#dale bartscher

Legislative committees voted to expand several protections for victims of rape and domestic violence Thursday.

But a third bill, making it easier to convict people of rape where the victim was too intoxicated to consent, is on hold as stakeholders try to solve their disagreements.

A proposal to revise the state’s domestic violence laws, Senate Bill 147, passed unanimously in the Senate Judiciary Committee.

It says that violence between people in or formerly in a “dating relationship” qualifies as domestic violence. Currently people in a romantic relationship are only protected by domestic violence laws if they have a child together or live together.

A similar bill last year failed after running into opposition from some Republican House members. Social conservatives opposed protections for same-sex couples, while other lawmakers opposed including dating couples under domestic violence.

SB 147 includes both gender-neutral language and protection for dating. But on Thursday at least one prominent social conservative activist testified in favor of the measure.

Dale Bartscher, head of the South Dakota Family Heritage Alliance, said he helped draft the bill and had no concerns about it protecting same-sex couples.

Another measure, House Bill 1169, would have provided free rape examinations to victims even without a decision to press charges. Right now, free examinations are only given as part of a criminal investigation.

“We need to protect the victim (first),” said Dianna Miller, a lobbyist for South Dakota Network Against Family Violence and Domestic Assault. “Then the decision will be made by the victim and the prosecutors and law enforcement to investigate.”

Miller said she did not believe HB 1169 would discourage women from coming forward to report rapes. She said it would have the opposite effect, by removing any financial disincentive.

No one testified against HB 1169, and no lawmakers on the committee spoke against it. It passed 11-2, with Reps. Jenna Haggar and Blaine Campbell voting no.

While both those bills will move on to the full Senate and House, respectively, a third bill dealing with rape has an uncertain future.

Senate Bill 173 would remove a defense against certain rape charges established by a 2011 South Dakota Supreme Court case.

One of the standards for rape is sex where the victim “is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent.”

In South Dakota v. Jones, the state Supreme Court ruled that law requires proof that the “the defendant knew or reasonably should have known that the complainant’s intoxicated condition rendered her incapable of consenting.”

Christopher Jones, the defendant in that case, was granted a new jury trial, which convicted him despite the new defense.

South Dakota’s state’s attorneys asked the Legislature to remove that defense, specifying  “the prosecution need not prove that the defendant knew or reasonably should have known that the victim’s intoxicated condition rendered the victim incapable of consenting.”

“We don’t have to prove that the victim was incapable of giving consent because of mental incapacity,” said Paul Bachand, representing the South Dakota State’s Attorney’s Association. “The same should apply for intoxication of the victim.”

The victim in the South Dakota v. Jones rape case also gave emotional testimony, saying she was “disgusted” that the law protected “the man who admitted to raping me.”

But the state’s criminal defense lawyers and Gov. Dennis Daugaard’s office expressed concern about the bill, which would go farther than any other state.

Matt Konenkamp of Daugaard’s office said South Dakota’s rape law should attempt to punish the guilty and not people who “never intended any harm.”

“It is the line in the sand between someone who has criminal propensity, someone who is intending to victimize someone, and someone who, on the other side, may have genuinely believed that they were engaging in a consensual act,” Konenkamp said.

Even a lurid, high-profile trial didn't change Sen. Stan Adelstein's luck in his long-running battle against a South Dakota law.

Adelstein tried for the third time in the past 11 years Tuesday to repeal South Dakota's "alienation of affection" law, which allows individuals to sue a third party for breaking up their marriage.

Such a measure, Adelstein said, was archaic and offensive in how it placed a monetary figure on love and affection.

"I doubt very much that love is dependent on the wallet of the man who may be considered an interloper," Adelstein said.

But an array of socially conservative groups defended the law as a tool to help hold families together.

Dale Bartscher of the South Dakota Family Heritage Alliance described a case in which a threat by a husband to sue another man for alienation of affection caused the other man to abandon his affair with the husband's wife.

"This statute is not about the married couple, but about the person outside the marriage who maliciously attempts to disrupt the marriage," Bartscher said.

This was at least the fourth time since 2002 that the Legislature has considered repealing the alienation of affection law. Only six other states have such a statute, which has its roots in English common law.

But this year was the first legislative session after the conclusion of an alienation of affection suit involving the then-state's attorney of Pennington County, Glenn Brenner.

That lawsuit, in which Brenner was sued by his wife's ex-husband, went all the way to the Supreme Court and was extensively covered in the media. Testimony at the trial included specific and intimate details of the relationships involved.

A jury ultimately rejected the alienation of affection lawsuit against Brenner, who ultimately lost his bid for a fifth term as state's attorney and has since moved to Texas.

Sen. Craig Tieszen, R-Rapid City, said that case convinced him the alienation of affection law had to go.

"There was I think tremendous damage done to innocent people, and particularly to children," Tieszen said. "I believe that this statute causes more damage than the value that it has."

But a majority of the Senate Judiciary Committee disagreed.

"People take a vow to each other. Others shouldn't try to break that vow," said Sen. Mike Vehle, R-Mitchell.

Sen. Jeff Monroe, R-Pierre, said focusing on instances where someone was sued for alienation of affection miss the point. The value of the law, he said, is as a preventative — discouraging people from pursuing affairs because they know they could be sued.

Vehle and Monroe were joined by Sens. Jean Hunhoff and Tim Begalka in defeating Adelstein's bill, Senate Bill 108. Tieszen, Sen. Mark Kirkeby and Sen. Jim Bradford voted for the measure.

After the vote, Adelstein said he was surprised and disappointed. He believed he had four or even five votes in favor of his bill in the committee, rather than the three he got. Adelstein said he'd consider trying to revive SB 108 on the floor of the Senate.

South Dakota voters may have approved video lottery more than once, but a vocal minority still reviles the gambling machines as an illicit addiction that isn't worth the benefit to the state coffers.

That ongoing battle reared up again today, when the Senate Commerce committee approved a bill that, along with some language cleanup, legalized penny-denomination bets.

Critics, such as Dale Bartscher of the socially conservative Family Heritage Alliance, said the lower denomination would make it easier for people to become addicted.

It "only encourages a person to play longer and more repetitively as he or she plays the penny credits," Bartscher said.

Norm Lingle, executive director of the state lottery, objected to Bartscher's characterization of the bill as expanding gambling. The one-cent bets, Lingle said, simply make things more efficient and bring South Dakota in line with national trends. Many video lottery games, he said, are made with one-penny bets in mind.

The bill, SB52, will "allow manufacturers to keep the games fresh on the video lottery terminals," he said.

Sen. Phil Jensen tried to amend SB52 to strike the penny-bet clause, but only Sen. Tim Begalka joined with him out of seven senators. Angie Buhl, Ried Holien, Mark Johnston, Dan Lederman and Ryan Maher voted to kill the amendment 5-2. Then the full committee passed the measure 6-1, with Begalka voting yes and Jensen still in opposition.