## Facts

- E.B., age 23, spent the night drinking heavily while out celebrating with friends, consuming at least a dozen alcoholic beverages.
- Later, E.B. went to a friend’s home and eventually fell asleep on a couch.
- E.B. testified that she awoke to Christopher Jones sexually assaulting her while she was on the couch.
- E.B. physically and verbally resisted, and Jones stopped.
- After E.B. fell back asleep, she testified she again awoke with her clothes pulled down and Jones penetrating her.
- E.B. yelled at Jones until he stopped; she got dressed and hid in a bathroom until Jones left.
- Jones was charged with third-degree rape under SDCL 22-22-1(4), which criminalized sexual intercourse when the victim is incapable of giving consent because of intoxication, but the statute did not expressly state a mental-state requirement about the defendant’s awareness of that incapacity.
- At trial, Jones requested a jury instruction requiring the State to prove he knew the victim was incapable of consenting due to intoxication; the trial court refused.
- The jury convicted Jones, and he appealed, arguing the jury instructions were legally incomplete.

## Issues

1. Whether SDCL 22-22-1(4) requires the State to prove the defendant knew or reasonably should have known the victim’s intoxication made the victim incapable of giving consent.
2. Whether the trial court committed reversible error by refusing to instruct the jury on that knowledge/constructive-knowledge requirement.

## Decision

- The Supreme Court of South Dakota reversed Jones’s conviction and remanded for a new trial.
- The court held that, despite the statute’s silence, third-degree rape under SDCL 22-22-1(4) requires proof that the defendant knew or reasonably should have known the victim’s intoxication rendered the victim incapable of consenting.
- Because the jury instructions omitted this element, the instructions allowed conviction without a required finding.
- The error was not harmless given that Jones’s defense focused on consent and on whether he was aware (or should have been aware) of any intoxication-based incapacity.

## Legal Principles

- Silence in a criminal statute about mens rea does not automatically create strict liability, especially for serious felony offenses carrying substantial penalties.
- For third-degree rape based on intoxication-related incapacity under SDCL 22-22-1(4), the State must prove beyond a reasonable doubt that the defendant knew or reasonably should have known the victim was incapable of giving consent because of intoxication.
- A jury instruction that omits a required element of the offense is reversible error when it permits conviction without that element and the omission affects the theory contested at trial.

## Conclusion

State v. Jones held that South Dakota’s third-degree rape provision for intoxicated victims is not a strict-liability offense as to the victim’s incapacity: the State must prove the defendant knew or reasonably should have known the victim’s intoxication made her incapable of consenting. Because the jury was not instructed on that requirement, the conviction was reversed and the case remanded for a new trial.


State v. Jones, 804 N.W.2d 409 (2011)