South Dakota gets closer to defining 'consent,' creating new rape penalty

S.D. Senators gather for the first day of legislative session on Tuesday, January 10, 2023, at the South Dakota State Capitol in Pierre.

PIERRE — A set of bills that would further clarify the definition of consent and create a new rape penalty passed out of a Senate committee Tuesday, but not without some disagreement.

Currently, for victims of rape who freeze during their attack (therefore withholding their consent), there is no way for them to easily seek justice. These two bills, which have been debated for nearly three years, would allow for a pathway for victims to seek justice through the court system.

While the bill that would define consent as "a person's positive cooperation in act or attitude pursuant to the person's exercise of free will," passed unanimously, the second bill that determined a new penalty under South Dakota's current rape statutes added an amendment to include the perpetrator must know or reasonably know that the victim is not consenting.

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That amendment was brought by Sen. David Wheeler, R-Huron, who argued not all perpetrators may know consent was revoked.

"It's very important that we're gonna lock somebody up in prison, put them on the sex offender registry and they didn't know what they were doing was a crime," Wheeler said. "They thought they had consent, but they didn't. That's a huge change in that person's life."

Sen. Tim Reed, R-Brookings, who sponsored both bills said the initial purpose of the proposed rape statute was to target the perpetrators who didn't cooperate with law enforcement. His original bill expanded the definition of rape to include "without the victim's consent" and to have it be punishable as a class 3 felony, which means the perpetrator could spend up to 15 years in prison.

However, with Wheeler's successful amendment, that line became "without the victim's consent and the perpetrator knows or reasonably should know the victim is not consenting." The felony punishment stayed the same.

Reed explained within the statute, mental incapacity and intoxication have to be reasonably known, because a perpetrator may have been watching their victim drink.

"If you've been watching them drink and you know that they've had a lot to drink, then they're intoxicated," he said. "And you should have or should not have known that."

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Twenty-six states, including South Dakota, do not have clear consent laws on the books, according to Rape, Abuse and Incest National Network. The closest South Dakota has to such a definition is second-degree rape, or forcible rape, and third-degree rape, which includes being incapable of consent due to intoxication.

Both bills now head to the Senate floor for debate. If successful, the bills will then move to the House for committee hearings and debate.

This article originally appeared on Sioux Falls Argus Leader: South Dakota gets closer to defining 'consent,' creating new rape penalty