Confidentiality

The information obtained from a sexual assault forensic exam can be divided into two categories — medical information and criminal justice information. If a sexual assault survivor chooses not to report the crime to law enforcement at the time of the 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 survivor decides to report the crime to law enforcement, the information becomes confidential criminal justice information and is protected by a different set of state privacy laws:

• 42 U.S.C. 1320d. Health Insurance Portability and Accountability Act of 1996 (HIPAA) is the federal law covering medical information et seq. deals with insurance information and privacy protection.
• 50-16-101, MCA, et. seq. deals with health care information.
• 44-5-103(3), MCA, provides the definition of confidential criminal justice information.
• 44-5-303, MCA, describes how confidential criminal justice information is disseminated.
• 44-5-311, MCA, limits disclosure of the identity of victims of sexual assault, sexual intercourse without consent, incest or indecent exposure.

Mandatory Reporting

Mandatory reporting by healthcare providers to law enforcement in cases of sexual assault is not necessarily required. The following statutes describe situations that require mandatory reporting:

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

NOTE: While reporting crimes outside of the special circumstances listed above is not required, survivors are strongly encouraged to report the incident to law enforcement. However, it is their decision to make.

Sexual Offense Statutes

The term “rape” is not used in the Montana Code Annotated (MCA). Instead, the crimes usually thought of as rape are divided into the crimes of “sexual assault” and “sexual intercourse without consent.”

• 45-5-502, MCA, describes the crime of sexual assault. Sexual assault requires “sexual contact.”
• 45-2-101 (67), MCA, defines the term “sexual contact.”
• 45-5-503, MCA, describes the crime of sexual intercourse without consent (SIWOC). SIWOC requires “sexual intercourse.”
• 45-2-101 (68a), MCA, defines the term “sexual intercourse.”
• 45-5-501, MCA, defines the term “without consent.”
• 45-5-507, MCA, describes the crime of incest.
• MCA 45-5-511 relates to sex crimes, mainly in the realm of limiting certain defenses that may be offered by the defendant. For instance, this section contains Montana’s “rape shield” law that limits the use of the survivor’s sexual past in court.
• MCA 26-1-812 protects the communications between a sexual assault survivor and an advocate. Advocates cannot be forced to divulge privileged information without the survivor’s consent. Healthcare providers are not considered advocates, unless they are an employee or volunteer of a domestic violence shelter, crisis line, or victim services provider.