In South Dakota, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone younger than 18), even if the sex is consensual. Those who break the law have committed statutory rape.
Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term, “statutory” rape. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.
Though statutory rape does not require that the prosecutor prove an assault, it is still rape. Of course, rape that does involve force or an assault is illegal in South Dakota and prosecuted as forcible rape (see South Dakota Sexual Battery Laws). Assaults of a sexual nature may also be charged under the state’s assault and battery laws (to learn more, see Aggravated Assault Laws in South Dakota and Child Enticement in South Dakota).
Statutory Rape and Penalties
In South Dakota, statutory rape includes sexual penetration and contact between an adult and someone younger than 18. The crime is broken into several categories, as explained below.
First degree rape includes sexual penetration (however slight) between a minor who is younger than ten years old and a defendant older than 18 years old. This offense is a Class C felony; which incurs fine of up to $50,000, up to life in prison, or both.
Criminal pedophilia includes sexual penetration between a minor who is younger than 13 and a defendant who is 26 or older. A Class 1 felony, penalties include a fine of up to $50,000, up to 50 years in prison, or both.
Third degree rape includes sexual penetration between a minor who is between ten and 16 years old, and a defendant older than 18. This offense is a Class 2 felony. Penalties include fine of up to $50,000, up to 25 years in prison, or both.
Sexual contact with a child younger than 16 includes sexual contact (sexual touching, other than penetration, meant to arouse or gratify sexual desire) between a minor younger than 16 and a defendant of any age. This offense is a Class 3 felony, and penalties include fine of up to $30,000, up to 15 years in prison, or both. However, if the defendant was younger than 16 or fewer than three years older than the victim, this offense is a Class 1 misdemeanor; and penalties include a fine of up to $2,000, up to one year in jail, or both.
(S.D. Cod. Laws § 22-22-1, 22-22-30.1, & 22-22-7.)
Sex Offender Registration
State law requires, in addition to the applicable fines and prison time, that people convicted of certain sexual crimes (including some instances of statutory rape) must register as sex offenders.
Defenses to a Statutory Rape Charge
Defendants charged with statutory rape have the usual defenses available to all criminal defendants, such as “Someone else committed this crime,” or “The alleged conduct did not occur.”
Statutory rape marital exemption
South Dakota has a marital exemption for statutory rape that allows consensual sex between a married minor and his or her adult spouse even though their ages would prohibit it if they were not married.
Minors are legally incapable of giving consent to having sex; so for example, if Jen, a 15 year old willingly has sex with Tony, her 19 year old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.
But if Jen and Tony are married and living in South Dakota, Tony need not fear criminal charges for having consensual sex with Jen. This is because South Dakota has a marital exemption to the state’s statutory rape laws.
However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married. For information about rape between spouses, see South Dakota Marital Rape Laws.
“Romeo and Juliet” exception
Named after Shakespeare’s young lovers, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. In South Dakota, there is a limited Romeo and Juliet exemption for consensual sex between two minors who are both older than ten years old, but younger than 18 and fewer than three years apart in age. This exception shields the minors from felony charges, but one or both of the minors may nonetheless be prosecuted for misdemeanor charges of sexual contact with a child younger than 16.
Mistake of age
Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the victim herself represented that she was older than she was, and that a reasonable person would have believed her. But even if this is true, a defendant cannot rely on a mistake of age—even a reasonable one— to avoid conviction in South Dakota.
See a Lawyer
If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. Numerous defenses may apply to statutory rape charges, and a lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.
A lawyer can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time); and will know how prosecutors and judges typically handle cases like yours.
Help for Sexual Assault and Rape Survivors
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.