Redefining Rape 

In the wake of recent cases, lawmakers try to tighten rape laws

Is the repeated rape of a young girl by her father or stepfather over a period of years a crime of violence? Surely it is, if you ask the victim. The law says otherwise, however.

Consider the sad case in Sanders County. It was there, in the recent past, that a local man was convicted of sexually assaulting his daughter and stepdaughter for perhaps as long as 12 years. He received two 35-year sentences, but the judge suspended them, instead sending the man to the county jail for 30 days.

Though a 30-day jail sentence is out of proportion to the heinousness of the crime, state law left the judge little choice. Despite the harm done to the two girls, despite the devastating impact on the family, the crimes were considered “non-violent” incest in the eyes of the law.

And then there is the case of Michael Haser. Last week, the Montana Supreme Court overturned the conviction of Haser, a Missoula photographer who had been found guilty in April 1999 of raping two women and sexually assaulting 11 others during photography sessions at his studio. A District Court judge sentenced Haser to 20 years in prison and an additional 20 years on probation.

Haser served 18 months before the high court overturned the conviction.

The Supreme Court found that the women had been tricked into being sexually groped by Haser, but that surprise “cannot be construed as a form of force under our governing statutes.” The state’s argument that the Supreme Court should consider surprise as a form of force fell flat.

Clearly, there are loopholes in Montana’s sexual crime statutes.

Two legislators, both men, hope to plug those holes with bills now pending in the Montana Legislature.

Paul Clark is a Democrat who represents House District 72, the Trout Creek area of Sanders County. His Republican counterpart is Butch Waddill, a freshman legislator representing House District 62, which straddles northern Ravalli and southern Missoula counties.

Clark is sponsoring two bills that would tighten the loopholes in existing sex crime statutes, including House Bill 360, sponsored at the request of the mother of the two young incest victims in Sanders County.

“The most important aspect in the bill is the change in definition of violent crime,” Clark says. “Rape is a violent crime, but incest is not necessarily [classified as] a violent crime.” Under current law, a violent crime is one in which a weapon is used, or threatened to be used, Clark says. His bill would expand that definition of violent crime to include sexual crimes in cases where the victim is less than 16 years old and the offender is three or more years older, as is typically the case in incest.

“If this law would have been in effect [in the Sanders County case], he would’ve been a violent offender and he would’ve gotten a minimum of two years,” Clark observes.

Waddill is sponsoring House Bill 290, “the legislation that plugs the hole,” he calls it. The bill would include “the use of concealment or surprise” as the definition of the word force in Montana’s rape law.

Waddill says he was asked to sponsor the bill by women’s groups and was glad to do it. Sexual exploitation of women and children is an issue he feels strongly about, despite his concerns that Montana has more than enough laws on the books.

“Women are continuing to be exploited, and it’s not just in Missoula,” he says. The loophole that allows a Michael Haser, or anyone else, to go free “is absolutely unacceptable. It’s a loophole I hope will be closed.”

Waddill says the Supreme Court’s ruling on the Haser case, which came after his bill was drafted, sent him reeling. “It’s really crushing to me,” he says. “If we’d been sooner this might not have happened.”

Clark’s second bill would also extend the state’s DNA database to include all convicted felons, not just violent and sex crime offenders. Clark says half the people convicted of rape were, at one time, burglars—typically a non-violent crime. But burglars sometimes surprise women at home alone, and sometimes they become career criminals, expanding their criminal behavior to include rape. “Why should we give anybody one free rape?” Clark asks.

The problem with violent crime extends beyond closing legal loopholes, however. There’s also the problem of convincing people that rape and violent crime aren’t joking matters.

Last week, Gov. Judy Martz made a comment in a public speech that she says she doesn’t recall making. She reportedly said, “My husband has never battered me. But then again, I’ve never given him reason to.”

Though it was tossed off as a little quip, it’s made Stacey Umhey’s work more difficult lately. Umhey is executive director of Supporters of an Abuse-Free Environment (SAFE) in Hamilton.

Martz’s comment “had a huge impact,” Umhey says. “We’re talking about people not deserving this [beatings and rape], then hearing that come from an elected official is awful. It makes our work harder and it makes victims wonder how supported they are.”

In the aftermath of Martz’s comment, others in the community, including SAFE supporters, began tossing off their own witty bon mots about domestic violence and rape, Umhey says. “They’re saying, ‘Oh, have you ever given Charlie [her husband] a reason? Ha, ha, ha.’ It’s been really depressing being a domestic violence advocate in the past month.”

A hearing will be held in Helena on Clark’s bill, HB 360, Friday, Feb. 9. Waddill’s bill is in committee.

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