No. 89-533 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff & Appellant, 

v. 

GERALD ROY THOMPSON, 

Defendant & Respondent. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Judith Basin 

The Hon. Peter J. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark Murphy, Assistant Attorney General, Helena, 

Montana 

Patti Powell, Assistant Attorney General, Helena, 

Montana 

Sarah Arnott, Judith Basin County Attorney, 

Stanford, Montana 

For Respondent: 

Torger Oaas, Attorney at Law, Lewistown, Montana 

Submitted on briefs: February 22, 1990 

Filed: 

Decided: May 24, 1990 
Justice John C. Sheehy delivered the Opinion of the Court. 

On May 25, 1989, the defendant Gerald Roy Thompson was charged 

with two counts of sexual intercourse without consent and one count 

of sexual assault. Subsequently, Thompson moved to dismiss Counts 

I and I1 of the information, those counts charging defendant with 

sexual intercourse without consent. Thompson moved to dismiss 

Counts I and I1 of the information on the specific ground that the 

probable cause affidavit was insufficient. On September 1, 1989, 

the District Court, Tenth Judicial District, Judith Basin County, 

granted Thompson's motion and dismissed Counts I and I1 of the 

information for lack of probable cause in the supporting affidavit. 

The State now appeals the District Court. We affirm. 

The State raised the following issue on appeal: Did the 

District Court err when it granted defendant's motion to dismiss 

Counts I and I1 of the information charging defendant with sexual 

intercourse without consent for failure to state offenses? 

The defendant, Gerald Roy Thompson, the principal and boys 

basketball coach at Hobson High School, was accused of two counts 

of sexual intercourse without consent, and one count of sexual 

assault. This appeal only concerns the two counts of sexual 

intercourse without consent. The information, filed with the 

District Court, alleged the defendant committed the crime of sexual 

intercourse without consent, and stated the following: 

Count I 
On or between September, 1986 and January, 1987 in Judith 

Basin County, Montana the defendant knowingly had sexual 

intercourse without consent with a person of the opposite 

sex; namely Jane Doe, by threatening Jane Doe that she 

would not graduate from high school and forced Jane Doe 

to engage in an act of oral sexual intercourse. 

Count I1 

On or between February, 1987 and June, 1987 in Judith 

Basin County, Montana the defendant knowingly had sexual 

intercourse without consent with a person of the opposite 

sex; namely Jane Doe, by threatening Jane Doe that she 

would not graduate from high school and forced Jane Doe 

to engage in act of oral sexual intercourse. 

The affidavits filed in support of this information contained 

facts and allegations supporting the two counts of sexual 

intercourse without consent. In essence, they alleged that the 

threats I1caused Jane Doe great psychological pain and fear." 

The State contended that fear of the power of Thompson and his 

authority to keep her from graduating forced Jane Doe into silence 

until after she graduated from high school in June of 1987. On 

November 25, 1988, Jane Doe filed a letter with the Hobson School 

Board describing the activities against her by Thompson. After 

investigations by both the school board and the Judith Basin County 

prosecutorls office, the prosecutor filed an information on May 25, 

1989. The information charged Thompson with two counts of sexual 

intercourse without consent, both felonies in violation of 5 45- 

5-503, MCA, and with one count of attempted sexual assault, a 

felony. 

Defendant filed a number of motions, requesting, among other 

things, a motion to dismiss Counts I and I1 of the information for 

lack of probable cause in the supporting affidavit. The District 
Court granted Thompson's motion, due to the fact the State failed 

to meet the element of "without consent1' under 5 45-5-501, MCA. 

I 

Did the District Court err when it granted defendant's motion 

to dismiss Counts I and I1 of the information charging defendant 

with sexual intercourse without consent for failure to state 

offenses? 

We agree with the District Court that the facts in the 

information, in regards to Counts I and 11, fail to state offenses. 

The code of criminal procedures requires that an affidavit be filed 

for application for leave to file an information. State v. Renz 

(Mont. 1981), 628 P.2d 644, 645. The affidavit must include 

sufficient facts to convince a judge that there is probable cause 

to believe the named defendant may have committed the crime 

described in the information. Section 46-11-201, MCA. If there 

is no probable cause, the District Court lacks jurisdiction to try 

the offense. State v. Davis (1984), 210 Mont. 28, 30, 681 P.2d 42, 

43. This Court has held that a showing of mere probability that 

defendant committed the crime charged is sufficient for 

establishing probable cause to file a criminal charge. Judges, 

when receiving probable cause affidavits, should use their common 

sense in determining whether probable cause exists. Renz, 628 P.2d 

at 645; State v. Hamilton (1980), 185 Mont. 522, 532, 605 P.2d 

1121, 1127, cert. denied 447 U.S. 924 (1980); State v. Miner 

(1976), 169 Mont. 260, 264, 546 P.2d 252, 255. 
The allegations in the affidavit, however, do not indicate a 

probability that Thompson committed the crime of sexual intercourse 

without consent. 

Thompson was charged with two counts of alleged sexual 

intercourse without consent under 5 45-5-503, MCA. Section 45-5- 

503, MCA, states the following: 

A person who knowingly has sexual intercourse without 

consent with a person of the opposite sex commits the 

offense of sexual intercourse without consent . . . 

The phrase ttwithout consenttt--the key element of the crime- 

-has a very specific definition in Montana's criminal code. This 

phrase is defined in 5 45-5-501, MCA, which states in pertinent 

part: 

As used in 45-5-503 and 45-5-505, the term Itwithout 

consenttt means: 

(i) the victim is compelled to submit by force or by 

threat of imminent death, bodily injury, or kidnapping 

to be inflicted on anyone; . . . 

Section 45-5-501, MCA, makes it clear that the element of 

ttwithout consentt1 is satisfied if submission of the victim is 

obtained either by force or by threat of imminent death, bodily 

injury , or kidnapping. other circumstances relating force 

or threat eliminate consent under the statute. 

Thompson challenged the probable cause affidavit in the 

District Court, contending it failed to state any fact or 

circumstance showing that Jane Doe's submission to an alleged act 

of sexual intercourse was obtained by force or by any of the 

threats listed in 5 45-5-501, MCA. In contrast, the State argues 

that Thompsonts actions constitute sexual intercourse through force 
or threats. The District Court, in its opinion and order, agreed 

with Thompsonls contentions, and found that the facts in the 

affidavit supporting the information failed to show the element of 

I1without consent.I1 In reaching this conclusion, the District Court 

first considered whether or not there were facts or circumstances 

in the probable cause affidavit to indicate that submission to the 

alleged act of sexual intercourse without consent was obtained Ifby 

force.I1 In order to determine whether Thompson forced Jane Doe to 

submit to the sexual act, the District Court had to define the 

phrase I1by forcef1 since there is no definition contained in the 

Montana Criminal Code. The District Court in its order defined 

force as follows: 

The word l1forcel1 is used in its ordinary and normal 

connotation: physical compulsion, the use or immediate 

threat of bodily harm, injury. 

Next, the District Court examined the information and probable 

cause affidavit to determine if there were any facts or 

circumstances constituting force. The District Court found that 

"force was not alleged in the information nor in the affidavit in 

support of it. 

In contrast, the State argues the ~istrict Court's definition 

of force is too limited. The State, relying on Raines v. State 

(Ga. 1989), 382 S.E.2d 738, 739, argues that intimidation and fear 

may constitute force. The State also contends that Thompson, in 

his position of authority as the principal, intimidated Jane Doe 

into the alleged acts. Furthermore, the State argues the fear and 

apprehension of Jane Doe show Thompson used force against her. We 
agree with the State that Thompson intimidated Jane Doe; however, 

we cannot stretch the definition of force to include intimidation, 

fear, or apprehension. Rather, we adopt the District Court's 

definition of force. 

Other jurisdictions, such as California, have expanded the 

definition of force, beyond its physical connotation. People v. 

Cicero (1984), 157 Cal.App.3d 465, 204 Cal.Rptr. 582. The 

California Supreme Court adopted the following reasoning to expand 

the word force: 

. . . the fundamental wrong at which the law of rape is 

aimed is not the application of physical force that 

causes physical harm. Rather, the law of rape primarily 

guards the integrity of a women's will and the privacy 

of her sexuality from an act of intercourse undertaken 

without her consent. Because the fundamental wrong is 

the violation of a woman's will and sexuality, the law 

of rape does not require that llforcell cause physical 

harm. Rather, in this scenario, "force1' plays merely a 

supporting evidentiary role, as necessary only to ensure 

an act of intercourse has been undertaken against a 

victim's will. 

Cicero, Cal . Rptr. 

The ~alifornia Supreme Court's definition of the word force 

is too broad under Montana's definition of the crime. Until the 

legislature adopts a definition for the word llforcell, we must adopt 

the ordinary and normal definition of the word as set forth 

by the District Court. 

The State in its information and accompanying affidavit 

complain that Thompson deprived Jane Doe of consent to the sexual 

act by threatening that he would prevent her from graduating from 

high school. The threat required in 5 45-5-501, MCA, is "a threat 

of imminent death, bodily injury, or kidnapping to be inflicted on 
anyone . . ." The District Court found that something more than 

a threat is necessary to satisfy the statutory requirement. A 

threat one will not graduate from high school is not one of the 

threats listed under 5 45-5-501, MCA. The State argues that the 

definition "threat of bodily injuryn1 includes psychological 

impairment. Unfortunately, the statute sets forth bodily injury, 

not psychological impairment. A threat that eventually leads to 

psychological impairment is not sufficient under the statute. The 

statute only addresses the results of three specific kinds of 

threats, and psychological impairment is not one of them. 

The State urges this Court to adopt the definitions of threat 

set forth in 5 45-2-101(68), MCA. Section 45-2-101(68), MCA, has 

no application in regard to the crime of sexual intercourse without 

consent. Section 45-5-501, MCA, plainly and succinctly lays out 

the types of threats necessary to make the victim act "without 

consent. 

Under 5 45-5-501, MCA, the threat also must be of "imminent 

death, bodily injury, or kidnapping. Thompson s threats cannot 

be considered imminent. The alleged sexual act and threat occurred 

in December of 1986. Jane Doe graduated from Hobson High School 

in June of 1987. Clearly, Thompson's alleged threats were not 

imminent. 

Peppered throughout the State's brief is the contention that 

"under Montana law the issue of consent is a fact question, and 

therefore a question for the jury to decide." The State is 

correct, the jury is the proper trier of facts in regard to issues 
such as consent. However, in this case, the State's information 

and probable cause affidavit have failed to set forth any facts or 

circumstance to show that the alleged act of sexual intercourse 

were within the statute defining the elements of the crime. So, 

the issue in this case is not whether the jury was denied its role 

as trier of the facts, but whether the State sufficiently set forth 

facts or circumstances to show the element of "without consent. " 

The court properly granted defendant's motion to dismiss for lack 

of probable cause. 

This case is one of considerable difficulty for us, as indeed 

it must have been for the District Court judge. The alleged facts, 

if true, show disgusting acts of taking advantage of a young person 

by an adult who occupied a position of authority over the young 

person. If we could rewrite the statutes to define the alleged 

acts here as sexual intercourse without consent, we would willingly 

do so. The business of courts, however, is to interpret statutes, 

not to rewrite them, nor to insert words not put there by the 

legislature. With a good deal of reluctance, and with strong 

condemnation of the alleged acts, we affirm the District Court. 

Justice 

f 
We Concur: