Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                             SB 345.1
                                                SENATE BILL NO. 345
                                           INTRODUCED BY M. NOLAND
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  A BILL FOR AN ACT ENTITLED: “AN ACT REVISING LAWS RELATED TO SEXUAL OFFENDERS;
  REDEFINING DEVIATE SEXUAL RELATIONS TO INCLUDE SEXUAL INTERCOURSE WITH DEAD HUMAN
  BODIES; PROHIBITING DEVIATE SEXUAL CONDUCT WITH DEAD HUMAN BODIES; PROVIDING THAT
  THE NAME AND ADDRESS OF CERTAIN LEVEL 1 SEXUAL OFFENDERS ARE AVAILABLE TO VICTIMS
  BUT ARE NO LONGER PUBLISHED AND AVAILABLE TO THE PUBLIC; PROVIDING THAT LEVEL 1
  SEXUAL OFFENDERS ARE STILL REQUIRED TO REGISTER ON THE SEXUAL AND VIOLENT OFFENDER
  REGISTRY; REVISING DEFINITIONS; AND AMENDING SECTIONS 40-4-219, 45-2-101, 46-23-502, AND 46-
  23-508, MCA.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          Section 1. Section 40-4-219, MCA, is amended to read:
          "40-4-219.   Amendment of parenting plan -- mediation. (1) The court may in its discretion amend a
  prior parenting plan if it finds, upon the basis of facts that have arisen since the prior plan or that were unknown
  to the court at the time of entry of the prior plan, that a change has occurred in the circumstances of the child
  and that the amendment is necessary to serve the best interest of the child.
          (a)      In determining how a proposed change will affect the child, the court shall consider the
  potential impact of the change on the criteria in 40-4-212 and whether:
          (i)      the parents agree to the amendment;
          (ii)     the child has been integrated into the family of the petitioner with consent of the parents;
          (iii)    the child is 14 years of age or older and desires the amendment; or
          (iv)     one parent has willfully and consistently:
          (A)      refused to allow the child to have any contact with the other parent; or
          (B)      attempted to frustrate or deny contact with the child by the other parent.
          (b)      If one parent has changed or intends to change the child's residence in a manner that
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68th Legislature 2023                                                                                                  SB 345.1
  significantly affects the child's contact with the other parent, the court shall consider, in addition to all the criteria
  in 40-4-212 and subsection (1)(a):
             (i)     the feasibility of preserving the relationship between the nonrelocating parent and the child
  through suitable visitation arrangements, considering the logistics and financial circumstances of the parties;
             (ii)    the reasons of each parent for seeking or opposing the change of residence;
             (iii)   whether the parent seeking to change the child's residence has demonstrated a willingness to
  promote the relationship between the child and the nonrelocating parent; and
             (iv)    whether reasonable alternatives to the proposed change of residence are available to the
  parent seeking to relocate.
             (2)     A court may modify a de facto parenting arrangement in accordance with the factors set forth in
  40-4-212.
             (3)     The court shall presume a parent is not acting in the child's best interest if the parent does any
  of the acts specified in subsection (1)(a)(iv) or (8).
             (4)     The court may amend the prior parenting plan based on subsection (1)(b) to provide a new
  residential schedule for parental contact with the child and to apportion transportation costs between the
  parents.
             (5)     Attorney fees and costs must be assessed against a party seeking frivolous or repeated
  amendment if the court finds that the amendment action is vexatious and constitutes harassment.
             (6)     A parenting plan may be amended pursuant to 40-4-221 upon the death of one parent.
             (7)     As used in this section, "prior parenting plan" means a parenting determination contained in a
  judicial decree or order made in a parenting proceeding. In proceedings for amendment under this section, a
  proposed amended parenting plan must be filed and served with the motion for amendment and with the
  response to the motion for amendment. Preference must be given to carrying out the parenting plan.
             (8)     (a) If a parent or other person residing in that parent's household has been convicted of any of
  the crimes listed in subsection (8)(b), the other parent or any other person who has been granted rights to the
  child pursuant to court order may file an objection to the current parenting order with the court. The parent or
  other person having rights to the child pursuant to court order shall give notice to the other parent of the
  objection as provided by the Montana Rules of Civil Procedure, and the other parent has 21 days from the
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68th Legislature 2023                                                                                             SB 345.1
  notice to respond. If the parent who receives notice of objection fails to respond within 21 days, the parenting
  rights of that parent are suspended until further order of the court. If that parent responds and objects, a hearing
  must be held within 30 days of the response.
          (b)      This subsection (8) applies to the following crimes:
          (i)      deliberate homicide, as described in 45-5-102;
          (ii)     mitigated deliberate homicide, as described in 45-5-103;
          (iii)    sexual assault, as described in 45-5-502;
          (iv)     sexual intercourse without consent, as described in 45-5-503;
          (v)      deviate sexual conduct with an animal or dead human body, as described in 45-2-101 and
  prohibited under 45-8-218;
          (vi)     incest, as described in 45-5-507;
          (vii)    aggravated promotion of prostitution of a child, as described in 45-5-603(1)(b);
          (viii)   endangering the welfare of children, as described in 45-5-622;
          (ix)     partner or family member assault of the type described in 45-5-206(1)(a);
          (x)      sexual abuse of children, as described in 45-5-625; and
          (xi)     strangulation of a partner or family member, as described in 45-5-215.
          (9)      Except in cases of physical, sexual, or emotional abuse or threat of physical, sexual, or
  emotional abuse by one parent against the other parent or the child or when a parent has been convicted of a
  crime enumerated in subsection (8)(b), the court may, in its discretion, order the parties to participate in a
  dispute resolution process to assist in resolving any conflicts between the parties regarding amendment of the
  parenting plan. The dispute resolution process may include counseling or mediation by a specified person or
  agency, and court action.
          (10)     (a) Except as provided in subsection (10)(b), a court-ordered or de facto modification of a
  parenting plan based in whole or in part on military service orders of a parent is temporary and reverts to the
  previous parenting plan at the end of the military service. If a motion for an amendment of a parenting plan is
  filed after a parent returns from military service, the court may not consider a parent's absence due to that
  military service in its determination of the best interest of the child.
          (b)      A parent who has performed or is performing military service, as defined in 10-1-1003, may
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68th Legislature 2023                                                                                              SB 345.1
  consent to a temporary or permanent modification of a parenting plan:
           (i)      for the duration of the military service; or
           (ii)     that continues past the end of the military service."
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           Section 2. Section 45-2-101, MCA, is amended to read:
           "45-2-101.    General definitions. Unless otherwise specified in the statute, all words must be taken in
  the objective standard rather than in the subjective, and unless a different meaning plainly is required, the
  following definitions apply in this title:
           (1)      "Acts" has its usual and ordinary meaning and includes any bodily movement, any form of
  communication, and when relevant, a failure or omission to take action.
           (2)      "Administrative proceeding" means a proceeding the outcome of which is required to be based
  on a record or documentation prescribed by law or in which a law or a regulation is particularized in its
  application to an individual.
           (3)      "Another" means a person or persons other than the offender.
           (4)      (a) "Benefit" means gain or advantage or anything regarded by the beneficiary as gain or
  advantage, including benefit to another person or entity in whose welfare the beneficiary is interested.
           (b)      Benefit does not include an advantage promised generally to a group or class of voters as a
  consequence of public measures that a candidate engages to support or oppose.
           (5)      "Bodily injury" means physical pain, illness, or an impairment of physical condition and includes
  mental illness or impairment.
           (6)      "Child" or "children" means any individual or individuals under 18 years of age, unless a
  different age is specified.
           (7)      "Cohabit" means to live together under the representation of being married.
           (8)      "Common scheme" means a series of acts or omissions resulting in a pecuniary loss to the
  victim of at least $1,500, or $1,500 in value, motivated by a purpose to accomplish a single criminal objective or
  by a common purpose or plan that results in the repeated commission of the same offense or that affects the
  same person or the same persons or the property of the same person or persons.
           (9)      "Computer" means an electronic device that performs logical, arithmetic, and memory functions
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68th Legislature 2023                                                                                                   SB 345.1
  by the manipulation of electronic or magnetic impulses and includes all input, output, processing, storage,
  software, or communication facilities that are connected or related to that device in a system or network.
           (10)     "Computer network" means the interconnection of communication systems between computers
  or computers and remote terminals.
           (11)     "Computer program" means an instruction or statement or a series of instructions or
  statements, in a form acceptable to a computer, that in actual or modified form permits the functioning of a
  computer or computer system and causes it to perform specified functions.
           (12)     "Computer services" include but are not limited to computer time, data processing, and storage
  functions.
           (13)     "Computer software" means a set of computer programs, procedures, and associated
  documentation concerned with the operation of a computer system.
           (14)     "Computer system" means a set of related, connected, or unconnected devices, computer
  software, or other related computer equipment.
           (15)     "Conduct" means an act or series of acts and the accompanying mental state.
           (16)     "Conviction" means a judgment of conviction and sentence entered upon a plea of guilty or
  nolo contendere or upon a verdict or finding of guilty of an offense rendered by a legally constituted jury or by a
  court of competent jurisdiction authorized to try the case without a jury.
           (17)     "Correctional institution" means a state prison, detention center, multijurisdictional detention
  center, private detention center, regional correctional facility, private correctional facility, or other institution for
  the incarceration of inmates under sentence for offenses or the custody of individuals awaiting trial or sentence
  for offenses.
           (18)     "Deception" means knowingly to:
           (a)      create or confirm in another an impression that is false and that the offender does not believe
  to be true;
           (b)      fail to correct a false impression that the offender previously has created or confirmed;
           (c)      prevent another from acquiring information pertinent to the disposition of the property involved;
           (d)      sell or otherwise transfer or encumber property without disclosing a lien, adverse claim, or
  other legal impediment to the enjoyment of the property, whether the impediment is or is not of value or is or is
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68th Legislature 2023                                                                                                 SB 345.1
  not a matter of official record; or
           (e)          promise performance that the offender does not intend to perform or knows will not be
  performed. Failure to perform, standing alone, is not evidence that the offender did not intend to perform.
           (19)         "Defamatory matter" means anything that exposes a person or a group, class, or association to
  hatred, contempt, ridicule, degradation, or disgrace in society or to injury to the person's or its business or
  occupation.
           (20)         "Deprive" means:
           (a)          to withhold property of another:
           (i)          permanently;
           (ii)         for such a period as to appropriate a portion of its value; or
           (iii)        with the purpose to restore it only upon payment of reward or other compensation; or
           (b)          to dispose of the property of another and use or deal with the property so as to make it unlikely
  that the owner will recover it.
           (21)         "Deviate sexual relations" means any form of sexual intercourse with an animal or dead human
  body.
           (22)         "Document" means, with respect to offenses involving the medicaid program, any application,
  claim, form, report, record, writing, or correspondence, whether in written, electronic, magnetic, microfilm, or
  other form.
           (23)         "Felony" means an offense in which the sentence imposed upon conviction is death or
  imprisonment in a state prison for a term exceeding 1 year.
           (24)         "Forcible felony" means a felony that involves the use or threat of physical force or violence
  against any individual.
           (25)         A "frisk" is a search by an external patting of a person's clothing.
           (26)         "Government" includes a branch, subdivision, or agency of the government of the state or a
  locality within it.
           (27)         "Harm" means loss, disadvantage, or injury or anything so regarded by the person affected,
  including loss, disadvantage, or injury to a person or entity in whose welfare the affected person is interested.
           (28)         A "house of prostitution" means a place where prostitution or promotion of prostitution is
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68th Legislature 2023                                                                                                  SB 345.1
  regularly carried on by one or more persons under the control, management, or supervision of another.
            (29)   "Human being" means a person who has been born and is alive.
            (30)   An "illegal article" is an article or thing that is prohibited by statute, rule, or order from being in
  the possession of a person subject to official detention.
            (31)   "Inmate" means a person who is confined in a correctional institution.
            (32)   (a) "Intoxicating substance" means a controlled substance, as defined in Title 50, chapter 32,
  and an alcoholic beverage, including but not limited to a beverage containing 1/2 of 1% or more of alcohol by
  volume.
            (b)    Intoxicating substance does not include dealcoholized wine or a beverage or liquid produced
  by the process by which beer, ale, port, or wine is produced if it contains less than 1/2 of 1% of alcohol by
  volume.
            (33)   An "involuntary act" means an act that is:
            (a)    a reflex or convulsion;
            (b)    a bodily movement during unconsciousness or sleep;
            (c)    conduct during hypnosis or resulting from hypnotic suggestion; or
            (d)    a bodily movement that otherwise is not a product of the effort or determination of the actor,
  either conscious or habitual.
            (34)   "Juror" means a person who is a member of a jury, including a grand jury, impaneled by a court
  in this state in an action or proceeding or by an officer authorized by law to impanel a jury in an action or
  proceeding. The term "juror" also includes a person who has been drawn or summoned to attend as a
  prospective juror.
            (35)   "Knowingly"--a person acts knowingly with respec