When a South Dakota judge can’t provide the jury in a rape case with a legal definition of “consent” despite all three charges against the defendant including the word, as happened late last year in Minnehaha County, it’s high time South Dakota lawmakers get to work defining it.
It’s important to note that South Dakota is not alone in that lack of clarity. Around half the states in the U.S. don’t have a legal definition of consent regarding sexual crime statutes. Even among the states that do, the definitions aren’t uniform because society itself hasn’t agreed on what “consent” looks like. As a nation, we’re finally beginning to openly talk about it in the wake of high-profile celebrity sexual assault accusations and the “Me Too” movement.
From a practical standpoint, there’s no consensus among attorneys as to what impact revising the way consent is defined would have in jury trials. The potential violation of the United States Constitution by shifting the burden of proof of consent to the defense further confounds the issue. Additional concerns regarding defendants’ knowledge of what “consent” was at the time of the act prevented a recent meeting of the American Bar Association from concurring on a definition.
Juror’s perspective: The jury had to determine if a woman consented to sex. But what is consent?
Minnesota law dating back to the 1970s says that consent comprises “Words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.” Lindsay Brice, policy director for the Minnesota Coalition Against Sexual Assault, told the Argus Leader that “prosecution has indicated that the definition of consent is not a roadblock to charging cases.” Ramsey County Chief Public Defender James Fleming adds, “We’ve been able to work with this definition.”
Perhaps more troubling than the lack of a clear definition in South Dakota law is, as Beadle County State’s Attorney Mike Moore asserts, that “lack of consent is not part of our rape statute.” Sexual contact without consent with a person capable of giving consent is a misdemeanor charge. Consent only applies to felony rape charges when the victim is incapable of giving it. It doesn’t matter if “no means no,” because violating someone’s right to personal sovereignty by ignoring their will alone doesn’t merit a felony rape charge. It only counts as rape if you can prove that you were forced or coerced.
Recent statistics find that more than two-thirds of rapes and sexual assault are not reported. Why? Survivors worry about retaliation from the perpetrator and society. They don’t think authorities will do anything to help. They don’t think that their being raped or sexually assaulted is important enough.
Above all, “Sexual assault is a very humiliating and dehumanizing act against someone,” according to psychotherapist Beverly Engel in a 2018 analysis by the Brennan Center for Justice. “Victims are often too ashamed to come forward” because “in our culture, we tend to blame victims.” Even of the fraction of rapes that are reported, the latest FBI statistics reveal that fewer than one-third eventually result in the perpetrator being punished.
Initiating public dialogue about consent is especially important in South Dakota. The Compass Center in Sioux Falls cites statistics that one of every six American women has survived an attempted or completed rape in her lifetime. South Dakota’s rate of per capita forcible rapes is one and a half times the national average. Native American women are two and a half times more likely than other ethnic groups in the U.S. to be sexually assaulted, and 73 percent of sexual assaults are perpetrated by a non-stranger.
If sharpening our statutes can bring justice to sexual assault survivors who currently feel helpless within the legal system, the conversation needs to start here and now.
The Argus Leader Editorial Board is Cory Myers, news director; Stu Whitney, content coach; Sharon Schulz-Elsing, community member.
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