The SD Supreme Court handed down one decision this morning, holding inter alia:
1)
Rape convictions upheld; Evidence of “Advanced
Consent” and Prior Sexual History properly excluded at trial.
STATE v. MALCOLM, 2023 S.D. 6: Defendant was convicted by a
jury of 9 counts of 3rd degree rape and sentenced to 50 years in
prison by the trial court, with 15 years suspended. Defendant and Victim had
been living together and Victim died after the encounter in question. The cause of death for the Victim was
determined to be, “fatal combination of Baclofen
and Hydroxyzine toxicity, an apparent overdose for which police officers determined
[Defendant] was not responsible.” On appeal Defendant asserts 5
points of error including the argument that the trial court wrongly denied him
the opportunity to present evidence of “advanced
consent” by the victim before she passed out,
consistent with their prior sexual history (evidence of which was also denied). The SD Supreme Court affirmed, agreeing with
the trial court that “advanced consent” is not a
valid defense in a situation where the Victim is not capable of withdrawing
consent when she is passed out. The Court’s decision is unanimous (5-0), with opinion
authored by Justice Salter.
The Court also rejected Defendant’s other assertions of error,
with the exception of his “ineffective assistance of
counsel” claim. The Court declined
to consider on this issue on direct appeal, “leav[ing
Defendant’s] ineffective assistance claims for further development should he
pursue a habeas corpus action.”
This decision may be accessed at
http://ujs.sd.gov/Supreme_Court/opinions.aspx .
