Montana has a spousal privilege, but it will rarely keep a spouse off the witness stand in a domestic violence case. The privilege protects private communications between married people, and the statute removes that protection in a criminal case for a crime committed by one spouse against the other or against a child of either. This page explains the two statutes involved. It is part of our Montana Domestic Violence Guide.
What Montana's Spousal Privilege Covers
The general rule is in the evidence code: a spouse may not, without the consent of the other spouse, testify during or after the marriage concerning any communication made by one to the other during their marriage (MCA § 26-1-802(1)). The statute also bars courts and other government bodies from requiring disclosure of electronic communications between spouses, and from holding a spouse in contempt for refusing to produce them (MCA § 26-1-802(2) and (3)).
Notice what the privilege is about. It protects what spouses communicated to each other. It is not written as a general right to refuse to be a witness.
The Exception for Crimes Between Spouses
The same statute sets its own limit. The privilege "does not apply to a civil action or proceeding by one spouse against the other or to a criminal action or proceeding for a crime committed by one spouse against the other or against a child of either spouse" (MCA § 26-1-802(4)(b)).
A partner or family member assault charge that names your spouse as the person assaulted is a criminal proceeding for a crime alleged to have been committed by one spouse against the other. So is a charge of strangulation of a partner or family member involving a spouse. In those cases the privilege does not apply.
The Criminal Procedure Statute: § 46-16-212
Montana's criminal procedure code has its own section on spouses as witnesses. It says neither spouse may testify to the communications or conversations between spouses that occur during their marriage unless one of three things is true (MCA § 46-16-212(1)):
- the defendant-spouse consents,
- the defendant-spouse has been charged with an act of criminal violence against the other, or
- the defendant-spouse has been charged with abuse, abandonment, or neglect of the other spouse or either spouse's children.
It then adds that, except for that rule about communications, "a spouse is a competent witness for or against the other spouse" (MCA § 46-16-212(2)). In other words, a spouse can testify about what they saw, heard, and experienced, the same as any other witness.
The Two Statutes Side by Side
| Question | Rule | MCA |
|---|---|---|
| What is protected | Communications made by one spouse to the other during the marriage | § 26-1-802(1) |
| Who must consent | The other spouse. In a criminal case, the defendant-spouse | § 26-1-802(1); § 46-16-212(1)(a) |
| Time limit | Only communications made while the marriage existed. Not before the marriage, not after it is dissolved | § 26-1-802(4)(a) |
| Crime against the other spouse or a child of either | The privilege does not apply | § 26-1-802(4)(b) |
| Charge of criminal violence against the other spouse | The spouse may testify to marital communications | § 46-16-212(1)(b) |
| Everything other than communications | A spouse is a competent witness for or against the other spouse | § 46-16-212(2) |
Where the Privilege Can Still Matter
The exception is tied to the charge. If a married person is charged with a crime that was not committed against the spouse or a child of either spouse, the general rule protecting marital communications applies again. How the exception works when a case combines different kinds of charges, or involves a child of only one spouse who is named as a witness and not as a victim, depends on the specific charges and facts, and the statutes do not answer every variation.
The privilege is also limited by time. It reaches only communications made during the marriage, not before it and not after a dissolution (MCA § 26-1-802(4)(a)). If you are divorcing during a PFMA case, the statute also provides that the privilege does not apply to a civil proceeding by one spouse against the other.
Dating Partners and Unmarried Couples
The PFMA statute defines "partners" broadly, to include spouses, former spouses, persons who have a child in common, and persons who have been or are in a dating or ongoing intimate relationship (MCA § 45-5-206(2)(b)). The privilege statutes are narrower. They refer only to spouses and to the marriage. An unmarried partner has no spousal privilege to claim.
What Not to Do With This Information
Do not ask your spouse to "plead the privilege," to refuse to testify, or to stay away from court. With a no contact order in place, that conversation is a violation, and consent of the protected person is not a defense (MCA § 45-5-209). Attempting to induce a witness to withhold testimony or not appear is also the felony of tampering with witnesses (MCA § 45-7-206). See witness tampering and contacting the other person.
If a spouse does not wish to testify, the rules that actually govern the situation are the ones on subpoenas and prior statements, covered in when the other person recants or will not testify. A spouse with questions about their own position should speak with their own lawyer or a victim advocate.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.