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Sex Crimes: Definitions and Penalties
South Dakota

Last Updated: April 2023
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Rape in the First Degree Answer

How is it defined?
  • An act of sexual penetration if the victim is under 13 years old. SD Codified Laws § 22-22-1.

What are the punishments for this crime?
  • For a violation of SDCL § 22-22-1(1), 15 years for a first offense. § 22-22-1.2(1).
  • Class C Felony: Maximum life imprisonment in the state penitentiary. In addition, a fine of $50,000 may be imposed. S.D. Codified Laws § 22-6-1(3).
  • If an adult has a previous conviction for a felony sex crime as defined by § 22-24B-1, any subsequent felony conviction for a sex crime as defined by subdivisions 22-24B-1(1) to (15), inclusive, and (19) shall result in a minimum sentence of imprisonment equal to the maximum term allowable under § 22-6-1, up to 25 years.  S.D. Codified Laws § 22-6-1.2.
  • In the event the victim is a child, the court may, as part of the sentence, order that the defendant not reside within 1 mile of the victim’s residence (unless the person is residing in a juvenile detention facility, jail, or state corrections facility); knowingly or willfully come within 1,000 ft of the victim; attend the same school as the victim; or have any contact with the victim, whether direct or indirect or through a third party.  These conditions will no longer apply once the victim reaches the age of majority. Violation of any condition is a Class 6 felony: maximum penalty of 2 years imprisonment and $4,000 fine. S.D. Codified Laws § 22-22-7.5, § 22-6-1(9).

Anything else I should know?

The following definitions are relevant to this crime:

  • “Sexual penetration” means an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital or anal openings of another person's body. All of the foregoing acts of sexual penetration, except sexual intercourse, are also defined as sodomy. Practitioners of the healing arts lawfully practicing within the scope of their practice, which determination shall be conclusive as against the state and shall be made by the court prior to trial, are not included within the provisions of this section. S.D. Codified Laws § 22-22-2.

There is no statute of limitations for Rape in the First Degree. §22-22-1.

Statutory citation(s):
  • S.D. Codified Laws § 22-22-1(1)





Rape in the Second Degree Answer

How is it defined?
  • An act of sexual penetration through the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim's presence, accompanied by apparent power of execution. SD Codified Laws § 22-22-1.2.

What are the punishments for this crime?
  • Class 1 Felony.  Maximum penalty of 50 years imprisonment and $50,000 fine. § 22-6-1(4).
  • If an adult has a previous conviction for a felony sex crime, any subsequent felony conviction for a sex crime as defined by subdivisions 22-24B-1(1) to (15), inclusive, and (19) shall result in a minimum sentence of imprisonment equal to the maximum term allowable under § 22-6-1, up to 25 years. § 22-6-1.2.
  • In the event the victim is a child, the court may, as part of the sentence, order that the defendant not reside within 1 mile of the victim’s residence (unless the person is residing in a juvenile detention facility, jail, or state corrections facility); knowingly or willfully come within 1,000 ft of the victim; attend the same school as the victim; or have any contact with the victim, whether direct or indirect or through a third party.  These conditions will no longer apply once the victim reaches the age of majority. Violation of any condition is a Class 6 felony: maximum penalty of 2 years imprisonment and $4,000 fine. §§ 22-22-7.5, 22-6-1(9).

Anything else I should know?

The following definitions are relevant to this crime:

  • “Sexual penetration” means an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital or anal openings of another person's body. All of the foregoing acts of sexual penetration, except sexual intercourse, are also defined as sodomy. § 22-22-2.
  • “Force” means the use of physical effort sufficient overcome, restrain, injure, or prevent escape. § 22-22-1.5.

 

There is no statute of limitations for Rape in the Second Degree. § 22-22-1.

Statutory citation(s):
  • S.D. Codified Laws § 22-22-1(2).





Rape in the Third Degree Answer

How is it defined?
  • An act of sexual penetration if:
    • the victim is incapable, because of physical or mental incapacity, of giving consent to such act and the perpetrator knows or reasonably should know of the victim’s incapacity; or
    • the victim is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis and the perpetrator knows or reasonably should know the victim is incapable of giving consent.  SD Codified Laws § 22-22-1.2.

What are the punishments for this crime?
  • Class 2 Felony.  Maximum penalty of 25 years imprisonment and $50,000 fine. § 22-6-1(5).
  • If an adult has a previous conviction for a felony sex crime, any subsequent felony conviction for a sex crime as defined by subdivisions 22-24B-1(1) to (15), inclusive, and (19) shall result in a minimum sentence of imprisonment equal to the maximum term allowable under § 22-6-1, up to 25 years. § 22-6-1.2.
  • In the event the victim is a child, the court may, as part of the sentence, order that the defendant not reside within 1 mile of the victim’s residence (unless the person is residing in a juvenile detention facility, jail, or state corrections facility); knowingly or willfully come within 1,000 ft of the victim; attend the same school as the victim; or have any contact with the victim, whether direct or indirect or through a third party.  These conditions will no longer apply once the victim reaches the age of majority. Violation of any condition is a Class 6 felony: maximum penalty of 2 years imprisonment and $4,000 fine. §§ 22-22-7.5, 22-6-1(9).

Anything else I should know?

The following definitions are relevant to this crime (§§ 22-22-1.5, 22-22-2):

  • “Sexual penetration” means an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital or anal openings of another person's body. All of the foregoing acts of sexual penetration, except sexual intercourse, are also defined as sodomy.
  • “Mental incapacity” means a mental or developmental disease or disability that renders a person incapable of appraising the nature of the person’s conduct.
  • “Physical incapacity” means a person’s incapability of resisting because the person is unconscious, asleep, or is subject to another physical condition that prevents the person from giving consent or resisting.
  • “Consent” means a person’s positive cooperation in act or attitude pursuant to the person's exercise of free will.

Statutory citation(s):
  • S.D. Codified Laws § 22-22-1(3) & (4).





Rape in the Fourth Degree Answer

How is it defined?
  • An act of sexual penetration:
    • if the victim is 13-15 years of age and the perpetrator is at least three years older than the victim; or
    • without the victim's consent and the perpetrator knows or reasonably should know the victim is not consenting.  S.D. Codified Laws § 22-22-1.

What are the punishments for this crime?
  • Class 3 Felony for first violation: maximum penalty of 15 years imprisonment and $30,000 fine. § 22-6-1(6).
  • If an adult has a previous conviction for a felony sex crime, any subsequent felony conviction for a sex crime as defined by subdivisions 22-24B-1(1) to (15), inclusive, and (19) shall result in a minimum sentence of imprisonment equal to the maximum term allowable under § 22-6-1, up to 25 years. § 22-6-1.2.
  • Class 2 Felony for subsequent violations of this provision or of sexual contact with a child under 16 years old: maximum penalty of 25 years imprisonment and $50,000 fine. § 22-22-7.7.
  • In the event the victim is a child, the court may, as part of the sentence, order that the defendant not reside within 1 mile of the victim’s residence (unless the person is residing in a juvenile detention facility, jail, or state corrections facility); knowingly or willfully come within 1,000 ft of the victim; attend the same school as the victim; or have any contact with the victim, whether direct or indirect or through a third party.  These conditions will no longer apply once the victim reaches the age of majority. Violation of any condition is a Class 6 felony: maximum penalty of 2 years imprisonment and $4,000 fine. § 22-22-7.5.

Anything else I should know?

The following definitions are relevant to this crime (§§ 22-22-1.5, 22-22-2):

  • “Sexual penetration” means an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital or anal openings of another person's body. All of the foregoing acts of sexual penetration, except sexual intercourse, are also defined as sodomy.
  • “Consent” means a person’s positive cooperation in act or attitude pursuant to the person's exercise of free will.

Statutory citation(s):
  • S.D. Codified Laws § 22-22-1(5) and (6).





Sexual Contact with a Person Incapable of Consenting Answer

How is it defined?
  • Knowingly engaging in sexual contact with a person who is 16 or older who is incapable because of physical or mental incapacity of consenting to sexual contact, where the actor is 15 or older. S.D. Codified Laws § 22-22-7.2.

What are the punishments for this crime?
  • Class 4 Felony.  Maximum penalty of 10 years imprisonment and $20,000 fine. § 22-6-1(7).
  • In the event the victim is a child, the court may, as part of the sentence, order that the defendant not reside within 1 mile of the victim’s residence (unless the person is residing in a juvenile detention facility, jail, or state corrections facility); knowingly or willfully come within 1,000 ft of the victim; attend the same school as the victim; or have any contact with the victim, whether direct or indirect or through a third party.  These conditions will no longer apply once the victim reaches the age of majority. Violation of any condition is a Class 6 felony: maximum penalty of 2 years imprisonment and $4,000 fine. § 22-22-7.5.

Anything else I should know?

The following definitions are relevant to this crime (§§ 22-22-7.1, 22-22-1.5):

  • “Sexual contact” means any touching, not amounting to rape, whether or not through clothing or other covering, of the breasts of a female or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party. Practitioners of the healing arts lawfully practicing within the scope of their practice, which determination shall be conclusive as against the state and shall be made by the court prior to trial, are not included within the provisions of this section.
  • “Mental incapacity” means a mental or developmental disease or disability that renders a person incapable of appraising the nature of the person’s conduct.
  • “Physical incapacity” means a person’s incapability of resisting because the person is unconscious, asleep, or is subject to another physical condition that prevents the person from giving consent or resisting.
  • “Consent” means a person’s positive cooperation in act or attitude pursuant to the person's exercise of free will.

Statutory citation(s):
  • S.D. Codified Laws § 22-22-7.2





Sexual Contact Without Consent With Person Capable of Consenting Answer

How is it defined?
  • Knowingly engaging in sexual contact with a person, other than the actor’s spouse, who is capable of consenting but has not consented to such contact, where the actor is 15 or older.

What are the punishments for this crime?
  • Class 1 Misdemeanor.  Maximum penalty of 1 year imprisonment and $2,000 fine.  S.D. Codified Laws § 22-6-2(1).
  • In the event the victim is a child, the court may, as part of the sentence, order that the defendant not reside within 1 mile of the victim’s residence (unless the person is residing in a juvenile detention facility, jail, or state corrections facility); knowingly or willfully come within 1,000 ft of the victim; attend the same school as the victim; or have any contact with the victim, whether direct or indirect or through a third party.  These conditions will no longer apply once the victim reaches the age of majority. Violation of any condition is a Class 6 felony: maximum penalty of 2 years imprisonment and $4,000 fine. § 22-22-7.5.

Anything else I should know?

The following definitions are relevant to this crime:

  • “Sexual contact” means any touching, not amounting to rape, whether or not through clothing or other covering, of the breasts of a female or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party. Practitioners of the healing arts lawfully practicing within the scope of their practice, which determination shall be conclusive as against the state and shall be made by the court prior to trial, are not included within the provisions of this section. § 22-22-7.1.
  • “Consent” means a person's positive cooperation in act or attitude pursuant to the person's exercise of free will. § 22-22-1.5.

Statutory citation(s):
  • S.D. Codified Laws § 22-22-7.4





Statutory Rape Answer

How is it defined?
  • Rape in the first degree: Engaging in an act of sexual penetration if the victim is under 13 years old. S.D. Codified Laws § 22-22-1(1).
  • Rape in the fourth degree: Engaging in an act of sexual penetration if the victim is 13-15 years old and the perpetrator is at least three years older than the victim. § 22-22-1(5).
  • Felony sexual contact with a child under 16: Knowingly engaging in sexual contact with a person, other than the actor’s spouse, under the age of 16 if the actor is 16 or older. § 22-22-7. The act of pressing an erect penis against a child’s buttocks amounts to “sexual contact”, even if both defendant and child are fully clothed.  State v. Bariteau, 2016 S.D. 57, 884 N.W.2d 169 (S.D. 2016).
  • Misdemeanor sexual contact with a child under 16: Knowingly engaging in sexual contact with a person 13-15 years old and the actor is less than five years older. § 22-22-7. The act of pressing an erect penis against a child’s buttocks amounts to “sexual contact”, even if both defendant and child are fully clothed. State v. Bariteau, 2016 S.D. 57, 884 N.W.2d 169 (S.D. 2016).
  • Sexual contact with a child under 16 years of age: Knowingly engaging in sexual contact when both parties are under 16 years old and not each other’s spouse. § 22-22-7.3.
  • Sexual contact with a child under 18 – position of authority: Knowingly engaging in sexual contact, or touching the buttocks or upper inner thighs with the intent to arouse or gratify the sexual desire of either party, when the perpetrator is at least 18 years old and at least 5 years older than the victim, is in a position of authority, and the victim is less than 18 years old and not the perpetrator’s spouse. § 22-22-7.8
  • Sexual exploitation of a minor: Causing or knowingly permitting a minor to engage in an activity or the simulation of an activity that is harmful to minors, involves nudity or is obscene. § 22-22-24.3.

Sexual contact or sexual penetration by a psychotherapist: Any psychotherapist who knowingly engages in sexual contact with a person who is not his or her spouse and who is a patient who is emotionally dependent on the psychotherapist at the time of contact or penetration. Consent by the patient is not a defense. §§ 22-22-28, 22-22-29.

What are the punishments for this crime?
  • Rape in the first degree: Class C Felony.  Minimum penalty of 15 years imprisonment for the first offense by an adult. Maximum penalty of life imprisonment and $50,000 fine.
  • Rape in the fourth degree: Class 3 Felony for first violation: maximum penalty of 15 years imprisonment and $30,000 fine.  Class 2 Felony for subsequent violations or of sexual contact with a child under 16: maximum penalty of 25 years imprisonment and $50,000 fine.
  • Felony sexual contact with a child under 16: Class 3 Felony for first violation: minimum sentence of 10 years for the first offense if the victim is under 13 and maximum sentence of 15 years imprisonment and $30,000 fine. Class 2 Felony for subsequent violations of this provision or Rape in the fourth degree: maximum penalty of 25 years imprisonment and $50,000 fine.
  • Misdemeanor sexual contact with a child under 16: Class 1 misdemeanor for first violation: maximum penalty 1 year imprisonment and $2,000 fine.  Class 2 felony for subsequent violations, as an adult of “felony sexual contact with a child under 16” or Rape in the fourth degree: maximum penalty of 25 years imprisonment and $50,000 fine.
  • Sexual contact with a child under 16 years of age: Class 1 misdemeanor: maximum penalty 1 year imprisonment and $2000 fine.
  • Sexual exploitation of a minor: Class 6 felony for first violation: maximum penalty of 2 years imprisonment and $4,000 fine. Class 5 felony for second or subsequent violations within 15 years of prior conviction: maximum penalty of 5 years imprisonment and $10,000 fine.
  • Sexual contact with child under 18 – position of authority:  Class 6 felony: maximum penalty of 2 years imprisonment and $4,000 fine.
  • Sexual contact or sexual penetration by a psychotherapist: Sexual contact by a psychotherapist is a Class 5 felony: maximum penalty of 5 years imprisonment and $10,000 fine. Sexual penetration by a psychotherapist is a Class 4 felony: maximum penalty of 10 years imprisonment and $20,000 fine. 
  • In the event the victim is a child, the court may, as part of the sentence, order that the defendant not reside within 1 mile of the victim’s residence (unless the person is residing in a juvenile detention facility, jail, or state corrections facility); knowingly or willfully come within 1,000 ft of the victim; attend the same school as the victim; or have any contact with the victim, whether direct or indirect or through a third party.  These conditions will no longer apply once the victim reaches the age of majority. Violation of any condition is a Class 6 felony: maximum penalty of 2 years imprisonment and $4,000 fine. § 22-22-7.5.

Anything else I should know?

The following definitions are relevant to this crime (§§ 22-22-2, 22-22-7.1, 22-22-27, 22-22-7.8):

  • “Sexual penetration” means an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital or anal openings of another person's body. All of the foregoing acts of sexual penetration, except sexual intercourse, are also defined as sodomy.
  • “Sexual contact” means any touching, not amounting to rape, whether or not through clothing or other covering, of the breasts of a female or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party.
  • “Emotional dependency” means a condition of the patient brought about by the nature of the patient’s own emotional condition or the nature of the treatment provided by the psychotherapist which is characterized by significant impairment of the patient’s ability to withhold consent to sexual acts or contact with the psychotherapist and which the psychotherapist knows or has reason to know exists.
  • “Patient” means any person who seeks or obtains psychotherapeutic services from a psychotherapist on a regular and ongoing basis.
  • “Psychotherapist” means any physician, psychologist, nurse, chemical dependency counselor, social worker, member of the clergy, marriage and family therapist, mental health service provider, or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.
  • “Psychotherapy” means the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition.

“Position of authority” means if the person, at the time of the sexual contact, or within the one-hundred-twenty-day period immediately preceding the sexual contact, interacts, no matter how briefly, with the victim as a coach, child care provider, disability services provider, guardian ad litem, health care provider, law enforcement officer, mental health counselor, probation officer, religious leader, school administrator, social worker, teacher, therapist, or youth leader.

Statutory citation(s):
  • S.D. Codified Laws §§ 22-22-1, 22-22-1.2, 22-22-7, 22-22-7.3, 22-22-7.5, 22-22-7.7, 22-22-7.8, 22-22-24.3, 22-22-28, 22-22-29





Sodomy Answer

How is it defined?
  • South Dakota does not prohibit sodomy. Anal sex is included in the definition of “sexual penetration.” S.D. Codified Laws § 22-22-2.
  • South Dakota defines sodomy as an act, however slight, of cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital or anal openings of another person’s body. § 22-22-2.
  • Any state laws that outright prohibit sodomy are unconstitutional under Lawrence v. Texas, 539 U.S. 588 (2003).

What are the punishments for this crime?
  • N/A

Anything else I should know?

The following definitions are relevant to this crime:

  • “Sexual penetration” means an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital or anal openings of another person's body. All of the foregoing acts of sexual penetration, except sexual intercourse, are also defined as sodomy.  S.D. Codified Laws §§ 22-22-2.

Statutory citation(s):
  • N/A