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CHAPTER 22-22

SEX OFFENSES

22-22-1      Rape--Degrees--Felony--Statute of limitations.
22-22-1.1      Repealed.
22-22-1.2      Minimum sentences for rape or sexual contact with child.
22-22-1.3      Contents of presentence investigation report for person convicted of sex crime..
22-22-1.4      Exception for mitigating circumstances--Factual basis relied upon in writing.
22-22-2      Sexual penetration defined--Acts constituting sodomy--Medical practitioners excepted.
22-22-3, 22-22-4.      Repealed.
22-22-5      Repealed.
22-22-6      Repealed.
22-22-7      Sexual contact with child under sixteen--Felony or misdemeanor.
22-22-7.1      Sexual contact defined--Exception when within the scope of medical practice.
22-22-7.2      Sexual contact with person incapable of consenting--Felony.
22-22-7.3      Sexual contact with child under sixteen years of age--Violation as misdemeanor.
22-22-7.4      Sexual contact without consent with person capable of consenting as misdemeanor.
22-22-7.5      Safety zone of child victim of sex crime.
22-22-7.6      Sexual acts between jail or juvenile correctional facility employees and detainees--Felony.
22-22-7.7      Subsequent conviction of rape of or sexual contact with a child under sixteen as felony.
22-22-8 to 22-22-10.      Repealed.
22-22-11      Repealed.
22-22-12 to 22-22-14.      Repealed.
22-22-15      Transferred.
22-22-16 to 22-22-18.      Repealed.
22-22-19      Repealed.
22-22-19.1      Repealed.
22-22-20, 22-22-21.      Repealed.
22-22-22      Repealed.
22-22-23, 22-22-23.1.      Repealed.
22-22-24 to 22-22-24.2. Transferred.
22-22-24.3      Sexual exploitation of a minor--Felonies--Assessment.
22-22-24.4 to 22-22-25. Transferred .
22-22-26      County to pay for forensic medical examinations.
22-22-26.1      Cost of forensic medical examination--Convicted defendant to reimburse county.
22-22-26.2      Coordination of payment of cost of forensic medical examinations--Notice to victim--Victim not required to participate.
22-22-27      Definition of terms--Sex offenses by psychotherapists.
22-22-28      Sexual contact by psychotherapist--Felony.
22-22-29      Sexual penetration by psychotherapist--Felony.
22-22-30      Transferred.


22-22-30.1      Repealed.
22-22-31, 22-22-31.1.      Transferred.
22-22-31.2      Repealed.
22-22-31.3 to 22-22-34. Transferred.
22-22-35      Repealed.
22-22-36      Transferred.
22-22-37      Repealed.
22-22-38 to 22-22-41.      Transferred.
22-22-42      Bestiality--Acts constituting--Commission a felony.
22-22-43      Sexual act with an animal defined--Proof.
22-22-44      Provisions of § 22-22-42 not applicable to accepted practices.
22-22-45      Threatening to commit a sexual offense--Felony.
22-22-46      Assisting, harboring, concealing, or providing false information about sex offender--Felony.
22-22-47      Repealed.


     22-22-1.   Rape--Degrees--Felony--Statute of limitations. 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; or
             (4)      If the victim is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis; 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.
     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. 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 the victim becomes of age twenty-five or within seven years of the commission of the crime, whichever is longer.

Source: SDC 1939, §§ 13.2801, 13.2803; SDCL § 22-22-5; SL 1972, ch 154, § 21; SL 1975, ch 169, §§ 1, 5; SL 1976, ch 158, § 22-1; SL 1977, ch 189, § 51; SL 1978, ch 158, § 10; SL 1980, ch 175; SL 1982, ch 176, § 1; SL 1984, ch 165, § 1; SL 1984, ch 167, § 2; SL 1985, ch 179; SL 1985, ch 181, § 1; SL 1988, ch 187; SL 1989, ch 194, § 2; SL 1990, ch 161, § 2; SL 1990, ch 162, § 1; SL 1991, ch 24, § 8; SL 1994, ch 165, § 2; SL 1994, ch 166, § 2; SL 2000, ch 100, § 1; SL 2005, ch 120, § 390; SL 2012, ch 125, § 1.


     22-22-1.1.   Repealed by SL 1990, ch 161, § 1


     22-22-1.2.   Minimum sentences for rape or sexual contact with child. If any adult is convicted of any of the following violations, the court shall impose the following minimum sentences:
             (1)      For a violation of subdivision 22-22-1(1), fifteen years for a first offense; and
             (2)      For a violation of § 22-22-7 if the victim is less than thirteen years of age, ten years for a first offense.

Source: SL 1992, ch 164, § 1; SL 2005, ch 120, § 392; SL 2006, ch 121, § 1.


     22-22-1.3.   Contents of presentence investigation report for person convicted of sex crime. Any person convicted of a felony violation as provided in subdivisions 22-24B-1(1) to (15), inclusive, and (19) shall have included in the offender's presentence investigation report a psycho-sexual assessment including the following information: the offender's sexual history; an identification of precursor activities to sexual offending; intellectual, adaptive and academic functioning; social and emotional functioning; previous legal history; previous treatment history; victim selection and age; risk to the community; and treatment options recommended. If a presentence investigation is not prepared, the court shall order a psycho-sexual assessment which shall be made available to the court prior to sentencing. If the offender is sentenced to the state penitentiary, the psycho-sexual assessment shall be attached to the official statement and supplied to the Board of Pardons and Paroles and the warden.

Source: SL 1992, ch 164, § 2; SL 2005, ch 120, § 393; SL 2006, ch 121, § 2.


     22-22-1.4.   Exception for mitigating circumstances--Factual basis relied upon in writing. The sentencing court may impose a sentence other than that which is required by §§ 22-22-1.2 and 22-6-1.2 if the court finds that mitigating circumstances exist which require a departure from the mandatory sentence imposed by § 22-22-1.2 or 22-6-1.2. The court's finding of mitigating circumstances and the factual basis relied upon by the court shall be in writing.

Source: SL 1992, ch 164, § 3; SL 2005, ch 120, § 394; SL 2006, ch 121, § 4.


     22-22-2.   Sexual penetration defined--Acts constituting sodomy--Medical practitioners excepted. 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. In any pretrial proceeding under this section, the prosecution has the burden of establishing probable cause.

Source: SDC 1939, § 13.2802; SL 1975, ch 169, § 2; SL 1980, ch 176, §§ 1, 2; SL 1986, ch 181; SL 1993, ch 178, § 4; SL 1997, ch 133, § 1.


     22-22-3, 22-22-4.   Repealed by SL 1975, ch 169, § 8


     22-22-5.   Repealed by SL 2005, ch 120, § 395, eff. July 1, 2006.


     22-22-6.   Repealed by SL 1976, ch 158, § 22-8


     22-22-7.   Sexual contact with child under sixteen--Felony or misdemeanor. Any person, sixteen years of age or older, who knowingly engages in sexual contact with another person, other than that person's spouse if the other person is under the age of sixteen years is guilty of a Class 3 felony. If the victim is at least thirteen years of age and the actor is less than five years older than the victim, the actor is guilty of a Class 1 misdemeanor. Notwithstanding § 23A-42-2, a charge brought pursuant to this section may be commenced at any time before the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.

Source: SL 1950 (SS), ch 3, §§ 1, 2; SL 1955, ch 27; SDC Supp 1960, § 13.1727; SDCL § 22-22-8; SL 1976, ch 158, § 22-3; SL 1977, ch 189, § 52; SL 1981, ch 176; SL 1982, ch 176, § 2; SL 1984, ch 165, § 2; SL 1985, ch 181, § 2; SL 1989, ch 194, § 1; SL 1989, ch 195, § 1; SL 1990, ch 162, § 2; SL 1994, ch 166, § 3; SL 2006, ch 121, § 5; SL 2010, ch 115, § 1.


     22-22-7.1.   Sexual contact defined--Exception when within the scope of medical practice. As used in this chapter, the term, 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. In any pretrial proceeding under this section, the prosecution has the burden of establishing probable cause.

Source: SL 1976, ch 158, § 22-4; SL 1982, ch 177, § 2; SL 1993, ch 178, § 5; SL 1997, ch 133, § 2; SL 2004, ch 152, § 1.


     22-22-7.2.   Sexual contact with person incapable of consenting--Felony. Any person, fifteen years of age or older, who knowingly engages in sexual contact with another person if the other person is sixteen years of age or older and the other person is incapable, because of physical or mental incapacity, of consenting to sexual contact, is guilty of a Class 4 felony.

Source: SL 1985, ch 182; SL 2005, ch 120, § 396; SL 2013, ch 106, § 1.


     22-22-7.3.   Sexual contact with child under sixteen years of age--Violation as misdemeanor. Any person, younger than sixteen years of age, who knowingly engages in sexual contact with another person, other than his or her spouse, if such other person is younger than sixteen years of age, is guilty of a Class 1 misdemeanor.

Source: SL 1989, ch 195, § 2; SL 1990, ch 163; SL 2005, ch 120, § 397.


     22-22-7.4.   Sexual contact without consent with person capable of consenting as misdemeanor. No person fifteen years of age or older may knowingly engage in sexual contact with another person other than his or her spouse who, although capable of consenting, has not consented to such contact. A violation of this section is a Class 1 misdemeanor.

Source: SL 1991, ch 189; SL 2005, ch 120, § 398.


     22-22-7.5.   Safety zone of child victim of sex crime. The court, upon the conviction of any person of a violation of the provisions of chapter 22-22 in which the victim was a child or upon an adjudication of a juvenile as a delinquent child for a violation of the provisions of chapter 22-22 in which the victim was a child, may, as a part of the sentence or adjudication, order that the defendant or delinquent child not:
             (1)      Reside within one mile of the victim's residence unless the person is residing in a juvenile detention facility, jail, or state corrections facility;
             (2)      Knowingly or willfully come within one thousand feet of the victim;
             (3)      Attend the same school as the victim; or
             (4)      Have any contact with the victim, whether direct or indirect or through a third party.
     No condition imposed pursuant to this section applies once the victim attains the age of majority. A violation of any condition imposed pursuant to this section is a Class 6 felony.

Source: SL 1997, ch 137, § 1; SL 2005, ch 120, § 399.


     22-22-7.6.   Sexual acts between jail or juvenile correctional facility employees and detainees--Felony. Any person employed at any jail or juvenile correctional facility, who knowingly engages in an act of sexual contact or sexual penetration with another person who is in detention and under the custodial, supervisory, or disciplinary authority of the person so engaging, and which act of sexual contact or sexual penetration does not otherwise constitute a felony pursuant to the provisions of chapter 22-22, is guilty of a Class 6 felony if the victim is an adult and a Class 4 felony if the victim is a juvenile.
     A juvenile correctional facility pursuant to this section is a juvenile detention facility as defined in subdivision 26-7A-1(16) or a juvenile facility operated by the Department of Corrections under § 1-15-1.4.

Source: SL 2000, ch 103, §§ 1, 2; SL 2013, ch 107, § 1.


     22-22-7.7.   Subsequent conviction of rape of or sexual contact with a child under sixteen as felony. If an adult has a previous conviction for violation of subdivision 22-22-1(5), or a previous conviction for a felony violation of § 22-22-7, or a previous misdemeanor conviction of § 22-22-7 for a violation committed as an adult, any subsequent conviction of subdivision 22-22-1(5) or § 22-22-7, is a Class 2 felony.

Source: SL 2010, ch 115, § 2.


     22-22-8 to 22-22-10.   Repealed by SL 1976, ch 158, § 22-8


     22-22-11.   Repealed by SL 2005, ch 120, § 400, eff. July 1, 2006.


     22-22-12 to 22-22-14.   Repealed by SL 1975, ch 169, § 8


     22-22-15.   Transferred to § 22-22A-1 by SL 2005, ch 120, § 23, eff. July 1, 2006.


     22-22-16 to 22-22-18.   Repealed by SL 1976, ch 158, § 22-8


     22-22-19.   Repealed by SL 1984, ch 167, § 1


     22-22-19.1.   Repealed by SL 2005, ch 120, § 22, eff. July 1, 2006.


     22-22-20, 22-22-21.   Repealed by SL 1976, ch 158, § 22-8


     22-22-22.   Repealed by SL 2002, ch 109, § 1


     22-22-23, 22-22-23.1.   Repealed by SL 2002, ch 109, §§ 2, 3


     22-22-24 to 22-22-24.2.   Transferred to §§ 22-24A-1 to 22-24A-3 by SL 2005, ch 120, § 407, eff. July 1, 2006.


     22-22-24.3.   Sexual exploitation of a minor--Felonies--Assessment. A person is guilty of sexual exploitation of a minor if the person causes or knowingly permits a minor to engage in an activity or the simulation of an activity that:
             (1)      Is harmful to minors;
             (2)      Involves nudity; or
             (3)      Is obscene.
     Consent to performing these proscribed acts by a minor or a minor's parent, guardian, or custodian, or mistake as to the minor's age is not a defense to a charge of violating this section.
     A violation of this section is a Class 6 felony. If a person is convicted of a second or subsequent violation of this section within fifteen years of the prior conviction, the violation a Class 5 felony.
     The court shall order an assessment pursuant to § 22-22-1.3 of any person convicted of violating this section.

Source: SL 2002, ch 109, § 8; SL 2005, ch 120, § 401; SL 2006, ch 121, § 7.


     22-22-24.4 to 22-22-25.   Transferred to §§ 22-24A-4 to 22-24A-20 by SL 2005, ch 120, § 407, eff. July 1, 2006.


     22-22-26.   County to pay for forensic medical examinations. The county where an alleged rape or sexual offense occurred shall pay the cost of any forensic medical examination performed by a physician, hospital, or clinic on the victim of the alleged rape or sexual offense. For purposes of the provisions of §§ 22-22-26 to 22-22-26.2, inclusive, the term, forensic medical examination, includes:
             (1)      Examination of physical trauma;
             (2)      Patient interview, including medical history, triage, and consultation; and
             (3)      Collection and evaluation of evidence, including any photographic documentation; preservation and maintenance of the chain of custody of evidence; medical specimen collection; and any alcohol- or drug-facilitated sexual assault assessment and toxicology screening deemed necessary by the physician, hospital, or clinic.

Source: SL 1986, ch. 182; SL 2005, ch 120, § 402; SL 2012, ch 126, § 1; SL 2013, ch 108, § 1; SL 2018, ch 131, § 1.


     22-22-26.1.   Cost of forensic medical examination--Convicted defendant to reimburse county. A person who is convicted of a rape or sexual offense shall be required as part of the sentence imposed by the court to reimburse the county for the cost of any forensic medical examination performed under § 22-22-26 resulting from the rape or sexual offense for which the defendant is convicted. The cost of a forensic medical examination to be paid by the county under § 22-22-26 and reimbursed to the county under this section shall include:
             (1)      Physician, hospital, or clinic services and fees directly related to the forensic medical examination, including integral forensic supplies;
             (2)      Scope procedures directly related to the forensic medical examination, including anoscopy and colposcopy;
             (3)      Laboratory testing directly related to the forensic medical examination, including drug screening, urinalysis, pregnancy screening, syphilis screening, chlamydia culture, gonorrhea coverage culture, blood test for HIV screening, hepatitis B and C, herpes culture, and any other sexually-transmitted disease testing directly related to the examination;
             (4)      Any medication provided during the forensic medical examination; and
             (5)      Any radiology service directly related to the forensic medical examination.

Source: SL 2018, ch 131, § 2.


     22-22-26.2.   Coordination of payment of cost of forensic medical examinations--Notice to victim--Victim not required to participate. Each physician, hospital, and clinic conducting an examination under § 22-22-26 shall coordinate with the county to establish a payment process by which the county shall pay for the cost of any forensic medical examination performed under § 22-22-26 and to notify any victim of rape or sexual offense of the availability of a forensic medical examination at no cost to the victim. A victim of rape or sexual offense is not required to participate in the criminal justice system or to cooperate with law enforcement to be provided with a forensic medical examination without cost to the victim.
     The amount paid to a physician, hospital, or clinic for a forensic medical exam performed under § 22-22-26 may not exceed the actual cost of the forensic medical examination or an amount established by the secretary of the Department of Social Services, whichever is less. The amount established by the secretary under this section shall be based on Medicaid payment methodology. A physician, hospital, or clinic may not maintain a claim against a county for any amount that exceeds the usual ordinary and reasonable charge for a forensic medical examination, including an amount that is less than the actual cost of the forensic medical examination. If the physician, hospital, or clinic performs forensic medical examinations, or any portion of a forensic medical examination, to persons who are medically indigent residing in the county in which the physician, hospital, or clinic is located at a cost less than the amount provided for in this section, the physician, hospital, or clinic shall furnish the forensic medical examination, or any applicable portion of the forensic medical examination, at the lower cost.

Source: SL 2018, ch 131, § 3.


     22-22-27.   Definition of terms--Sex offenses by psychotherapists. Terms used in §§ 22-22-28 and 22-22-29 mean:
             (1)      "Emotional dependency," 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;
             (2)      "Patient," any person who seeks or obtains psychotherapeutic services from a psychotherapist on a regular and ongoing basis;
             (3)      "Psychotherapist," 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; and
             (4)      "Psychotherapy," the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition.

Source: SL 1993, ch 178, § 1; SL 2005, ch 120, § 403.


     22-22-28.   Sexual contact by psychotherapist--Felony. Any psychotherapist who knowingly engages in sexual contact, as defined in § 22-22-7.1, 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, commits a Class 5 felony. Consent by the patient is not a defense.

Source: SL 1993, ch 178, § 2; SL 2005, ch 120, § 404.


     22-22-29.   Sexual penetration by psychotherapist--Felony. Any psychotherapist who knowingly engages in an act of sexual penetration, as defined in § 22-22-2, 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 that the act of sexual penetration is committed, commits a Class 4 felony. Consent by the patient is not a defense.

Source: SL 1993, ch 178, § 3; SL 2005, ch 120, § 405.


     22-22-30.   Transferred to § 22-24B-1 by SL 2005, ch 120, § 415, eff. July 1, 2006.


     22-22-30.1.   Repealed by SL 2005, ch 120, § 391, eff. July 1, 2006.


     22-22-31, 22-22-31.1.   Transferred to §§ 22-24B-2 and 22-24B-5 by SL 2005, ch 120, § 415, eff. July 1, 2006.


     22-22-31.2.   Repealed by SL 2005, ch 120, § 418, eff. July 1, 2006.


     22-22-31.3 to 22-22-34.   Transferred to §§ 22-24B-6 to 22-24B-11 by SL 2005, ch 120, § 415, eff. July 1, 2006.


     22-22-35.   Repealed by SL 1995, ch 126, § 2


     22-22-36.   Transferred to § 22-24B-12 by SL 2005, ch 120, § 415, eff. July 1, 2006.


     22-22-37.   Repealed by SL 2003, ch 126, § 2


     22-22-38 to 22-22-41.   Transferred to §§ 22-24B-13 to 22-24B-16 by SL 2005, ch 120, § 415, eff. July 1, 2006.


     22-22-42.   Bestiality--Acts constituting--Commission a felony. No person, for the purpose of that person's sexual gratification, may:
             (1)      Engage in a sexual act with an animal; or
             (2)      Coerce any other person to engage in a sexual act with an animal; or
             (3)      Use any part of the person's body or an object to sexually stimulate an animal; or
             (4)      Videotape a person engaging in a sexual act with an animal; or
             (5)      Kill or physically abuse an animal.
     Any person who violates any provision of this section is guilty of the crime of bestiality. Bestiality is a Class 6 felony. However, if the person has been previously convicted of a sex crime pursuant to § 22-24B-1, any subsequent violation of this section is a Class 5 felony.

Source: SL 2003, ch 127, § 1; SL 2005, ch 120, § 406.


     22-22-43.   Sexual act with an animal defined--Proof. For the purposes of § 22-22-42, the term, sexual act with an animal, means any act between a person and an animal involving direct physical contact between the genitals of one and the mouth or anus of the other, or direct physical contact between the genitals of one and the genitals of the other. A sexual act with an animal may be proved without evidence of penetration.

Source: SL 2003, ch 127, § 2.


     22-22-44.   Provisions of § 22-22-42 not applicable to accepted practices. The provisions of § 22-22-42 do not apply to or prohibit normal, ordinary, or accepted practices involved in animal husbandry, artificial insemination, or veterinary medicine.

Source: SL 2003, ch 127, § 3.


     22-22-45.   Threatening to commit a sexual offense--Felony. Any person who has been convicted of a felony sex offense as defined in § 22-24B-1 who directly threatens or communicates specific intent to commit further felony sex offenses is guilty of threatening to commit a sexual offense. Threatening to commit a sexual offense is a Class 4 felony.

Source: SL 2006, ch 121, § 15.


     22-22-46.   Assisting, harboring, concealing, or providing false information about sex offender--Felony. Any person who knowingly assists, harbors, or conceals a sex offender in eluding law enforcement or provides false information regarding the residence or whereabouts of a sex offender is guilty of a Class 5 felony.

Source: SL 2006, ch 121, § 12.


     22-22-47.   Repealed by SL 2014, ch 132, § 1.


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