Mont. Code Ann. » TITLE 45. CRIMES · CHAPTER 5. OFFENSES AGAINST THE PERSON · Part 5. Sexual Crimes
Montana Code Annotated

Mont. Code Ann. § 45-5-501 (2026)

Definitions

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 45
  3. CHAPTER 5
  4. Part 5
  5. 45-5-501 Definitions

TITLE 45. CRIMES

CHAPTER 5. OFFENSES AGAINST THE PERSON

Part 5. Sexual Crimes

Definitions

45-5-501. Definitions. (1) (a) As used in 45-5-502, 45-5-503, and 45-5-508, the term "consent" means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact and is further defined but not limited by the following:

(i) an expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn;

(ii) a current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent; and

(iii) lack of consent may be inferred based on all of the surrounding circumstances and must be considered in determining whether a person gave consent.

(b) Subject to subsections (1)(c) through (1)(g), the victim is incapable of consent because the victim is:

(i) mentally disordered or incapacitated;

(ii) physically helpless;

(iii) overcome by deception, coercion, or surprise;

(iv) less than 16 years old;

(v) incarcerated in an adult or juvenile correctional, detention, or treatment facility or is on probation, conditional release, or parole and the perpetrator is an employee, contractor, or volunteer of the supervising authority and has supervisory or disciplinary authority over the victim, unless the act is part of a lawful search;

(vi) receiving services from a youth care facility, as defined in 52-2-602, and the perpetrator:

(A) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and

(B) is an employee, contractor, or volunteer of the youth care facility;

(vii) admitted to a mental health facility, as defined in 53-21-102, is admitted to a community-based facility or a residential facility, as those terms are defined in 53-20-102, or is receiving community-based services, as defined in 53-20-102, and the perpetrator:

(A) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and

(B) is an employee, contractor, or volunteer of the facility or community-based service;

(viii) a program participant, as defined in 52-2-802, in a private alternative adolescent residential or outdoor program, pursuant to Title 52, chapter 2, part 8, and the perpetrator is a person associated with the program, as defined in 52-2-802;

(ix) the victim is a client receiving psychotherapy services and the perpetrator:

(A) is providing or purporting to provide psychotherapy services to the victim; or

(B) is an employee, contractor, or volunteer of a facility that provides or purports to provide psychotherapy services to the victim and the perpetrator has supervisory or disciplinary authority over the victim;

(x) a student of an elementary, middle, junior high, or high school, whether public or nonpublic, and the perpetrator is not a student of an elementary, middle, junior high, or high school and is an employee, contractor, or volunteer of any school who has ever had instructional, supervisory, disciplinary, or other authority over the student in a school setting;

(xi) a witness in a criminal investigation or a person who is under investigation in a criminal matter and the perpetrator is a law enforcement officer who is involved with the case in which the victim is a witness or is being investigated; or

(xii) a parent or guardian involved in a child abuse or neglect proceeding under Title 41, chapter 3, and the perpetrator is:

(A) employed by the department of public health and human services for the purposes of carrying out the department's duties under Title 41, chapter 3; and

(B) directly involved in the parent or guardian's case or involved in the supervision of the case.

(c) Subsection (1)(b)(v) does not apply if the individuals are married to each other and one of the individuals involved is on probation, conditional release, or parole and the other individual is a probation or parole officer of a supervising authority.

(d) Subsections (1)(b)(vi) and (1)(b)(vii) do not apply if the individuals are married to each other and one of the individuals involved is a patient in or resident of a facility, is a recipient of community-based services, or is receiving services from a youth care facility and the other individual is an employee, contractor, or volunteer of the facility or community-based service.

(e) Subsection (1)(b)(viii) does not apply if the individuals are married to each other and one of the individuals involved is a program participant and the other individual is a person associated with the program.

(f) Subsection (1)(b)(ix) does not apply if the individuals are married to each other and one of the individuals involved is a psychotherapy client and the other individual is a psychotherapist or an employee, contractor, or volunteer of a facility that provides or purports to provide psychotherapy services to the client.

(g) Subsection (1)(b)(x) does not apply if the individuals are married to each other.

(2) As used in 45-5-508, the term "force" means:

(a) the infliction, attempted infliction, or threatened infliction of bodily injury or the commission of a forcible felony by the offender; or

(b) the threat of substantial retaliatory action that causes the victim to reasonably believe that the offender has the ability to execute the threat.

(3) As used in 45-5-502 and this section, the following definitions apply:

(a) "Conditional release", in the case of a youth offender, has the meaning provided in 41-5-103.

(b) "Parole", in the case of an adult offender, has the meaning provided in 46-1-202.

(c) "Probation" means:

(i) in the case of an adult offender, release without imprisonment of a defendant found guilty of a crime and subject to the supervision of a supervising authority; and

(ii) in the case of a youth offender, supervision of the youth by a youth court pursuant to Title 41, chapter 5.

(d) (i) "Psychotherapy services" means treatment, diagnosis, or counseling in a professional relationship to assist individuals or groups to alleviate behavioral or mental health disorders, understand unconscious or conscious motivation, resolve emotional, relationship, or attitudinal conflicts, or modify behaviors that interfere with effective emotional, social, or intellectual functioning regardless of whether the individual providing the psychotherapy services is licensed or unlicensed.

(ii) The term does not include a partner surrogate working with a clinical social worker,clinical professional counselor, or a marriage and family therapist as those professionals are licensed in Title 37, chapter 39.

(e) "Supervising authority" includes a court, including a youth court, a county, or the department of corrections.

History: En. 94-5-501 by Sec. 1, Ch. 513, L. 1973; amd. Sec. 2, Ch. 405, L. 1975; amd. Sec. 15, Ch. 359, L. 1977; R.C.M. 1947, 94-5-501; amd. Sec. 3, Ch. 175, L. 1991; amd. Sec. 1, Ch. 218, L. 1991; amd. Secs. 1, 8, Ch. 687, L. 1991; amd. Sec. 1, Ch. 84, L. 1999; amd. Sec. 1, Ch. 562, L. 2001; amd. Sec. 1, Ch. 321, L. 2007; amd. Sec. 1, Ch. 335, L. 2007; amd. Sec. 8, Ch. 161, L. 2015; amd. Sec. 2, Ch. 279, L. 2017; amd. Sec. 1, Ch. 133, L. 2019; amd. Sec. 1, Ch. 181, L. 2019; amd. Sec. 24, Ch. 344, L. 2019; amd. Sec. 1, Ch. 346, L. 2019; amd. Sec. 24, Ch. 713, L. 2023.

Notes of Decisions
Cited in 59 cases (14 in the last 5 years), 1980–2026 · leading case: State v. Haser, 2001 MT 6 (Mont. 2001).
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State v. Haser, 2001 MT 6 (Mont. 2001). · cites it 26× “As noted, the statutory definition of “physically helpless,” which is the only viable argument that the victims here were “incapable of consent” under § 45-5-501, MCA, was not presented to the jury.”
State v. Thorp, 2010 MT 92 (Mont. 2010). · cites it 12× “Section 45-5-501(1)(a), MCA. Thorp does not dispute that M.”
State v. Stevens, 2002 MT 181 (Mont. 2002). · cites it 16× “¶ 28 In relevant part, the term "without consent" is defined in § 45-5-501, MCA: (a) the victim is compelled to submit by force against himself or another; or (b) the victim is incapable of consent because he is: (i) mentally defective or incapacitated; [or] (ii) physically…”
State v. B. Hamernick, 2023 MT 249 (Mont. 2023). · cites it 27× “]” Section 45-5-501(1)(a), MCA. “[A]n expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn[.”
State v. Williams, 2010 MT 58 (Mont. 2010). · cites it 11× “¶27 Finally, the attendant circumstances of sexual assault-the ordinary definition of wdthout consent-represent a subset of “without consent” as defined under § 45-5-501(1), MCA. The ordinary meaning of “without consent” fits squarely within the definition under §…”
State v. G. Deveraux, 2022 MT 130 (Mont. 2022). · cites it 8× “5 “Without consent” then meant “the victim is compelled to submit by force against the victim or another,” § 45-5-501(1)(a)(i), MCA (2013), and “force” was defined as “the infliction, attempted infliction, or threatened infliction of bodily injury.”
State v. T. Lafournaise, 2022 MT 36 (Mont. 2022). · cites it 20× “SB 29 amended § 45-5-501(1), MCA, to define “consent” as follows: (1)(a) As used in 45-5-502, 45-5-503, and 45-5-508, the term ‘consent’ means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact and is further defined but not…”
State v. Lacey, 2012 MT 52 (Mont. 2012). · cites it 8× “having been intoxicated during the encounters. ¶32 Lacey argues that the State impermissibly relied on the multiple definitions of‘incapable of consent” at trial, contained in subsection (a) of § 45-5-501(1), MCA, without specifying which definition in the *298 information.”
State v. Ellis, 2009 MT 192 (Mont. 2009). · cites it 6× “Section 45-5-501, MCA. Notably both §§ 41-5-331 and 45-5-501, MCA, are meant to protect the youth, not the parent.”
Coleman v. State, 633 P.2d 624 (Mont. 1981). · cites it 5× “) This instruction is taken verbatim from section 45-5-501(1), MCA which defines the term "without consent" for all of the sexual offenses in the criminal code.”
State v. Shields, 2005 MT 249 (Mont. 2005). · cites it 6× “” Section 45-5-501, MCA, provides: (1) As used in 45-5-503, the term “without consent” means: (a) the victim is compelled to submit by force against the victim or another; or (b) the victim is incapable of consent because the victim is: (i) mentally defective or incapacitated;…”
State v. Detonancour, 2001 MT 213 (Mont. 2001). · cites it 4× “Therefore, I would reverse on the basis of the court's Instruction No.”
Show all 59 citing cases →
— Mont. Code Ann. § 45-5-501(1) — 12 cases
Coleman v. State, 633 P.2d 624 (Mont. 1981). “) This instruction is taken verbatim from section 45-5-501(1), MCA which defines the term "without consent" for all of the sexual offenses in the criminal code.”
State v. Detonancour, 2001 MT 213 (Mont. 2001). “Therefore, I would reverse on the basis of the court's Instruction No.”
State v. Graves, 901 P.2d 549 (Mont. 1995).
State v. Williams, 2010 MT 58 (Mont. 2010). “¶27 Finally, the attendant circumstances of sexual assault-the ordinary definition of wdthout consent-represent a subset of “without consent” as defined under § 45-5-501(1), MCA. The ordinary meaning of “without consent” fits squarely within the definition under §…”
State v. Lacey, 2012 MT 52 (Mont. 2012). “having been intoxicated during the encounters. ¶32 Lacey argues that the State impermissibly relied on the multiple definitions of‘incapable of consent” at trial, contained in subsection (a) of § 45-5-501(1), MCA, without specifying which definition in the *298 information.”
— Mont. Code Ann. § 45-5-501(1)(a) — 3 cases
State v. B. Hamernick, 2023 MT 249 (Mont. 2023). “]” Section 45-5-501(1)(a), MCA. “[A]n expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn[.”
State v. Thorp, 2010 MT 92 (Mont. 2010). “Section 45-5-501(1)(a), MCA. Thorp does not dispute that M.”
State v. L. Ernst, 2025 MT 89 (Mont. 2025).
— Mont. Code Ann. § 45-5-501(1)(a)(i) — 7 cases
State v. G. Deveraux, 2022 MT 130 (Mont. 2022). “5 “Without consent” then meant “the victim is compelled to submit by force against the victim or another,” § 45-5-501(1)(a)(i), MCA (2013), and “force” was defined as “the infliction, attempted infliction, or threatened infliction of bodily injury.”
State v. B. Hamernick, 2023 MT 249 (Mont. 2023). “]” Section 45-5-501(1)(a), MCA. “[A]n expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn[.”
State v. T. Lafournaise, 2022 MT 36 (Mont. 2022). “SB 29 amended § 45-5-501(1), MCA, to define “consent” as follows: (1)(a) As used in 45-5-502, 45-5-503, and 45-5-508, the term ‘consent’ means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact and is further defined but not…”
State v. Ghostbear, 338 P.3d 25 (Mont. 2014).
State v. R. Lerman, 2018 MT 5 (Mont. 2018).
— Mont. Code Ann. § 45-5-501(1)(a)(ii) — 1 case
State v. Ghostbear, 2014 MT 192 (Mont. 2014).
— Mont. Code Ann. § 45-5-501(1)(a)(ii)(C) — 1 case
State v. T. Lafournaise, 2022 MT 36 (Mont. 2022). “SB 29 amended § 45-5-501(1), MCA, to define “consent” as follows: (1)(a) As used in 45-5-502, 45-5-503, and 45-5-508, the term ‘consent’ means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact and is further defined but not…”
— Mont. Code Ann. § 45-5-501(1)(a)(ii)(D) — 1 case
State v. T. Lafournaise, 2022 MT 36 (Mont. 2022). “SB 29 amended § 45-5-501(1), MCA, to define “consent” as follows: (1)(a) As used in 45-5-502, 45-5-503, and 45-5-508, the term ‘consent’ means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact and is further defined but not…”
— Mont. Code Ann. § 45-5-501(1)(a)(ii)(E) — 1 case
State v. Brunell, 2017 MT 77N (Mont. 2017).
— Mont. Code Ann. § 45-5-501(1)(b) — 1 case
State v. B. Hamernick, 2023 MT 249 (Mont. 2023). “]” Section 45-5-501(1)(a), MCA. “[A]n expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn[.”
— Mont. Code Ann. § 45-5-501(1)(b)(i) — 2 cases
State v. Gould, 902 P.2d 532 (Mont. 1995).
L.B. v. United States, 2022 MT 166 (Mont. 2022).
— Mont. Code Ann. § 45-5-501(1)(b)(ii) — 2 cases
State v. Stevens, 2002 MT 181 (Mont. 2002). “¶ 28 In relevant part, the term "without consent" is defined in § 45-5-501, MCA: (a) the victim is compelled to submit by force against himself or another; or (b) the victim is incapable of consent because he is: (i) mentally defective or incapacitated; [or] (ii) physically…”
State v. R. Lerman, 2018 MT 5 (Mont. 2018).
— Mont. Code Ann. § 45-5-501(1)(b)(iii) — 2 cases
State v. Harris, 1999 MT 115 (Mont. 1999).
State v. T. Lafournaise, 2022 MT 36 (Mont. 2022). “SB 29 amended § 45-5-501(1), MCA, to define “consent” as follows: (1)(a) As used in 45-5-502, 45-5-503, and 45-5-508, the term ‘consent’ means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact and is further defined but not…”
— Mont. Code Ann. § 45-5-501(1)(b)(iv) — 2 cases
Planned Parenthood v. State, 2024 MT 178 (Mont. 2024).
Matter of D.A.T., A Youth., 2022 MT 174 (Mont. 2022).
— Mont. Code Ann. § 45-5-501(1)(b)(v) — 1 case
Bilbruck v. Valley Cnty. (D. Mont. 2024).
— Mont. Code Ann. § 45-5-501(1)(b)(x) — 1 case
State v. R. Adsit, Jr., 2022 MT 39N (Mont. 2022).
— Mont. Code Ann. § 45-5-501(1)(b)(xi) — 2 cases
L.B. v. United States, 2022 MT 166 (Mont. 2022).
Bilbruck v. Valley Cnty. (D. Mont. 2024).
— Mont. Code Ann. § 45-5-501(2) — 5 cases
State v. Haser, 2001 MT 6 (Mont. 2001). “As noted, the statutory definition of “physically helpless,” which is the only viable argument that the victims here were “incapable of consent” under § 45-5-501, MCA, was not presented to the jury.”
State v. Stevens, 2002 MT 181 (Mont. 2002). “¶ 28 In relevant part, the term "without consent" is defined in § 45-5-501, MCA: (a) the victim is compelled to submit by force against himself or another; or (b) the victim is incapable of consent because he is: (i) mentally defective or incapacitated; [or] (ii) physically…”
State v. Shields, 2005 MT 249 (Mont. 2005). “” Section 45-5-501, MCA, provides: (1) As used in 45-5-503, the term “without consent” means: (a) the victim is compelled to submit by force against the victim or another; or (b) the victim is incapable of consent because the victim is: (i) mentally defective or incapacitated;…”
State v. Woods, 662 P.2d 579 (Mont. 1983).
State v. R. Lerman, 2018 MT 5 (Mont. 2018).
— Mont. Code Ann. § 45-5-501(2)(a) — 3 cases
State v. G. Deveraux, 2022 MT 130 (Mont. 2022). “5 “Without consent” then meant “the victim is compelled to submit by force against the victim or another,” § 45-5-501(1)(a)(i), MCA (2013), and “force” was defined as “the infliction, attempted infliction, or threatened infliction of bodily injury.”
State v. Stevens, 2002 MT 181 (Mont. 2002). “¶ 28 In relevant part, the term "without consent" is defined in § 45-5-501, MCA: (a) the victim is compelled to submit by force against himself or another; or (b) the victim is incapable of consent because he is: (i) mentally defective or incapacitated; [or] (ii) physically…”
State v. T. Lafournaise, 2022 MT 36 (Mont. 2022). “SB 29 amended § 45-5-501(1), MCA, to define “consent” as follows: (1)(a) As used in 45-5-502, 45-5-503, and 45-5-508, the term ‘consent’ means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact and is further defined but not…”
— Mont. Code Ann. § 45-5-501(2)(c) — 2 cases
State v. Pease, 740 P.2d 659 (Mont. 1987).
State v. Whitcher, 810 P.2d 751 (Mont. 1991).
— Mont. Code Ann. § 45-5-501(3)(b)(ii) — 2 cases
In re K.J.R., 391 P.3d 71 (Mont. 2017).
State v. K.J.R., 2017 MT 45 (Mont. 2017).
— Mont. Code Ann. § 45-5-501(7) — 1 case
State v. Woods, 662 P.2d 579 (Mont. 1983).
— Mont. Code Ann. § 45-5-501(a) — 1 case
State v. Pierce, 647 P.2d 847 (Mont. 1982).
— Mont. Code Ann. § 45-5-501(b)(iii) — 1 case
State v. Little, 861 P.2d 154 (Mont. 1993).
— Mont. Code Ann. § 45-5-501(l)(a) — 2 cases
State v. Thorp, 2010 MT 92 (Mont. 2010). “Section 45-5-501(1)(a), MCA. Thorp does not dispute that M.”
State v. Haser, 2001 MT 6 (Mont. 2001). “As noted, the statutory definition of “physically helpless,” which is the only viable argument that the victims here were “incapable of consent” under § 45-5-501, MCA, was not presented to the jury.”
— Mont. Code Ann. § 45-5-501(l)(a)(ii) — 2 cases
State v. Lacey, 2012 MT 52 (Mont. 2012). “having been intoxicated during the encounters. ¶32 Lacey argues that the State impermissibly relied on the multiple definitions of‘incapable of consent” at trial, contained in subsection (a) of § 45-5-501(1), MCA, without specifying which definition in the *298 information.”
State v. Ghostbear, 338 P.3d 25 (Mont. 2014).
— Mont. Code Ann. § 45-5-501(l)(a)(ii)(C) — 1 case
State v. Joseph Geren, 2012 MT 307 (Mont. 2012).
— Mont. Code Ann. § 45-5-501(l)(a)(ii)(D) — 3 cases
United States v. Faustino Gomez, 757 F.3d 885 (9th Cir. 2014).
State v. Williams, 2010 MT 58 (Mont. 2010). “¶27 Finally, the attendant circumstances of sexual assault-the ordinary definition of wdthout consent-represent a subset of “without consent” as defined under § 45-5-501(1), MCA. The ordinary meaning of “without consent” fits squarely within the definition under §…”
State v. McAlister, 2016 MT 14 (Mont. 2016).
— Mont. Code Ann. § 45-5-501(l)(b) — 1 case
State v. Haser, 2001 MT 6 (Mont. 2001). “As noted, the statutory definition of “physically helpless,” which is the only viable argument that the victims here were “incapable of consent” under § 45-5-501, MCA, was not presented to the jury.”
— Mont. Code Ann. § 45-5-501(l)(b)(ii) — 3 cases
State v. Haser, 2001 MT 6 (Mont. 2001). “As noted, the statutory definition of “physically helpless,” which is the only viable argument that the victims here were “incapable of consent” under § 45-5-501, MCA, was not presented to the jury.”
State v. Shields, 2005 MT 249 (Mont. 2005). “” Section 45-5-501, MCA, provides: (1) As used in 45-5-503, the term “without consent” means: (a) the victim is compelled to submit by force against the victim or another; or (b) the victim is incapable of consent because the victim is: (i) mentally defective or incapacitated;…”
State v. Stevens, 2002 MT 181 (Mont. 2002). “¶ 28 In relevant part, the term "without consent" is defined in § 45-5-501, MCA: (a) the victim is compelled to submit by force against himself or another; or (b) the victim is incapable of consent because he is: (i) mentally defective or incapacitated; [or] (ii) physically…”
— Mont. Code Ann. § 45-5-501(l)(b)(iii) — 4 cases
State v. Weeks, 891 P.2d 477 (Mont. 1995).
State v. Harris, 1999 MT 115 (Mont. 1999).
State v. Passmore, 2010 MT 34 (Mont. 2010).
State v. Muir, 867 P.2d 1094 (Mont. 1994).
— Mont. Code Ann. § 45-5-501(l)(i) — 1 case
State v. Williams, 2010 MT 58 (Mont. 2010). “¶27 Finally, the attendant circumstances of sexual assault-the ordinary definition of wdthout consent-represent a subset of “without consent” as defined under § 45-5-501(1), MCA. The ordinary meaning of “without consent” fits squarely within the definition under §…”
— Mont. Code Ann. § 45-5-501(l)(ii)(D) — 1 case
State v. Williams, 2010 MT 58 (Mont. 2010). “¶27 Finally, the attendant circumstances of sexual assault-the ordinary definition of wdthout consent-represent a subset of “without consent” as defined under § 45-5-501(1), MCA. The ordinary meaning of “without consent” fits squarely within the definition under §…”
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