South Dakota Prohibited Consensual Sexual Activity Laws

Most of us are well aware that nonconsensual sexual activities like rape and sexual assault are illegal. But could you get in trouble for consensual sexual activity? Does “flashing” your friends constitute indecent exposure? And what about anti-sodomy laws? Here is a brief summary of prohibited consensual sexual activity laws in South Dakota.

Anti-Sodomy Laws

The most important case to date concerning sodomy laws is Lawrence v. Texas. In that case, two men were convicted for having sex in a private home, under the Texas anti-sodomy law. The case went to the Supreme Court of the United States, where it was struck down. Because the decision made by the Supreme Court, all anti-sodomy laws in the United States are considered unconstitutional and unenforceable. However, many are still on the books.

South Dakota Sodomy Laws

In 1976, private adult, consensual and non-commercial acts of sodomy were legalized.

Indecent Exposure

South Dakota law also prohibits indecent exposure. This is a class 1 misdemeanor. The law defines indecent exposure as the person exposing his or her genitals in a public place, or in the view of a public place, under circumstances in which that person knows that person's conduct is likely to annoy, offend, or alarm another person. This may be considered "consensual" behavior because the actor consents to the behavior, even though the offended person does not.

Statutory Rape

In South Dakota, statutory rape generally describes the situation in which a consenting adult and a consenting minor engage in sexual relations. Although the contact is consensual, South Dakota law prohibits sexual contact between an adult (someone 18 or older) and a minor (someone younger than 18), even if the sex is consensual.

HIV Exposure and Compelled Testing

Victims of alleged sexual offenses have the right to compel their alleged assailant to be tested for HIV/AIDS.

The following table lists the main provisions of South Dakota's prohibited consensual sexual activity laws, while additional background information follows. See FindLaw's Sex Crimes section for more information.

Sodomy Laws Applicable to N/A (Law found unconstitutional).
Penalty for Sodomy N/A Note: found unconstitutional by Lawrence v. Texas (2003)
HIV Exposure and Compelled Testing for Offenders

23A-35B-3 Victim or law enforcement officer where exchange of body fluids has occurred may petition court to order HIV testing of defendant; 22-18-31 Intentional exposure to HIV infection, class 3 felony

Other Crimes Relating to Consensual Sex Acts 22-24-1.2 Indecent exposure: Class 1 misdemeanor

Note: State criminal laws are constantly changing -- contact a South Dakota sex crimes attorney or conduct your own legal research to verify the state law(s) you are researching.

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