You were both drinking. Now one of you has gone to the police, and you are the one under investigation. It feels like being drunk too should matter.
In South Dakota, it usually does not help the way people expect. Here is why.
The law focuses on the other person’s ability to consent
South Dakota calls this crime rape, and it covers sexual penetration with a person who cannot consent. One way that happens is when the person is too intoxicated to give consent. The law looks at the alleged victim’s condition. It does not ask whether you were also impaired.
Your own drinking also does not excuse the act. South Dakota law says an act is not less criminal because the person was voluntarily intoxicated. There are narrow exceptions when intent is a required element, so a lawyer should review how that applies to your charge.
How alcohol affects the question of consent
Consent means a person has the ability to make the choice. A person who is passed out or too impaired to understand what is happening cannot give it.
The hard part is deciding where the line falls. After the fact, a judge or jury looks at several things:
- How much the other person drank and how they acted
- Whether they were awake and able to talk
- What was said or done before and during the encounter
- What each person did afterward
These details are rarely clear, and each side often remembers the night differently. That is why the facts matter so much, and why you should not try to decide the answer on your own.
A charge is not a conviction
Being charged means the state believes it has enough to go forward. It does not mean you are guilty. You do not have to prove you are innocent. The prosecution has to prove guilt, and the standard is beyond a reasonable doubt.
These cases often depend on competing accounts, gaps in the evidence and questions about who is credible. Text messages, video, medical records and witness statements can all shape the outcome. A defense attorney tests that evidence and holds the state to its burden.
What to do if you are being investigated
You do not need to wait for a formal charge to protect yourself. Here is what to do if police contact you:
- Say clearly that you want to remain silent. Do not just stop talking.
- Say you want a lawyer. Then stop answering questions until one is with you.
- Do not explain your side. The urge to clear things up often creates problems.
- Do not contact the other person. Messages can be read as pressure.
- Keep your texts and photos. Do not delete anything.
Each of these steps takes a moment, and each one can keep a hard situation from getting worse.
Final reminder
Your own drinking does not cancel out the other person’s inability to consent. Again, a charge is not a conviction, and the state has to prove its case. If police contact you, stay silent and ask for a lawyer before you answer anything.