This case makes one wonder how Montana’s laws about elder exploitation were created. According to an article appearing in US News & World Report, “Judge Rule's State's Elder Exploitation Law Is Vague,” a state judge ruled that the charges against Rose-Marie Bowman of Missoula should be dismissed.
She’s charged with taking money from an account for which she was a co-signor, after the other co-signor gave her control of his finances in 2012. The victim, Lanny Franzen, has been diagnosed with Alzheimer's disease. Missoula County Prosecutors say she manipulated Franzen into putting money into the account.
Attorneys for Bowman asked for the elder exploitation charge to be dismissed, arguing the law could be used to prosecute innocent actions. District Judge Robert “Dusty” Deschamps agreed, holding that the statute "is so broad and devoid of any requirements for proof of a criminal state of mind by the accused, a person is left to guess what specific acts might be allowed or prohibited by statute."
Pabst commented that judges have previously struck down statutes, because of vagueness but this situation is still "unusual."
This type of exploitation, according to the statute, happens when someone knowingly “obtains or uses” an older, incapacitated, or developmentally disabled person’s “funds, assets, or property with the intent to temporarily or permanently deprive” the respective victim. In a motion to dismiss the case, Bowman’s attorneys argued that the vagueness of the statute lets prosecutors to pursue a son who accepts a gift from his elderly mother.
The vagueness is focused on the statute’s use of two words: “use” and “obtain.” The two words are not clearly defined, with regard to criminal exploitation.
The prosecutors have several days to decide, if they want to appeal the judge’s ruling to the Montana Supreme Court, file charges under another law, or drop the case. Missoula County Attorney Kirsten Pabst says she's consulting with the state attorney general's office.
Reference: US News & World Report (August 24, 2018) “Judge Rule's State's Elder Exploitation Law Is Vague”