#25646-rev & rem-JKK 

2011 S.D. 60

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

v. 

CHRISTOPHER JONES, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIRST JUDICIAL CIRCUIT 

UNION COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE STEVEN R. JENSEN 

Judge 

* * * * 

MARTY J. JACKLEY 

Attorney General 

ANN C. MEYER 

Assistant Attorney General 

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

A. JASON RUMPCA of 

Peterson, Stuart & Rumpca, PROF LLC 

Beresford, South Dakota Attorneys for defendant 

and appellant. 

* * * * 

ARGUED ON MARCH 22, 2011 

REASSIGNED JUNE 21, 2011 

 OPINION FILED 09/21/11
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KONENKAMP, Justice (on reassignment) 

[¶1.] Defendant was convicted of raping a twenty-three-year-old woman who 

testified that she was too intoxicated to have consented. He appeals asserting that 

although SDCL 22-22-1(4) does not explicitly include a knowledge element, the 

circuit court erred when it failed to instruct the jury that the State must prove that 

he knew that the woman’s intoxicated condition made her unable to consent. 

Because mere silence by the Legislature on whether knowledge is a necessary 

element of an offense will not always negate a knowledge requirement, especially 

for crimes with potentially severe punishments, we conclude that the Legislature 

intended that a rape conviction under SDCL 22-22-1(4) requires proof that the 

defendant knew or reasonably should have known that the victim’s intoxicated 

condition rendered her incapable of consenting. 

Background 

[¶2.] Around 8:00 p.m. on October 18, 2008, E.B. and her co-worker and 

friend, Abby, began celebrating Abby’s twenty-first birthday together. They started 

at Bill’s Bar in Sioux City. E.B. estimated she consumed eight to ten beers and at 

least three shots of liquor. At 1:00 a.m., the women met Abby’s boyfriend, Chance, 

and his friend, Christopher Jones, at another bar. Although E.B. knew Chance, this 

was her first time meeting Jones. The group continued to drink before going to 

Chance’s house. Chance lived with Brent. When they arrived at the home, Chance, 

Jones, Abby, and E.B. got into a hot tub. E.B. consumed another three or four 

beers. Chance and Abby eventually left the hot tub to go to bed. Jones and E.B. 

also left the hot tub, but sat on barstools in the kitchen and conversed with Brent, 
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who had been awakened from the noise of everyone in the hot tub. Brent later 

testified to having one beer during the conversation in the kitchen. E.B. had 

another drink. Brent testified that E.B. “carried on the conversations. She, you 

know, didn’t seem wasted or drunk or anything like that. Wasn’t out of the 

ordinary.” 

[¶3.] Around 3:30 a.m., E.B. went to sleep on the couch in the living room. 

Shortly thereafter, Brent left to sleep in his room, and Jones lay down on the 

ottoman near the couch where E.B. was sleeping. Jones testified that E.B. asked 

him if he wanted to share her blanket. According to Jones, he agreed and shortly 

thereafter, the two had consensual sexual intercourse. Chance and Abby testified 

that they saw Jones and E.B. asleep together on the ottoman early the next 

morning. 

[¶4.] E.B. testified that although she went to sleep on the couch, she woke 

up on the floor with Jones on top of her, orally and digitally penetrating her. After 

physically resisting and verbally refusing, E.B. succeeded in getting Jones off of her. 

Because of the amount of alcohol she drank, E.B. testified she went back to sleep on 

a nearby chair instead of leaving. E.B. awoke a second time on the couch, with 

Jones behind her, with her pants and underwear at her knees and Jones 

penetrating her from behind. E.B. testified she yelled at Jones, pulled her clothes 

back on, and retreated to the bathroom until Jones left. E.B. went to the hospital 

the next day and reported the rape. An examination of E.B. and her clothes 

revealed Jones’s sperm. Officers arrested Jones and he was subsequently charged 
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with two counts of third degree rape in violation of SDCL 22-22-1(4), and two counts 

of sexual contact in violation of SDCL 22-22-7.1 and SDCL 22-22-7.2. 

[¶5.] In the jury trial, Jones testified in his defense saying, “I don’t know if 

she was intoxicated that night.” At some point thereafter, he requested the 

following jury instruction related to consent: 

Consent is not a defense to the crime of Rape, defined as sexual 

penetration where the victim is incapable of giving consent 

because of intoxication, if the victim is unable to exercise 

reasonable judgment as to the harm involved and if the 

Defendant knew that the person was unable to exercise 

reasonable judgment. 

(Emphasis added.) The court refused Jones’s requested instruction, and ultimately 

gave its own: 

Consent is not a defense to the crime of rape in the third degree 

where the victim is incapable of giving consent because of 

intoxication. In determining whether the victim was incapable 

of giving consent because of intoxication you must consider all 

the circumstances in determining whether the victim’s 

intoxication rendered her unable to exercise reasonable 

judgment in the process of forming mental or intellectual 

decisions and of discerning or comparing all the circumstances 

present at the time. It is not enough that the victim is 

intoxicated to some degree, or that the intoxication reduces the 

victim’s sexual inhibitions, in order to establish that the level of 

the victim’s intoxication deprives the victim of the legal capacity 

to consent to the sexual act.1 

Jones objected to this instruction and orally requested the addition of the 

emphasized language: 

1. While we review a court’s wording and arrangement of jury instructions for 

an abuse of discretion, “a court has no discretion to give incorrect or 

misleading instructions, and to do so prejudicially constitutes reversible 

error.” Kadrmas, Lee and Jackson, Inc. v. Morris, 2010 S.D. 61, ¶ 5 n.1, 786 

N.W.2d 381, 382 n.1 (citation omitted). 
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Consent is not a defense to the crime of rape in the third degree 

where the victim is incapable of giving consent because of 

intoxication and the Defendant knew that person was incapable 

of giving consent because of intoxication. . . . 

(Emphasis added.) In ruling against Jones’s request, the court explained: 

Whether the defendant knew or didn’t know the person was 

intoxicated is subjective knowledge, I don’t think is relevant or 

an element to the crime. I think the only issue is whether she 

was so intoxicated that she wasn’t able to give consent and I 

think I’ve instructed on that. I think that’s a correct instruction 

of the law, so I’m not going to submit the additional proposed 

language. . . . 

[¶6.] The jury found Jones guilty of two counts of third degree rape in 

violation of SDCL 22-22-1(4). The circuit court sentenced him to fifteen years on 

each count of third degree rape, to be served consecutively, with eight years 

suspended on each conviction on certain conditions. Jones appeals, asserting that 

the court erred when it refused his requested jury instruction and when it denied 

his motion for a judgment of acquittal.2 

Analysis and Decision 

[¶7.] Jones argues that the Legislature did not intend rape by intoxication 

to be a strict liability offense. He emphasizes that “[t]here is no arbitrary 

measuring stick for rape by intoxication as there is for sexual intercourse with a 

minor where an element to the offense is the child’s age.” The State responds that 

Jones’s knowledge of E.B.’s intoxication is irrelevant because SDCL 22-22-1(4) does 

not have a knowledge or specific intent requirement. According to the State, as long 

2. In view of our ruling on the first issue, we decline to address Jones’s second 

issue. 
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as it proves E.B. was “incapable of giving consent because of any intoxicating 

agent,” Jones can be convicted under SDCL 22-22-1(4). 

[¶8.] “Statutory interpretation is a question of law subject to de novo 

review.” State v. Davis, 1999 S.D. 98, ¶ 7, 598 N.W.2d 535, 537 (citing City of Sioux 

Falls v. Ewoldt, 1997 S.D. 106, ¶ 12, 568 N.W.2d 764, 766). SDCL 22-22-1(4) 

defines third degree rape as 

an act of sexual penetration accomplished with any person 

under any of the following circumstances: . . . (4) If the victim is 

incapable of giving consent because of any intoxicating agent, 

narcotic, or anesthetic agent or hypnosis[.] 

This language places no apparent requirement on the State to prove that the 

accused knew or reasonably should have known the victim was too intoxicated to 

consent. 

[¶9.] Certainly, our Legislature has the prerogative to create strict liability 

crimes. State v. Mouttet, 372 N.W.2d 121, 123 (S.D. 1985) (bail jumping); State v. 

Nagel, 279 N.W.2d 911, 915 (S.D. 1979) (securities laws). Therefore, our primary 

question must be, what did the Legislature intend? Looking to the history of SDCL 

22-22-1(4) before 1985, rape by intoxication required that the State prove that the 

accused or someone in privity with the accused administer the intoxicating or 

narcotic agent or hypnosis to the victim. State v. Galati, 365 N.W.2d 575, 578 (S.D. 

1985); see also 1985 S.D. Sess. Laws 359 ch. 179. Under that statutory 

requirement, the defendant in Galati argued that he could not be convicted of rape 

by intoxication because the State failed to prove that he or someone in privity with 

him administered the intoxicating agent. This Court agreed and reversed Galati’s 

rape conviction. Thereafter, in 1985, the Legislature removed the requirement that 
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the accused administer the agent in order to be guilty. Whether intentionally or 

unintentionally, by removing the requirement that the accused administer the 

incapacitating element, the Legislature also removed the necessity of proving that 

the accused had knowledge of the victim’s incapacitated condition. That SDCL 22-

22-1(4) previously required the accused or someone in the accused’s privity to 

administer the agent presupposes that the accused knew or reasonably should have 

known of the victim’s incapacitated state. With this change, did the Legislature 

intend to make SDCL 22-22-1(4) a strict liability offense, so that in Galati, for 

example, a conviction could have been sustained even if he had not known the 

victim was under the influence of an intoxicating agent.3 

[¶10.] In grappling with similar questions, the United States Supreme Court 

has declared that “offenses that require no mens rea generally are disfavored[.]” 

Staples v. United States, 511 U.S. 600, 606, 114 S. Ct. 1793, 1797, 128 L. Ed. 2d 608 

(1994). This is because “[t]he existence of a mens rea is the rule of, rather than the 

exception to, the principles of Anglo-American criminal jurisprudence.” Id. at 605, 

114 S. Ct. at 1797 (citation omitted). Consequently, “some indication of 

congressional intent, express or implied, is required to dispense with mens rea as an 

element of a crime.” Id. at 606, 114 S. Ct. at 1797. And “silence on this point by 

itself does not necessarily suggest that Congress intended to dispense with a 

3. SDCL 22-22-1(4) lists hypnosis along with chemical agents (victim incapable 

of giving consent because of “any intoxicating, narcotic, or anesthetic agent 

[or] hypnosis”). Just as in the case of intoxication, under a literal 

interpretation of this statute, by proof that the victim was hypnotized, it 

would be no defense that the accused was unaware of this hypnotic state and 

even reasonably and in good faith believed to the contrary. 
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conventional mens rea element, which would require that the defendant know the 

facts that make his conduct illegal.” Id. at 605, 114 S. Ct. at 1797 (citation omitted). 

[¶11.] Indeed, the Supreme Court has “avoided construing criminal statutes 

to impose a rigorous form of strict liability.” See Id. at 607 n.3, 114 S. Ct. at 1798 

n.3 (citing United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 563-64, 91 

S. Ct. 1697, 1700-01, 29 L. Ed. 2d 178 (1971)). We have done likewise in similar 

circumstances. In several cases, after considering our entire statutory scheme, we 

have read “knowledge” into statutes, concluding that the Legislature did not intend 

to punish innocent conduct.4 State v. Stone, 467 N.W.2d 905, 906 (S.D. 1991); State 

v. Barr, 90 S.D. 9, 15, 237 N.W.2d 888, 890-91 (1976). “Whether criminal intent or 

guilty knowledge is an essential element of a statutory offense is to be determined 

by the language of the act in connection with its manifest purpose and design.” 

Nagel, 279 N.W.2d at 915. 

4. One treatise lists various considerations courts have used when discerning 

legislative intent to impose liability without fault. These include: (1) 

legislative history; (2) other statutes providing guidance; (3) severity of the 

punishment provided for the crime (“other things being equal, the greater the 

possible punishment, the more likely some fault is required; and, conversely, 

the lighter the possible punishment, the more likely the legislature meant to 

impose liability without fault”); (4) seriousness of harm to the public which 

may follow from the forbidden conduct; (5) accused’s opportunity to ascertain 

the true facts (whether legislation really meant to impose liability on one who 

was without fault because he lacked knowledge of these facts –“harder to find 

out the truth, the more likely the legislature meant to require fault in not 

knowing; the easier to ascertain the truth, the more likely failure to know is 

no excuse”; (6) difficulty prosecuting officials would have in proving a mental 

state for this type of crime; and (7) number of prosecutions to be expected. 

Wayne R. LaFave, 1 Substantive Criminal Law Strict Liability § 5.5 (2d ed.). 
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[¶12.] We have often declared that “[w]hen the language of a statute is clear, 

certain, and unambiguous, there is no occasion for construction, and this Court’s 

only function is to declare the meaning as clearly expressed in the statute.” State v. 

Schnaidt, 410 N.W.2d 539, 541 (S.D. 1987) (citation omitted); see also Davis, 1999 

S.D. 98, ¶ 7, 598 N.W.2d at 537. Yet we have always reserved a caveat: we will not 

read statutes literally, if they lead to an “absurd or unreasonable result[.]” State v. 

Wilson, 2004 S.D. 33, ¶ 9, 678 N.W.2d 176, 180; Davis, 1999 S.D. 98, ¶ 7, 598 

N.W.2d at 537. Considering the seriousness of this offense, today we look beyond 

plain language to discern the “purpose and design” of SDCL 22-22-1(4). Third 

degree rape under SDCL 22-22-1(4) is a crime against the person and carries a 

maximum penalty of twenty-five years in the penitentiary and a fifty-thousand 

dollar fine. SDCL 22-6-1(5). With a punishment this severe, strict liability is 

ordinarily not inferred. See People v. Nasir, 662 N.W.2d 29, 33 (Mich. Ct. App. 

2003). Furthermore, along with the severity of the punishment is the potential that 

interpreting the statute as not including mens rea would lead to the criminalization 

of “a broad range of apparently innocent conduct.” Liparota v. United States, 471 

U.S. 419, 426, 105 S. Ct. 2084, 2088, 85 L. Ed. 2d 434 (1985). South Dakota no 

longer criminalizes sexual relations between consenting adults, having long 

repealed the crimes of adultery and fornication. 

[¶13.] If we read SDCL 22-22-1(4) literally, we mark South Dakota as the 

only jurisdiction to hold that even when a man accused of rape convinces a jury that 

he reasonably and in good faith believed he had engaged in consensual adult sex, 

the jury must disregard his innocent state of mind if the woman he had sex with 
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later establishes that she drank too much to have given her consent. See, e.g., Cal. 

Penal Code 261 (2009); Minn. Stat. 609.345 (2009); Neb. Rev. Stat. 28-319 (2006); 

N.D. Cent. Code 12.1-20-03 (2009).5 That is exactly what occurred here. In closing 

argument, armed with the court’s instructions, the prosecutor was able to tell the 

jurors that “even if you believe him,” when Jones testified that he thought she had 

consented, “it doesn’t matter because consent is not a defense in this case.” 

[¶14.] In typical “statutory rape” cases, nonconsent is conclusively presumed 

because of age or physical or mental incapacity. But in cases of underage youth, 

unconsciousness, or mental deficiency, these conditions are readily apparent or 

reasonably discoverable, justifying strict liability for those who take advantage of 

such incapacities. For rape by intoxication, however, where is the line drawn 

between conscious intoxication and incapacitating intoxication? In this case, the 

State relied on an expert witness to help the jury understand how intoxicated the 

victim was. Yet the very fact that the State needed an expert makes the idea of 

strict liability for this offense even more problematic. 

[¶15.] Because rape by intoxication is a serious felony and the Legislature 

has not indicated its clear intent to dispense with mens rea, SDCL 22-22-1(4) must 

be read to include a knowledge element. The case is reversed and remanded for a 

new trial. The circuit court will instruct the jury that the State must prove the 

5. The language concerning the accused’s knowledge in these state statutes is 

strikingly similar. California: “known or reasonably should be known to the 

person committing the act,” Cal. Penal Code 261; Minnesota: “the actor 

knows or has reason to know,” Minn. Stat. 609.345; Nebraska: “knew or 

should have known,” Neb. Rev. Stat. 28-319; North Dakota: “person knows or 

has reasonable cause to believe,” N.D. Cent. Code 12.1-20-03. 
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defendant knew or reasonably should have known that the complainant’s 

intoxicated condition rendered her incapable of consenting. 

[¶16.] Reversed and remanded. 

[¶17.] SEVERSON, Justice, and MEIERHENRY, Retired Justice, concur. 

[¶18.] GILBERTSON, Chief Justice, and ZINTER, Justice dissent. 

[¶19.] WILBUR, Justice, not having been a member of the Court at the time 

this action was submitted to the Court, did not participate. 

GILBERTSON, Chief Justice (dissenting). 

[¶20.] I respectfully dissent. I would affirm because the substantial case law 

and legislative history interpreting SDCL 22-22-1(4) demonstrates that the 

Legislature made it a crime to sexually penetrate a victim objectively incapable of 

giving consent as a result of intoxication regardless of whether a defendant 

subjectively knew a victim was too intoxicated to consent. By adding this 

requirement, the Court ignores statutory history and effectively overrules case law 

analyzing SDCL 22-22-1. By requiring the State to prove that a “defendant knew or 

reasonably should have known that the complainant’s intoxicated condition 

rendered her incapable of consenting,”6 the Court imposes its own opinion over that 

6. Here I note that the majority opinion remands the case with the instruction 

that “the State must prove the defendant knew or reasonably should have 

known that the complainant’s intoxicated condition rendered her incapable of 

consenting.” Majority Opinion ¶ 15 (emphasis added). This goes beyond 

Jones’s proposed instruction that only he subjectively need know the victim 

was incapable of consenting. 
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of the Legislature. I would hold that Jones’s proposed jury instruction was not a 

correct statement of the law and the circuit court did not err in refusing to give it. 

[¶21.] In addressing the issue of a defendant’s knowledge of a victim’s 

intoxication, the circuit court stated that: 

Whether the defendant knew or didn’t know the person was 

intoxicated is subjective knowledge, I don’t think is relevant or 

an element to the crime. I think the only issue is whether she 

was so intoxicated that she wasn’t able to give consent and I 

think I’ve instructed on that. I think that’s a correct instruction 

of the law, so I’m not going to submit the additional proposed 

language . . . . 

The Court holds that the circuit court’s conclusion was incorrect. Majority Opinion 

¶ 1. 

[¶22.] Before 1985, SDCL 22-22-1(3) read: 

Rape is an act of sexual penetration accomplished with any 

person other than the actor’s spouse . . . [w]here the victim is 

incapable of giving consent because of any intoxicating, narcotic 

or anesthetic agent, or because of hypnosis, administered by or 

with the privity of the accused[.] 

SDCL 22-22-1(3) (1984) (amended in 1985). In 1985, the Legislature amended 

former SDCL 22-22-1(3) by deleting the phrase “administered by or with the privity 

of the accused.” 1985 S.D. Sess. Laws 359, ch. 179. The majority opinion questions 

whether the Legislature intended to remove a mens rea requirement when it 

amended the statute. Majority Opinion ¶ 9. Ultimately the majority opinion 

concludes that because “rape by intoxication is a serious felony and the Legislature 

has not indicated its clear intent to dispense with mens rea, SDCL 22-22-1(4) must 

be read to include a knowledge element.” Majority Opinion ¶ 15. I disagree. 
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[¶23.] This Court has consistently stated that “when an amendment is 

passed, it is presumed the [L]egislature intended to change existing law.” Lewis & 

Clark Rural Water Sys., Inc. v. Seeba, 2006 S.D. 7, ¶ 19, 709 N.W.2d 824, 832 

(quoting S.D. Subsequent Injury Fund v. Federated Mut. Ins., Inc., 2000 S.D. 11, ¶ 

18, 605 N.W.2d 166, 170). It is also presumed that the Legislature “intended to 

alter the meaning of the statute to comport with the new terms.” Id. (quoting 

Delano v. Petteys, 520 N.W.2d 606, 609 (S.D. 1994)). In comparing the previous 

version of SDCL 22-22-1(4), then found at SDCL 22-22-1(3), and the current 

amended version, I would conclude the intent of the Legislature was simply to no 

longer require that the accused, or someone in privity, administer the intoxicating 

agent. To infer that the Legislature meant to leave the mens rea requirement is to 

make an unsupported, policy assumption. Courts are in no position to contemplate 

policy considerations suggestive of different legislative intent when the Legislature 

has often amended the statute at issue but left a court’s interpretation of the 

statute untouched. See, e.g., Microsoft Corp. v. i4i Ltd. P’ship, --- U.S. ---, 131 S. Ct. 

2238, 2252, 180 L. Ed. 2d 131 (2011). Even if this Court were to look to language 

that has been removed from a statute by amendment, there is no indication that the 

language “administered by or with the privity of the accused” equates to knowledge 

by the accused that a victim is intoxicated to the extent that he or she is unable to 

consent. In other words, to find a knowledge requirement in the current version of 

the statute, this Court also has to adopt a “knowledge of intoxication” requirement 

in the former version of the statute. 
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[¶24.] Because it is not appropriate to adopt a knowledge requirement from 

the former version of the statute, I cannot conclude that such a knowledge 

requirement is found in the current statute. The language of SDCL 22-22-1(4) is 

clear, certain, and unambiguous. It simply does not require that a person know 

that a victim is incapable of giving consent because of an intoxicating agent. “[T]he 

Court’s only function is to declare the meaning of the statute as clearly expressed.” 

City of Deadwood v. M.R. Gustafson Family Trust, 2010 S.D. 5, ¶ 8, 777 N.W.2d 

628, 632 (quoting Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 

611). “A court is not at liberty to read into the statute provisions which the 

Legislature did not incorporate.” Id. ¶ 9 (quoting In re Adams, 329 N.W.2d 882, 884 

(S.D. 1983)); see also Allegheny Corp., Inc. v. Richardson, Inc., 463 N.W.2d 678, 679 

(S.D. 1990) (explaining that this Court “will not enlarge a statute beyond its face 

where the statutory terms are clear.”). 

While it is fundamental that we must strive to ascertain the real 

intention of the lawmakers, it is equally fundamental that we 

must confine ourselves to the intention as expressed in the 

language used. To violate the rule against supplying omitted 

language would be to add voluntarily unlimited hazard to the 

already inexact and uncertain business of searching for 

legislative intent. 

Jensen v. Turner Cnty. Bd. of Adjustment, 2007 S.D. 28, ¶ 8, 730 N.W.2d 411, 414 

(internal citations omitted). If SDCL 22-22-1(4) should include a knowledge 

requirement on the part of a defendant, that is a function for the Legislature. 

[¶25.] Declining to impose a knowledge requirement on SDCL 22-22-1(4) is 

consistent with our case law interpreting SDCL 22-22-1. State v. Schuster, 502 

N.W.2d 565, 568 (S.D. 1993); State v. Fulks, 83 S.D. 433, 436-37, 160 N.W.2d 418, 
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420 (1968), overruled on other grounds by State v. Ree, 331 N.W.2d 557, 560 (S.D. 

1983). In Schuster, this Court considered whether a perpetrator must know of a 

victim’s incapacity to consent when “the victim is incapable, because of physical or 

mental incapacity, of giving consent to such act . . . .”7 Schuster, 502 N.W.2d at 568. 

The 16-year-old victim in Schuster only had the mental capacity of an eight- or nineyear-old. Id. at 567. We held that “[t]he section of the rape statute pertaining to 

persons incapable of consent makes no mention of, and thus does not require, 

knowledge on the part of the perpetrator.” Id. at 568. Like in Schuster, SDCL 22-

22-1(4) does not mention, and thus does not require, knowledge on the part of Jones 

that E.B. was incapable of consenting. 

[¶26.] This Court has also considered whether a defendant is required to 

know if a victim is a minor, and therefore incapable of consenting, in order to be 

convicted of statutory rape. Fulks, 83 S.D. at 436-37, 160 N.W.2d at 420.8 “[I]n a 

prosecution for alleged statutory rape a defendant’s knowledge of the age of the girl 

involved is immaterial and his reasonable belief that she is over the age of eighteen 

years is no defense.” Id. See also State v. Vogel, 315 N.W.2d 324, 326 (S.D. 1982) 

(recognizing the Legislature’s prerogative to create strict liability crimes). Under 

South Dakota statutes and case law, a defendant is not required to know that a 

7. Schuster addressed SDCL 22-22-1(2) (1990), which has since been amended 

and is now found at SDCL 22-22-1(3). 

8. In Fulks, the Court was considering statutory rape defined by SDC 13.2801 

as “an act of sexual intercourse accomplished with a female, not the wife of 

the perpetrator . . . where the female is under the age of eighteen years.” 

Statutory rape is now defined at SDCL 22-22-1(1) as “sexual penetration 

accomplished . . . if the victim is less than thirteen years of age . . . .”
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victim is a minor and therefore incapable of consenting to sexual intercourse. 

Likewise, SDCL 22-22-1(4) does not require that a defendant know a victim is 

intoxicated and therefore incapable of consenting. 

[¶27.] This legal conclusion is reinforced by the drafting of the statute. SDCL 

22-22-1 provides in part: 

Rape is an act of sexual penetration accomplished with any 

person under any of the following circumstances: 

(1) If the victim is less than thirteen years of age; or 

(2) Through the use of force, coercion, or threats of immediate 

and great bodily harm against the victim or other persons 

within the victim’s presence, accompanied by apparent 

power of execution; or 

(3) If the victim is incapable, because of physical or mental 

incapacity, of giving consent to such act; or 

(4) If the victim is incapable of giving consent because of any 

intoxicating, narcotic, or anesthetic agent or hypnosis; or 

(5) If the victim is thirteen years of age, but less than sixteen 

years of age, and the perpetrator is at least three years older 

than the victim[.] 

The requirement of knowledge on the part of the perpetrator is absent in the 

subsections dealing with minority in subsections (1) and (5), and lack of mental 

capacity in subsection (3), just the same as intoxication in subsection (4). 

[¶28.] I agree with the Court that the resolution of this issue is the intent of 

the Legislature. Fulks was decided in 1968. Schuster was decided in 1993. Thus, 

by 1993 it was clear to the Legislature that this Court interpreted two portions of 

SDCL 22-22-1 as requiring no knowledge requirement. Thereafter, the Legislature 

amended SDCL 22-22-1 three times, in 1994, 2000, and the criminal code revision 

in 2005. Clearly the concept of requiring knowledge was well known to the 

Legislature as it had amended this and other statutes before and only had to look at 
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such states as Iowa, Nebraska, and California for examples.9 Yet the Legislature 

three times passed up opportunities to join this group of states and add a knowledge 

requirement to SDCL 22-22-1. This is a clear indication of the intent of our 

Legislature. It opted for a policy decision that the devastating consequences of rape 

to a victim are the same and deserve the same protection whether the victim was 

9. The Court relies on statutes from California, Minnesota, Nebraska, and 

North Dakota to indicate that South Dakota is “the only jurisdiction to hold 

that even when a man accused of rape convinces a jury that he reasonably 

and in good faith believed he had engaged in consensual adult sex, the jury 

must disregard his innocent state of mind if the woman he had sex with later 

establishes that she drank too much to have given her consent.” Majority 

Opinion ¶ 13. The Court ignores the fact that the statutes it relies on 

explicitly require that the defendant knew or should have known the victim 

was too intoxicated to consent. The South Dakota Legislature chose not to 

include such a requirement. The following statutes are examples of statutes 

that explicitly include a knowledge requirement: 

Iowa Code § 709.4(3) provides: 

A person commits sexual abuse in the third degree when the 

person performs a sex act . . . [that] is performed while the other 

person is under the influence of a controlled substance . . . and . . 

. the controlled substance . . . prevents the other person from 

consenting to the act . . . [and t]he person performing the act 

knows or reasonably should have known that the other person 

was under the influence of the controlled substance . . . . 

Neb. Rev. Stat. § 28-319(1) provides: 

Any person who subjects another to sexual penetration . . . 

without the consent of the victim, . . . who knew or should have 

known that the victim was mentally or physically incapable of 

resisting or appraising the nature of his or her conduct . . . is 

guilty of sexual assault[.] 

California Penal Code § 261 provides that: 

Rape is an act of sexual intercourse accomplished with a person 

not the spouse of the perpetrator . . . where a person is 

prevented from resisting by any intoxicating or anesthetic 

substance, or any controlled substance, and this condition was 

known, or reasonably should have been known by the accused. 
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too intoxicated, too young, or mentally incapacitated to consent or was victimized by 

any other means set forth in SDCL 22-22-1. It is not this Court’s position to change 

any legitimate policy chosen by the Legislature. 

[¶29.] The majority opinion cites to two South Dakota cases where this Court 

has read a knowledge requirement into a statute – State v. Stone, 467 N.W.2d 905 

(S.D. 1991) and State v. Barr, 90 S.D. 9, 237 N.W.2d 888 (1976). Majority Opinion ¶ 

11. In Stone, this Court concluded that Barr was controlling precedent. Stone, 467 

N.W.2d at 906. We therefore examine why in Barr this Court concluded knowledge 

was an unwritten element of the offense of unlawful distribution of a controlled 

substance. This Court stated three reasons. Barr, 237 N.W.2d at 890-92. First, 

courts in other jurisdictions had held that notwithstanding the absence of the word 

“knowingly” in statutes prohibiting the unlawful possession and sale of drugs and 

controlled substances, knowledge was an element of the offense. Id. at 891. We 

have not been provided with such authority in this case. Second, we noted in Barr 

that lesser statutory drug offenses contained an element of knowledge, which would 

essentially require a lesser burden of proof on the State in cases having a higher 

maximum penalty. Id. In this case, we find it more appropriate to compare the 

rape proscribed in SDCL 22-22-1(4) with other means of rape. In so doing, we note 

that violation of SDCL 22-22-1(4) carries the same penalty as violation of SDCL 22-

22-1(3), which is rape of a person incapable of consenting because of physical or 

mental incapacity. Finally, in Barr, we read knowledge into the drug distribution 

statute because the State did not contend that knowledge was not an element of the 

offense. Id. at 892. The State has not taken a similar position in this case; instead, 
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it argues that the defendant’s knowledge is not an element of SDCL 22-22-1(4). I 

agree and decline to follow the reasoning in this case that we used in Barr and 

Stone. 

[¶30.] The majority opinion also cites a case from the United States Supreme 

Court as support. Majority Opinion ¶ 10 (citing Staples v. United States, 511 U.S. 

600, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994)). Staples is distinguishable because it 

involved violating a statute regulating the registration of statutorily defined 

firearms, rather than a serious crime committed against the person of a victim. 

Staples, 511 U.S. at 602, 114 S. Ct. at 1795 (requiring that the prosecution prove a 

defendant knew the weapon he possessed was not properly registered). The Court 

emphasized that “our holding is a narrow one. As in our prior cases, our reasoning 

depends upon a commonsense evaluation of the nature of the particular device or 

substance Congress has subjected to regulation and the expectations that 

individuals may legitimately have in dealing with regulated items.” Id. at 619, 114 

S. Ct. at 1804. Furthermore, the Court emphasized that “[n]either this Court nor, 

so far as we are aware, any other has undertaken to delineate a precise line or set 

forth comprehensive criteria for distinguishing between crimes that require a 

mental element and crimes that do not.” Id. at 619-20, 114 S. Ct at 1804. (quoting 

Morissette v. United States, 342 U.S. 246, 260, 72 S. Ct. 240, 248, 96 L. Ed. 288 

(1952)). The Supreme Court declined to do so in Staples, and I would do the same 

today. Id. 

[¶31.] The Court also relies on case law where we have stated that “[w]hether 

criminal intent or guilty knowledge is an essential element of a statutory offense is 
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to be determined by the language of the act in connection with its manifest purpose 

and design.” Majority Opinion ¶ 11 (quoting State v. Nagel, 279 N.W.2d 911, 915 

(S.D. 1979)). The Court fails to acknowledge that the manifest purpose and design 

of SDCL 22-22-1, at its most basic level, is to protect rape victims who did not 

consent. Any other “manifest purpose or design” is based on conjecture of what this 

Court supposed the Legislature said instead of what it actually said. Furthermore, 

applying a knowledge requirement to the statute is adding an additional element 

that the Legislature does not require the State to prove in a prosecution. 

[¶32.] Finally, the Court states that while we interpret our statutes by 

reading the plain meaning of the words they contain, “we have always reserved a 

caveat: we will not read statutes literally, if they lead to an ‘absurd or unreasonable 

result.’” Majority Opinion ¶ 12 (citing State v. Wilson, 2004 S.D. 33, ¶ 9, 678 

N.W.2d 176, 180). I fail to see how the plain meaning of this statute reaches an 

absurd or unreasonable result. It is not absurd or unreasonable for the Legislature 

to choose to protect rape victims over their perpetrators. Neither is the result 

absurd or unreasonable when read in the context of the entire statute and this 

Court’s case law analyzing SDCL 22-22-1. 

[¶33.] In conclusion, this Court has, until today, consistently declined to read 

additional requirements into a statute and Jones presents no compelling argument 

for abandoning this principle today. SDCL 22-22-1(4) does not require that a 

defendant know a victim is intoxicated and therefore unable to consent to sexual 

intercourse. Consequently, the circuit court did not abuse its discretion in refusing 

Jones’s proposed jury instruction. I would affirm. 
#25646 

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[¶34.] The Court declines to address Jones’s other argument on appeal that 

there was not sufficient evidence to convict him. Majority Opinion ¶ 6 n.2. I would 

affirm on that issue based on the ample evidence presented at trial to sustain his 

convictions. 

ZINTER, Justice (dissenting). 

[¶35.] Were we considering this issue on a clean slate without legislative and 

judicial history, I would join the opinion of the Court. But as Chief Justice 

Gilbertson explains,10 there is substantial legislative history and case law involving 

SDCL 22-22-1. That history and case law demonstrate that the Legislature 

intended to make it a crime to sexually penetrate a victim objectively incapable11 of 

giving consent as a result of intoxication even if the defendant did not have 

knowledge of the victim’s incapacity. 

10. I join all of Chief Justice Gilbertson’s opinion except ¶ 30. 

 

11. The circuit court required the State to prove that the victim was objectively 

incapable of consenting. The court instructed: 

Consent is not a defense to the crime of rape in the third degree 

where the victim is incapable of giving consent because of 

intoxication. In determining whether the victim was incapable 

of giving consent because of intoxication you must consider all 

the circumstances in determining whether the victim’s 

intoxication rendered her unable to exercise reasonable 

judgment in the process of forming mental or intellectual 

decisions and of discerning or comparing all the circumstances 

present at the time. It is not enough that the victim is 

intoxicated to some degree, or that the intoxication reduces the 

victim’s sexual inhibitions, in order to establish that the level of 

the victim’s intoxication deprives the victim of the legal capacity 

to consent to the sexual act. 
#25646 

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[¶36.] “[I]t is widely understood that the legislature may forbid the doing of 

an act and make its commission a crime without regard to the intent or knowledge 

of the doer.” State v. Nagel, 279 N.W.2d 911, 915 (S.D. 1979). “[T]he definition of 

the elements of a criminal offense is entrusted to the legislature, particularly . . . 

crimes [that] are solely creatures of statute.” Staples v. United States, 511 U.S. 600, 

604, 114 S. Ct. 1793, 1796, 128 L. Ed. 2d 608 (1994). “Thus, . . . determining the 

mental state required for commission of a [statutory] crime requires ‘construction of 

the statute and . . . inference of the intent of [the legislature].’” Id. at 605, 114 S. 

Ct. at 1796-97 (quoting United States v. Balint, 258 U.S. 250, 253, 42 S. Ct. 301, 

302, 66 L. Ed. 604 (1922)). 

[¶37.] In this case, Chief Justice Gilbertson explains how this Court has twice 

interpreted analogous language in other subsections of SDCL 22-22-1 to not require 

knowledge of incapacity with respect to denominated classes of individuals with 

impairments. See Chief Justice Gilbertson’s dissent ¶¶ 25-26.12 In both cases this 

Court concluded that because the Legislature did not include mens rea language in 

the statute, the Legislature did not intend the statute to require knowledge of the 

victim’s incapacity. See id. The legislative decision was driven by the fact that the 

victims in the designated classes have diminished capacity, thus justifying the need 

12. The most striking example is State v. Schuster, 502 N.W.2d 565, 569 (S.D. 

1993). In that case we held that a defendant need not have knowledge that a 

mentally incapacitated person deemed incapable of giving consent was 

actually incapable under SDCL 22-22-1(2). SDCL 22-22-1(4) also involves 

victims with diminished mental capacity. As is explained in ¶ 38, infra, there 

is no basis to distinguish Schuster. 
#25646 

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for more protection than for those who can capably make informed decisions 

regarding consent to sexual penetration. 

[¶38.] Today the Court changes its view of the Legislature’s intent regarding 

objectively incapacitated victims. The Court reads a knowledge element into SDCL 

22-22-1(4) (victims incapacitated by alcohol) but not subsection (3) (victims 

incapacitated by other mental impairments). The Court does so because, in its 

view, in the latter case involving “mental incapacity,” the debilitating “condition[] 

[is] readily apparent or reasonably discoverable.” Supra ¶ 14. I disagree. Human 

experience reflects that the degree of impairment resulting from mental disability 

and alcohol consumption falls along a broad continuum, and the actual state of 

incapacity is often not readily apparent to the lay observer. Thus, this is the type of 

case in which “the prohibition or punishment of particular acts, the state may in the 

maintenance of a public policy provide ‘that he who shall do them shall do them at 

his peril and will not be heard to plead in defense good faith or ignorance.’” See

Balint, 258 U.S. at 252, 42 S. Ct. at 302 (quoting Shevlin-Carpenter Co. v. 

Minnesota, 218 U.S. 57, 70, 30 S. Ct. 663, 666, 54 L. Ed. 930 (1910)). The majority 

concludes otherwise, noting that this is a serious felony, supra ¶ 15, and that 

offenses requiring no mens rea are generally disfavored, supra ¶ 10 (quoting 

Staples, 511 U.S. at 605, 114 S. Ct. at 1797). But the majority overlooks the fact 

that the Supreme Court has specifically noted “sex offenses, such as rape” are one of 

the “few exceptions” to the common-law requirement of a culpable state of mind. 

Morissette v. United States, 342 U.S. 246, 251 & n.8, 72 S. Ct. 240, 244 & n.8, 96 L. 

Ed. 288 (1952). 
#25646 

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[¶39.] Moreover, as Chief Justice Gilbertson chronicles, the Legislature 

amended SDCL 22-22-1 on three occasions after we twice held that similar 

language in parallel subsections of the same statute do not include a mens rea

element. See Chief Justice Gilbertson’s dissent ¶ 28. One legislative revision was a 

part of a comprehensive rewrite of the entire criminal code by eminent lawyers and 

legislators. See 2005 S.D. Sess. Laws ch. 120, § 390. Notwithstanding this 

comprehensive review of our criminal statutes, the Legislature left untouched this 

Court’s prior interpretations that there is no knowledge element in language like 

that found in SDCL 22-22-1(4). Under such circumstances, courts are in “no 

position” to consider policy arguments suggestive of different legislative intent 

because the legislature has, for a substantial period of time, amended the statute at 

issue but left a court’s “interpretation” of the statute “untouched.” Microsoft Corp. 

v. i4i Ltd. P’ship, --- U.S. ---, 131 S. Ct. 2238, 2252, 180 L. Ed. 2d 131 (2011). 

[¶40.] In light of SDCL 22-22-1’s judicial and legislative history, I am 

persuaded that the Legislature’s continued use of analogous language we have 

twice interpreted reflects no intent to change our interpretation. The majority’s 

contrary holding is based on its view that the Legislature has not expressed “clear 

intent to dispense with mens rea.” See supra ¶ 15. But this incorrectly presupposes 

that SDCL 22-22-1(4) previously contained a knowledge element. It did not.13 

 (continued . . .) 

13. The Court suggests that the legislatively-removed element previously 

requiring that the accused or his agent administer the alcohol “presuppos[ed] 

that the accused knew or reasonably should have known of the victim’s 

incapacitated state.” Supra ¶ 9 (emphasis added). On the contrary, the act of 

providing another person beverage alcohol does not necessarily reflect how 

the recipient will process that alcohol and how other external factors will 
#25646 

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__________________ 

(. . . continued) 

SDCL 22-22-1(4) has never included language requiring “knowledge,” the word 

defined in SDCL 22-1-2(1)(c),14 to describe the mens rea element when a knowledge 

requirement is intended in any criminal statute found in SDCL Title 22. Therefore, 

I cannot agree with the Court that the Legislature’s decision not to include the 

customarily used and legislatively prescribed language for including a knowledge 

element in a criminal statute, reflects legislative intent to include that knowledge 

element in SDCL 22-22-1(4). 

[¶41.] Today’s Court is also mistaken when it states that we will become the 

only court to hold that a jury “must disregard” the defendant’s state of mind 

(knowledge of incapacity) in cases like Jones’s simply because the victim 

“establishes that she drank too much to have given her consent.” See supra ¶ 13. 

Judge Jensen correctly explained that under the wording of the statute, “the 

question is [an] objective [one:] was [the victim] so intoxicated that she couldn’t give 

ultimately influence the extent of any resulting incapacitation. Thus, the 

statute’s prior administration element did not presuppose that the accused 

would also actually know of the victim’s ultimate resulting degree of 

incapacitation. The now repealed administration element denoted 

responsibility for furnishing the alcohol rather than knowledge of the degree 

of incapacity that actually resulted. For that reason, the now repealed 

administration element did not presuppose that the accused also knew of the 

victim’s later ability to consent. Moreover, to reach its result, the majority 

must employ a new rule of statutory construction that the Legislature’s 

repeal of one element of a statute reflects legislative intent to retain another 

element that had never been mentioned in the statute. Canons of statutory 

construction are loose enough without adding a rule that has such a tenuous 

tie to logic.

14. SDCL 22-1-2(1) defines the various types of mens rea necessary for acts to 

constitute the criminal offenses in SDCL Title 22. “‘[K]nowledge, knowingly,’ 

and all derivatives thereof” are specifically defined in SDCL 22-1-2(1)(c).
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consent . . . .” He therefore instructed that the jury would have to find that the 

victim was objectively incapable of giving consent by considering “all the 

circumstances.” See supra n.11. This required the jury’s consideration of 

reasonable, good-faith perceptions of all witnesses to the victim’s state of 

intoxication, including that of the defendant. Thus, the jury could not disregard 

Jones’s testimony that he did not know the victim was intoxicated or incapable of 

consent when he had sex with her. Indeed, Jones raised this point in his testimony, 

in his examination of his witnesses, in his cross-examination of the State’s 

witnesses, and in his closing argument. 

[¶42.] Finally, to affirm the circuit court, “we [would not be] mark[ing] South 

Dakota as the only jurisdiction to hold” that a knowledge element is not included in 

the offense of rape of a victim who is objectively incapable of consent due to 

incapacitation by alcohol. Cf. supra ¶ 13 (emphasis added). The Court references 

four other states. But in each of those states the legislature enacted a statute 

explicitly requiring that the perpetrator know or reasonably should know of the 

victim’s inability to consent. See supra n.5 (citing statutes from four other states). 

Therefore, this is not a matter in which we must issue a holding adopting our view 

of the wisdom of having a knowledge element in this type of offense. The South 

Dakota Legislature made that decision when it differentiated SDCL 22-22-1(4) from 

the statutes adopted in the four states referenced by the majority.

[¶43.] For all of the foregoing reasons, I respectfully dissent. Based on our 

judicial and legislative history, I would apply the plain language interpretation of 
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SDCL 22-22-1(4). And consistent with our two prior cases, I would restate that the 

plain language we interpret today contains no knowledge element.