In South Dakota, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone younger than 16), 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. Assaults of a sexual nature may also be charged under the state’s assault and battery or child enticement laws.
In South Dakota, statutory rape includes sexual penetration and contact between an adult and someone younger than 16. The crime is broken into several categories, as explained below.
Getting Legal Guidance
The information in this article provides an overview of the law relating to statutory rape. If you are trying to determine the legality of any kind of conduct, make sure to consult an experienced criminal defense attorney. The law is complex and changes regularly.
First degree rape includes sexual penetration (oral, genital, or anal sex or penetration, however slight) between a minor who is younger than 13 years old and a defendant of any age. This offense is a Class C felony, which is punishable by a fine of up to $50,000, at least 15 years (and up to life) in prison, or both. (S.D. Codified Laws §§ 22-6-1, 22-22-1, 22-22-1.2, 22-22-2 (2018).)
Fourth degree rape includes sexual penetration between a minor who is at least 13 years old but younger than 16 and a defendant who is at least three years older than the child. This offense is a Class 3 felony, punishable by up to 15 years in prison, a fine of $30,000, or both. (S.D. Codified Laws §§ 22-6-1, 22-22-1, 22-22-2 (2018).)
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 who is 16 years of age or older. This offense is a Class 3 felony, and penalties include a fine of up to $30,000, up to 15 years in prison, or both. If the victim was younger than 13, the offense is punishable by a minimum of ten years in prison. However, if the victim was at least 13 years of age and the defendant was fewer than five 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. Codified Laws §§ 22-6-1, 22-6-2, 22-22-1.2, 22-22-7, 22-22-7.1 (2018).)
State law requires that, in addition to the applicable fines and prison time, people convicted of certain sexual crimes (including some instances of statutory rape) must register as sex offenders. (S.D. Codified Laws §§ 22-24B-1, 22-24B-2 (2018).)
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.”
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 at least 13 years old 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. (S.D. Codified Laws §§ 22-22-1, 22-22-7 (2018).)
And sexual contact with a child under 13 is always a serious crime. A conviction for engaging in any sexual activity with a minor younger than 13 can result in significant prison time and large fines.
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. (State v. Fulks, 83 S.D. 433 (1968).)
If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. The law can change at any time, 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.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated September 27, 2018