HELENA, Mont. – Whatever happened to scuttle HB 129, a bill designed to augment Montana’s efforts to fight “revenge porn,” it’s safe to say the event does not represent a high-water mark in the history of governmental transparency.
In a vote following the second reading of the bill, the legislature approved the measure by a vote of 39-11. A subsequent vote taken after the third reading of the bill took a dramatic turn in the other direction, however, when state senators voted 50-0 — or unanimously — against the measure.
To the extent Montana’s legislators have commented about the situation at all, their explanations haven’t been entirely satisfactory.
“I’m just learning about this today,” said the bill’s main sponsor in the state House, Democratic Rep. Ellie Hill Smith, following last Friday’s unanimous vote against the legislation in the state Senate. “This is all unfortunate, because this bill was the result of 15 months of bipartisan work to update our sexual assault laws.”
Smith blamed the defeat of the bill on a “poison pill” inserted into the statutory language, but didn’t elaborate as to which language she was referring.
Sen. Tom Facey, Smith’s fellow democrat in the Senate, said there was “miscommunication between some of the stakeholders and some of our senators.”
“The miscommunication had to do whether the amendments were acceptable to the stakeholder groups,” Facey said.
While it’s not clear from published reports whether it was the amendment (or “poison pill” to use Smith’s description) that sank the bill, Republican Sen. Keith Regier won support for adding the words “financially profit” to §45-8-213, Montana’s existing law regarding “privacy in communications.”
While he didn’t specify why this is the case, Facey said the introduction of the phrase into HB 129 took it from being an already controversial measure to one that enjoyed zero support in the Senate.
“The bill was barely acceptable before that amendment got on,” Facey said. “It went from barely acceptable to finally saying that it was not a good deal at all.”
Still, Facey evidently couldn’t definitively say it was this specific phrase that sank the bill, or if it was, why the new language had such an effect.
Unfortunately, comments from one of the “stakeholders” referenced by Facey didn’t do much to clarify the situation, either.
“The strongest statute is one that places the focus of the crime on a perpetrator who chooses to distribute the images without the consent of the victim for any reason whatsoever,” the Montana Coalition Against Domestic and Sexual Violence said in a statement released by Robin Turner, the coalition’s public policy and legal director. “The focus of an effective statute is properly on the perpetrator, not on the victim.”
Following the release of the statement, Turner declined interview requests from media outlets seeking clarification.
With the phrase “financially profit” inserted into the amended language, the statute read (in pertinent part):
“[A] person commits the offense of violating privacy in communications if the person knowingly or purposely … with the intent to terrify, intimidate, threaten, financially profit, or harass, distributes or disseminates a visual or print medium, including a medium by use of electronic communication, of another person who … is identifiable from the visual medium … or print medium itself or from information displayed in connection with the medium; is engaged in sexual conduct, actual or simulated … or whose actual or perceived intimate parts are exposed; and … has a reasonable expectation of privacy and has not consented to the creation or distribution of the image that was distributed or disseminated in the visual or print medium or is incapable of consent.”
While it’s not clear why the insertion of “financially profit” in the above language would be so problematic as to derail the legislation, one possibility not mentioned by the legislators who have commented on the bill’s failure is the presence of a different phrase in the text: “has a reasonable expectation of privacy.”
This phrase was also part of the proposed amendments to the language of §45-8-213, and on its face, does seem to shift at least some of the focus of evaluating the legality of the conduct at issue to the victim.
In other words, had HB 129 passed, it appears prosecutors and investigators would have been required to consider whether the victim of any act of revenge porn had a reasonable expectation of privacy with respect to the images distributed by the alleged perpetrator.
Unfortunately, the phrase “reasonable expectation of privacy” does not appear to be defined anywhere within Montana’s state code, so it seems reasonable to speculate this ambiguity could be the “poison pill” to which some of the relevant stakeholders objected.
Of course, until or unless one of the legislators or stakeholders steps up to publicly clarify precisely where and how HB 129 went wrong, I suppose Sen. Facey’s guess is as good as anyone else’s.
