A Watertown man convicted of third-degree rape for having sex with his unconscious girlfriend is appealing to the South Dakota Supreme Court. At oral arguments on Wednesday, Oct. 5, Lee Malcolm claimed to have prior consent from her to have what he calls “pass out sex.”
The prosecution contends that state law does not accommodate that defense.
In late October 2019, Lee Malcolm and his live-in girlfriend, J.C., drank heavily in bars until around 2:15 in the morning and then went home and argued.
Earlier that day, they had filled her prescription for a muscle relaxer, and that night she threatened to take all of it and not wake up.
In the morning, Malcolm awoke, took a shower, and returned to the bedroom. J.C. was unconscious and snoring. For about two hours, Malcolm had sex with her, including using objects to penetrate her, and he recorded the act on his cell phone.
J.C. never regained consciousness. That afternoon, she was found cold and unresponsive, and she later died at the hospital, having taken all of her muscle relaxer as well as a fatal dose of anxiety medication.
Watertown attorney Scott Bratland spoke for Malcolm before the Supreme Court, but did not represent him at trial. Bratland told justices that J.C. had previously given Malcolm consent to have sex with her when she was unconscious, and they called it “pass out sex.”
He said Malcolm was not allowed to present that defense, in part because his attorney was inadequate at a pretrial hearing, and in part because the judge wouldn’t allow the testimony at trial.
“Lee Malcolm needed to testify and tell everything that they did over the last 10 years that they’ve been going out and living together for five years,” he said.
Bratland said because Malcolm thought he had consent, he did not form the intent to commit a crime, an element of the charge of rape.
Assistant Attorney General Chelsea Wenzel told justices there is no such thing as advance consent, and the fact that Malcolm didn’t know that is no excuse.
“A mistake of law is not a defense,” she said. “The state was not required to…show that he knew that what he was doing was illegal. We only had to show that he knew that she was incapable of giving consent at the time.”
Supreme Court justices will deliberate and decide whether to grant Malcolm a new trial.
