Section 26-10-33 -juvenile sexting prohibited– is South Dakota’s sexting law. Under the statute it is unlawful for teens to create, produce, or disseminate nude pictures or images depicting a child engaged in a sexual act.
- Sexting in South Dakota is a class 1 misdemeanor if all parties involved are below 18.
- An adult sending or receiving sexually explicit images from a minor will face trial under the state’s child pornography charges.
- Teens accused of felony child pornography offenses may face trial in adult court.
- If tried as an adult, the teen may have to register as a sex offender.
South Dakota sexting laws summary
§ 26-10-28 defines a “child” as anyone below eighteen years of age. Simply put, this means that anyone who is under the age of 18, cannot legally consent to be the subject of sexually explicit media.
What happens if a teen or child sends explicit media to another child?
If both the sender and receiver are below 18, prosecutors can pursue class 1 misdemeanor sexting charges against one or both parties involved. However, if one of the teens is 18 and the other seventeen, the law does not prevent prosecutors from pursuing child pornography charges against the adult.
A class 1 misdemeanor in South Dakota is punishable by up to one year in prison and a fine of up to $2000. It is the highest class of misdemeanours in the state.
Teens adjudicated under South Dakota’s sexting law may not have to register as sex offenders.
Section 26-10-34 of the statute provides the following affirmative defenses:
This means that the punishment for engaging in sexting can be reduced or dismissed if the following are true
- The receiving teen did not solicit the visual depiction and did not subsequently share, post, transmit, or in any way disseminate the depiction to a third party.
- The accused took reasonable steps to destroy or delete the image or reported the image to the appropriate authority (law enforcement, school, or caregivers).
- The photo or visual depiction is of a single minor, created by the minor depicted, and not shared, displayed, exchanged, or distributed. Only works if the teen does not display or distribute the image to anyone else.
Note that section 26-10-35 states: “It is not a defense to the offense of juvenile sexting that the visual depiction is of the person charged.”
When does sexting become child pornography?
Under section 22-24A-3, anyone, including teens, is guilty of child pornography possession, manufacturing, or distribution if:
(1) The individual manufactures or creates any depiction of a minor engaged in sexual conduct.
(2) the person permits or in any way causes the creation of child pornography.
(3) the person, sells, disseminates, or distributes child pornography.
The statute explicitly states that a minor’s consent is not a defense, nor is the mistake-of -age.
State law defines sexual conduct as acts, including intercourse, masturbation, homosexuality, lewd exhibition of the breasts/buttocks/genitals, or any material intended for sexual stimulation or arousal.
Any violation of the statute will result in class 4 felony charges, punishable by up to ten years in prison and an optional fine of up to $30000. If the accused repeats the crime within fifteen years, the punishment escalates into a class 3 felony punishable by up to 25 years in prison and a $50000 fine.
What to remember:
- § 22-24A-18 require computer repair technicians to report suspected violations of south Dakota’s child pornography laws.
- Purchase and possession of a child-like sex doll is a felony or misdemeanor.
- Property used in the violation of the chapter is subject to forfeiture.
- Nude selfies -taken by a minor constitute child pornography.
- § 22-24-27 prohibits “obscene live conduct” such as dancing, simulation, speaking, or singing performed by a child that appeals to prurient interest and is patently offensive because the performance affronts community standards.
South Dakota sexting laws and solicitation of a minor
The age of consent in South Dakota is 16. Under § 22-24A-4, the term minor refers to anyone below 15. To solicit, under the statute means to persuade, lure, entice, seduce, or in any way encourage a minor to commit an unlawful act, be it via telephone, letter, in person, or using any other means of communication.
Soliciting sexual conduct from a minor in the state is a class 4 felony.
What to remember:
- The statute allows law enforcement officers to act like minors during their investigations.
- Consent from a minor or the minor’s parents or caregiver is not a defense.
It is also worth noting that under 22-24-28. “Disseminating Material Harmful to Minors.” it is unlawful to send any media that is harmful to a child. Anyone who violates this section is guilty of a class 1 misdemeanor. Remember, a person is guilty of disseminating harmful material to a minor if the individual displays, sells, or places indecent material in public view. That means adults sending nudes to a minor may constitute dissemination of harmful material to a minor.
Section 22-24-31 provides the following affirmative defenses:
- The accused requested and received proof of age such as a driver’s license, birth certificate, or official identification. Thus had a reasonable cause to believe that the minor was an adult.
- The defendant was the parent of the minor involved or a bona fide college, school, museum, or university employee.
- Parents of the minor were present and signed a written statement.
Adult or juvenile court?
In South Dakota, the youngest age at which a child can be adjudicated delinquent is ten. furthermore, under Discretionary Transfer, there is no minimum age requirement. Meaning a teen accused of a felony offense may face trial in adult court. Once transferred to adult court for a sex-related felony, the teen must register as a sex offender upon conviction.
Teens tried in the juvenile system or under the state’s sexting laws, will not have to register as sex offenders. The punishment options available in the juvenile system include supervision/CHINS (children in need of supervision), detention at a youth facility, probation, monitoring, community service, and other rehabilitative punishment options.
South Dakota sexting laws and nonconsensual sexting
Under § 49-31-31, it is unlawful to contact anyone via an electronic device to quote:
“Terrorize, intimidate, threaten, harass, or annoy such person by using obscene or lewd language or by suggesting a lewd or lascivious act”
Lewd or lascivious acts refer to making unwelcome suggestions of a sexual nature via telephone. Consequently, non-consensual sexting may lead to harassment charges. if there is a pattern of activity, the crime may escalate into stalking.
What you need to remember is -the victim of harassment has the right to take civil action against the tormentor. Therefore, we recommend consulting with an attorney if you are the victim of non-consensual sexting.
South Dakota sexting laws and revenge porn
Under § 22-21-4. “Record-privacy.” It is unlawful to quote:
“Use any device to photograph or visually record any other person without clothing or under or through the clothing, or with another person depicted in a sexual manner, to view the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to self-gratify, to harass, or embarrass and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy”
Under the statute, it is also unlawful to disseminate or distribute sexually explicit images of anyone without consent with intent to harass, embarrass, self-gratify, or invade the privacy of the other.
Anyone who violates the statute is guilty of a class 1 misdemeanor, and the victim may take civil action.
- 26-10-33 -Juvenile Sexting Prohibited
- 22-24A-3 -Possessing, Manufacturing, or Distributing Child Pornography
- 22-24A-4 Soliciting Sexual Conduct from a Minor
- 22-24-28. Disseminating Material Harmful to Minors.
Other South Dakota Laws