Citation. 2012 NY Slip Op 04582 (App Div, 4th Dept June 08, 2012) [2012 BL 141471]
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Brief Fact Summary.
The defendant, Gerald Roy Thompson, was accused of two counts of sexual intercourse without consent and one count of sexual assault. He moved to dismiss the sexual intercourse without consent counts on the ground that there was a lack of probable cause in the affidavits that he threatened the victim.
Synopsis of Rule of Law.
Under the Montana rape law, a victim acts without consent if threatened, but the threat must be of “imminent death, bodily injury, or kidnapping.”
The defendant, a principal and boys basketball coach, was accused of two counts of sexual intercourse without consent and one count of sexual assault. Allegedly, the defendant had sex with a student, Jane Doe, by threatening her that she would not graduate unless she had sex with him. The defendant sought to have the sexual intercourse without consent charges dismissed on the ground that the threat was not of “imminent death, bodily injury, or kidnapping.” The trial court dismissed the counts, and the state appealed.
Did the district court err when it granted the defendant’s motion to dismiss Counts I and II of the information charging defendant with sexual intercourse without consent for failure to state offenses?
No. Under Montana law, a person who knowingly has sexual intercourse without consent with a person of the opposite sex commits the offense of sexual intercourse without consent. “Without consent” means the victim is compelled to submit by force or threat of “imminent death, bodily injury, or kidnapping.” Importantly, the statute also states, “No other circumstances relating to force or threat eliminate consent under the statute.” Thus, the defendant’s threat, if true, that the victim will not graduate unless she had sex with him, while disgusting, does not constitute a sufficient threat under Montana law for the defendant to be guilty of sexual intercourse without consent. The counts against the defendant were properly dismissed.
Montana, at least at the time of this case, adhered to the notion that a threat is insufficient to constitute rape unless the threat is of physical harm. Many states reject this rather strict notion and extend the definition of “without consent” to include any threat, regardless of whether the threat is of bodily harm.