Senator Tom Facey (D-Missoula)
A bill to remove a state law criminalizing homosexual sex continues its path through the legislature.
The law in question was declared unconstitutional by the Montana Supreme Court in 1997, but still remains on the books. A bill to remove that obsolete language has come before lawmakers multiple times before, unsuccessfully.
The bill this session (SB107) passed the Senate 38 to 11 and is now before the House Judiciary Committee. Sponsor, Missoula Democratic Senator Tom Facey says it’s practical to remove a law declared unconstitutional.
“Law enforcement can be confused with this statute on our books. Anybody that can be charged with this crime, the case would be thrown out in the first court it came to,” Facey said during the bill’s Friday hearing. Supporters of Facey’s bill say the law only still exists on the books to be hurtful to homosexuals.
Opponent Dallas Erickson, representing a group called Montana Citizens for Decency Through Law, agrees the Supreme Court has ruled on consenting homosexual adults, and accepts removing language criminalizing them from law. But he wants to keep the rest of the law intact concerning homosexual rape.
“As a former law enforcement officer, I saw the harm in deviant sexual rape of children of harm and adults,” he said. “There is harm that does not exist necessarily with other forms of rape.”
Supporters of the bill say rape is addressed sufficiently in other parts of state law, and discriminating upon the gender of someone accused of rape is unconstitutional.
The bill to remove the law now waits for action from the House Judiciary Committee.
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