HELENA – Lawmakers will review a loophole in Montana’s incest law that allows 16- and 17-year-olds to be held as complicit as their parents.
The Montana Supreme Court suggested the examination in upholding the conviction of a man sentenced to life in prison for plying his 17-year-old daughter with methamphetamine and having sex with her in 2013.
He sought to have his conviction overturned, saying jurors should have been cautioned about trusting her testimony because, he argued, she could have been charged as an accessory.
Montana law does not allow a person to be found guilty based solely on the testimony of someone who could be considered an accessory to the same crime, unless that testimony is corroborated. The defendant also argued the state did not have enough corroborating evidence.
In its ruling, the state Supreme Court said the daughter could not have been charged as an accessory, but as a willing participant over the state’s legal age of consent – 16 – she could have been charged with committing incest herself. Prosecutors opted not to charge her.
The court also ruled the state provided adequate other evidence, including witnesses who testified that the father had given the girl drugs, that the girl and her father shared a bed, pillow and blanket, and that the girl told other people about the sexual activity.
The Associated Press is not identifying the man to avoid identifying his daughter as a victim of a sex crime.
It is believed to be the first time a defendant tried to use the apparent loophole in the 1983 law, his appellate attorney, Colin Stephens, said Friday.
Though the Montana Supreme Court rejected the argument this time based on the other evidence, some of the justices suggested lawmakers might want to revisit the law, saying it really can’t be interpreted any other way.
“I doubt this is what the Legislature intended, but the statute is not reasonably susceptible to another construction,” Justice Beth Baker wrote Tuesday in her concurring opinion that was joined by Justice Mike Wheat. Justice Laurel McKinnon wrote the 5-0 decision upholding the man’s conviction.
“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.”
Democratic Rep. Jenny Eck of Helena, a member of the Legislature’s Law and Justice Interim Committee, said Friday she hadn’t heard about the apparent loophole but would raise it at the committee’s August meeting.
“I think it would be something that we could pretty easily deal with in the (2017 legislative) session,” she said. “I can’t imagine there would be anybody on the other side of this.”
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