In order to charge someone for sexual assault, Montana prosecutors previously had to prove the survivor was violently attacked or threatened, but SB 26 dictates that a lack of consent if enough to prove rape. Now, SB 29 allows violent attacks to be charged as aggravated sexual assault, including when the survivor is incapable of consent (such as when the survivor is asleep or drugged).
Montana state Sen. Diane Sands, who sponsored two of the new laws aimed at protecting sexual assault survivors, told The Missoulian that most of the previous laws were passed in the 1970s, when Americans had a very different idea of what sexual assault was. "We have had many cases of a sexual assault that everyone agrees was a sexual assault [but] isn’t a sexual assault under the law," she said.
The midwestern state is ahead of the curve in terms of bringing sexual assault laws into the modern age. Northwestern law professor Deborah Tuerkheimer wrote for The Guardian in 2014: "The first-year law students I teach – smart, insightful, idealistic – have come of age hearing that 'no means no' when it comes to sex. They are almost always stunned to learn that, in most states, the legal definition of rape still requires the use of physical force. In other words, a verbal 'no' isn't always enough."
A few states have recently passed laws redefining rape and consent, including Maryland, which passed a law in April removing the requirement for survivors to prove they fought back. But overall, not much has changed.
North Carolina could soon follow Montana's lead in updating its legal definition of consent. State Sen. Jeff Jackson has proposed a bill to mandate that "a person who continues to engage in intercourse after consent is withdrawn" has committed rape. The proposed North Carolina law would only apply to vaginal penetration, but would establish the legal right to withdraw consent in the middle of sex, "even if the actual penetration is accomplished with consent and even if there is only one act of vaginal intercourse."
Clear sexual assault laws allow perpetrators to be prosecuted and punished, so bringing these laws up to date is a vital step toward protecting survivors.