§707-733 Sexual assault in the fourth degree. (1) A person commits the offense of sexual assault in the fourth degree if:

(a) The person knowingly subjects another person, not married to the actor, to sexual contact by compulsion or causes another person, not married to the actor, to have sexual contact with the actor by compulsion;

(b) The person knowingly exposes the person's genitals to another person under circumstances in which the actor's conduct is likely to alarm the other person or put the other person in fear of bodily injury;

(c) The person knowingly trespasses on property for the purpose of subjecting another person to surreptitious surveillance for the sexual gratification of the actor; or

(d) The person knowingly engages in or causes sexual contact with a minor who is at least sixteen years old and the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor; provided that:

(i) The person is not less than five years older than the minor; and

(ii) The person is not legally married to the minor.

(2) Sexual assault in the fourth degree is a misdemeanor.

(3) Whenever a court sentences a defendant for an offense under this section, the court may order the defendant to submit to a pre-sentence mental and medical examination pursuant to section 706-603. [L 1986, c 314, pt of §57; am L 1991, c 214, §1; am L 2016, c 153, §2 and c 231, §34]

COMMENTARY ON §§707-730 TO 707-734

Act 153, Session Laws 2016, amended §707-731 to include within the offense of sexual assault in the second degree a person who knowingly subjects to sexual penetration a minor at least sixteen years of age if the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor, with certain exceptions. The legislature found that sexual relations between a person who is younger than sixteen years, the age of consent, and a person who is not less than five years older was a crime even if the younger person consents. However, once a minor attains sixteen years of age, consensual sexual activity was not a crime and the minor was not protected from adults who abuse the power of their position to obtain consent. House Standing Committee Report No. 280-16, Senate Standing Committee Report No. 3309.

Act 153, Session Laws 2016, amended §707-733 to include within the offense of sexual assault in the fourth degree a person who knowingly engages in or causes sexual contact with a minor who is at least sixteen years old but less than eighteen years old if the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor, with certain exceptions. The legislature found that sexual relations between a person who is younger than sixteen years, the age of consent, and a person who is not less than five years older was a crime even if the younger person consents. However, once a minor attains sixteen years of age, consensual sexual activity was not a crime and the minor was not protected from adults who abuse the power of their position to obtain consent. House Standing Committee Report No. 280-16, Senate Standing Committee Report No. 3309.

Act 231, Session Laws 2016, amended §707-733(1) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

Case Notes

Defendant's right to a fair trial was violated where counselor of victim-witness was allowed to place hands upon victim's shoulders while victim was testifying. 70 H. 472, 777 P.2d 240 (1989).

Sexual assault in the fourth degree and attempted sexual assault in the fourth degree are included offenses of attempted sexual assault in the second degree, within the meaning of §701-109(4)(c). 79 H. 46, 897 P.2d 973 (1995).

Evidence sufficient to establish absence of consent and thus sufficient to establish element of "compulsion". 81 H. 39, 912 P.2d 71 (1996).

Sexual assault in the fourth degree under subsection (1)(a) not an included offense of sexual assault in the third degree under §707-732(1)(b) as defined by §701-109(4). 83 H. 308, 926 P.2d 599 (1996).

Based on §701-109(4)(a), fourth degree sexual assault under subsection (1)(a) is a lesser included offense of third degree sexual assault under §707-732(1)(e). 85 H. 92 (App.), 937 P.2d 933 (1997).