Mont. Crim. Jury Instr. 5-124(a) (2022)

A "person who is incapable of consent" means a person who is:

[mentally disordered or incapacitated.]

OR

[physically helpless.]

OR

[overcome by deception, coercion, or surprise.]

OR

[less than 16 years old.]

OR

[(incarcerated in an adult or juvenile correctional, detention, or treatment facility) (is on probation, conditional release, or parole) and the Defendant is (an employee) (a contractor) (a volunteer) of the supervising authority who has supervisory or disciplinary authority over the person, unless the act is part of a lawful search.]

OR

[receiving services from a youth care facility and the Defendant is (an employee) (a contractor) (a volunteer) of the youth care facility who (has supervisory or disciplinary authority over the person) (is providing treatment to the person).]

OR

[(admitted to a mental health facility) (admitted to a community-based facility) (admitted to a residential facility) (receiving community-based services) and the Defendant is (an employee) (a contractor) (a volunteer) of the (facility) (community-based service) who (has supervisory or disciplinary authority over the person) (is providing treatment to the person).]

OR

[a program participant in a private alternative adolescent residential or outdoor program and the Defendant is a person associated with the program.]

OR

[a client receiving psychotherapy services and the Defendant is (an employee) (a contractor) (a volunteer) of the facility that provides or purports to provide psychotherapy services to the person and who (has supervisory or disciplinary authority over the person) (is providing or purporting to provide psychotherapy services to the person).]

OR

[a student of an elementary, middle, junior high, or high school, whether public or nonpublic, and the Defendant is not a student of an elementary, middle, junior high, or high school and is (an employee) (a contractor) (a volunteer) of any school who has ever had (instructional) (supervisory) (disciplinary) (other) authority over the student in a school setting.]

OR

[(a witness in a criminal investigation) (a person who is under investigation in a criminal matter) and the Defendant is a law enforcement officer who is involved with the case in which the person is (a witness) (being investigated).]

OR

[a parent or guardian involved in a (child abuse) (neglect) proceeding and the Defendant is employed by the department of public health and human services for the purposes of carrying out the department's duties and (directly involved in the parent or guardian's case) (involved in the supervision of the case).]