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Know the West

Montana legislature grapples with sexual violence

After a university scandal, Senate Bill 29 could change how rapes are prosecuted.


Gabriel Furshong is a contributor to Writers on the Range, the opinion service of High Country News. He writes from Helena, Montana.

Doubleday published the book, Missoula: Rape and the Justice System in a College Town, in May 2015. Written by Jon Krakauer, it quickly jumped to number three on The New York Times bestseller list in the first week of sales and also helped fuel a national dialogue on the way sexual assault is handled at colleges.

Missoula focused on the U.S. Department of Justice’s investigation into the handling of rape cases by the University of Montana, the Missoula County Attorney’s Office and the Missoula Police Department. In May 2012, when the federal agency first announced the investigation, citing 80 reported rape cases in the last three years as justification, many residents of this liberal college community were shocked by the news. Others were not surprised. 

“Women have been working on this issue for a hundred years,” says Montana Sen. Diane Sands, “and I’ve personally been working on the issue for decades.”

The University of Montana's Grizzly Bear mascot in front of the main hall.
Jitze Couperus/Flickr

Sands, a Democrat, represents Senate District 49, which covers western Missoula, in the state legislature. The mostly urban district lies just a couple miles from the University of Montana, where Sands studied anthropology from 1971-’74. A determined student organizer, she helped found the campus Women’s Center and worked to raise awareness about sexual assault and gender discrimination. 

Overall, progress has been slow, according to Sands. “Women can raise their voices until hell freezes over,” she says. “But it’s only when men stand up and take responsibility for regulating other men that change begins to occur.”

So, when the country’s top cop, Attorney General Eric Holder, announced the Justice Department’s investigation, Sands wondered whether a larger change was finally underway. Her hopes were realized two years later when the agency reached separate agreements with the Missoula City Police Department, the University of Montana Police Department and the Missoula County Attorney’s Office on how to fairly and effectively handle reports of sexual assault.

In addition, Montana Attorney General Tim Fox, a Republican, agreed to monitor the county’s efforts to implement the agreement, thus adding to a growing list of men willing to confront sexual assault. “The fact is that 97 percent of victims are women, so it’s important for men to step up,” says Fox, who announced the county’s full compliance with the agreement in August of last year. 

By then, Sands had teamed up with Fox to devise and deploy her own plan of action. “There are times when you can change certain things,” she says, “so as a person who works in the political arena, I’m looking for those moments where we can move forward.”

The Montana Legislature meets biannually, in odd-numbered years, from January through April. In 2015, Sands wrote and passed a bill requiring the Law and Justice Interim Committee to study sexual violence and recommend updates to Montana’s “antiquated” laws on sexual crimes. Fox supported the bill, and it passed by overwhelming majorities in the House and Senate.

Sands served as vice chair of the interim committee, which recommended seven bills for the 2017 session, including Senate Bill 29, which would change Montana’s sexual assault laws to comport with the U.S. Military Code of Conduct. Among other changes, the bill would amend the definition of sexual intercourse without consent, removing the requirement that a person must try to physically fight back against an offender in order to be considered a victim of rape. The bill also, for the first time, defines consent as “words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact” with another person.

According to Jennifer Clark, a sexual crimes and domestic violence prosecutor for Missoula County, these changes in Montana law would accurately reflect “the reality of the cases” reported to her office. “In most of the cases we see, a victim will indicate their lack of consent in many ways, either verbally or nonverbally,” she explained in her testimony to the Senate Law and Justice Committee. But because consent is not currently defined in statute, Clark often has to tell victims, who may have been paralyzed by fear or were otherwise incapacitated, “Yes, you were raped, but legally, you were not.”

Sands’ bill seeks to keep painful conversations like this from happening in the future. It passed the Senate 46-0 on Jan. 19 and is soon expected to pass the House. Montana Gov. Steve Bullock has made it clear he will approve the measure if given the opportunity. If that day comes, Sands will be in the room to watch the ink dry on his signature. 

“People aren’t looking the other way anymore,” she says. “It’s a change in the law that has waited a century.”