An Act to revise certain provisions regarding the crime of rape and provide a penalty therefor.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That 22-22-1 be AMENDED:
22-22-1. Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:
(1) If the victim is less than
thirteen years of age;
or
(2) 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;
or
(3) 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
(4) If 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;
or
(5) If the victim is thirteen
years of age, but less than sixteen years of age, and the perpetrator
is at least three years older than the victim.;
or
(6) Without the victim's consent.
A violation of subdivision (1) of
this section is rape in the first degree, which is a Class C felony.
A violation of subdivision (2) of this section is rape in the second
degree which is a Class 1 felony. A violation of subdivision (3) or
(4) of this section is rape in the third degree, which is a Class 2
felony. A violation of subdivision (5) of this section is rape in the
fourth degree, which is a Class 3 felony. A
violation of subdivision (6) of this section is rape in the fifth
degree, which is a Class 4 felony. Notwithstanding
the provisions of 23A-42-2,
no statute of limitations applies to any charge brought pursuant to
subdivisions (1) or (2) of this section. Otherwise,
a charge brought pursuant to this section may be commenced at any
time
prior to the time
before the
victim
becomes of
reaches
age twenty-five
or within seven years
of from
the commission
of the crime, whichever is longer.
Section 2. That chapter 22-22 be amended with a NEW SECTION:
Terms used in this chapter mean:
(1) "Consent," a person's positive cooperation in act or attitude pursuant to the person's exercise of free will;
(2) "Force," the use of physical effort sufficient to overcome, restrain, injure, or prevent escape;
(3) "Mental incapacity," a mental or developmental disease or disability that renders a person incapable of appraising the nature of the person's conduct;
(4) "Physical incapacity," 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.
Section 3. That 22-24B-19 be AMENDED:
22-24B-19. To be eligible for removal from the registry as a Tier I offender, the petitioner shall show, by clear and convincing evidence, that all of the following criteria have been met:
(1) At least five years have elapsed since the date the petitioner first registered pursuant to this chapter;
(2) The crime requiring registration was for:
(a) Statutory rape under subdivision 22-22-1(5), or an attempt to commit statutory rape under subdivision 22-22-1(5), but only if the petitioner was twenty-one years of age or younger at the time the offense was committed or attempted;
(b) A juvenile adjudication for a sex crime as defined in subdivision 22-24B-1(1);
(c) Sexual contact under 22-22-7 if the victim was between the ages of thirteen and sixteen and the petitioner was at least three years older than the victim, but only if the petitioner was twenty-one years of age or younger at the time the offense was committed;
(d) Felony use or dissemination
of visual recording or photographic device without consent under
22-21-4;
or
(e) An out-of-state, federal or court martial offense that is comparable to the elements of the crimes listed in (a), (b), or (c); or
(f) Rape under subdivision 22-22-1(6), or an attempt to commit rape under subdivision 22-22-1(6);
(3) The circumstances surrounding the crime requiring registration did not involve a child under the age of thirteen;
(4) The petitioner is not a recidivist sex offender;
(5) The petitioner has substantially complied in good faith with the registration and re-registration requirements imposed under chapter 22-24B; and
(6) Petitioner demonstrates to the satisfaction of the court that he or she does not pose a risk or danger to the community.
For purposes of this section, any period of time during which the petitioner was incarcerated or during which the petitioner was confined in a mental health facility does not count toward the five-year calculation, regardless of whether such incarceration or confinement was for the sex offense requiring registration or for some other offense.