South Dakota Codified Laws 19-19-412. Sex-offense cases–Victim’s sexual behavior or predisposition
(a) Prohibited uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) Evidence offered to prove that a victim engaged in other sexual behavior; or
Terms Used In South Dakota Codified Laws 19-19-412
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Person: includes natural persons, partnerships, associations, cooperative corporations, limited liability companies, and corporations. See South Dakota Codified Laws 2-14-2
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(2) Evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal cases. The court may admit the following evidence in a criminal case:
(A) Evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) Evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) Evidence whose exclusion would violate the defendant’s constitutional rights.
(2) Civil cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.
(c) Procedure to determine admissibility.
(1) Motion. If a party intends to offer evidence under this section, the party must:
(A) File a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) Do so at least 14 days before trial unless the court, for good cause, sets a different time;
(C) Serve the motion on all parties; and
(D) Notify the victim or, when appropriate, the victim’s guardian or representative.
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.
(d) Definition of “victim.” In this section, “victim” includes an alleged victim.
Source: SL 2011, ch 237 (Supreme Court Rule 10-13), eff. July 1, 2012; SDCL § 19-12-15; SL 2016, ch 239 (Supreme Court Rule 15-34), eff. Jan. 1, 2016.