22-22-1. Rape--Degrees--Penalty--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;
(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;
(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;
(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;
(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 and the perpetrator knows or reasonably should know the victim is not consenting.
A violation of subdivision (1) is rape in the first degree, which is a Class C felony. A violation of subdivision (2) is rape in the second degree which is a Class 1 felony. A violation of subdivision (3) or (4) is rape in the third degree, which is a Class 2 felony. A violation of subdivision (5) or (6) 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 subdivision (1) or (2). Otherwise, a charge brought pursuant to this section may be commenced at any time before the victim reaches age twenty-five or within seven years from 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; SL 2023, ch 70, § 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), (24) and (25), 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 a state correctional facility, 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; SL 2021, ch 98, § 6; SL 2023, ch 82, § 13.
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.
22-22-1.5. Definitions.
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; and
(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.
Source: SL 2023, ch 71, § 1.