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State v. Jones, Supreme Court of South Dakota

2011 S.D. 60, 2011 WL 4395823

Nature of the case:

Two counts of third-degree rape by intoxication

Facts and Issues on Appeal:

Defendant was convicted of raping a 23-year-old woman who was too intoxicated to consent. Defendant appealed, claiming that although the statute does not include a knowledge element, the court erred in failing to instruct the jury that the State must prove that Defendant knew the victim's intoxicated condition made her unable to consent. Defendant alleged that he did not know whether the victim was intoxicated on the night in question. The State argued that the defendant's state of mind is irrelevant and that the crime occurs so long as it is established that the victim was “incapable of giving consent because of any intoxicating agent." The court disagreed and reversed the defendant's conviction, reasoning as follows:

Ruling & Rationale:

Before 1985, South Dakota's "rape by intoxication" statute required the State to prove that the accused, or someone in privity with the accused, administered the intoxicating agent to the victim. After 1985, however, the Legislature removed that requirement thus making the crime provable irrespective of whether the victim became intoxicated by her own actions or those of another. This change in the law did not specifically mention whether the state of mind of the offender would be relevant or whether an offender's mistaken belief in a victim's sobriety would constitute a defense to the charge. The statute was intended to include a knowledge element. Thus, the case is reversed and remanded for a new trial, and the jury must be instructed that the State is required to prove the defendant knew or reasonably should have known that the victim’s intoxicated condition rendered her incapable of consenting.

Editorial Comment

Although the Court attempted to analyze the legislative intent of the "intoxicated rape" statute, it erroneously ruled that it included a knowledge element/mistake defense because every other state has a knowledge element/mistake defense. This is simply false and the court should correct its decision to reflect the truth. A majority of states reject state of mind defenses because rape is a general intent crime.

Rape is a general intent crime because the purpose of the law is to protect the personal autonomy and bodily integrity of the victim. This is not possible if the actual nonconsent of the victim can be disregarded in favor of the mistaken perception of the offender.

Courts should endeavor to assess the nature of consent in the context of this crime in the same way the analyze the propriety of a person's waiver of his or her Miranda rights. Unless the waiver is "knowing, intelligent and voluntary", the waiver is not valid. If a suspect is too intoxicated to provide a lawful waiver, the fact that a police officer mistakenly believed the person was sober is of no moment. The test is whether the individual IN FACT was too intoxicated to give up their right to remain silent. The cop's opinion may bear on the question, but it is not dispositive. The same rule should apply here, and if anything, the rule should be even stricter because granting access to one's intimate self without truly free consent, is arguably a more serious harm than making a less than-fully-sober statement to law enforcement during a criminal investigation. Indeed, the harm from obtaining a not-fully-sober statement can be mitigated by having the jury give the evidence more or less weight based on factors related to the speaker's capacity, while the harm to a rape victim's personal autonomy and bodily integrity when sexual intrusion occurs without freely given consent is irreparable.

Submitted By: Allison O'Connor -- Law Student

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