Montana (2017/2019/2020)


MT. STAT.  §40-5-215. STRANGULATION OF PARTNER OR FAMILY MEMBER

(1) A person commits the offense of strangulation of a partner or family member if the person purposely or knowingly impedes the normal breathing or circulation of the blood of a partner or family member by:

(a) Applying pressure on the throat or neck of the partner or family member; or

(b) Blocking air flow to the nose or mouth of the partner or family.

(2)(a) A person convicted of a first offense of strangulation of a partner or family member shall be fined an amount not to exceed $50,000 or be imprisoned in the state prison for a term not to exceed 5 years, or both;

(b) A person convicted of a second or subsequent offense under this section shall be imprisoned in the state prison for a term of not less than 2 years or more than 20 years and may be fined an amount not more than $50,000, except as provided in 46-18-219 and 46-18-222.>

(3) A person convicted of strangulation of a partner or family member is required to pay for and complete a counseling assessment as required in 45-5-206(4).

(4) For the purposes of this section, “partner” and “family member” have the meanings provided in 45-5-206.

MT. STAT.  §41-3-301. EMERGENCY PROTECTIVE SERVICES

(1) Any child protective social worker of the department, a peace officer, or the county attorney who has reason to believe any child is in immediate or apparent danger of harm may immediately remove the child and place the child in a protective facility. After ensuring that the child is safe, the department may make a request for further assistance from the law enforcement agency or take appropriate legal action. The person or agency placing the child shall notify the parents, parent, guardian, or other person having physical or legal custody of the child of the placement at the time the placement is made or as soon after placement as possible. Notification under this subsection must include the reason for removal, information regarding the show cause hearing, and the purpose of the show cause hearing and must advise the parents, parent, guardian, or other person having physical or legal custody of the child that the parents, parent, guardian, or other person may have a support person present during any in-person meeting with the social worker concerning emergency protective services.

(2) If a social worker of the department, a peace officer, or the county attorney determines in an investigation of abuse or neglect of a child that the child is in danger because of the occurrence of partner or family member assault, as provided for in 45-5-206, or strangulation of a partner or family member, as provided for in 45-5-215, against an adult member of the household or that the child needs protection as a result of the occurrence of partner or family member assault or strangulation of a partner or family member against an adult member of the household, the department shall take appropriate steps for the protection of the child, which may include:

(a) making reasonable efforts to protect the child and prevent the removal of the child from the parent or guardian who is a victim of alleged partner or family member assault or strangulation of a partner or family member;

(b) making reasonable efforts to remove the person who allegedly committed the partner or family member assault or strangulation of a partner or family member from the child’s residence if it is determined that the child or another family or household member is in danger of partner or family member assault or strangulation of a partner or family member; and

(c) providing services to help protect the child from being placed with or having unsupervised visitation with the person alleged to have committed partner or family member assault or strangulation of a partner or family member until the department determines that the alleged offender has met conditions considered necessary to protect the safety of the child

(3) If the department determines that an adult member of the household is the victim of partner or family member assault or strangulation of a partner or family member, the department shall provide the adult victim with a referral to a domestic violence program.

(4) A child who has been removed from the child’s home or any other place for the child’s protection or care may not be placed in a jail.

(5) The department may locate and contact extended family members upon placement of a child in out-of-home care. The department may share information with extended family members for placement and case planning purposes.

(6) If a child is removed from the child’s home by the department, a child protective social worker shall submit an affidavit regarding the circumstances of the emergency removal to the county attorney and provide a copy of the affidavit to the parents or guardian, if possible, within 2 working days of the emergency removal. An abuse and neglect petition must be filed within 5 working days, excluding weekends and holidays, of the emergency removal of a child unless arrangements acceptable to the agency for the care of the child have been made by the parents or voluntary protective services are provided pursuant to 41-3-302.

(7) Except as provided in the federal Indian Child Welfare Act, if applicable, a show cause hearing must be held within 20 days of the filing of the petition unless otherwise stipulated by the parties pursuant to 41-3-434.

(8) If the department determines that a petition for immediate protection and emergency protective services must be filed to protect the safety of the child, the social worker shall interview the parents of the child to whom the petition pertains, if the parents are reasonably available, before the petition may be filed. The district court may immediately issue an order for immediate protection of the child.

(9) The department shall make the necessary arrangements for the child’s well-being as are required prior to the court hearing.

STATE V. PORTER, 390 MONT. 174 (Feb 2018)

In State v. Porter, the prosecution proved strangulation occurred without the victim’s testimony through a well-conducted investigation, a well-documented domestic violence forensic exam and the hearsay statements the victim made to the medical team. Her statements were admitted by the court using the medical diagnosis exception.

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U.S. v. LAMOTT (2016, Montana) 831 F.3d 1153

Assault by strangulation under 18 U.S.C. Section 113(a)(8) is a general intent crime.

Many domestic violence offenders and rapists do not strangle their partners to kill them; they strangle them to let them know they can kill them –any time they wish – Casey Gwinn from the Strangulation Manual (2013)

 

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