22-22-2. Sexual penetration defined--Acts constituting sodomy--Medical practitioners excepted.
Sexual penetration means an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital or anal openings of another person's body. All of the foregoing acts of sexual penetration, except sexual intercourse, are also defined as sodomy. Practitioners of the healing arts lawfully practicing within the scope of their practice, which determination shall be conclusive as against the state and shall be made by the court prior to trial, are not included within the provisions of this section. In any pretrial proceeding under this section, the prosecution has the burden of establishing probable cause.
Source: SDC 1939, § 13.2802; SL 1975, ch 169, § 2; SL 1980, ch 176, §§ 1, 2; SL 1986, ch 181; SL 1993, ch 178, § 4; SL 1997, ch 133, § 1.
Notes of Decisions
Cited in
31
cases (
5 in the last 5 years), 1977–2024 · leading case:
State v. Packed, 2007 SD 75 (S.D. 2007).
State v. Packed, 2007 SD 75 (S.D. 2007).
· cites it 6× “Under SDCL 22-22-2, "[s]exual penetration means an act, however slight, of sexual intercourse .”
State v. Toohey, 2012 S.D. 51 (S.D. 2012).
· cites it 8× “] Toohey argues that there was insufficient evidence of penetration to sustain the rape verdict.”
State v. Cates, 2001 SD 99 (S.D. 2001).
· cites it 6× “] The language in SDCL 22-22-1 (rape) and SDCL 22-22-2 (sexual penetration) evince a legislative intent "to punish separately each criminal sexual penetration.”
State v. Dillon, 2001 SD 97 (S.D. 2001).
· cites it 2× “1 (criminal pedophilia), SDCL 22-22-1 (rape), and SDCL 22-22-2 (defining penetration). 6 Both first degree rape and criminal pedophilia are class one felonies, punishable by a maximum penalty of life in prison.”
State v. Sprik, 520 N.W.2d 595 (S.D. 1994).
· cites it 4× “) Therefore, we conclude that under SDCL 22-22-1 and SDCL 22-22-2, the "Legislature intended to punish separately each criminal sexual penetration," Wilson, 493 N.”
State v. Floody, 481 N.W.2d 242 (S.D. 1992).
· cites it 2× “] SDCL 22-22-2 (1988) provides in pertinent part: Sexual penetration means an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital and anal openings of…”
State v. Heisinger, 252 N.W.2d 899 (S.D. 1977).
· cites it 2× “" SDCL 22-22-2. [6] The legislature did not elect to use the phrase "conclusively presumed" in the statute; if it had, the state's position would have considerably more weight.”
State v. Darby, 1996 SD 127 (S.D. 1996).
· cites it 2× “" "Sexual penetration" is defined in SDCL 22-22-2 as provided, in pertinent part: Sexual penetration means an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the…”
State v. Carter, 2023 S.D. 67 (S.D. 2023).
“” SDCL 22-22-2. “We have interpreted this definition to mean that evidence of vulvar or labial penetration, however slight, is sufficient to prove penetration of the female genital opening.”
State v. Koepsell, 508 N.W.2d 591 (S.D. 1993).
· cites it 2× “] In 1991, SDCL 22-22-2, provided in part: Sexual penetration means an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital and anal openings of another…”
State v. Spaniol, 2017 SD 20 (S.D. 2017).
“it could amend” the statutory definition of “sexual penetration” found in SDCL 22-22-2 to include this language. Accordingly, Spaniol believes Instruction 11 prejudiced him by taking the “determination [of what penetration, if any, occurred] out of the jury’s hands.”
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