South Dakota Rape and Sexual Assault Laws

Created by FindLaw's team of legal writers and editors | Last reviewed June 20, 2016

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In South Dakota, sexual assault is referred to as "sexual battery" and is defined as oral, anal, or vaginal penetration by the sexual organ of another, or the anal or vaginal penetration of another by any object. Sexual battery doesn't include an act done for a bona fide medical purpose. One of the most serious forms of sexual assault is the crime of rape. South Dakota's main rape law is outlined in the table below.

Code Section

 South Dakota Code section 22-22-1: Rape

What's Prohibited?

 Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:
  • (1) If the victim is less than 13 years old
  • (2) Through the use of force, coercion, or threats of immediate and great bodily harm against the victim or against another person within the victim's presence, accompanied by the apparent power of execution
  • (3) If the victim is incapable (because of physical or mental incapacity) of consenting to such an act
  • (4) If the victim is incapable of consenting to the act because of an intoxicant, narcotic, anesthetic agent, or hypnosis, or
  • (5) If the victim is at least 13 years old, but is less than 16 years old, and the offender is at least three years older than the victim

Definition of "Sexual Penetration"

 Sexual penetration is an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or the intrusion of a body part or an object into the genitals or anal openings of another person's body.

Penalties

The penalty for rape varies depending on which subdivision of the law is violated.
  • Subdivision (1): Rape in the first degree - Class C felony.
  • Subdivision (2): Rape in the second degree - Class 1 felony.
  • Subdivision (3): Rape in the third degree – Class 2 felony.
  • Subdivision (4): Rape in the third degree – Class 2 felony.
  • Subdivision (5): Rape in the fourth degree – Class 3 felony.

Statutory Rape

As the table above notes, an offender can be convicted of rape if the victim is less than 13 years old, or if the victim is 13 to 15 years old and the offender is at least three years older than the victim. In these situations the offender commits statutory rape because the victim isn't legally old enough to consent to the sexual act. The legal age of consent varies slightly between states, and is 16 in South Dakota. Therefore, if a 15-year-old girl voluntarily engages in sexual intercourse with her 19-year-old boyfriend, then the boyfriend can be charged with statutory rape in South Dakota.

Additional Resources

State laws change frequently. For case specific information regarding South Dakota's rape and sexual assault laws contact a local criminal defense lawyer.

If you are a rape or sexual assault survivor there is help available to you. During an emergency dial 911 and when you're safe contact the South Dakota Coalition Ending Domestic & Sexual Violence.

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