Prior sexual assault allegations could become part of rape trials

Senate panel backs adjustment of evidence rules for criminal cases, rejects for civil cases

By: - February 6, 2024 11:24 am
The Pennington County Courthouse and jail complex in Rapid City, in June 2023. (Seth Tupper/South Dakota Searchlight)

The Pennington County Courthouse and jail complex in Rapid City, in June 2023. (Seth Tupper/South Dakota Searchlight)

It would be easier for prosecutors to tell jurors about previous sexual assault allegations in rape trials under the provisions of two bills endorsed by a state Senate panel Tuesday morning. 

The bills heard in the Senate Judiciary Committee would amend South Dakota’s rules of evidence to allow evidence of prior sexual assaults — including unconvicted sexual assaults — if a judge deems that evidence meaningful for jurors.

Two bills, Senate Bills 97 and 98, would allow such evidence in adult and child sexual assault cases, respectively. The bills came from Sen. Tim Reed, R-Brookings.

The potential evidence in criminal cases could include anything from cases charged but dropped in the past to hearsay accusations from people who heard about prior sexual assaults that were never reported to authorities. 

Backers: Feds allow ‘propensity’ evidence

Supporters pointed to federal rules allowing such evidence, written in the 1990s but never adopted in South Dakota. 

Pennington County State’s Attorney Lara Roetzel pointed to a defendant convicted in 2014 for the fourth-degree rape of a 15-year-old coworker in her testimony. He was given a suspended imposition of sentence, which clears a conviction from a person’s record under a time frame and terms of good behavior set by a judge. In 2018, he was accused of forcibly raping another coworker, but that case wasn’t prosecuted, Roetzel said, in part because prosecutors couldn’t reference the 2014 crime. Three years later, he was indicted for the rape of an 8-year-old in Lawrence County and on 20 counts of child pornography possession in federal court.

Sen. Tim Reed, R-Brookings, on the state Senate floor during the 2024 legislative session. (Makenzie Huber/South Dakota Searchlight)
Sen. Tim Reed, R-Brookings, on the state Senate floor during the 2024 legislative session. (Makenzie Huber/South Dakota Searchlight)

That case shows that a judge ought to be allowed to admit what’s known as “propensity” evidence in rape cases, Roetzel said.

“The federal prosecutors are regularly allowed to present this kind of evidence. Our state prosecutors ought to be allowed to use them, as well,” she said.

Roetzel argued that sexual assault cases are the only sorts of violent crime trials where the victim’s character is regularly called into question. 

Roetzel was joined in her support of the bills by representatives from the South Dakota Network Against Family Violence and Sexual Assault and the South Dakota Advocacy Network for Women, as well as other prosecutors and the state Attorney General’s Office.

“These are unique cases and this will allow prosecutors the tools they need to prosecute those cases,” said Assistant Attorney General Grant Flynn.

The bills would require a 15-day notice to defendants of the intention to tell jurors about prior sexual assaults, and a judge would ultimately decide how much of that evidence would appear before a jury.

“Judges will still do what’s known as a balancing test … it’s not going to just come in,” Roetzel said.

Detractors: Changes tip scales of justice

Opponents argued that the change would put jurors asked to determine the facts of the case in the position of judging a defendant’s character.

“It fundamentally changes the character of a trial from whether a person did what’s accused here to whether or not the person is a bad person,” said Sen. David Wheeler, R-Huron, a defense lawyer and one of two senators on the committee to oppose both bills.

The issue of hearsay was a key component of opposition testimony from Terra Larson, a lobbyist for the South Dakota Association of Criminal Defense Attorneys.

Sen. David Wheeler, R-Huron, listens to testimony during a Senate Judiciary Committee meeting on Jan. 16, 2024. (Makenzie Huber/South Dakota Searchlight)
Sen. David Wheeler, R-Huron, listens to testimony during a state Senate Judiciary Committee meeting on Jan. 16, 2024. (Makenzie Huber/South Dakota Searchlight)

“You could theoretically have me come in and say, ‘Hi, I’m Terra Larson, and I heard from my friend that the defendant raped her,’” Larson said.

The Supreme Court of South Dakota had the opportunity to adopt the federal rules on the admission of other sexual assaults during a 2015 review of state rules, but did not do so. Nationally, Larson said, there are concerns from many quarters in the legal community about the impact of the federal rules on defendants’ fair trial rights.

Prosecutors can already introduce evidence of other bad acts in some circumstances, Larson said. Further simplifying the process of presenting sexual assault allegations upends protections for defendants facing the possible loss of their freedom through a conviction.

Protections against unverified allegations, she said, “form a fundamental part of American jurisprudence.”

The committee sided with Reed on SB 97 and SB 98 and voted to send the bills to the Senate floor. Wheeler and Sen. Mike Rohl, R-Aberdeen, voted against them.

Civil cases spared from evidence rule changes

A third bill presented Tuesday, SB 149, would have allowed prior sexual assault evidence up to but not including hearsay in civil rape cases. Civil cases have a lower standard of proof than “beyond a reasonable doubt,” which is the bar for a conviction in a criminal trial.

The committee rejected that bill unanimously. The 6-0 vote came after testimony from an insurance industry lobbyist cited the civil rape trials of former presidents Bill Clinton and Donald Trump and the confirmation hearing of Brett Kavanaugh as proof that allowing unverified accusations would create the dangers of coordinated pile-ons for prominent people.

Civil cases are too loose to open the doors of admissible evidence even wider, said Doug Abraham, representing the American Property Casualty Insurance Association.

“It doesn’t take much of an imagination to envision a situation where multiple individuals conspire against, particularly a well heeled individual … to shift the scales of justice,” Abraham said.

Sen. Reed’s amendment to make clear that hearsay evidence wouldn’t be applicable in civil trials wasn’t enough to overcome the committee’s concerns.

Sen. Brent Hoffman, R-Hartford, asked Reed about verbiage. All three bills reference previous sexual assaults “committed” by a person. 

“One could assume that ‘committed’ is synonymous with ‘conviction,’” Hoffman said. 

Sen. Brent Hoffman, R-Hartford, speaks on the state Senate floor on Jan. 16, 2024. (Makenzie Huber/South Dakota Searchlight)
Sen. Brent Hoffman, R-Hartford, speaks on the state Senate floor on Jan. 16, 2024. (Makenzie Huber/South Dakota Searchlight)

He asked Flynn if the attorney general’s office had taken a position on that, as Hoffman said the two terms are significantly different. 

The office had not, Flynn said. Such interpretations would likely come from the courts.

“I agree with you that the language is open to those two interpretations,” Flynn said. “As you obviously know, it’s up to the court to tell us what the laws say. This body passes laws, the court reads them, interprets them and tells us exactly what they mean.”

Flynn said he “would certainly be willing to help the committee” understand the legal definition of “committed” as applied in the federal courts, but that he didn’t have a better immediate answer.

Hoffman said he was “troubled” by that, and suggested that he might feel differently about his “yes” votes on SB 97 and SB 98 as a result.

“I’m not voting next week based on a review that the attorney general might do in the future,” Hoffman said. “I’m expected to vote now on the language I see before me. It troubles me in view of what I heard on the first two bills.”

The committee did not move to reconsider those first two votes, though. Those two bills were sent to the Senate floor with a “do pass” recommendation.

EDITOR’S NOTE: This story has been updated to reflect a correction. Only two of the bills were endorsed by the committee.

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John Hult
John Hult

John is the senior reporter for South Dakota Searchlight. He has more than 15 years experience covering criminal justice, the environment and public affairs in South Dakota, including more than a decade at the Sioux Falls Argus Leader.

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