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Codified Laws

CHAPTER 22-24A

CHILD PORNOGRAPHY

22-24A-1    Sale of child pornography--Felony.

22-24A-1.1    Manufacturing or distributing child-like sex doll--Felony.

22-24A-2    Definitions.

22-24A-3    Repealed.

22-24A-3.1    Purchasing or possessing child-like sex doll--Misdemeanor or felony.

22-24A-4    Minor and solicit defined.

22-24A-5    Solicitation of a minor--Felony--Assessment.

22-24A-6    Nonresident violating child protection laws subject to state court jurisdiction--Service of process.

22-24A-7    Liability for civil damages.

22-24A-8    Persons who may bring action for damages.

22-24A-9    Persons from whom damages may be sought.

22-24A-10    Damages recoverable.

22-24A-11    Joinder of plaintiffs--Joinder of defendants.

22-24A-12    Judgment debtor ineligible to exempt property from levy or execution--Assets subject to forfeiture.

22-24A-13    Statute of limitations.

22-24A-14    Civil action stayed pending completion of criminal action--Statute of limitations tolled.

22-24A-15    Property subject to forfeiture.

22-24A-15.1    22-24A-15.1 to 22-24A-15.5. Repealed by SL 2016, ch 138, §§ 40 to 44.

22-24A-16    Internet service providers to report suspected violations of child pornography laws--Permitting subscriber to use service for child pornography prohibited--Misdemeanor.

22-24A-17    Film processors to report suspected violations of child pornography laws--Permitting use of services for child pornography prohibited--Misdemeanor.

22-24A-18    Computer repair technicians to report suspected violations of child pornography laws--Misdemeanor.

22-24A-19    Certain child protection laws inapplicable to performance of official duties or bona fide treatment or professional education program.

22-24A-20    Exemption of publications with redeeming social value.

22-24A-21    22-24A-21 to 22-24A-34. Repealed by SL 2016, ch 138, §§ 45 to 58.

22-24A-35    Possessing child pornography--Penalty.

22-24A-36    Distributing child pornography--Penalty.

22-24A-37    Manufacturing child pornography--Penalty.

22-24A-38    Convictions in other states considered.

22-24A-39    Presentence investigation.

22-24A-40    Consent or mistake of age not a defense.

22-24A-41    Affirmative defense.

22-24A-42    Sentencing--Mitigating circumstances.



22-24A-1Sale of child pornography--Felony.

Any person who sells, or displays for sale, any book, magazine, pamphlet, slide, photograph, film, or electronic or digital media image depicting a minor engaging in a prohibited sexual act, or engaging in an activity that involves nudity, or in the simulation of any such act is guilty of a Class 4 felony.

Source: SL 1978, ch 159, § 4; SL 2002, ch 109, § 4; SDCL § 22-22-24; SL 2005, ch 120, § 407; SL 2016, ch 124, § 1.



22-24A-1.1. Manufacturing or distributing child-like sex doll--Felony.

It is a Class 4 felony for any person to:

(1)    Create a child-like sex doll;

(2)    Cause or knowingly permit the creation of a child-like sex doll; or

(3)    Knowingly distribute, sell, or display for sale, or otherwise disseminate a child-like sex doll.

If a person is convicted of a second or subsequent violation of this section within fifteen years of the prior conviction, the violation is a Class 3 felony.

Source: SL 2021, ch 98, § 1.



22-24A-2. Definitions.

Terms used in §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive, mean:

(1)    "Adult," any person eighteen years of age or older;

(2)    "Child pornography," any image or visual depiction of a minor engaged in prohibited sexual acts;

(3)    "Child" or "minor," any person under the age of eighteen years;

(3A)    "Child-like sex doll," any obscene anatomical doll, obscene anatomical mannequin, or obscene anatomical robot that is intentionally designed to resemble a prepubescent child and either to entice sexual excitement or to engage in prohibited sexual acts;

(4)    "Computer," any electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, including wireless communication devices such as cellular phones. The term also includes any on-line service, internet service, or internet bulletin board;

(5)    "Computer-generated child pornography," any visual depiction of:

(a)    An actual minor that has been created, adapted, or modified to depict that minor engaged in a prohibited sexual act;

(b)    An actual adult that has been created, adapted, or modified to depict that adult as a minor engaged in a prohibited sexual act; or

(c)    An individual indistinguishable from an actual minor created by the use of artificial intelligence or other computer technology capable of processing and interpreting specific data inputs to create a visual depiction;

(6)    "Digital media," any electronic storage device, including a floppy disk or other magnetic storage device or any compact disc that has memory and the capacity to store audio, video, or written materials;

(7)    "Harmful to minors," any reproduction, imitation, characterization, description, visual depiction, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement if it:

(a)    Predominantly appeals to the prurient, shameful, or morbid interest of minors;

(b)    Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(c)    Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.

This term does not include a mother's breast-feeding of her baby;

(8)    "Indistinguishable," when used with respect to a visual depiction, means virtually indistinguishable, in that the visual depiction is such that an ordinary person viewing the visual depiction would conclude that the visual depiction is of an actual minor engaged in a prohibited sexual act;

(9)    "Masochism," sexual gratification achieved by a person through, or the association of sexual activity with, submission or subjection to physical pain, suffering, humiliation, torture, or death;

(10)    "Nudity," the showing or the simulated showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering; or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state for the purpose of creating sexual excitement. This term does not include a mother's breast-feeding of her baby irrespective of whether or not the nipple is covered during or incidental to feeding;

(11)    "Obscene," the status of material which:

(a)    The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

(b)    Depicts or describes, in a patently offensive way, prohibited sexual acts; and

(c)    Taken as a whole, lacks serious literary, artistic, political, or scientific value.

This term does not include a mother's breast-feeding of her baby;

(12)    "Person," includes individuals, children, firms, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations;

(13)    "Sadism," sexual gratification achieved through, or the association of sexual activity with, the infliction of physical pain, suffering, humiliation, torture, or death;

(14)    "Sadomasochistic abuse," flagellation or torture by or upon a minor, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself;

(15)    "Sexual battery," oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object. This term does not include an act done for a bona fide medical purpose;

(16)    "Sexual bestiality," any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other;

(17)    "Prohibited sexual act," actual or simulated sexual intercourse, sadism, masochism, sexual bestiality, incest, masturbation, or sadomasochistic abuse; actual or simulated exhibition of the genitals, the pubic or rectal area, or the bare feminine breasts, in a lewd or lascivious manner; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; defecation or urination for the purpose of creating sexual excitement in the viewer; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. The term includes encouraging, aiding, abetting or enticing any person to commit any such acts as provided in this subdivision. The term does not include a mother's breast-feeding of her baby;

(18)    "Sexual excitement," the condition of the human male or female genitals if in a state of sexual stimulation or arousal;

(19)    "Sexually oriented material," any book, article, magazine, publication, visual depiction or written matter of any kind or any drawing, etching, painting, photograph, motion picture film, or sound recording that depicts sexual activity, actual or simulated, involving human beings or human beings and animals, that exhibits uncovered human genitals or the pubic region in a lewd or lascivious manner, or that exhibits human male genitals in a discernibly turgid state, even if completely and opaquely covered;

(20)    "Simulated," the explicit depiction of conduct described in subdivision (16) of this section that creates the appearance of such conduct and that exhibits any uncovered portion of the breasts, genitals, or anus;

(21)    "Visual depiction," any developed and undeveloped film, photograph, slide and videotape, and any photocopy, drawing, printed or written material, and any data stored on computer disk, digital media, or by electronic means that are capable of conversion into a visual image.

Source: SL 2002, ch 109, § 6; SDCL, § 22-22-24.1; SL 2005, ch 120, §§ 407, 408; SL 2006, ch 122, § 1; SL 2021, ch 98, § 2; SL 2024, ch 87, § 1.



22-24A-3. Repealed.

Source: SL 2002, ch 109, § 7; SDCL, § 22-22-24.2; SL 2005, ch 120, §§ 407, 409; SL 2006, ch 121, § 6; SL 2024, ch 87, § 15.



22-24A-3.1. Purchasing or possessing child-like sex doll--Misdemeanor or felony.

It is a Class 1 misdemeanor for any person to knowingly purchase or possess a child-like sex doll.

If a person is convicted of a second or subsequent violation of this section within fifteen years of the prior conviction, the violation is a Class 6 felony.

Source: SL 2021, ch 98, § 3.



22-24A-4Minor and solicit defined.

Terms used in § 22-24A-5 mean:

(1)    "Minor," a person fifteen years of age or younger; and

(2)    "Solicit," to seduce, lure, entice or persuade, or attempt to seduce, lure, entice or persuade a specific person by telephone, in person, by letter, by using a computer or any other electronic means.

Source: SL 2002, ch 109, § 9; SDCL, § 22-22-24.4; SL 2005, ch 120, § 407.



22-24A-5Solicitation of a minor--Felony--Assessment.

A person is guilty of solicitation of a minor if the person eighteen years of age or older:

(1)    Solicits a minor, or someone the person reasonably believes is a minor, to engage in a prohibited sexual act; or

(2)    Knowingly compiles or transmits by means of a computer; or prints, publishes or reproduces by other computerized or any other electronic means; or buys, sells, receives, exchanges or disseminates, any notice, statement or advertisement of any minor's name, telephone number, place of residence, physical characteristics or other descriptive or identifying information for the purpose of soliciting a minor or someone the person reasonably believes is a minor to engage in a prohibited sexual act.

The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this section does not constitute a defense to a prosecution under this section.

Consent to performing a prohibited sexual act 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 4 felony.

The court shall order an assessment pursuant to § 22-22-1.3 of any person convicted of violating this section.

Nothing contained in this section shall be construed to impose liability on a provider of an electronic communication service, an information service, a mobile service, including a commercial mobile service, a telecommunication service, an interactive computer service, or a cable service.

Source: SL 2002, ch 109, § 10; SDCL § 22-22-24.5; SL 2005, ch 120, §§ 407, 410; SL 2006, ch 121, § 8; SL 2010, ch 116, § 1; SL 2016, ch 124, § 2.



22-24A-6Nonresident violating child protection laws subject to state court jurisdiction--Service of process.

Any person, not a citizen or resident of this state, whose actions or conduct constitute a violation of §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, 43-43B-1 to 43-43B-3, inclusive, and 22-23-2, 22-23-8, and 22-23-9 and whose actions or conduct involve a child residing in this state, or someone the person reasonably believes is a child residing in this state, or with an adult in this state in violation of § 22-23-2, 22-23-8, or 22-23-9 is for the purpose of §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, 43-43B-1 to 43-43B-3, inclusive, and 22-23-2, 22-23-8, and 22-23-9 deemed to be transacting business in this state and by that act:

(1)    Submits to the jurisdiction of the courts of this state in any civil proceeding commenced under §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, 43-43B-1 to 43-43B-3, inclusive, and 22-23-2, 22-23-8, and 22-23-9; and

(2)    Constitutes the secretary of state as agent for service of legal process in any civil proceeding commenced under §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, 43-43B-1 to 43-43B-3, inclusive, and 22-23-2, 22-23-8, and 22-23-9; and consents that service of legal process shall be made by serving a copy upon the secretary of state or by filing a copy in the secretary of state's office, and that this service shall be sufficient service if, within one day after service, notice of the service and a copy of the process are sent by registered mail by plaintiff to the person at the person's last-known address and proof of such mailing filed with the clerk of court within one day after mailing.

The service of legal process upon any person who is subject to the jurisdiction of the courts of this state, as provided in this section, may also be made by personally serving the summons upon the person outside this state with the same force and effect as though summons had been personally served within this state. The service shall be made in like manner as service within this state. No order of court is required. An affidavit of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any other competent proofs, in determining whether service has been properly made.

Source: SL 2002, ch 109, § 13; SDCL § 22-22-24.6; SL 2005, ch 120, § 407; SL 2014, ch 109, § 19; SL 2015, ch 129, § 3.



22-24A-7Liability for civil damages.

Any person, except a minor, who knowingly participates in any conduct proscribed by §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive, is liable for civil damages.

Source: SL 2002, ch 109, § 14; SDCL § 22-22-24.7; SL 2005, ch 120, § 407; SL 2014, ch 109, § 20.



22-24A-8Persons who may bring action for damages.

Any of the following persons may bring an action for damages caused by another person's conduct as proscribed by §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 23A-27-14.1, 22-49-1 to 22-49-3, inclusive, and 43-43B-1 to 43-43B-3, inclusive:

(1)    The child;

(2)    Any parent, legal guardian, or sibling of a victimized child;

(3)    Any medical facility, insurer, governmental entity, employer, or other entity that funds a treatment program or employee assistance program for the child or that otherwise expended money or provided services on behalf of the child;

(4)    Any person injured as a result of the willful, reckless, or negligent actions of a person who knowingly participated in conduct proscribed by §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive.

If the parent or guardian is named as a defendant in the action, the court shall appoint a special guardian to bring the action on behalf of the child.

Source: SL 2002, ch 109, § 15; SDCL § 22-22-24.8; SL 2005, ch 120, §§ 407, 411; SL 2014, ch 109, § 21.



22-24A-9Persons from whom damages may be sought.

Any person entitled to bring an action under § 22-24A-8 may seek damages from any person, except a minor, who knowingly participated in the production or in the chain of distribution of any visual depiction proscribed by §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive.

Source: SL 2002, ch 109, § 16; SDCL § 22-22-24.9; SL 2005, ch 120, § 407; SL 2014, ch 109, § 22.



22-24A-10Damages recoverable.

Any person entitled to bring an action under § 22-24A-8 may recover all of the following damages:

(1)    Economic damages, including the cost of treatment and rehabilitation, medical expenses, loss of economic or educational potential, loss of productivity, absenteeism, support expenses, accidents or injury, and any other pecuniary loss proximately caused by the proscribed conduct;

(2)    Noneconomic damages, including physical and emotional pain, suffering, physical impairment, emotional distress, mental anguish, disfigurement, loss of enjoyment, loss of companionship, services, and consortium, and other nonpecuniary losses proximately caused by the proscribed conduct;

(3)    Exemplary damages;

(4)    Attorneys' fees; and

(5)    Disbursements.

Source: SL 2002, ch 109, § 17; SDCL, § 22-22-24.10; SL 2005, ch 120, § 407.



22-24A-11Joinder of plaintiffs--Joinder of defendants.

Two or more persons may join in one action under §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive, as plaintiffs if their respective actions have at least one common occurrence of proscribed conduct under §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive, and if any portion of the period of such conduct overlaps with the period for every other plaintiff. Two or more persons may be joined in one action under §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive, as defendants if those persons are liable to at least one plaintiff.

Source: SL 2002, ch 109, § 18; SDCL § 22-22-24.11; SL 2005, ch 120, § 407; SL 2014, ch 109, § 23.



22-24A-12Judgment debtor ineligible to exempt property from levy or execution--Assets subject to forfeiture.

Any person against whom a judgment has been rendered under §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, 43-43B-1 to 43-43B-3, inclusive, and 22-23-2, 22-23-8, and 22-23-9 is not eligible to exempt any property, of whatever kind, from process to levy or process to execute on the judgment. Any assets sought to satisfy a judgment under §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, 43-43B-1 to 43-43B-3, inclusive, and 22-23-2, 22-23-8, and 22-23-9 that are named in a forfeiture action or have been seized for forfeiture by any state or federal agency may not be used to satisfy a judgment unless and until the assets have been released following the conclusion of the forfeiture action or released by the agency that seized the assets.

Source: SL 2002, ch 109, § 19; SDCL § 22-22-24.12; SL 2005, ch 120, § 407; SL 2014, ch 109, § 24; SL 2015, ch 129, § 2.



22-24A-13Statute of limitations.

Any action for damages under §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive, shall be commenced within six years of the time the plaintiff knew, or had reason to know, of any injury caused by violations of §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive. The knowledge of a parent, guardian, or custodian may not be imputed to the minor.

For a plaintiff, the statute of limitations under this section is tolled while any potential plaintiff is incapacitated by minority.

Source: SL 2002, ch 109, § 20; SDCL § 22-22-24.13; SL 2005, ch 120, § 407; SL 2014, ch 109, § 25.



22-24A-14Civil action stayed pending completion of criminal action--Statute of limitations tolled.

On motion by a governmental agency involved in an investigation or prosecution, any civil action brought under §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive, shall be stayed until the completion of the criminal investigation or prosecution that gave rise to the motion for a stay of the action. The statute of limitations as provided in § 22-24A-13 shall be tolled for the time any such stay is in effect.

Source: SL 2002, ch 109, § 21; SDCL, § 22-22-24.14; SL 2005, ch 120, § 407.



22-24A-15Property subject to forfeiture.

Any person who is convicted of an offense under §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, 43-43B-1 to 43-43B-3, inclusive, and 22-23-2, 22-23-8, and 22-23-9, or under 18 U.S.C. §§ 1466A, 1470, 1591, 2251, 2251A, 2252, 2252A, 2252B, 2252C, 2260, 2421, 2422, and 2423, as of January 1, 2016, shall forfeit to the state, pursuant to chapter 23A-49, the person's interest in the following and no property right exists in them:

(1)    Any photograph, film, videotape, book, digital media or visual depiction that has been manufactured, distributed, purchased, possessed, acquired, or received in violation of §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive;

(2)    Any material, product, and equipment of any kind that is used or intended for use in manufacturing, processing, publishing, selling, possessing, or distributing any visual depiction proscribed by §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive;

(3)    Any property that is used, or intended for use, as a container for property described in subdivisions (1) and (2) of this section, including any computers and digital media;

(4)    Any conveyances including aircraft, vehicles, or vessels, that transport, possess, or conceal, or that is used, or intended for use, to transport, or in any manner facilitate any activity proscribed under §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive;

(5)    Any book, record, and research, including microfilm, tape, and data that is used, or intended for use, in violation of §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive;

(6)    Any funds or other things of value used for the purposes of unlawfully carrying out any activity proscribed by §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, 43-43B-1 to 43-43B-3, inclusive, and 22-23-2, 22-23-8, and 22-23-9; and

(7)    Any asset, interest, profit, income, and proceed acquired or derived from the unlawful activity proscribed by §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, 43-43B-1 to 43-43B-3, inclusive, and 22-23-2, 22-23-8, and 22-23-9.

Any property described in subdivision (1) of this section shall be deemed contraband and shall be summarily forfeited to the state. Property described in subdivisions (2), (3), (5), (6), and (7) is subject to forfeiture under the terms of § 23A-49-14, and property described in subdivision (4) is subject to forfeiture under the terms of § 23A-49-15.

Source: SL 2002, ch 109, § 22; SDCL § 22-22-24.15; SL 2005, ch 120, §§ 407, 412; SL 2014, ch 109, § 1; SL 2015, ch 129, § 1; SL 2016, ch 125, § 1; SL 2016, ch 138, § 22.



22-24A-15.1
     22-24A-15.1 to 22-24A-15.5.   Repealed by SL 2016, ch 138, §§ 40 to 44.



22-24A-16Internet service providers to report suspected violations of child pornography laws--Permitting subscriber to use service for child pornography prohibited--Misdemeanor.

Any person working at or for an internet service provider or other electronic communication service who has knowledge of or observes, within the scope of the person's professional capacity or employment, a visual depiction that depicts a minor whom the person knows or reasonably should know to be under the age of eighteen, engaged in prohibited sexual acts or in the simulation of prohibited sexual acts, shall report the depiction to his or her employer or supervisor. The depiction shall then be reported to an appropriate law enforcement agency as soon as reasonably possible. The provider need not report to law enforcement depictions involving mere nudity of the minor, but shall report visual depictions involving prohibited sexual acts. This section may not be construed to require a provider to review all visual depictions received by subscribers or handled by the provider within the provider's professional capacity or employment.

It is unlawful for any owner or operator of a computer on-line service, internet service, or local internet bulletin board service knowingly to permit a subscriber to utilize the service to produce or reproduce visual depictions of prohibited sexual acts with a minor.

A violation of this section is a Class 1 misdemeanor. However, a violation of this section does not constitute grounds for a civil action for damages against any person.

Source: SL 2002, ch 109, § 23; SDCL, § 22-22-24.16; SL 2005, ch 120, § 407.



22-24A-17Film processors to report suspected violations of child pornography laws--Permitting use of services for child pornography prohibited--Misdemeanor.

Any person working at or for a commercial film and photograph print processor who has knowledge of or observes, within the scope of the processor's professional capacity or employment, a film, photograph, video tape, negative, slide or other visual depiction that depicts a minor whom the processor knows or reasonably should know to be under the age of eighteen, engaged in prohibited sexual acts or in the simulation of prohibited sexual acts, shall report the depiction to his or her employer or supervisor. The depiction shall then be reported to an appropriate law enforcement agency as soon as reasonably possible. The processor need not report to law enforcement depictions involving mere nudity of the minor, but shall report visual depictions involving prohibited sexual acts. This section may not be construed to require a processor to review all films, photographs, videotapes, negatives, or slides delivered to the processor within the processor's professional capacity or employment.

It is unlawful for any owner or operator of a photography or film studio, photograph or film developing service, photograph or film reproducing service, or video to film reproducing service knowingly to permit any person to utilize photograph or film reproduction or development services to produce or reproduce visual depictions of prohibited sexual acts with a minor.

A violation of this section is a Class 1 misdemeanor. However, a violation of this section does not constitute grounds for a civil action for damages against any person.

Source: SL 2002, ch 109, § 24; SDCL, § 22-22-24.17; SL 2005, ch 120, § 407.



22-24A-18Computer repair technicians to report suspected violations of child pornography laws--Misdemeanor.

Any commercial computer repair technician who has knowledge of or observes, within the scope of the technician's professional capacity or employment, a film, photograph, video tape, negative, slide or other visual depiction of a minor whom the technician knows or reasonably should know to be under the age of eighteen, engaged in prohibited sexual acts or in the simulation of prohibited sexual acts, shall report the depiction to an appropriate law enforcement agency as soon as reasonably possible. The computer repair technician need not report to law enforcement depictions involving mere nudity of the minor, but shall report visual depictions involving prohibited sexual acts. This section may not be construed to require a computer repair technician to review all data, disks, or tapes delivered to the computer repair technician within the computer repair technician's professional capacity or employment.

A violation of this section is a Class 1 misdemeanor. However, a violation of this section does not constitute grounds for a civil action for damages against any person.

Source: SL 2002, ch 109, § 25; SDCL, § 22-22-24.18; SL 2005, ch 120, § 407.



22-24A-19Certain child protection laws inapplicable to performance of official duties or bona fide treatment or professional education program.

The provisions of §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive, do not apply to the performance of official duties by any law enforcement officer, court employee, attorney, licensed physician, psychologist, social worker, or any person acting at the direction of a licensed physician, psychologist, or social worker in the course of a bona fide treatment or professional education program.

Source: SL 2002, ch 109, § 26; SDCL § 22-22-24.19; SL 2005, ch 120, §§ 407, 413; SL 2014, ch 109, § 26.



22-24A-20. Exemption of publications with redeeming social value.

The provisions of §§ 22-22-24.3, 22-24A-1, 22-24A-1.1, 22-24A-3.1, 22-24A-5, and §§ 22-24A-35 to 22-24A-37, inclusive, do not apply to the selling, lending, distributing, exhibiting, giving away, showing, possessing, or making of films, photographs, or other materials involving only nudity, if the materials are made for and have a serious literary, artistic, educational, or scientific value.

Source: SL 1978, ch 159, § 5; SL 2002, ch 109, § 33; SDCL, § 22-22-25; SL 2005, ch 120, §§ 407, 414; SL 2021, ch 98, § 4; SL 2024, ch 87, § 12.



22-24A-21
     22-24A-21 to 22-24A-34.   Repealed by SL 2016, ch 138, §§ 45 to 58.



22-24A-35. Possessing child pornography--Penalty.

A person is guilty of possessing child pornography if the person knowingly possesses:

(1)    Any visual depiction of a minor engaging in a prohibited sexual act, or in a simulation of a prohibited sexual act; or

(2)    Any computer-generated child pornography.

A violation of this section is a Class 4 felony. A conviction under this section for a first offense must be punished by a mandatory sentence in a state correctional facility of at least one year. A conviction under this section for a second or subsequent offense must be punished by a mandatory sentence in a state correctional facility of at least five years.

Source: SL 2024, ch 87, § 2.



22-24A-36. Distributing child pornography--Penalty.

A person is guilty of distributing child pornography if the person knowingly sells or distributes:

(1)    Any visual depiction of a minor engaging in a prohibited sexual act, or in a simulation of a prohibited sexual act; or

(2)    Any computer-generated child pornography.

A violation of this section is a Class 3 felony. A conviction under this section for a first offense must be punished by a mandatory sentence in a state correctional facility of at least five years. A conviction under this section for a second or subsequent offense must be punished by a mandatory sentence in a state correctional facility of at least ten years.

A person convicted of a violation of this section may not be convicted of possessing child pornography pursuant to § 22-24A-35 for the same visual depiction.

Source: SL 2024, ch 87, § 3.



22-24A-37. Manufacturing child pornography--Penalty.

A person is guilty of manufacturing child pornography if the person creates, causes the creation of, or knowingly permits the creation of:

(1)    Any visual depiction of a minor engaged in a prohibited sexual act, or in a simulation of a prohibited sexual act; or

(2)    Any computer-generated child pornography.

A violation of this section is a Class 2 felony. A conviction under this section for a first offense must be punished by a mandatory sentence in a state correctional facility of at least ten years. A conviction under this section for a second or subsequent offense must be punished by a mandatory sentence in a state correctional facility of at least twenty years.

A person convicted of a violation of this section may not be convicted of possessing child pornography pursuant to § 22-24A-35 for the same visual depiction.

Source: SL 2024, ch 87, § 4.



22-24A-38. Convictions in other states considered.

Any conviction for, or plea of guilty to, an offense in another state that, if committed in this state, would be a violation of §§ 22-24A-35 to 22-24A-37, inclusive, must be used to determine if the violation being charged is a second or subsequent offense.

Source: SL 2024, ch 87, § 5.



22-24A-39. Presentence investigation.

The court shall order an assessment pursuant to § 22-22-1.3 of any person convicted of violating §§ 22-24A-35 to 22-24A-37, inclusive.

Source: SL 2024, ch 87, § 6.



22-24A-40. Consent or mistake of age not a defense.

Consent to performing the 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 §§ 22-24A-35 to 22-24A-37, inclusive.

Source: SL 2024, ch 87, § 7.



22-24A-41. Affirmative defense.

It is an affirmative defense to a violation of §§ 22-24A-35 to 22-24A-37, inclusive, that the visual depiction is of the person charged and no other person appears in the visual depiction.

Source: SL 2024, ch 87, § 8.



22-24A-42. Sentencing--Mitigating circumstances.

The sentencing court may impose a sentence other than that required by §§ 22-24A-35 to 22-24A-37, inclusive, if the court finds that mitigating circumstances exist that require a departure from the mandatory sentence imposed by §§ 22-24A-35 to 22-24A-37, inclusive. The court shall file, in writing, its finding of mitigating circumstances and the factual basis relied upon by the court.

Source: SL 2024, ch 87, § 9.