Representative faces criticism for role in withdrawn bill; lawmakers say threats go too far

The controversial bill, critics say, would have bolstered the parental rights of rapists

Rep. Jane Gillette, R-Bozeman, pictured here at a House Judiciary Committee meeting on Jan. 29, 2021 (Montana Public Access Network).

A freshman Bozeman lawmaker received a number of threats this week regarding a controversial bill she introduced that critics said would bolster the parental rights of rapists.

“It’s unnecessarily vicious. Politics have become over-the-top. It’s gone beyond adversarial to dangerous,” said Rep. Jessica Karjala, D-Billings.

Karjala, who has received death threats herself, said it’s OK to attack the policy, but not the person.

“Attacking someone on a personal level like that instead of attacking the policy is just bullshit,” she said.

The bill that sparked the outrage against Jane Gillette, R-Bozeman, was House Bill 209, which, in part, opponents said would protect the parental rights of rapists. The bill was scheduled for a first reading Friday, but was pulled after receiving enormous backlash.

Gillette has since said she wants to pull the bill, blaming the controversy on mistakes made by legislative staff. However, emails back and forth show a different set of facts.

“I’m sorry but this has gotten controversial and Rep. Gillette wants to not have a hearing on the bill because she doesn’t like the title of the bill, characterizing it as a drafting mistake. It is not your fault as she approved the bill, but as a freshman, she didn’t understand the process,” Susan Fox, executive director of legislative services wrote in an email to the bill’s drafter Friday.

Lawmakers rely on state employees, legislative drafters, to take their ideas and transform them into legislation that conforms with a legal format and aligns with existing law. While drafters have some latitude on language, they do not edit for content or even legal soundness. Both Senators and Representatives have to sign off, approving the draft language before it is presented. Gillette signed off on the controversial bill.

Gillette employed a similar strategy Friday during a hearing on a bill she sponsored that would prohibit insurance companies from covering abortions.

When asked during questioning on the House Bill 229 why she didn’t include an exception for rape and incest in the bill, she said she just asked the drafter to copy and paste 2011 legislation.

“In the interest of expediting a very busy schedule, which has to do with bill drafters, bandwidth and time, we opted to take the legislation that was successful last time and replicate it,” she responded.

But during the drafting process, the bill drafter asked Gillette via email if the 2011 bill would work for her and she responded, “Yep, that works, minus rape or incest. That can get added later if others want.”

Gillette did not respond to calls or emails by the Daily Montanan requesting comment on the legislation and the reaction it garnered.

House Bill 209 would have amended existing law and require that a judge consider “the child’s best interest” when a mother has claimed the child was conceived through rape with the requirement that the child has established a relationship with the father.

Some have criticized Gillette for not taking more responsibility.

“Regardless of whether the [family law section of the state bar] wrote the language or not, Gillette still has enormous responsibility for signing her name to it,” said Sen. Ellie Boldman, D-Missoula.

Kelsen Young, executive director of the Montana Coalition Against Domestic and Sexual Violence, said, “I know they were planning on doing this … I don’t know why they are trying to blame the drafter.”

Mars Scott, chairperson of the legislative subcommittee for the Family Law Section of the State Bar of Montana, was involved in drafting the bill and said that Gillette is right to defer responsibility.

“I wouldn’t expect her to take any more responsibility because she is not a family law attorney,” Scott said. Scott said the threats to Gillette are reprehensible and “not part of a public discourse or rational society,” adding, “We have to be able to have honest dialogue about sensitive issues.”

Email correspondence between Gillette and HB209’s drafter show that Gillette was active in shaping the legislation.

For about a month, Gillette went back and forth with the bill’s drafter. On Dec. 22, she wrote, “It looks good to me. I think the lawyers are happy too.”

Emails show that Scott, Amy Lord — both with the Family Law Section of the State Bar of Montana — and Chris Gillette, the Representative’s husband and a practicing family attorney and member of the Family Law Section were all part of the drafting process.

Gillette consulted Rep. Sheldon-Galloway and Sen. Steve Fitzpatrick, both are Republicans representing Great Falls, as well about the bill, according to the email correspondence.

Lord and Scott, who are both chairpersons of the Family Law Section of the Montana State Bar emailed its members saying the certain parts of the legislation did not come across as they intended.

“As I am sure you will understand, that was not at all the intent of the section in attempting to bring clarity to a statute that is not clear,” they wrote in an email to members.

In a Facebook post, John Mudd, executive director of the State Bar of Montana, said, “the provision of this bill that is attracting attention was put forth by the Family Law Section of the State Bar of Montana and carried at its request by Rep. Gillette.”

In the email to the more than 160 members of the family law section of the state bar, Mars and Scott said they “sought feedback from our section membership, sought feedback from other stakeholders and found a sponsor in the legislature.”

But, Young said input from one important group of stakeholders was left out — rape survivors.

“We have been incredibly disappointed about how this process has failed to consider and respect the voices of survivors,” Young said. “If they withdrew the legislation we would hope this time they would take the time to talk with us.”