Legislative committees voted to expand several protections for victims of rape and domestic violence Thursday.
But a third bill, making it easier to convict people of rape where the victim was too intoxicated to consent, is on hold as stakeholders try to solve their disagreements.
A proposal to revise the state’s domestic violence laws, Senate Bill 147, passed unanimously in the Senate Judiciary Committee.
It says that violence between people in or formerly in a “dating relationship” qualifies as domestic violence. Currently people in a romantic relationship are only protected by domestic violence laws if they have a child together or live together.
A similar bill last year failed after running into opposition from some Republican House members. Social conservatives opposed protections for same-sex couples, while other lawmakers opposed including dating couples under domestic violence.
SB 147 includes both gender-neutral language and protection for dating. But on Thursday at least one prominent social conservative activist testified in favor of the measure.
Dale Bartscher, head of the South Dakota Family Heritage Alliance, said he helped draft the bill and had no concerns about it protecting same-sex couples.
Another measure, House Bill 1169, would have provided free rape examinations to victims even without a decision to press charges. Right now, free examinations are only given as part of a criminal investigation.
“We need to protect the victim (first),” said Dianna Miller, a lobbyist for South Dakota Network Against Family Violence and Domestic Assault. “Then the decision will be made by the victim and the prosecutors and law enforcement to investigate.”
Miller said she did not believe HB 1169 would discourage women from coming forward to report rapes. She said it would have the opposite effect, by removing any financial disincentive.
No one testified against HB 1169, and no lawmakers on the committee spoke against it. It passed 11-2, with Reps. Jenna Haggar and Blaine Campbell voting no.
While both those bills will move on to the full Senate and House, respectively, a third bill dealing with rape has an uncertain future.
Senate Bill 173 would remove a defense against certain rape charges established by a 2011 South Dakota Supreme Court case.
One of the standards for rape is sex where the victim “is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent.”
In South Dakota v. Jones, the state Supreme Court ruled that law requires proof that the “the defendant knew or reasonably should have known that the complainant’s intoxicated condition rendered her incapable of consenting.”
Christopher Jones, the defendant in that case, was granted a new jury trial, which convicted him despite the new defense.
South Dakota’s state’s attorneys asked the Legislature to remove that defense, specifying “the prosecution need not prove that the defendant knew or reasonably should have known that the victim’s intoxicated condition rendered the victim incapable of consenting.”
“We don’t have to prove that the victim was incapable of giving consent because of mental incapacity,” said Paul Bachand, representing the South Dakota State’s Attorney’s Association. “The same should apply for intoxication of the victim.”
The victim in the South Dakota v. Jones rape case also gave emotional testimony, saying she was “disgusted” that the law protected “the man who admitted to raping me.”
But the state’s criminal defense lawyers and Gov. Dennis Daugaard’s office expressed concern about the bill, which would go farther than any other state.
Matt Konenkamp of Daugaard’s office said South Dakota’s rape law should attempt to punish the guilty and not people who “never intended any harm.”
“It is the line in the sand between someone who has criminal propensity, someone who is intending to victimize someone, and someone who, on the other side, may have genuinely believed that they were engaging in a consensual act,” Konenkamp said.
After testimony from both sides, the Senate Judiciary Committee deferred action on SB 173 until next week to give both sides a chance to try to reach a compromise.