CHAPTER 121
(SB 208)
Sex offender criminal penalties enhanced.
ENTITLED, An Act to
establish and enhance criminal penalties regarding certain sex offenders.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section
1.
That
§
22-22-1.2
be amended to read as follows:
22-22-1.2.
If any adult is convicted of any of the following violations, the court shall impose
the following minimum sentences:
(1)
For a violation of subdivision 22-22-1(1),
ten
fifteen
years for a first offense
and twenty
years for a subsequent offense
; and
(2)
For a violation of § 22-22-7 if the victim is less than thirteen years of age,
five
ten
years
for a first offense
and ten years for a subsequent offense
.
Section
2.
That
§
22-22-1.3
be amended to read as follows:
22-22-1.3.
Any person convicted of a
felony
violation as provided in
§ 22-22-1.2
subdivisions
22-24B-1(1) to (15), inclusive, and (19)
shall have included in the offender's presentence
investigation report
an
a psycho-sexual
assessment including the following information: the
offender's sexual history;
an identification of precursor activities to sexual offending;
intellectual,
adaptive and academic functioning; social and emotional functioning; previous legal history;
previous treatment history; victim selection
and age
; risk to the community; and treatment options
recommended.
If a presentence investigation is not prepared, the court shall order a psycho-sexual
assessment which shall be made available to the court prior to sentencing. If the offender is
sentenced to the state penitentiary, the psycho-sexual assessment shall be attached to the official
statement and supplied to the Board of Pardons and Paroles and the warden.
Section
3.
That chapter
22-22
be amended by adding thereto a NEW SECTION to read as
follows:
If an adult has a previous conviction for a felony sex crime as defined by
§
22-24B-1, any
subsequent felony conviction for a sex crime as defined by subdivisions 22-24B-1(1) to (15),
inclusive, and (19) shall result in a minimum sentence of imprisonment equal to the maximum
term allowable under
§
22-6-1, up to twenty-five years. The court may suspend a portion of the
prison sentence required under this section.
Section
4.
That
§
22-22-1.4
be amended to read as follows:
22-22-1.4.
The sentencing court may impose a sentence other than that which is required by
§ 22-22-1.2
and section 3 of this Act
if the court finds that mitigating circumstances exist which
require a departure from the mandatory sentence imposed by § 22-22-1.2
or section 3 of this Act
.
The court's finding of mitigating circumstances and the factual basis relied upon by the court shall
be in writing.
Section
5.
That
§
22-22-7
be amended to read as follows:
22-22-7.
Any person, sixteen years of age or older, who knowingly engages in sexual contact
with another person, other than that person's spouse if the other person is under the age of sixteen
years is guilty of a Class 3 felony. If the actor is less than three years older than the other person,
the actor is guilty of a Class 1 misdemeanor.
If an adult has a previous conviction for a felony
violation of this section, any subsequent felony conviction for a violation under this section, is a
Class 2 felony.
Notwithstanding § 23A-42-2, a charge brought pursuant to this section may be
commenced at any time before the victim becomes age twenty-five or within seven years of the
commission of the crime, whichever is longer.
Section
6.
That
§
22-24A-3
be amended to read as follows:
22-24A-3.
A person is guilty of possessing, manufacturing, or distributing child pornography
if the person:
(1)
Creates any visual depiction of a minor engaging in a prohibited sexual act, or in the
simulation of such an act;
(2)
Causes or knowingly permits the creation of any visual depiction of a minor engaged
in a prohibited sexual act, or in the simulation of such an act; or
(3)
Knowingly possesses, distributes, or otherwise disseminates any visual depiction of a
minor engaging in a prohibited sexual act, or in the simulation of such an act.
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 4 felony. If a person is convicted of a second or
subsequent violation of this section within fifteen years of the prior conviction, the violation is a
Class 3 felony.
The court shall order
a mental examination
an assessment pursuant to
§
22-22-1.3
of any
person convicted of violating this section.
The examiner shall report to the court whether treatment
of the person is indicated.
Section
7.
That
§
22-22-24.3
be amended to read as follows:
22-22-24.3.
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
an assessment pursuant to
§
22-22-1.3
of any
person convicted of violating this section.
The examiner shall report to the court whether treatment
of the person is indicated.
Section
8.
That
§
22-24A-5
be amended to read as follows:
22-24A-5.
A person is guilty of solicitation of a minor if the person eighteen years of age or
older:
(1)
Solicits a minor, or someone the person reasonably believes is a minor, to engage in a
prohibited sexual act; or
(2)
Knowingly compiles or transmits by means of a computer; or prints, publishes or
reproduces by other computerized means; or buys, sells, receives, exchanges or
disseminates, any notice, statement or advertisement of any minor's name, telephone
number, place of residence, physical characteristics or other descriptive or identifying
information for the purpose of soliciting a minor or someone the person reasonably
believes is a minor to engage in a prohibited sexual act.
The fact that an undercover operative or law enforcement officer was involved in the detection
and investigation of an offense under this section does not constitute a defense to a prosecution
under this section.
Consent to performing a prohibited sexual act 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 is a
Class 5 felony.
The court shall order
a mental examination
an assessment pursuant to
§
22-22-1.3
of any
person convicted of violating this section.
The examiner shall report to the court whether treatment
of the person is indicated.
Section
9.
That chapter
22-24B
be amended by adding thereto a NEW SECTION to read as
follows:
If any person is convicted of a sex crime as defined in
§
22-24B-1 that is subject to sex
offender registration requirements as defined in
§
§
22-24B-2 to 22-24B-14, inclusive, the
prosecuting attorney shall prepare a summary description of the offense and forward this to the
Division of Criminal Investigation for inclusion on the sex offender registry.
Any person who, at the time of the effective date of this Act, is subject to sex offender
registration or is subject to sex offender registration as a result of a foreign criminal conviction,
may have a summary description of the offense developed by the Division of Criminal
Investigation and entered on the registry, if the information is available.
The term, foreign criminal conviction, as used in this section and section 11 of this Act, means
any conviction issued by a court of competent jurisdiction of another state, federal court, Indian
tribe, the District of Columbia, or a commonwealth, territory, or possession of the United States
which is enforceable as if the order was issued by a court in this state.
Nothing in this section allows the release of the name of the victim of the crime to any person
other than law enforcement agencies, and the name of the victim is confidential.
Section
10.
That chapter
22-24B
be amended by adding thereto a NEW SECTION to read as
follows:
Any person required to register pursuant to
§
§
22-24B-1 to 22-24B-14, inclusive, who is
incarcerated or is a juvenile offender committed to the Department of Corrections, shall register
within five days of admission to the correctional facility or commitment to the Department of
Corrections.
The Department of Corrections or administering authority of the county or city jail or juvenile
detention center shall submit required sex offender registrations to the Division of Criminal
Investigation.
The administering authority of the correctional facility shall notify the Division of Criminal
Investigation if a person required to register changes status from an inmate to parolee or
probationer or if an inmate is transferred to a different address, informing the division of the date
of transfer and address of the new location.
Section
11.
That chapter
22-24B
be amended by adding thereto a NEW SECTION to read as
follows:
Any person with a foreign criminal conviction, which requires the person to register either as
a sex offender pursuant to
§
22-24B-2, pursuant to the laws of the state where the conviction took
place, or pursuant to any court order, shall be required to register within five days of their arrival
in South Dakota. A violation of this section is a Class 4 felony.
Section
12.
That chapter
22-22
be amended by adding thereto a NEW SECTION to read as
follows:
Any person who knowingly assists, harbors, or conceals a sex offender in eluding law
enforcement or provides false information regarding the residence or whereabouts of a sex offender
is guilty of a Class 5 felony.
Section
13.
That chapter
24-15A
be amended by adding thereto a NEW SECTION to read as
follows:
Upon recommendation of sex offender treatment program staff and following a review of the
inmate's history, treatment status, risk of re-offense, and psycho-sexual assessment, the warden
may, at any time prior to the inmate's final discharge, recommend to the Board of Pardons and
Paroles that parole eligibility pursuant to
§
24-15A-32 be withheld on an inmate convicted of a
felony sex offense as defined in
§
22-24B-1.
The board may, after a hearing, determine if parole eligibility is to be withheld. The decision
of the board to withhold parole eligibility is final.
Section
14.
That
§
24-15A-32
be amended to read as follows:
24-15A-32.
Each inmate sentenced to a penitentiary term, except those under a sentence of life
or death, or an indeterminate sentence which is not yet set to a term of years by the board
or
determined to be ineligible for parole as authorized in section 13 of this Act
, shall have an initial
parole date set by the department. This date shall be calculated by applying the percentage
indicated in the following grid to the full term of the inmate's sentence pursuant to § 22-6-1. The
following crimes or an attempt to commit, or a conspiracy to commit, any of the following crimes
shall be considered a violent crime for purposes of setting an initial parole date: murder,
manslaughter, rape, aggravated assault, riot, robbery, burglary in the first or second degree, arson,
kidnapping, felony sexual contact as defined in §§ 22-22-7 and 22-22-19.1, child abuse, felony
sexual contact as defined in § 22-22-7.2, felony stalking as defined in §§ 22-19A-2 and 22-19A-3,
photographing a child in an obscene act, felony assault as defined in § 22-18-26, felony simple
assault as defined in § 22-18-1, commission of a felony while armed as defined in §§ 22-14-12 and
22-14-13.1, discharging a firearm at an occupied structure or motor vehicle as defined in § 22-14-
20, discharging a firearm from a moving vehicle as defined in § 22-14-21,
and
criminal pedophilia
as defined in § 22-22-30.1
, and threatening to commit a sexual offense as defined in section 15 of
this Act
:
|
Felony Convictions
|
|
Felony Class
|
First
|
Second
|
Third
|
|
Nonviolent
|
|
|
|
|
Class 6
|
.25
|
.30
|
.40
|
|
Class 5
|
.25
|
.35
|
.40
|
|
Class 4
|
.25
|
.35
|
.40
|
|
Class 3
|
.30
|
.40
|
.50
|
|
Class 2
|
.30
|
.40
|
.50
|
|
Class 1
|
.35
|
.40
|
.50
|
|
Violent
|
|
|
|
|
Class 6
|
.35
|
.45
|
.55
|
|
Class 5
|
.40
|
.50
|
.60
|
|
Class 4
|
.40
|
.50
|
.65
|
|
Class 3
|
.50
|
.60
|
.70
|
|
Class 2
|
.50
|
.65
|
.75
|
|
Class 1
|
.50
|
.65
|
.75
|
|
Class B
|
1.0
|
1.0
|
1.0
|
|
Class A
|
1.0
|
1.0
|
1.0
|
Each inmate shall serve at least sixty days prior to parole release. Inmates with life sentences
are not eligible for parole. An initial parole date through the application of this grid may be applied
to a life sentence only after the sentence is commuted to a term of years. A Class A or B felony
commuted to a number of years shall be applied to the Class 1 violent column of the grid
Section
15.
That chapter
22-22
be amended by adding thereto a NEW SECTION to read as
follows:
Any person who has been convicted of a felony sex offense as defined in
§
22-24B-1 who
directly threatens or communicates specific intent to commit further felony sex offenses is guilty
of threatening to commit a sexual offense. Threatening to commit a sexual offense is a Class 4
felony.
Section
16.
No law enforcement agency, employee of a law enforcement agency, employee or
official of a state or county agency and any individual contracting or appointed to perform services
under this Act may be civilly liable for good faith conduct under this Act.
Signed February 23, 2006