Under Title 45 of Montana Law, Essay Example

Under Title 45 of Montana law, 5-206, domestic violence is defined in terms of the following: “purposely or knowingly” causing “bodily injury to a partner or family member”; negligently doing the same by means of a weapon, or “purposely or knowingly” causing “reasonable apprehension of bodily injury in a partner or family member” (45-5-206). A significant strength of this definition is the array of harms that it covers: not only intentional physical injury, but also negligent physical injury with a weapon and—very significantly—apprehension of bodily injury. An arguable weakness is that it does not specifically mention rape, which is dealt with elsewhere (45-5-502, 45-5-503, 45-5-507).

45-5-220 covers stalking, which is defined in terms of causing “substantial emotional distress” as well as fears for bodily safety and life. Montana law also covers a broad range of relationships: a family member is defined in terms not only of marriage and children, but also adoption and remarriage (45-5-206). This is certainly a strength in many ways, but the law could arguably be improved by including ‘common-law’ partnerships and the families created by such partnerships as well.  

The definition of partners includes “spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex” (45-5-206). A notable exclusion here is same-sex couples, as well as transgendered persons: no provision is made for them in this definition, and they are not accorded any recognition whatsoever. As such, this is a significant weakness of the statute.

Another arguable weakness is the emphasis on bodily injury, without due consideration of other kinds of abuse that might be experienced as deeply traumatic. To be sure, a focus on bodily injury is understandable and to no small extent necessary, but perhaps the statute would benefit from incorporating a broader understanding of abuse. The statute against stalking does much of this, but harassment in the context of domestic relationships also needs to be considered.

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