#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 nine-

year-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,


                                         -17-
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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


                                         -18-
#25646

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.


                                         -19-
#25646

[¶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 incapable 11 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.

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#25646

[¶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.

                                            -21-
#25646

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).


                                          -22-
#25646

[¶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



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
                                                                    (continued . . .)
                                             -23-
#25646

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


__________________
(. . . continued)
         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).

                                          -24-
#25646

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




                                          -25-
#25646

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.




                                       -26-
