The Senate Judiciary Committee approved Senate Bill 91 that expands the concept of lack of consent in third-degree rape. The language of the bill acknowledges that a nonconsenting person sometimes freezes when confronted with unwanted sexual activity.
The committee passed the bill on Tuesday, Feb. 7, with an amendment that a crime occurred only if the perpetrator knew or reasonably could be expected to know that the victim was not consenting.
Lara Roetzel is a former longtime prosecutor at the Pennington County State’s Attorney’s office. She testified in support of SB 91.
Roetzel said a common perception is that someone facing potential rape is going to kick, scream, or run away. But she said many victims freeze, and that reaction might be the brain telling the victim that freezing is the best way to survive.
“What I have learned about trauma, in 27 years of dealing with trauma, is that you don’t get to pick what your trauma response is going to be,” she said.
As first written, SB 91 deemed sex with a nonconsenting person to be third-degree rape even if the perpetrator did not know there was no consent. The opponents were lawyers who objected in particular to that aspect of the bill.
Terra Larson is a lobbyist for the South Dakota Association of Criminal Defense Lawyers.
“If the girl says they didn’t consent, then game over, you’re guilty, it’s strict liability, there’s no defense,” she said.
Larson pointed out that the crime is a Class 3 felony, with a maximum sentence of 15 years in the penitentiary and life on the sex offender registry, a severe penalty for an act that doesn’t require criminal intent.
“I would contend this is hash-tag Me-Too culture taken to an extreme,” Larson told the committee.
The South Dakota Trial Lawyers Association also opposed the bill. Lobbyist Steve Siegel said a prosecutor has to prove all elements of the offense, and one element of rape is mens rea.
“Mens rea is intent or knowledge of wrong-doing,” he said. “And I would submit to you, members of the committee, that intent or knowledge of wrong-doing is very difficult when the accuser freezes.”
After testimony, the bill was amended to add that the act is a crime only if the perpetrator knew or should have known that the victim did not consent. The bill was then approved and will head to the full Senate for debate.
