*1 WILBUR, Justice, having been a member the time Court, action was submitted to the participate.
STATE of South Plaintiff Appellee,
Christopher JONES, Defendant Appellant.
No. 25646.
Supreme Court of South Dakota.
Argued on March 2011.
Reassigned June Sept.
Decided General,
Marty Jaekley, Attorney J. Meyer, Ann Attorney C. Assistant Gener- al, Pierre, Dakota, Attorneys South plaintiff appellee. Peterson,
A. Rumpca Jason Stuart & Beresford, LLC, Rumpca, PROF South *2 Brent, who kitchen and conversed with ap- and Dakota, Attorneys for defendant ev- from the noise of had been awakened pellant. later testi- eryone in the hot tub. Brent (on KONENKAMP, reassign- Justice conver- having during beer fied to one ment). E.B. had another in the kitchen. sation that E.B. “carried Brent testified drink. rap- convicted of Defendant was [¶ 1.] know, She, you on the conversations. woman who twenty-three-year-old ing a anything or drunk or didn’t seem wasted too intoxicated to that she was testified ordinary.” out of the like that. Wasn’t appeals asserting He have consented. 22-22-1(4) does not although SDCL a.m., E.B. went Around 3:30 [¶ 3.] element, include explicitly living room. sleep on the couch it failed to in- erred when circuit court thereafter, sleep Shortly Brent left jury that the State must struct the room, lay on the otto- and Jones down his intoxicated knew that the woman’s that he sleep- couch where E.B. was man near the Be- made her unable to consent. condition him if that E.B. asked ing. Jones testified on cause mere silence Accord- to share her blanket. he wanted necessary element knowledge is whether Jones, shortly and there- ing agreed he always negate a will not of an offense after, inter- the two had consensual sexual especially for knowledge requirement, Abby and testified course. Chance punish- severe potentially crimes with they asleep together and E.B. saw Jones ments, conclude that we early morning. the next on the ottoman conviction under rape that a intended 22-22-1(4) requires proof that the although E.B. testified that she should have defendant knew couch, up she woke on sleep went to on intoxicated condi- known that the victim’s her, orally top the floor with Jones consenting. her tion rendered penetrating physi- her. After digitally and
Background
cally resisting
verbally refusing, E.B.
and
off of her. Be-
getting
succeeded
Jones
on October
p.m.
Around 8:00
drank,
the amount of alcohol she
cause of
friend,
and
E.B. and her co-worker
sleep
on a
E.B. testified she went back
celebrating Abby’s twenty-
Abby, began
leaving. E.B.
nearby chair instead of
birthday together. They started at
first
couch,
a second time on the
awoke
City.
Bar in
E.B. estimated she
Bill’s
Sioux
her,
pants
her
and un-
Jones behind
at
eight to ten beers and
least
consumed
penetrat-
and
derwear at her knees
Jones
a.m.,
At 1:00
liquor.
three shots of
E.B. testified she
ing her from behind.
Chance,
Abby’s boyfriend,
women met
on,
Jones,
her clothes back
yelled
pulled
Jones,
friend,
at another
Christopher
his
until
and retreated to the bathroom
Jones
Chance,
Although E.B. knew
bar.
hospital
E.B.
the next
left.
went
meeting
her first time
Jones.
rape. An examina-
day
reported
going to
group continued to drink before
tion of E.B. and her clothes revealed
lived with Brent.
Chance’s house. Chance
sperm. Officers
Jones
home,
Jones’s
arrested
Chance,
at the
they
When
arrived
with two
subsequently charged
and he was
Jones,
E.B.
into a hot tub.
Abby,
got
rape in violation of
degree
counts of third
four
E.B. consumed another
three or
22-22-1(4),
of sexu-
and two counts
eventually left SDCL
Abby
beers. Chance and
22-22-7.1
in violation of SDCL
E.B.
al contact
go
the hot tub to
to bed. Jones and
tub,
barstools in and SDCL 22-22-7.2.
also left the hot
but sat on
trial,
In the
Jones
Consent is not a
[¶5.]
defense to the crime of
saying,
testified in his defense
“I don’t
the third
where the vic-
tim incapable
night.”
know if she was intoxicated that
consent be-
*3
thereafter,
cause of intoxication
At
he
and the
point
requested
some
Defendant
knew
person
that
jury
incapable
giv-
following
instruction related to con
ing consent because
intoxication....
sent:
added.)
(Emphasis
In ruling against
Consent is not a defense to the crime of
request,
Jones’s
explained:
the court
Rape,
penetration
defined as sexual
incapable
where the victim is
of giving Whether the defendant knew or didn’t
intoxication,
consent
if
because
know the
was intoxicated is sub-
jective
victim is
knowledge,
unable to exercise reasonable
I don’t think is rele-
vant
judgment as to the harm involved and
or an element to the crime. I think
if
knew that the
issue
person was
is whether she was so
Defendant
intoxicated that she wasn’t
judgment.
give
unable
exercise reasonable
able to
consent and I think I’ve instructed on
added.)
(Emphasis
The court
refused
that.
I think that’s a correct instruction
instruction,
requested
Jones’s
and ulti-
law,
so I’m not going to submit
mately gave its own:
the additional proposed language....
Consent is not a defense to the crime of
jury
found Jones guilty of
rape
in the third
where the vic-
two counts of
degree rape
third
in violation
giving
tim is
consent be-
22-22-1(4).
of SDCL
The circuit court
cause of intoxication.
In determining
him
years
sentenced
to fifteen
on each
giv-
whether the victim was
count of
degree rape,
third
to be served
ing consent
you
because
intoxication
consecutively,
eight years
suspended
must consider all the circumstances in
on each conviction on certain conditions.
determining whether the victim’s intoxi-
appeals, asserting
Jones
the court
cation rendered her unable to exercise
erred when it
requested
refused his
jury
judgment
process
reasonable
instruction and when it denied his motion
forming mental or intellectual decisions
a judgment
acquittal.2
discerning
comparing
and of
all the
Analysis
and Decision
present
circumstances
at the time.
It is
not enough that the victim is intoxicated
argues
Legisla-
[¶7.]
Jones
degree,
to some
or that the intoxication
rape by
ture did not intend
intoxication to
inhibitions,
reduces the victim’s sexual
liability
empha-
be
strict
offense. He
order
establish that the level of the
“[tjhere
sizes that
arbitrary
is no
measur-
deprives
victim’s intoxication
the victim ing
rape by
stick for
intoxication as there
of the legal capacity to consent to the
is for sexual intercourse with a minor
sexual act.1
an
where
element to the offense is the
objected
Jones
to this instruction and oral-
child’s age.”
responds
The State
ly requested
empha-
the addition of the
Jones’s
of E.B.’s intoxication is
language:
sized
irrelevant because SDCL
does
ris,
¶61,
wording
1. While we review a court’s
and ar-
S.D.
5 n.
rangement
(citation
omitted).
instructions for
abuse of
382 n. 1
discretion,
give
“a court has no discretion to
instructions,
misleading
incorrect or
and to
issue,
ruling
In view of our
on the first
we
prejudicially
do so
constitutes reversible er-
decline to address Jones's second issue.
Kadrmas,
Jackson,
ror."
Lee and
Inc. v. Mor-
specific
rape by
he could
convicted of
intoxi-
intent
not be
not have a
State,
failed
According
as
cation
the State
requirement.
E.B. was
long
“incapable
privity
it
him
proves
as
that he or someone
any intoxicating
because of
intoxicating agent.
administered the
This
agent,”
can be convicted under
Jones
agreed
and reversed Galati’s
22-22-1(4).
Thereafter,
Legis-
conviction.
lature removed the
“Statutory
interpretation
agent
accused
administer the
order
subject to
question
of law
de novo re
intentionally
unin-
guilty.
be
Whether
*4
Davis,
98, 7,
1999
view.”
v.
S.D.
State
removing
the
tentionally, by
535,
(citing City
598
537
Sioux
N.W.2d
incapaci-
that the
the
accused administer
Ewoldt,
106, 12,
1997 S.D.
568
Falls v.
element,
tating
Legislature
the
also re-
766).
22-22-1(4)
764,
de
N.W.2d
necessity
proving
moved
that
the
rape as
fines third
accused
in-
had
victim’s
penetration
an act of sexual
accom-
capacitated
That
22-22-
condition.
any
any
plished
with
under
1(4) previously required the accused or
(4)
...
If
following
circumstances:
privity
someone in the accused’s
to admin-
giving
the victim is
ister the
that
ac-
agent presupposes
any intoxicating
nar-
agent,
because of
reasonably
cused
or
have
knew
should
cotic,
agent
hypnosis[.]
or anesthetic
or
incapacitated
known of the victim’s
state.
places
apparent require-
This
no
Legislature
in-
change,
With this
prove
ment
the ac-
on the State
22-22-1(4)
tend to make SDCL
a strict
reasonably
cused knew or
have
should
offense,
Galati,
liability
so that in
for ex-
was too
known the victim
intoxicated
could have
conviction
been sus-
ample,
consent.
tained
if
known
even he had not
the victim
Certainly,
our
has
of an intoxicating
was under the influence
liability
to create
prerogative
strict
agent.3
Mouttet,
121,
v.
372
crimes. State
N.W.2d
(bail
(S.D.1985)
jumping);
grappling
ques-
123
v. Na
with similar
State
(S.D.1979) (secu
911,
tions,
gel,
Supreme
279
915
the United States
Court
laws). Therefore,
rities
our
has
primary ques
declared that “offenses
no
be,
tion
did the
mens rea
generally
what
are
Sta-
disfavored[.]”
600, 606,
Looking
history
ples
to the
511 U.S.
intend?
of SDCL
United
22-22-1(4)
1985,
114
rape by
before
intoxi
S.Ct.
413
606,
Schmidt,
114
element of a crime.” Id. at
S.Ct.
ute.”
539,
State
410 N.W.2d
point by
(citation
at 1797. And “silence on this
(S.D.1987)
omitted);
see also
necessarily suggest
itself does not
that Davis,
98, ¶ 7,
1999 S.D.
598 N.W.2d at
Congress
dispense
intended to
with a con- 537. Yet we
always
have
reserved
cave
element,
ventional mens rea
which would at: we will not read
literally,
statutes
if
require that the defendant know the facts
they lead
“absurd or unreasonable
illegal.”
that make his conduct
Id. at
Wilson,
State v.
result[.]”
2004 S.D.
(citation omitted).
at
S.Ct.
¶ 9,
176, 180; Davis,
Indeed,
98, ¶ 7,
Supreme
accused remanded The case is reversed and he ment. faith believed good reasonably and sex, circuit court will a new trial. The adult in consensual engaged had must jury State innocent state instruct his disregard should later the defendant knew had sex with he mind if the woman intoxi- complainant’s too much to have known drank that she establishes See, her e.g., CaLPe- cated condition rendered consent. given have her (2009); consenting. Minn.Stat. 609.345 nal Code (2006); N.D. (2009); 28-319 Neb.Rev.Stat. and remanded. Reversed [¶ 16.] (2009).5 That ex 12.1-20-03 Cent.Code argu closing In occurred here. actly what SEVERSON, Justice, [¶ 17.] instructions, ment, the court’s armed with MEIERHENRY, Justice, concur. Retired jurors to tell the was able prosecutor him,” GILBERTSON, Justice, when Jones you that “even if believe Chief had consent thought ZINTER, he she testified that Justice dissent. consent is ed, matter because “it doesn’t WILBUR, Justice, having in this case.” not a defense at the time a member of been “statutory rape” typical Court, action was submitted cases, conclusively presumed nonconsent is participate. mental inca- physical age *6 (dissent- underage youth, GILBERTSON, But in cases Justice
pacity. Chief unconsciousness, deficiency, or mental ing). readily apparent or are these conditions I would respectfully I dissent. [¶ 20.] discoverable, justifying strict li- reasonably case law affirm because the substantial advantage take ability for those who history interpreting SDCL legislative intoxi- rape by For incapacities. such 22-22-1(4) Legisla- that the demonstrates cation, however, drawn where is the line sexually penetrate it a crime to ture made and inca- intoxication between conscious objectively incapable a victim case, In the intoxication? this pacitating regard- a result of intoxication consent as help to expert witness State relied on subjectively a defendant less of whether the how intoxicated jury the understand con- was too intoxicated to knew a victim the very the fact that
victim was. Yet
the
By adding
requirement,
sent.
the idea of
expert
needed an
makes
State
statutory history and effec-
ignores
more
liability for this offense even
strict
analyzing
tively
case law
SDCL
overrules
problematic.
to
By requiring
22-22-1.
the State
reasonably
that a
knew or
rape by intoxi
“defendant
Because
complainant’s
should have known
felony
Legisla
and' the
cation is a serious
incapa-
her
condition rendered
clear intent to intoxicated
has not indicated its
ture
22-22-1(4)
imposes its
rea,
consenting,”6
the Court
ble
mens
dispense with
known,”
28-319;
have
Neb.Rev.Stat.
language concerning the accused's
should
5. The
"person knows or has reason-
North Dakota:
strikingly
state statutes is
in these
believe,”
Cent.Code 12.1-
N.D.
able cause
“known
similar. California:
20-03.
person committing
should be known to
act,”
261; Minnesota:
Cal.Penal Code
opinion
majority
re-
I note that the
6. Here
know,”
actor knows or has reason to
"the
"the
with the instruction that
mands the case
609.345; Nebraska:
“knew or
Minn.Stat.
prove the defendant knew or
State must
Legislature.
“rape by
over that of the
eludes that because
is
opinion
own
intoxication
felony
and the
Legislature
serious
has
proposed
I
hold
Jones’s
would
its clear intent
dispense
indicated
was not a correct
instruction
statement
rea,
with mens
be
and the circuit court
not err
the law
a knowledge
read to include
element.”
refusing
give
it.
¶
Majority
disagree.
15. I
Opinion
addressing
In
of a de-
21.]
the issue
[¶
This Court has consistently
stat
intoxi-
knowledge of a victim’s
fendant’s
ed that
an amendment
it
passed,
“when
cation, the circuit court stated that:
presumed
[L]egislature
intended
the defendant
or didn’t
knew
Whether
existing law.”
change
Lewis &
Ru
Clark
is sub-
know the
was intoxicated
Seeba,
7,
ral
Inc. v.
Sys.,
Water
2006 S.D.
jective knowledge, I don’t think is rele-
¶ 19,
824,
832 (quoting S.D.
I
or an element to
crime.
think
vant
Subsequent
Injury Fund v. Federated
was so
issue is whether she
Inc.,
Ins.,
Mut.
give
intoxicated
she wasn’t able
170).
It
N.W.2d
is also presumed
and I think
I’ve instructed
“intended to
alter
I think
instruction
that.
that’s
correct
meaning
comport
of the statute to
law, so I’m
to submit
going
(quoting
new terms.” Id.
Delano v. Pet
proposed language....
the additional
(S.D.1994)).
teys, 520
holds that
court’s
previous
The Court
the circuit
comparing the
version of SDCL
22-22-1(4),
Majority Opin-
was incorrect.
found at
conclusion
then
SDCL 22-22-
1(3),
version,
current
I
and the
amended
ion
would conclude the intent of
Legisla
Before
longer
ture
to no
simply
read:
accused,
someone
admin
privity,
is an act of
Rape
penetration
sexual
intoxicating agent.
ister
To
infer that
other
accomplished
any person
meant
to leave the mens
*7
spouse
than the actor’s
...
the
[w]here
requirement
rea
is to make an unsupport
incapable
is
of
be-
giving
victim
consent
ed,
assumption.
no
policy
Courts are in
any
of
or
intoxicating,
cause
narcotic
contemplate
position
policy
to
consider
agent,
hypnosis,
anesthetic
because of
of
suggestive
legislative
ations
different
by
privity
of
administered
with the
Legislature
the
intent when
has often
accused[.]
the
statute at
a
amended the
issue but left
22-22-1(3)
(1984) (amended in
SDCL
of
un
interpretation
court’s
the statute
1985).
1985,
Legislature
In
the
amended
See, e.g.,
Corp.
touched.
v. i4i
Microsoft
22-22-1(3) by deleting
SDCL
the
2238,
former
P’ship, - U.S. -,
Ltd.
131 S.Ct.
(2011).
the
phrase
by
privi-
“administered
or with
2252,
plainant's intoxicated her condition rendered jectively incapable know the victim need incapable consenting.” Majority Opinion of consenting. of ¶ added). (emphasis beyond goes 15 This
416 of ready unable inexact and uncertain business or she is to the extent he searching legislative intent. words, find a knowl- In other to consent. in the current version of edge requirement Cnty. Adjustment, v. Turner Bd. Jensen ¶ 411, 28, 8, 414 statute, adopt 2007 S.D. 730 N.W.2d also has a Court omitted). (internal 22- If citations SDCL “knowledge of intoxication” 22-1(4) a re- should include version of the statute. the former defendant, part quirement on of a appropriate Because it is not a function for the Legislature. from knowledge requirement adopt a knowl Declining impose statute, I version of the cannot former 22-22-1(4) is edge requirement on SDCL require that such a conclude interpreting with our consistent case law ment is found the current statute. The Schuster, 22-22-1. State v. clear, cer 565, (S.D.1993); v. State N.W.2d tain, unambiguous. simply It does not Fulks, 436-37, 433, 160 N.W.2d 83 S.D. that a that a victim (1968), know is 418, 420 overruled on other Ree, 557, giving consent because an v. grounds by State 331 N.W.2d (S.D.1983). Schuster, intoxicating agent. only 560 In this Court Court’s “[T]he whether perpetrator considered meaning function is declare the incapacity of a victim’s to consent know City clearly expressed.” as statute incapable, “the victim is when Family v. M.R. Deadwood Gustafson or mental physical incapacity, ¶ Trust, 628, 2010 S.D. 777 N.W.2d Schuster, to such act....”7 (quoting Engelmann, Martinmaas 16-year-old at 568. victim 611). 600, 612 N.W.2d capacity had mental Schuster at liberty “A court is not to read into the nine-year-old. at 567. We eight- Id. provisions statute which the statute “[t]he held section of the incorporate.” (quoting did not Id. persons pertaining incapable of consent (S.D. Adams, re 329 N.W.2d of, no mention and thus does not makes 1983)); Inc. Allegheny Corp., see also require, knowledge part on the Richardson, Inc., 678, 679 perpetrator.” Id. at 568. Like Schus (S.D.1990) that this “will (explaining ter, mention, does face enlarge beyond statute its where require, knowledge and thus does not clear.”). statutory terms are of Jones part that E.B. was *8 consenting. it is that we must While fundamental of intention of strive ascertain the real This Court also considered 26.] has [¶ lawmakers, equally it is fundamental if required whether a defendant is to know that we must confine ourselves to the minor, incapa- is a a victim and therefore language as expressed intention consenting, of convicted ble order be against sup- used. To violate the rule Fulks, statutory at rape. of 436- plying omitted would be add prosecu- at “[I]n 420.8 voluntarily alleged statutory rape unlimited hazard to the al- tion for a defen- male, 22-22-1(2) perpetrator ... 7. Schuster the wife of the addressed SDCL (1990), which has been amended and since is age eighteen where the female is of under 22-22-1(3). now found SDCL Statutory years.” rape now defined at penetration ac- as "sexual Fulks, considering statuto- 8. Court was complished ... if than thir- the victim is less ry rape by "an act defined SDC 13.2801 as of years age....” teen of accomplished intercourse with a fe- sexual (4) age girl of the of the If incapable dant’s the victim is involved is immaterial and his reasonable any because of intoxicating, age eighteen belief that she is over the narcotic, or agent anesthetic or hyp- years is no defense.” Id. See also State nosis; or (S.D.1982) Vogel, 315 N.W.2d (5) If the victim years is thirteen of age, (recognizing Legislature’s prerogative years but less than sixteen age, crimes). liability to create strict Under perpetrator is at least three law, Dakota statutes and case South years older than the vietim[.] required defendant is not to know that a victim is a minor and therefore of knowledge on the part consenting to sexual intercourse. Like- of perpetrator is absent in the subsec- wise, does not dealing minority tions in subsections (1) that a defendant know a victim is intoxicat- (5), and lack of mental capacity in ed and therefore of consenting. (3), just subsection the same as intoxi- (4). cation in subsection legal [¶ 27.] This conclusion is rein- by drafting forced of the statute. I agree with the Court that the 22-22-1 provides part: resolution of this issue is the intent of the Rape penetration is an act of sexual Legislature. Fulks was decided in 1968. accomplished any person any under Thus, Schuster was decided in following circumstances: 1993 it was clear Legislature (1) If the victim is less than thirteen interpreted this Court portions two years age; SDCL 22-22-1 requiring as no knowledge (2) force, coercion, Through the use of Thereafter, requirement.
or threats of immediate and great times, amended SDCL 22-22-1 three bodily harm against the victim or 1994, 2000, and the criminal code revision persons other within the victim’s Clearly in 2005. concept of requiring presence, accompanied by apparent knowledge was well Legisla- known to the execution; power of ture as it had amended this and other (3) If statutes incapable, the victim is because of before had to look at Iowa,
physical incapacity, Nebraska, or mental such states giv- as and Cali- act; ing consent to such fornia for examples.9 Yet the California, 709.4(3) provides: § The Court relies on statutes from Iowa Code Minnesota, Nebraska, person and North Dakota to A commits sexual abuse in the third only juris- indicate that person performs South Dakota is "the when the a sex act diction to hold that even performed when a man accused ... per- [that] while the other jury convinces a that he son is under the influence a controlled good engaged and in faith believed he had substance ... and ... the controlled sub- sex, disregard adult prevents person consensual ... stance the other from consenting his innocent state mind if the woman he ... [and the act t]he *9 had performing sex with later establishes that she reasonably drank the act or knows given Major- too much to have person her consent." should have known that the other ¶ ity Opinion ignores 13. The Court the fact was under the influence of the controlled explicitly require that the statutes it relies on substance.... 28-319(1) provides: § that the defendant knew or should have Neb.Rev.Stat. Any person subjects known the victim was too intoxicated to con- who another to sexual penetration sent. The South Dakota chose ... without the consent of the victim, requirement. not to include such a The fol- ... who knew or should have lowing examples statutes are mentally of statutes that known that the victim was or explicitly knowledge requirement: physically incapable include a resisting apprais- of or 418 compare find it opportunities join appropriate we more up
three passed times knowledge add rape proscribed and a in SDCL group of states This is a doing, to SDCL 22-22-1. rape. other of In so we note means Legis- the intent of our clear indication that carries violation SDCL that policy for a decision opted lature. It 22- the same as violation of penalty consequences rape to a devastating 22-1(3), person a incapa- which is and deserve the same victim are the same physical or consenting ble because in- the victim was too protection whether Barr, Finally, mental we incapacity. toxicated, young, mentally incapaci- too knowledge drug read into the distribution by any was tated to consent or victimized statute the State did contend because 22-22-1. other forth means set an knowledge that was not element of the position change It is not this Court’s offense. The State Id. at 892. has any Legis- chosen legitimate policy by case; a in this in- position taken similar lature. stead, it argues that defendant’s majority opinion cites to
[¶29.]
22-
is not an element
two
Dakota cases where this Court
South
22-1(4).
agree
I
and decline
follow the
a
knowledge requirement
has
a
into
read
used
reasoning in this case that we
in Barr
Stone, 467
N.W.2d 905
statute — State
and Stone.
(S.D.1991)
Barr,
9,
237
and State
majority opinion
a
[¶ 30.] The
also cites
(1976). Majority
Opinion
N.W.2d 888
Supreme
case from the
States
United
Stone,
that Barr
this Court concluded
Majority Opinion
as support.
10
Stone,
was
467
controlling precedent.
(citing Staples v.
United
at 906.
therefore examine
We
1793,
S.Ct.
L.Ed.2d 608
why
knowl
in Barr this Court concluded
(1994)).
distinguishable
Staples is
edge
the of
was an unwritten element of
violating
regulating
it
a statute
involved
fense
a
of unlawful distribution of
con
statutorily
registration
defined fire-
This Court
three
trolled substance.
stated
arms,
crime
than a serious
commit-
rather
Barr,
reasons.
consent as
knowledge
not
of
justifying
the
have
thus
the
capacity,
defendant
diminished
incapacity.
the victim’s
protection
need for more
than for those
make
capably
who can
informed decisions
widely
understood
[¶ 36.] “[I]t
regarding
penetration.
to sexual
legislature may
doing
forbid the
of an
the
crime with
act and make its commission a
Today
changes
the Court
its
regard
knowledge
to the intent
out
or
Legislature’s
regarding
intent
view
Nagel,
v.
279
the doer.” State
objectively incapacitated
The
victims.
(S.D.1979).
911,
definition of
915
“[T]he
reads
into
Court
a
element
of a criminal offense is en
the elements
(victims
by
incapacitated
...
legislature,
particularly
trusted
the
alcohol)
(3) (victims in
but not subsection
solely
are
of stat
crimes
creatures
[that]
capacitated by other mental impairments).
511 U.S.
Staples
ute.”
United
because,
view,
in
in
The Court does so
its
1793, 1796,
600, 604, 114 S.Ct.
128 L.Ed.2d
involving
incapaci
the latter case
“mental
(1994). “Thus,
determining
...
608
readily
ty,”
debilitating
“conditionf] [is]
required
mental state
commission
a
or
apparent
discoverable.” Su
[statutory]
requires
crime
‘construction
I disagree.
experience
Human
pra
...
inference of the intent
statute
”
impairment
reflects
re
605,
Id. at
114 S.Ct.
legislature].’
of [the
disability
from
alcohol
sulting
mental
v. Bal
(quoting
at 1796-97
United States
consumption
along
falls
broad contin
302,
int,
250, 253,
301,
258 U.S.
S.Ct.
uum,
incapacity
and the actual state of
(1922)).
L.Ed.
readily
lay
not
apparent
often
ob
case,
In this
Chief Justice Gil-
Thus,
in
type
server.
this is
of case
how this
has twice
explains
bertson
prohibition
punishment
“the
which
interpreted analogous
in other
language
acts,
may
main
particular
the state
in the
re-
subsections of SDCL 22-22-1 to not
policy provide
of a
‘that he
public
tenance
quire knowledge
incapacity
respect
who shall do them shall do
at his
them
designated
classes
individuals with
peril
plead
and will not be heard to
impairments.
Chief
See
Justice Gilbert-
”
good
ignorance.’
defense
faith or
Bal
¶¶
See
son’s
25-26.12 In both cases this
dissent
int,
(quot
421
disfavored,
time,
generally
supra
period
rea are
substantial
of
mens
amended
¶
606, 114
Staples,
at
(quoting
statute at issue but left a
“interpre
court’s
1797).
majority
But the
overlooks
S.Ct.
tation” of the statute “untouched.” Micro
—
Supreme
spe-
that the
has
the fact
Court
U.S. —,
Corp.
P’ship,
Ltd.
i4i
soft
offenses,
rape”
cifically noted “sex
such as
131 S.Ct.
L.Ed.2d
exceptions”
of the “few
are one
(2011).
culpable
a
common-law
light of
judi-
SDCL
22-22-1’s
of mind. Morissette
United
state
cial
legislative history,
I am persuaded
n.
72 S.Ct.
U.S.
251 &
Legislature’s
that
continued use of
(1952).
240, 244
n.&
withstanding this comprehensive review of rea element when a knowledge require- statutes, our criminal left in any ment is intended criminal statute interpreta- untouched this Court’s prior Therefore, found in Title 22. I that there is no element in knowledge tions cannot with the agree Leg- Court that the 22-22- language like that found in SDCL 1(4). islature’s not to circumstances, decision include the cus- Under such courts tomarily and legislatively prescribed used position” policy are in “no ar- consider guments suggestive legislative including ele- knowledge different for has, statute, because the legislature intent for a ment in legisla- a criminal reflects suggests legislatively- that presuppose tion element that the ac- requiring previously removed element that ability cused also knew of the victim’s later agent the accused or his the alco- administer Moreover, result, the consent. to reach its "presupposfed] hol that the accused knew or majority employ statutory a new rule reasonably should have known of victim's Legislature’s repeal construction incapacitated Supra (emphasis state.” legislative one of a statute element reflects added). contrary, providing On the the act of another intent to retain element that nev- had person beverage another does not alcohol er been mentioned in the statute. Canons necessarily recipient pro- reflect how the will statutory enough are with- construction loose cess alcohol and how external fac- other adding a out rule that has such a tie tenuous ultimately any will tors influence the extent of logic. Thus, resulting incapacitation. the statute’s prior presup- administration element did pose actually types the accused would also 14. SDCL defines the various resulting degree know victim’s ultimate necessary rea mens acts to constitute incapacitation. repealed The now adminis- offenses in SDCL criminal Title “ responsibility element tration denoted for fur- ‘[Kjnowledge, knowingly,’ and all deriva- nishing knowledge the alcohol rather than specifically tives are defined in thereof" actually incapacity resulted. 22-l-2(l)(c). reason, repealed For now administra- having a element *13 ele- the wisdom of intent to tive include 22-22-1(4). Dakota this of offense. The South type in SDCL ment it Legislature made that when decision is also mistaken Today’s Court [¶ 41.] differentiated SDCL from only it we will become the when states that refer- adopted statutes four states jury disregard” hold “must court to majority. enced by the (knowledge of mind the defendant’s state incapacity) simply in cases like Jones’s reasons, foregoing For all of the the victim “establishes that she judi- I respectfully dissent. Based on our given too much to have her con- drank history, legislative apply cial I would Judge See 13. Jensen cor- supra sent.” interpretation plain language of SDCL rectly explained wording that under of 22-22-1(4). And consistent with our two statute, question objective is [an] “the prior cases, plain I would restate so intoxicated that [the victim] [one:] interpret today contains no language we give He there- she couldn’t consent....” knowledge element. jury instructed that the would have to
fore objectively incapa-
find that the victim was by considering “all
ble of supra
the circumstances.” See n. 11. This
required jury’s consideration of rea-
sonable, good-faith perceptions of all wit- intoxication,
nesses to the
state of
victim’s
including that the defendant. Dakota, disregard testimony could not Jones’s STATE Plaintiff of South Appellee, victim that he did not know the was intoxi- cated or of consent when he had Indeed, sex with her. Jones raised this HIRNING, Milo Defendant Walter testimony, in his in his point examination Appellant. witnesses, in of his his cross-examination witnesses, closing and in State’s his No. 25776. argument. of South Dakota. Supreme Court Finally, to affirm the circuit
court, marking] “we South [would be] Aug. Considered on Briefs jurisdiction Dakota as the to hold” Sept. Decided that a is not knowledge element included in the offense of a victim who is
objectively of consent to in- due
capacitation by alcohol. supra Cf. added).
(emphasis The Court references
four other But in each those states. the legislature
states enacted a statute
explicitly requiring perpetrator
know or should know of the supra
victim’s consent. See n. inability to states). (citing statutes from four other
Therefore, matter in is not a which we a holding adopting
must issue our view of