted daughter wasn’t, his constitutional rights were violated. The Supreme Court denied his appeal, Olson said.

Mike McGrath, the chief justice of the Montana Supreme Court, listened in on some of Wednesday’s testimony.

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