The South Dakota Supreme Court has upheld the rape conviction of a Watertown man who tried to use the defense of advance consent.
Lee Malcolm said he and his girlfriend had an agreement that he could engage in “pass-out sex” with her. But the high court says consent has to orient to the time of intercourse, and a victim has the right to withdraw consent at any time.
Lee Malcolm, now 46 years old, had early-morning sex with his girlfriend J.C. on Oct. 28, 2019, after a long night of hard drinking.
Malcolm recorded himself performing acts of penetration with J.C., who was obviously unconscious.
After he was charged with nine counts of third-degree rape, Malcolm claimed he had an ongoing agreement with J.C. that he could perform “pass-out sex” on her.
J.C. did not have the opportunity to testify to the truth of his contention. She never regained consciousness and later died of a lethal combination of muscle relaxer and anxiety medication.
At trial in Watertown, Third Circuit Judge Carmen Means did not allow Malcolm to use the defense of advance consent because she could find no legal validity to it, and it’s not an exception to rape shield laws that protect a victim’s sexual history.
After he was convicted, Malcolm appealed to the state Supreme Court.
There he was represented by Watertown attorney Scott Bratland, who did not defend him at trial.
Bratland said Malcolm should have been able to tell the jury about his and J.C.’s sexual history over the course of years. That led to circular arguments before the Supreme Court on Oct. 5.
“He couldn’t talk about what led up to this, about their pattern and practice,” Bratland said. “He couldn’t talk about what happened.”
Justice Mark Salter responded, referring to decisions made by Judge Carmen Means:
JUSTICE SALTER: “But if she’s right—if the court’s right—then the evidence shouldn’t come in. So shouldn’t we focus on the legal validity of the advance consent theory?”
SCOTT BRATLAND: “You should, but you didn’t have enough in the record to make that determination because Lee Malcolm never testified about the facts and circumstances.”
The Supreme Court issued a unanimous opinion that agreed with the trial judge’s assessment: pass-out sex is the very definition of third-degree rape.
