Laws Pertaining to Sexting in the State of South Dakota

The South Dakota Senate had proposed a bill that would STATEhave addressed juvenile sexting. In general, the proposed bill would not have required a minor to register as a sex offender or serve jail time if the minor was caught sexting. However, this bill recently died in the legislature. Therefore under the current law, in the State of South Dakota, creating, distributing or possessing an image of a minor engaged in sexual conduct may result in felony charges under the child pornography laws. Convictions under the sexual exploitation of a minor statute could result in up to 10 years in jail time and registering with the State as a sexual offender.

Legislative Summary

Under the recently proposed sexting law, sexting was defined as juvenile sexting and aggravated juvenile sexting. Juvenile sexting was defined as a minor who electronically or by way of a computer, intentionally and knowingly, creates, produces, distributes, presents, transmits, posts, exchanges, or possesses any visual depiction of a minor involved in any sexual act or lewd exhibition of nudity. The charge would have been upgraded to aggravated juvenile sexting if the minor committed juvenile sexting for commercial or financial gain, produced the image without the consent of the minor who was the subject of the image, distributed to more than five other persons, or previously committed a juvenile sexting offense. If a minor would have been convicted of juvenile sexting the minor would not have needed to register as a sex offender and would have been referred to a diversion program. If a minor was found guilty of aggravated juvenile sexting the minor at the discretion of the court would have been treated as a delinquent child or child in need of supervision or referred to a diversion program. In general, in a diversion program a probation officer will be assigned to the case and explain the program to the minor. The program will usually require the minor to participate in a certain amount of community service, and may also require restitution to the victim and educational classes. Upon completion of the program, the case will be dropped by the State.

The Senate bill has died in the legislature, therefore until another similar bill is made law, the law in South Dakota generally states that it is a felony to create, possess or distribute an image of a child engaged in a sexually activity. If an individual is convicted under the statute they would be guilty of a felony and could receive jail time as well as have to register as a sex offender. It should be noted that under the law, possession, distribution and production of child pornography are each in and of themselves felony offenses.

Law and Punishment

In general, under South Dakota’s child pornography laws, it is a felony crime to:

  • Create any visual depiction of a minor engaging in a prohibited sexual act, or in the simulation of such an act;
  • Cause or knowingly permit the creation of any visual depiction of a minor engaged in a prohibited sexual act, or in the simulation of such an act; or
  • Knowingly possess, distribute, or otherwise disseminate any visual depiction of a minor engaging in a prohibited sexual act, or in the simulation of such an act

Conviction under the child pornography laws is a class 4 felony and subject to up to a 10 year prison term and a $20,000 fine.

sobering reality

Class 4 felony.

Up to 10 years in jail.

Up to $20,000 in fines.

Latest News Concerning Sexting in South Dakota

Lawmakers Take Up Sexting Punishment Bill

KELO TV | February 7, 2012

Jamestown Schools in Crisis

Valley News Live | November 10, 2011

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