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Bill would rectify elder exploitation law Missoula judge ruled unconstitutional

Bill would rectify elder exploitation law Missoula judge ruled unconstitutional

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Rep. Bill Mercer

Rep. Bill Mercer (R-Billings)

A state lawmaker from Yellowstone County is looking to resolve Montana's criminal elder exploitation law, one a Missoula judge ruled unconstitutionally vague last year.

House Bill 334, sponsored by Rep Bill Mercer, R-Billings, has sailed through the House without any opposition. Mercer presented the proposal Thursday to the Senate Judiciary Committee. 

In its current form, the state law does not require criminal intent. In other words, someone who accepted a gift, like a car, from an elder relative could be charged with exploitation of an elder person. 

Last September, Missoula Judge Robert "Dusty" Deschamps dismissed that charge against 80-year-old Rose-Marie Bowman because the law did not have a firm distinction between criminal and lawful behavior. In that case, Bowman had been handling the money of a man she loved, but wasn't married to. After the case was dismissed, Missoula County prosecutors told detectives to consider theft in such cases in light of Deschamps' ruling. 

"There are concerns among county prosecutors that the criminal provision wasn't as clear and functional for charging," Mercer told the House Judiciary Committee earlier this month. "If you couldn't show any intent whatsoever, a jury couldn't find guilt beyond a reasonable doubt."

Both the Montana Attorney General's Office and Department of Public Health and Human Services turned out in support of the bill Thursday in the Senate panel. Barbara Smith, administrator of the senior and long term care division at DPHHS said it would make definitions more consistent in efforts to root out elder abuse. 

"The other thing it does is it helps us raise awareness to the fact that the crime does exist and behind each of those crimes, or a majority of those crimes, exists another form of abuse," Smith said. 

In particular, Mercer's bill clarifies that someone charged with exploitation of an elder person or person with a developmental disability must have done so "by means of deception, duress, menace, fraud influence, or intimidation."

The ambiguous language hasn't let others off the hook in Missoula since Deschamps' ruling, however. In November, Missoula Judge Karen Townsend denied requests by two different defendants for their charges to be dismissed on the basis of Deschamps' ruling. In one case, a woman and her husband used the victim's Social Security funds for themselves, leaving the nursing home debt unpaid. In the other, Townsend ruled that even having the power of attorney for a victim did not create immunity for the defendant if the actions were done by means of criminal conduct.

On Thursday, Mercer told the Senate committee repairing the bill this session was a worthy effort for the state's growing elderly population.

"Elder abuse, financial exploitation of the elderly is a huge problem," he said. "This is only going to get to be a bigger problem for us because our percentage of elderly is large compared to the rest of the country. These people are being deprived at the end of life of everything they have in financial security."


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