Introduction

The case of State of Montana v. Thomas Joseph Brennan (2025 MT 46) has now set forth a critical new interpretation of the statutory definition of “sexual conduct” under Montana’s child sexual abuse statutes. In this case, Brennan, charged with felony sexual abuse of a child for allegedly entering his stepdaughter’s bedroom and observing her as she changed, appealed the District Court’s order granting a new trial and dismissing his conviction. The State, however, argued that this act constituted a “depiction” of the child in a state of partial undress—which under the statutory language qualifies as sexual abuse.

This case involved complex factual scenarios—evidenced by detailed eyewitness testimony, the defendant’s own inconsistent admissions, and conflicting portrayals from family members—and intricate statutory analysis regarding the interpretation of “exhibition” and “depiction” of sexual conduct. The State of Montana, as the appellant, sought to reverse the District Court’s decision and reinstate Brennan’s conviction, contending that the statutory language clearly criminalizes the in-person viewing that crosses the boundary into an exploitative “depiction” intended for sexual gratification or humiliation.

Summary of the Judgment

The Supreme Court of Montana reversed the District Court’s decision by reinterpreting the statutory scope of Section 45-5-625(1)(a), MCA. The court held that Brennan’s conduct—specifically, his repeated entries into his stepdaughter’s bedroom with the purpose of watching her change—constituted a “depiction” of the child in a state of partial undress. This depiction, as the Court explained, met the statutory elements for sexual abuse under the subsection since it involved either the humiliation of the child or the gratification of the defendant’s sexual desire.

In reaching its decision, the Court analyzed the statutory language, the precedent from similar cases (such as State v. Brown, STATE v. MARSHALL, and State v. Smith), and extensive evidentiary records supporting that Brennan’s behavior went beyond innocuous oversight. Ultimately, the Supreme Court concluded that the evidence was sufficient for the jury’s finding and remanded the case with instructions to reinstate Brennan’s conviction.

Analysis

Precedents Cited

The opinion cites a number of influential precedents that undergird the Court’s analysis:

• State v. Brown (2022 MT 176): Here, the Court upheld a conviction where texts were sent by a stepfather encouraging his stepdaughter to pose in a manner that produced a “lewd exhibition.” Although different in fact, Brown reinforced the idea that sexually exploitative behavior can be found in a defendant’s actions even absent photographic evidence.
• STATE v. MARSHALL (2007 MT 198): Marshall involved a scenario where the defendant’s solicitation for a live nude performance from a minor was held to be equivalent to employing a child in a lewd exhibition. The Marshall case was pivotal in confirming that live performances—including in-person observations—may be interpreted as “depictions” under the statute.
• State v. Smith (2021 MT 148): Smith’s case further expanded upon the understanding that sexual abuse prosecutions do not require overt physical contact; the “depiction” of a minor in a state of partial undress, if done for the purpose of arousal or humiliation, suffices to satisfy the elements of abuse.
• Also referenced, though with noted caution in dissenting commentary, is NEW YORK v. FERBER, which originally addressed First Amendment concerns and provided supportive language regarding “depictions” and “live performances.” This case, while primarily concerned with material distribution, offered useful analogies for live viewing incidents.

Legal Reasoning

The majority opinion’s reasoning rested on several key pillars:

• Statutory Interpretation: The Court began by emphasizing the plain language of § 45-5-625(1)(a), MCA. The statute’s language, relying on the ordinary meaning of “exhibition” and “depiction,” does not limit criminal liability to the production of a tangible image but extends to live actions where a child, in a state of partial undress, is used for the gratification or humiliation of an adult.
• Dual Definitions of Sexual Conduct: The Court considered both the “lewd exhibition” variant and the “depiction” variant of sexual conduct. Although the jury had been instructed only under the “depiction” definition, the majority argued that Brennan’s in-person observation nonetheless meets the statutory elements, thereby supporting the inference that his conduct was intended for sexual gratification or to humiliate.
• Application to Evidence: The repetitive nature of Brennan’s behavior—entering his stepdaughter’s bedroom multiple times and disregarding her discomfort—was weighed as sufficient evidence to infer a knowing use of the child in a sexual context. This inference was deemed consistent with the State’s burden to prove, beyond a reasonable doubt, both the action and the requisite intent.
• Review of Discretion: The appellate Court conducted a de novo review of the District Court’s statutory interpretation errors. The Court stressed that had the trial court followed the plain and ordinary meaning of the legislative language, Brennan’s conduct would have unquestionably fallen under the ambit of sexual abuse.

Impact

This decision may have wide-reaching implications for future cases involving allegations of in-person observation of a minor in compromising situations:

• Precedential Value: The ruling solidifies a broader interpretation of “depiction,” ensuring that live performance or direct voyeuristic behavior can serve as sufficient grounds for a sexual abuse conviction. This broadening of scope can lead to more vigorous prosecutorial attempts in similar child abuse cases.
• Legislative Guidance: The decision places pressure on the Legislature to further refine the statutory language regarding “exhibition” versus “depiction.” It implicitly warns future litigants and lower courts that any deviation from the plain meaning of the statute may be subject to reversal.
• Jury Instructions: Future trials will need careful scrutiny regarding the instructions given on the charge. Judges must ensure that the definitions offered to the jury align closely with the facts charged so as not to encroach upon the principles of due process.

Complex Concepts Simplified

Several legal terminologies and concepts underpin this ruling:

• "Depiction" vs. "Exhibition": The term “depiction” is broadly defined to mean any representation or portrayal of a child’s state, whether through a photograph, video, or live observation. The Court interpreted a live event—such as a minor changing—as a form of depiction if it was exploited for sexual gratification or humiliation.
• Knowingly Using a Child: This phrase implies that the defendant must have been aware that his actions were not merely parental behavior but were intended to elicit a sexual response or cause humiliation. It requires a demonstration of intent that goes beyond accidental exposure.
• Standard of Review: The appellate review here is conducted de novo for statutory interpretation and sufficiency of evidence. This means the appellate court looked independently at the trial court’s conclusions without giving deference to its findings when the question involves a matter of law.

Conclusion

In State of Montana v. Thomas Joseph Brennan, the Supreme Court of Montana has set a significant precedent by affirming that the in-person observation of a minor in a state of partial undress may constitute a “depiction” under § 45-5-625(1)(a), MCA. The Court’s decision reverses the District Court’s grant for a new trial and instructs that Brennan’s conviction be reinstated, basing its conclusion on the plain language of the statute as well as established precedents.

The majority opinion reinforces that the Legislature’s protective measures for children encompass not only the production or possession of explicit images but also live actions where a child’s vulnerability is starkly exploited. While dissenting opinions have raised concerns about judicial overreach and the application of definitions not expressly charged at trial, the prevailing decision delineates an expansive interpretation that will likely influence both prosecutorial approaches and jury deliberations in future sexual abuse cases.

Ultimately, this judgment underscores the careful balance the courts must strike between statutory interpretation and protecting the rights and dignity of children—a balance that, in this instance, decidedly favors robust protection.