Sex offenders listed on the state registry could be facing a felony instead of a misdemeanor for sexual contact if the South Dakota legislature approves Senate Bill 77A.
The amended bill was approved by the Senate Judiciary Committee on Tuesday, Feb. 2.
The bill is designed to close a loophole that allows sex offenders to face light charges even though they have been previously convicted of similar behavior.
Roxanne Hammond is a Pennington County prosecutor. She testified before the Senate Judiciary Committee earlier in the session to explain the reasoning behind Senate Bill 77.
“And what we know of sex offenders, what we know of sex crimes, is they are one of the most difficult individuals to rehabilitate,” Hammond said. “And so that’s largely why we have the sex offender registry, to keep tabs essentially on people that are more likely to re-offend.”
Hammond said sexual contact with a non-consenting person who is capable and of age is the only misdemeanor sex crime on the books. She said when the offender is on the registry, the crime should be enhanced to a felony, much as a simple assault and DUI can be bumped up to a felony with a third conviction.
Senate Judiciary delayed a vote on the bill until sponsors could rewrite it to fix a glitch: it had to be made clear that the enhancement is a separate information filed at or before arraignment.
Sen. David Wheeler, a lawyer from Huron, said that amendment did not fix another problem. He said as he read the amended version, sex offender status could be interpreted as an element of the crime.
“Our court system is very used to dealing with enhancements based upon a prior conviction, not so much dealing with a status of whether or not you’re a registered sex offender,” Wheeler said. “Now it’s very similar because, to be a sex offender, you have to have a prior conviction, but it’s slightly different.”
Wheeler’s amendment clarified that the status would not be divulged to a jury deciding the sexual contact case. And it limited the enhancement to apply only for 10 years after the conviction that landed the defendant on the registry.
The Senate committee voted to pass the first amended version, but committee chair Art Rusch did not put it on the consent calendar. He said the bill has been controversial enough that it merits further discussion.
