Criminal Statutes and Definitions

To read the legal definitions of sex offenses, click on the MCA number in the list below for a link to the relevant statute in the Montana Code Annotated (MCA). The term "rape" is not used in the Montana Code. Instead, the crimes usually thought of as rape are divided into the crimes of "sexual assault" and "sexual intercourse without consent."

• MCA 45-5-502 describes the crime of sexual assault. Sexual assault requires "sexual contact."
• MCA 45-2-101 (67) defines the term "sexual contact."
• MCA 45-5-503 describes the crime of sexual intercourse without consent (SIWC). SIWC requires "sexual intercourse."
• MCA 45-2-101 (68a) defines the term "sexual intercourse."
• MCA 45-5-501 defines the term "without consent."
• MCA 45-5-507 describes the crime of incest.

NOTE: Sexual intercourse without consent requires penetration of the mouth, anus or vulva, and sexual assault does not. This means that the location on the body where evidence is found can influence how a suspect is charged. Therefore, it is important to follow the rape kit instructions exactly and to label items correctly so there is no confusion as to where the evidence was collected from.

Mandatory Reporting

Montana law requires healthcare providers to notify law enforcement in certain cases involving possible criminal activity. The following statutes describe situations that require mandatory reporting:

• MCA 37-2-302 requires reporting of cases involving suspected gunshot or stab wounds.
• MCA 37-2-303 provides healthcare professionals immunity from liability when reporting suspected gunshot or stab wounds.
• MCA 41-3-201 requires reporting of cases involving suspected child abuse.
• MCA 52-3-811 requires reporting of cases involving suspected abuse of the elderly or the developmentally disabled.

NOTE: Outside of the special circumstances listed above, cases involving sexual assault and sexual intercourse without consent DO NOT require mandatory reporting. Victims of these crimes should be strongly encouraged to report the incident to law enforcement, but ultimately it is their decision to make. Find out more about options for victims who are undecided or choose not to report at the time of the rape exam.

Confidentiality

The information obtained from a rape exam can be divided into two categories - medical information and criminal justice information. If a rape victim chooses not to report the crime at the time of the rape exam, the information obtained during the exam is classified as medical information. The privacy of medical information is protected by federal and state law. Once a rape victim decides to report the crime the information becomes Confidential Criminal Justice Information and is protected by a different set of state privacy laws. See below for a list of federal and state laws pertaining to confidentiality and rape exams:

• 42 U.S.C. 1320d. Health Insurance Portability and Accountability Act of 1996 (HIPAA) is the federal law covering medical information privacy.
• MCA 33-19 is a state statute dealing with insurance information and privacy protection.
• MCA 50-16 is a state statute dealing with health care information.
• MCA 44-5-103(3) provides the definition of confidential criminal justice information.
• MCA 44-5-303 describes how confidential criminal justice information is disseminated.
• MCA 44-5-311 protects victims of sexual assault, sexual intercourse without consent, incest or indecent exposure from having their identities disclosed.

Rape victims should be informed that, if they choose to report the crime, the information gathered during the exam will be used by law enforcement and attorneys to investigate and prosecute the crime. They should also be informed of their option to keep their identities confidential.

Miscellaneous Statutes that Apply to Sexual Offenses

• MCA 45-5-511 is a mix of laws that deal with sex crimes, mainly in the realm of protecting the victim from certain defenses offered by the defendant. For instance, this section contains Montana's "rape shield" law that limits the use of the victim's sexual past in court.
• MCA 26-1-28 is a statute that protects the communications between a rape victim and an advocate. Advocates cannot be forced to divulge privileged information without the victim's consent. Please note that healthcare providers are not considered advocates.

Victim Compensation

The state of Montana is committed to the policy that rape victims should not have to pay for the cost of forensic rape exams. See Rape Victim Compensation for further information about state programs that provide payment for the cost of rape exams.