South Dakota Statutory Rape Laws

In South Dakota, engaging in consensual sexual activities with a minor can result in criminal charges. These age-based offenses are commonly referred to as statutory rape.

What Is the Age of Consent in South Dakota?

The age of consent in South Dakota is 16. If, however, the defendant holds a position of authority over the minor, the age of consent is 18. 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.

South Dakota's Statutory Rape Laws

Like most states, South Dakota law doesn't use the term "statutory rape." Rather, a person who engages in consensual sex with a minor could face charges of rape or unlawful sexual contact with a minor. Penalties will depend on the ages of the parties, their age difference, and the conduct involved (penetration or contact). Subsequent offenses carry harsher penalties.

Sexual penetration refers to sexual intercourse, oral and anal sex, or any penetration, however slight, of another's genital or anal openings.

Sexual contact means any touching of a person's genitalia or anus or a female's breast, directly or through clothing, with the intent to arouse or gratify the sexual desire of either party.

What Are the Penalties for Statutory Rape Offenses in South Dakota?

Statutory rape offenses fall under South Dakota's sex offense laws.

First-Degree Rape: Child Younger Than 13

A person who engages in consensual sexual penetration with a child younger than 13 commits first-degree rape. This offense carries class C felony penalties of at least 15 years of prison time and up to life, plus a $50,000 fine.

Fourth-Degree Rape: Child 13, 14, or 15

Sexual penetration between a minor age 13, 14, or 15 and a defendant who's 3 or more years older is fourth-degree rape. This class 3 felony is punishable by up to 15 years in prison and a $30,000 fine.

Sexual Contact With a Child Younger Than 16

A person who engages in sexual contact with a minor younger than 16 can face felony or misdemeanor charges.

Misdemeanors. When both parties are younger than 16, sexual contact is a class 1 misdemeanor, punishable by a year of jail time and a $2,000 fine. It's also a class 1 misdemeanor for a defendant age 16 or older to engage in sexual contact with a 13, 14, or 15-year-old when the parties are less than 5 years apart in age.

Felony. A defendant age 16 or older commits a class 3 felony by engaging in sexual contact with:

• a minor younger than 13, or
• a minor age 13, 14, or 15 when their age difference is 5 or more years.

Class 3 felonies carry up to 15 years of prison time and a $30,000 fine.

Position of Authority Over a Minor Younger Than 18

It's a class 6 felony for an adult to engage in sexual contact with a minor (younger than 18) when that adult holds a position of authority and is at least 5 years older than the minor. Examples of individuals in a position of authority include coaches, teachers, therapists, religious leaders, youth leaders, and health care providers. A convicted defendant faces up to 2 years in prison and a $4,000 fine.

(S.D. Codified Laws §§ 22-6-1, 22-6-2, 22-22-1, 22-22-1.2, 22-22-2, 22-22-7, 22-22-7.1, 22-2-7.3, 22-2-7.8 (2024).)

Does South Dakota Have a Romeo-and-Juliet Law?

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.

South Dakota's Romeo-and-Juliet law shields close-in-age minors from felony charges for engaging in consensual sexual penetration as long as both parties are at least 13 and less than 3 years apart in age. Instead of facing a felony, one or both minors could face misdemeanor charges. The law also carries reduced misdemeanor penalties when a defendant age 16 or older engages in sexual contact with a minor age 13, 14, or 15 and their age difference is less than 5 years apart.

(S.D. Codified Laws §§ 22-22-1, 22-22-7 (2024).)

Defenses to Statutory Rape Charges in South Dakota

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." Marriage may also be a defense for acts between legal spouses.

Consent is never a defense to statutory rape offenses. South Dakota also doesn't allow a defendant's ignorance or mistake of a child's age to be a defense against statutory rape charges. (State v. Fulks, 83 S.D. 433 (1968).)

Does a Statutory Rape Conviction Require Sex Offender Registration in South Dakota?

Anyone older than 14 convicted or adjudicated delinquent of rape must register as a sex offender. Adults convicted of felony sexual contact with a minor younger than 16 must also register. Registration lasts 5 years to life. Failure to register is a crime.

(S.D. Codified Laws §§ 22-24B-1, 22-24B-2, 22-24B-2.1 (2024).)

Talk to a Lawyer

If you're facing a statutory rape charge, consult an experienced criminal defense attorney. A lawyer can help you understand the law and the ramifications of a guilty plea or verdict.