Argus Leader, Sioux Falls, Feb. 14
Saying ’no’ should be enough. We need a legal definition of ’consent’
When a South Dakota judge can’t provide the jury in a rape case with a legal definition of “consent” despite all three charges against the defendant including the word, as happened late last year in Minnehaha County, it’s high time South Dakota lawmakers get to work defining it.
It’s important to note that South Dakota is not alone in that lack of clarity. Around half the states in the U.S. don’t have a legal definition of consent regarding sexual crime statutes. Even among the states that do, the definitions aren’t uniform because society itself hasn’t agreed on what “consent” looks like. As a nation, we’re finally beginning to openly talk about it in the wake of high-profile celebrity sexual assault accusations and the “Me Too” movement.
From a practical standpoint, there’s no consensus among attorneys as to what impact revising the way consent is defined would have in jury trials. The potential violation of the United States Constitution by shifting the burden of proof of consent to the defense further confounds the issue. Additional concerns regarding defendants’ knowledge of what “consent” was at the time of the act prevented a recent meeting of the American Bar Association from concurring on a definition.
Minnesota law dating back to the 1970s says that consent comprises “Words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.” Lindsay Brice, policy director for the Minnesota Coalition Against Sexual Assault, told the Argus Leader that “prosecution has indicated that the definition of consent is not a roadblock to charging cases.” Ramsey County Chief Public Defender James Fleming adds, “We’ve been able to work with this definition.”
Perhaps more troubling than the lack of a clear definition in South Dakota law is, as Beadle County State’s Attorney Mike Moore asserts, that “lack of consent is not part of our rape statute.” Sexual contact without consent with a person capable of giving consent is a misdemeanor charge. Consent only applies to felony rape charges when the victim is incapable of giving it. It doesn’t matter if “no means no,” because violating someone’s right to personal sovereignty by ignoring their will alone doesn’t merit a felony rape charge. It only counts as rape if you can prove that you were forced or coerced.
Recent statistics find that more than two-thirds of rapes and sexual assault are not reported. Why? Survivors worry about retaliation from the perpetrator and society. They don’t think authorities will do anything to help. They don’t think that their being raped or sexually assaulted is important enough.
Above all, “Sexual assault is a very humiliating and dehumanizing act against someone,” according to psychotherapist Beverly Engel in a 2018 analysis by the Brennan Center for Justice. “Victims are often too ashamed to come forward” because “in our culture, we tend to blame victims.” Even of the fraction of rapes that are reported, the latest FBI statistics reveal that fewer than one-third eventually result in the perpetrator being punished.
Initiating public dialogue about consent is especially important in South Dakota. The Compass Center in Sioux Falls cites statistics that one of every six American women has survived an attempted or completed rape in her lifetime. South Dakota’s rate of per capita forcible rapes is one and a half times the national average. Native American women are two and a half times more likely than other ethnic groups in the U.S. to be sexually assaulted, and 73% of sexual assaults are perpetrated by a non-stranger.
If sharpening our statutes can bring justice to sexual assault survivors who currently feel helpless within the legal system, the conversation needs to start here and now.
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Madison Daily Leader, Feb. 13
Anti-vaccination bill is an unhealthy idea
We haven’t yet heard the testimony in committee, but the introduction of House Bill 1235 in the South Dakota Legislature seems like a step in the wrong direction.
HB 1235 essentially prohibits any South Dakota school — public or private, at any level — from requiring the vaccination of incoming students. Doing so would be a Class 1 misdemeanor. The bill would make South Dakota the only state to have no vaccine mandates.
We’re all aware of the anti-vaccination movement in recent years. Despite scientific consensus that recommended vaccines are safe and effective, unsubstantiated scares regarding their safety still occur.
The most recent surge was started by a 1998 paper published in a British medical journal linking the MMR vaccine and autism. The paper was later discredited and the author was proven to have deliberately falsified information and barred from practicing medicine.
But it only takes a celebrity or two on social media to cause some parents to refuse vaccines. The result is disease outbreaks and deaths from vaccine-preventable diseases.
Ironically, the nation that has benefited most from vaccines, the United States, is among those with anti-immunization movements. Undeveloped countries around the world are begging for vaccines to prevent diseases that harm or kill their children.
The Centers for Disease Control says 14 childhood diseases are preventable by vaccination, including chicken pox, mumps, measles, and whooping cough. Unfortunately, many of these illnesses that once seemed eradicated in the United States have re-emerged in large part due to the anti-immunization movement.
In addition, children who contract these illnesses also put other children, and adults, at risk. That is reason enough to maintain the requirement for incoming students to be immunized to attend school.
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Yankton Daily Press & Dakotan, Feb. 17
Offer driver’s license exams in Spanish
Economic vitality in South Dakota can take many forms - and, as we are learning, speaks more than one language.
That reality is recognized in Senate Bill 70, which would permit the state to offer driver’s license written exams in Spanish.
This isn’t a new issue, having appeared in at least one previous legislative session. It’s back again and is making headway, having passed the South Dakota Senate last week by a 24-11 margin. The bill now heads to the House.
There are a lot of supporters of this bill - especially from the business development background. They see it as more than a convenience for Spanish-speaking laborers. They also view it as a necessity to attract and keep new workers so South Dakota businesses can actually do business, thrive and expand.
To put it another way, this state - like so many other states - really needs workers to fill jobs and create opportunities. The fact is that some of that help will have to come from outside the country. These people usually speak Spanish - and they are in demand. Offering driver’s license written exams in Spanish would be one way of easing that transition for living in this state.
The bill’s sponsor, Sen. V.J. Smith, R-Brookings, said there are an estimated 35,000 people in South Dakota who hail from a Hispanic background, according to the Argus Leader. The numbers are growing, and they are becoming an increasingly important and sought-after component of the state’s labor force.
Opponents of the measure argue that laborers who don’t learn English will have a hard time fitting in or making headway in this state, and there is some validity to that as far as it goes.
But being able to drive a vehicle to get to a job, or to perform a job, is also important. A Spanish-language driver’s license exam could help ease that transition.
The concept of offering such documentation in more than one language isn’t new. Sen. Arthur Rusch, R-Vermillion, noted in the Senate floor debate that South Dakota’s 1889 constitution was printed in multiple languages so that a broad swath of this new state’s multi-ethnic population could read it.
Nor is the idea of offering a Spanish-language test a radical concept. In fact, South Dakota is one of just three states, along with Utah and Wyoming, which does not provide such testing. (This matter of South Dakota being one of the few states left that does things a certain way seems to be a recurring theme coursing throughout some legislation this session.)
This bill is a sensible step in addressing the state’s labor shortage and its inevitable need to reach out to Spanish-language workers that businesses in South Dakota are going to need. It deserves passage.
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