Victims of certain types of human trafficking are not considered “victims” under the current codified law in South Dakota. This is unacceptable. All victims of human trafficking deserve constitutional rights and Amendment S will close the loophole in current state law.

Under current South Dakota codified law, only certain people fall under the legal definition of “victim” which entitles them to certain victim rights under the statute. In fact, there are many serious crimes for which current law does not allow rights for victims, including crimes like simple assault, misdemeanor sexual assaults, intimidation, harassment, reckless driving, vehicular homicide, grand theft, identity theft, human trafficking or hate crimes. Every person harmed by a crime should be entitled to victim rights.

South Dakota currently defines a “victim” under SDCL 23A-28C-4 as any person being the direct subject of an alleged act, which would constitute a crime of violence as defined in subdivision 22-1-2(9), simple assault between persons in a relationship described in § 25-10-3.1, stalking as defined in chapter 22-19A, a violation of chapter 22-22, or a driving under the influence vehicle accident, under the laws of South Dakota or the laws of the United States.

South Dakota Codified Law 22-1-2(9)  defines “Crime of violence,” as any of the following crimes or an attempt to commit, or a conspiracy to commit, or a solicitation to commit any of the following crimes: murder, manslaughter, rape, aggravated assault, riot, robbery, burglary in the first degree, arson, kidnapping, felony sexual contact as defined in § 22-22-7, felony child abuse as defined in § 26-10-1, or any other felony in the commission of which the perpetrator used force, or was armed with a dangerous weapon, or used any explosive or destructive device;

So here is the loophole: the element of “force” must be present to be considered a victim of human trafficking. However, SDCL 22-49-1 prohibits human trafficking and states “No person may recruit, harbor, transport, provide, receive, or obtain, by any means, another person knowing that force, fraud, or coercion will be used to cause the person to engage in prostitution, forced labor, or involuntary servitude. Nor may any person benefit financially or by receiving anything of value from participation in a venture that has engaged in acts set forth in this section. Any violation of this section constitutes the crime of human trafficking.

So the problem is that if a man or woman is coerced or fraudulently tricked into human trafficking, they are not considered a “victim” under current South Dakota law. To qualify as a “victim” a man or woman would have to clearly be forced to conduct illegal acts and the element of “force” would have to be proven beyond a reasonable doubt.

All victims of human trafficking deserve constitutional rights equal to the rights of the criminals who abused them. Amendment S (Marsy’s Law) will give all victims of human trafficking the rights they deserve.

22-49-2.   First-degree human trafficking–Felony. If the acts or the venture set forth in § 22-49-1:

(1)      Involve committing or attempting to commit kidnapping;

(2)      Involve a victim under the age of eighteen years;

(3)      Involve prostitution or procurement for prostitution; or

(4)      Result in the death of a victim;
any person guilty has committed human trafficking in the first degree, which is a Class 2 felony.

22-49-3.   Second-degree human trafficking–Felony. A person is guilty of human trafficking in the second degree if that person:

(1)      Recruits, harbors, transports, provides, or obtains, by any means, another person knowing that force, fraud, or coercion will be used to cause the person to engage in prostitution, forced labor, or involuntary servitude; or

(2)      Benefits financially or by receiving anything of value from participation in a venture that has engaged in acts set forth in this section.

Human trafficking in the second degree is a Class 4 felony.

22-49-4.   Hiring person forced to engage in sexual activity–Felony. It is a Class 6 felony for a person to hire or attempt to hire another person for a fee to engage in sexual activity, as defined in § 22-23-1.1 if the person knew or should have known the other person was being forced to engage in the activity through human trafficking.