Schultz and the “Fictional Victim” Rule:
Mandatory-Minimum Enhancements Require an Actual Child Victim

Introduction

State v. Schultz, 2025 MT 142, arises from an Internet sting in which David Ray Schultz arranged to meet what he believed was a 12-year-old girl for sexual activity. An undercover Homeland Security agent was, in fact, behind the profile and no child was ever involved. Schultz pleaded guilty to one count of Attempted Sexual Abuse of Children under § 45-5-625(1)(h), MCA, but challenged the district court’s imposition of the mandatory, parole-ineligible, 25-year minimum contained in § 45-5-625(4)(a) (victim 12 or under). The central question on appeal:

Does the age-based mandatory minimum apply when the “victim” is entirely fictional?

The Montana Supreme Court (McKinnon, J.) answered “No,” vacating the mandatory term and remanding for resentencing under the general penalty range. A special concurrence (Swanson, J.) agreed in result but emphasised ambiguity; a vigorous dissent (Rice, J., joined by Baker, J.) maintained the enhancement should stand. The decision creates a new rule—the Fictional Victim Rule—that mandatory age enhancements in § 45-5-625 attach only when an actual minor victim exists.

Summary of the Judgment

• The Court held the district court lacked statutory authority to apply the 25-year parole-ineligible minimum because § 45-5-625(4)(a) speaks of the victim being 12 or younger, which, read in context, presupposes a real child.
• The “belief” language that criminalises sting-operation conduct appears in the offence-defining subsections ((1)(c), (h), (i)) but is absent from the penalty subsections ((2)(b), (4)(a)).
• Applying ordinary meaning, statutory structure, and the rule against inserting absent words, the Court concluded the Legislature intentionally limited the enhancement to cases with real victims.
• Sentence vacated; case remanded for resentencing under § 45-5-625(2)(a) (0–100 years, parole-eligible).

Analysis

1. Precedents Cited

• State v. Hinshaw, 2018 MT 49 – framework for legality review of sentences.
• State v. Johnson, 2024 MT 306 – oral pronouncement controls over written judgment.
• Reichert v. State, 2012 MT 111 – de novo statutory construction.
• Ellison v. State, 2013 MT 376; Grinde, 96 Mont. 608 (1934) – prohibition on adding or subtracting statutory language.
• City of Missoula v. Fox, 2019 MT 250 – holistic statutory interpretation.
• Federal comparison: United States v. Angwin, 560 F.3d 549 (6th Cir. 2009) (distinguished because U.S. Sentencing Guidelines expressly define “victim” to include undercover officers).

2. Legal Reasoning

1. Plain Language & Articles “A” vs. “The”
   Subsections (1)(c), (h), (i) use “a child” / “a person the offender believes”, signalling inclusion of fictitious victims in defining the crime. Subsections (2)(b) and (4)(a) switch to the definite article “the victim”, implying an identifiable, real person. Under Montana canons, differing words in the same statute signal differing meanings.
2. Statutory Structure
   The statute has a two-step architecture: first define the offence (subsec. 1), then assign penalties (subsec. 2 & 4). Because the Legislature duplicated the “belief” phrasing only in the offence section, its absence in the penalty section was deemed deliberate.
3. Legislative Pattern
   Other sexual-offence statutes follow the same pattern—age-based enhancements always refer to “the victim,” indicating real-victim focus.
4. Dictionary Meaning of “Victim”
   Common definitions require a person who has been harmed. A fictional persona cannot be “harmed.”
5. Avoiding Judicial Additions
   To extend the enhancement to sting cases the Court would have to add language such as “or a person the offender believed to be a child.” Section 1-2-101, MCA forbids this.

3. Impact

• Immediate – Sentencing courts must withhold the 4-year / 25-year mandatory minimums in sting cases without real child victims. They may still impose lengthy terms under the broader 0–100-year range and may set discretionary parole restrictions under § 46-18-202(2).
• Law-Enforcement Operations – Undercover “decoy” investigations remain fully lawful, but prosecutors must charge and sentence with the general range, not the age-based enhancements.
• Legislative Response – The decision invites the Legislature to (a) amend § 45-5-625 to define “victim” to include fictitious personas, or (b) insert the “belief” clause into subsections (2)(b) and (4), mirroring federal guidelines. Previous amendments to the prostitution statutes (2013, 2023) show the Legislature knows how to broaden enhancements explicitly.
• Rule of Lenity & Montana Divergence – Although Montana abrogated the common-law “strict construction of penal statutes,” the special concurrence signals renewed attention to lenity when ambiguity persists.
• Potential Constitutional Litigation – If the Legislature re-extends enhancements to fictitious victims, proportionality and due-process challenges could follow.

Complex Concepts Simplified

• Inchoate Offence – A crime that is attempted or intended but not fully completed. Montana law criminalises luring conduct even if no child exists.
• Mandatory Minimum – A statutory floor beneath which judges may not sentence. Here, 25 years without parole if the victim is 12 or under.
• Parole Restriction vs. Discretionary Restriction – Statutory mandatory parole bars (e.g., § 45-5-625(4)(a)) are non-waivable. By contrast, § 46-18-202(2) lets a judge, in discretion, restrict parole up to the entire sentence after weighing sentencing factors.
• Plain-Meaning Rule – Courts look first to ordinary meaning of words; if clear, they stop there and do not resort to legislative history.
• Definite vs. Indefinite Article – “The” points to a specific, identified object; “a/an” to any member of a group. The Court used this elementary grammar distinction as a decisive interpretive tool.

Conclusion

State v. Schultz carves a bright-line rule: age-based mandatory-minimum enhancements in Montana’s child-sexual-abuse statute attach only when a real minor is victimised. The decision underscores two enduring principles of statutory construction—give effect to plain language and do not insert what the Legislature omitted. Practically, prosecutors must recalibrate charging and sentencing strategies in sting cases, while lawmakers must decide whether to amend the statute. Beyond Montana, Schultz contributes to a growing national dialogue on the limits of applying victim-centric sentencing enhancements to virtual or decoy victims.