What is Rape Shield Law, and what are its Punishments in Montana?
Rape is an inhumane and abhorrent act, stripping away any sense of protection and dignity of the victim. Moreover, the victims are the ones who often have to plead their case by trying to prove that the act was non-consensual. Unfortunately, in this crime, the perpetrator is often "innocent until proven guilty."
To protect the victims from undue shame and harassment about their sexual past, which may be twisted to become a point in proving the perpetrator's innocence, various countries around the world have constituted what is known as the Rape Shield Laws. In the USA, the first state to constitute this law was Michigan in 1974, followed by the other states in the following two decades.
Rape Statistics in Montana
The rape statistics of Montana have not been very positive, with the number of reported cases steadily rising- there was an average of 251 reported rapes per year in the state. The number has risen steadily to peak at 401 reported cases of rape in 2005. In 2014-15, the number of reported cases of rape was 386, just touching the peak point of the crime.
Most of the cases reported took place at a place of residence. About 16% of the cases took place in a government or public place. 97% of the victims were women, and almost all the offenders were suspected of consuming drugs or alcohol before the crime. However, out of the 386 cases, only 106 people were arrested for the crime.
Rape Shield Law
In Montana, the Rape Shield Laws operate on a system of 'Confidentiality'- if a victim chooses not to report the crime at the time of the rape, the information obtained with a medical exam falls under the ambit of "medical information," protected by federal and state law. Should the victim choose to report the crime at a later date, the test results get transferred to becoming "criminal justice information", protected by a different set of state laws.
MCA 45-5-511 of the Montana Statute relates to the Rape Shield Laws, which are primarily put in place to prevent questions about the past sexual encounters of the victim. The Montana laws have devised a two-pronged road which not only protects the victims from undue harassment but also provides a way for the accused to prove their innocence. However, there are a few exceptions to the rule. They include:
- If the victim is less than 16 years old, the onus lies on the accused to prove that they believed that the child was above that age. However, if the child in question is 14 years or below, the accused loses this right to defend themselves.
- Evidence to show that the origin of semen, pregnancy, or disease in the victim is not due to the accused, but by another person. Such evidence will be presented to a trial jury, who will determine whether the evidence shall be admissible in court or not.
- The complaint of not being immediately filed cannot be a grounds for suspicion about the credibility of the event.
- Lack of physical resistance by the victim cannot be grounds of consent, as often force, fear or threat is enough evidence.
MCA 26-1-812 focuses on advocate privilege, stating that interactions between the victim and their representative cannot be examined, and no records should be divulged during the course of providing shelter, counseling, or crisis intervention.
For this section, the following definitions apply:
- The 'advocate' could be any person volunteering at a domestic violence shelter or a crisis line, or any service provider for people experiencing sexual assault or stalking.
- The 'victim' is any person seeking help due to stalking or sexual assault, whether or not the person chooses to seek help from the justice system officially.