"[T]here exists a fundamental separation of powers question in conclusive statutory presumptions[.]"
How later courts described this case
- "[T]here exists a fundamental separation of powers question in conclusive statutory presumptions[.]"
Written by the judges who cited it.
The opinion
WOLLMAN, Justice
(concurring in part, dissenting in part).
I would interpret the words “ * * * shall be presumed incapable of consenting to such acts * * * ” as used in SDCL 22-22-1(2) to mean that the consent of a person 16 years of age or less is void. This would be in keeping with the interpretation given to similar language by this court in Ex parte Nesson, 25 S.D. 49 , 125 N.W. 124 . My belief that the legislature did not intend to make the fact of consent a defense on an ad hoc basis in cases involving acts of sexual penetration with persons 16 years of age or less is strengthened by the fact that at the time SDCL 22-22 — 1 was amended no change was made in SDCL 22-22 — 7, the *907 indecent molestation statute. Under the latter statute, a person could be found guilty of indecent molestation of a 14-year-old child even though the sexual act had been solicited and willingly participated in by the child, yet at the same time be immune from conviction under the rape statute based upon an act of sexual penetration solicited and willingly participated in by the same child.
I agree with the majority opinion’s disposition of defendants’ attacks upon the sufficiency of the information.
I am authorized to state that Justice WINANS joins in this concurrence in part and dissent in part.