No consent law in SD leaves survivors of sexual assault in legal limbo

Editor’s note: This story features descriptions of sexual assault. 

When Penny saw someone get off the Sioux Area Metro bus, she jumped. It didn’t matter who it was, because in her mind, it could be her attacker.

She doesn’t have a car, so she relies on public transportation, and Penny’s constant state of alert is so bad even her daughter has noticed. 

“She never really looked over her shoulder, now she does,” her daughter said. “She’s more jumpy.”

On the west side of Sioux Falls earlier this spring, the panic crept up Penny’s spine. Her hands started to shake as she walked down the street toward her job as a life skill educator at a treatment facility.

“I’m afraid to go to work, because that’s where he used to live. That whole area, I’m always looking over my shoulder,” Penny, 54, said.

Penny talks about her experience as a survivor of sexual assault on Thursday, April 14, 2022, at her home in Sioux Falls.

Penny says she was sexually assaulted at the end of July 2021, but she wasn’t sure if it rose to the level of rape. She never said yes, but she also never said no.

She froze, unable to give consent, unable to fight back and unsure that if she did, she would leave the room alive.

Her attacker was not charged.

That’s because in South Dakota law, there is no definition of “consent.” Therefore, if someone is sexually assaulted, it becomes incredibly difficult to establish means to prosecute.

A Minnehaha County jury asked Judge Bradley Zell for the legal definition of consent while deliberating a sexual assault case in November 2019.

As part of an ongoing Argus Leader investigation into how the state handles sex crimes under the law, the lack of a consent law leaves survivors like Penny falling into the cracks. Some cases have gone to trial, but survivors don’t always get the justice they seek, especially if their case doesn’t have enough evidence to even make it to trial. That doesn’t include survivors who choose not to come forward about their assault.