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SOUTH DAKOTA     .

NAC NOTE: Several of the South Dakota statutes listed here were revised in 2006 and again in 2009.
For the wording of previous versions,
CLICK HERE.

CHAPTER 22-24
OBSCENITY AND PUBLIC INDECENCY

22-24-1. (Repealed.)

22-24-1.1.
Public indecency--Misdemeanor. A person commits the crime of public indecency if the person, under circumstances in which that person knows that his or her conduct is likely to annoy, offend, or alarm some other person, exposes his or her anus or genitals in a public place where another may be present who will be annoyed, offended, or alarmed by the person's act. A violation of this section is a Class 2 misdemeanor.

Source: SL 1998, ch 136,  2; SL 2005, ch 120,  298.

22-24-1.2.  
Indecent exposure--Misdemeanor or felony. A person commits the crime of indecent exposure if, with the intent to arouse or gratify the sexual desire of any person, the person exposes 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. A violation of this section is a Class 1 misdemeanor. However, if such person has been previously convicted of a felony violation of  22-22-1 [rape], 22-22-7 [sexual contact with a child], or 22-24A-3 [possessing, manufacturing, or distributing child pornography], that person is guilty of a Class 6 felony. Any person convicted of a third or subsequent violation of this section is guilty of a Class 6 felony.

Source: SL 1998, ch 136,  3; SL 2005, ch 120,  299; SL 2009, ch 116,  2.

22-24-1.3.
Indecent exposure involving a child--Felony. If any person, eighteen years of age or older, with the intent to arouse or gratify the sexual desire of any person, intentionally exposes his or her genitals to a child, thirteen years of age or younger, that person is guilty of the crime of indecent exposure involving a child. Indecent exposure involving a child is a Class 6 felony. A second or subsequent conviction for indecent exposure involving a child is a Class 5 felony.

Source: SL 2002, ch 111,  1; SL 2005, ch 120,  300; SL 2009, ch 116,  1.

22-24-1.4.
Private indecent exposure--Misdemeanor. A person commits the crime of private indecent exposure if:
   (1)  The person exposes the genitals of the person with the intent to arouse or gratify the sexual desire of the person or another person;
   (2)  The person is in a place where another person has a reasonable expectation of privacy;
   (3)  The person is in view of the other person;
   (4)  The exposure reasonably would be expected to annoy, offend, or alarm the other person; and
   (5)  The person knows that the other person did not consent to the exposure.

Private indecent exposure is a Class 1 misdemeanor.

This section does not apply to a person who commits the act described in this section if the person cohabits with or is involved in a sexually intimate relationship with the other person.

Source: SL 2009, ch 116,  3.
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22-24-25.
Municipal and county power to regulate obscene materials or obscene live conduct not preempted.
Except as provided in 22-24-37, nothing contained in this chapter limits any county or municipality from regulating obscene material or obscene live conduct within its jurisdiction.

Source: SL 1968, ch 29,  14; SL 1974, ch 61,  2; SL 1976, ch 158,  24-2; SL 1978, ch 162; SL 1994, ch 167,  1; SL 1998, ch 137,  1.

22-24-25.1.
County or municipal ordinance establishing contemporary community standards test.
Any county or municipality may provide, by ordinance, for a contemporary community standards test to regulate the sale, distribution, and use of obscene material and to regulate obscene live conduct in any commercial establishment or public place within its jurisdiction.

Source: SDCL,  22-24-25 as added by SL 1978, ch 162; SL 1994, ch 167,  2; SL 2004, ch 155,  1; SL 2005, ch 120,  302.

22-24-27.
Definition of terms. Terms used in  22-24-25 to 22-24-37, inclusive, mean:
   (1)  "Contemporary community standard," the contemporary community standard of the state in which the question of obscenity is to be tested, by the average person, of the state;
   (2)  "Distributed," to transfer possession of, whether with or without consideration;
   (3)  "Exhibit," to show or display;
   (4)  "Harmful to minors," includes in its meaning the quality of any material or of any performance or of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, if it:
         (a)  Predominantly appeals to the prurient, shameful, or morbid interest of minors; and
         (b)  Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
         (c)  Is without serious literary, artistic, political, or scientific value;
   (5)  "Magistrate," any circuit court or magistrate judge;
   (6)  "Material," anything tangible which is harmful to minors, whether derived through the medium of reading, observation, or sound;
   (7)  "Matter" or "material," any book, magazine, newspaper, or other printed or written material; or any picture, drawing, photograph, motion picture, or other pictorial representation; or any statue or other figure; or recording, transcription or mechanical, chemical, or electrical reproduction; or any other articles, equipment, machines, or materials;
   (8)  "Minor," any person less than eighteen years of age;
   (9)  "Nudity," within the meaning of subdivision (4) of this section, the showing of the human male or female genitals, pubic area, or buttocks with less than a full opaque covering, or the showing of the female breast with less than a full opaque covering or any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state;
   (10)   "Obscene live conduct," any physical human body activity, whether performed or engaged in alone or with other persons, including singing, speaking, dancing, acting, simulation, or pantomiming, where:
         (a)  The dominant theme of such conduct, taken as a whole, appeals to a prurient interest;
         (b)  The conduct is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
         (c)  The conduct is without serious literary, artistic, political, or scientific value.

In prosecutions under  22-24-27 to 22-24-37, inclusive, if circumstances of production, presentation, advertising, or exhibition indicate that live conduct is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the conduct;

   (11)  "Obscene material," material:
         (a)  The dominant theme of which, taken as a whole, appeals to the prurient interest;
         (b)  Which is patently offensive because it affronts contemporary community standards relating to the description or representation of sado-masochistic abuse or sexual conduct; and
         (c)  Lacks serious literary, artistic, political, or scientific value.

In prosecutions under  22-24-27 to 22-24-37, inclusive, if circumstances of production, presentation, sale, dissemination, or publicity indicate that the matter is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the matter;
   (12)  "Prurient interest," a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is designed for a specially susceptible audience or clearly defined deviant sexual group, the appeal of the subject matter shall be judged with reference to such audience or group;
   (13)  "Sado-masochistic abuse," flagellation or torture by or upon a person who is nude or clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of one who is nude or so clothed;
   (14)  "Sexual conduct," within the meaning of subdivision (4) of this section, any act of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or if such person be a female, the breast;
   (15)  "Sexual excitement," the condition of human male or female genitals when in a state of sexual stimulation or arousal.

Source: SL 1968, ch 29,  1; SDCL Supp,  22-24-11; SL 1974, ch 165,  1; SL 1976, ch 158,  24-3 to 24-5; SL 1994, ch 167,  3; SL 2005, ch 120,  303.

22-24-55.
Public schools to restrict access to obscene materials on public access computers. Any public school that provides a public access computer shall do one or both of the following:
             (1)     Equip the computer with software that will limit minors' ability to gain access to obscene materials or purchase internet connectivity from an internet service provider that provides filter services to limit access to obscene materials; or
             (2)     Develop and implement, by January 1, 2001, a local policy that establishes measures to restrict minors from computer access to obscene materials.

Source: SL 1999, ch 76, 1; SL 2005, ch 120, 312.

22-24-56. Public libraries to restrict access to obscene materials on public access computers. Any public library that provides a public access computer shall develop and implement, by January 1, 2001, a local policy that establishes measures to restrict minors from computer access to obscene materials.

Source: SL 1999, ch 76, 1; SL 2005, ch 120, 312. Source: SL 1999, ch 76, 2.

22-24-58.
"Obscene material" defined. For the purposes of 22-24- 55 to 22-24-59, inclusive, obscene material is defined pursuant to subdivision 22-24-27(11).

Source: SL 1999, ch 76, 4; SL 2005, ch 120, 314. ______________________________________

 

22-22-24. Sale of obscene pictures of child as felony. Any person who sells, displays for sale, any book, magazine, pamphlet, slide, photograph, or film depicting a minor under the age of sixteen years engaging in a prohibited sexual act or in the simulation of such act is guilty of a Class 6 felony.

22-22-24.3. Sexual exploitation of a minor--Penalties--Mental examination. A person is guilty of sexual exploitation of a minor if the person causes or knowingly permits a minor to engage in an activity or the simulation of an activity that:
             (1)     Is harmful to minors;
             (2)     Involves nudity; or
             (3)     Is obscene.
     Consent to performing these proscribed acts by a minor or a minor's parent, guardian, or custodian, or mistake as to the minor's age is not a defense to a charge of violating this section.
     A violation of this section is a Class 6 felony. If a person is convicted of a second or subsequent violation of this section within fifteen years of the prior conviction, the violation a Class 5 felony.
     The court shall order a mental examination of any person convicted of violating this section. The examiner shall report to the court whether treatment of the person is indicated.

Source: SL 2002, ch 109, 8; SL 2005, ch 120, 401.

22-22-25. Exemption of publications with redeeming social value. Section 22-22-24 and 22-22-24.2, 22-22-24.3, and 22-22-24.5 do not apply to the selling, lending, distributing, exhibiting, giving away, showing, possessing, or making of films, photographs, or other materials involving only nudity, if the materials are made for and have a serious literary, artistic, educational, or scientific value. (SL 2005, ch 120, 407, provides for the transfer of this section on July 1, 2006. See 22-24A-20.)

Source: SL 1978, ch 159, 5; SL 2002, ch 109, 33.

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SEX CRIMES

22-24B-1.  Sex crimes defined.  For the purposes of 22-24B-2 to 22-24B-14, inclusive, a sex crime is any of the following crimes regardless of the date of the commission of the offense or the date of conviction:
             (1)     Rape as set forth in 22-22-1;
             (2)     Felony sexual contact with a minor under sixteen as set forth in 22-22-7 if committed by an adult;
             (3)     Sexual contact with a person incapable of consenting as set forth in 22-22-7.2;
             (4)     Incest if committed by an adult;
             (5)     Possessing, manufacturing, or distributing child pornography as set forth in 22-24A-3;
             (6)     Sale of child pornography as set forth in 22-24A-1;
             (7)     Sexual exploitation of a minor as set forth in 22-22-24.3;
             (8)     Kidnapping, as set forth in 22-19-1, if the victim of the criminal act is a minor;
             (9)     Promotion of prostitution of a minor as set forth in subdivision 22-23-2(2);
             (10)      Criminal pedophilia as previously set forth in 22-22-30.1;
             (11)      Felony indecent exposure as previously set forth in former 22-24-1 or indecent exposure as set forth in 22-24-1.2;
             (12)      Solicitation of a minor as set forth in 22-24A-5;
             (13)      Felony indecent exposure as set forth in 22-24-1.3;
             (14)      Bestiality as set forth in 22-22-42;
             (15)      An attempt to commit any of the crimes listed in this section;
             (16)      Any crime committed in a place other than this state which would constitute a sex crime under this section if committed in this state;
             (17)      Any federal crime or court martial offense that would constitute a sex crime under federal law;
             (18)      Any crime committed in another state if that state also requires that anyone convicted of that crime register as a sex offender in that state; or
             (19)      If the victim is a minor:
                     (a)     Any sexual acts between a jail employee and a detainee as set forth in 22-22-7.6;
                     (b)     Any sexual contact by a psychotherapist as set forth in 22-22-28; or
                     (c)     Any sexual penetration by a psychotherapist as set forth in 22-22-29;
             (20)      Intentional exposure to HIV infection as set forth in subdivision (1) of 22-18-31.

Source: SL 1994, ch 174, 1; SL 1995, ch 123, 1; SL 1997, ch 134, 1; SL 1998, ch 136, 4; SL 2002, ch 109, 11; SL 2002, ch 110, 1; SL 2003, ch 127, 4; SL 2004, ch 153, 1; SDCL 22-22-30; SL 2005, ch 120, 415, 416; SL 2006, ch 123, 1; SL 2008, ch 110, 1.

 


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