SOL: +3 years from majority or liberal discovery whichever is later for claims arising out of intentional conduct, with SOR age age 40 for all claims not vs. actual perp. BUT SEE  BLUE CLOUD, as of 2012 holds that only +3 from majority all claims NOT vs perp.

1. S.D. Codified Laws § 26-10-25 (‘Any civil action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later. However, no person who has reached the age of forty years may recover damages from any person or entity other than the person who perpetrated the actual act of sexual abuse.

2. Former students’ actions alleging breach of fiduciary duty, vicarious liability, and negligent hiring, retaining, and supervision were time barred because S.D. Codified Laws § 26-10-25 did not apply; the causes of action were not based on intentional, criminal conduct, and the entities named in the lawsuit did not engage in criminal conduct. The causes of action expired under S.D. Codified Laws § 15-2-14(3) and S.D. Codified Laws § 15-2-22 more than 20 years before the suits were commenced. Bernie v. Blue Cloud Abbey, 2012 SD 64, 821 N.W.2d 224, 2012 S.D. LEXIS 104 (Sept. 5, 2012).

a. South Dakota Supreme Court is persuaded by the courts in Colorado, Rhode Island, and California that have relied on the plain and ordinary meaning of identical or similar language to S.D. Codified Laws § 26-10-25 and have limited the application of other states’ statutes to claims relating to childhood sexual abuse based on intentional conduct constituting a criminal offense. Bernie v. Blue Cloud Abbey, 2012 SD 64, 821 N.W.2d 224, 2012 S.D. LEXIS 104 (Sept. 5, 2012).

b. The three year period in S.D. Codified Laws § 15-2-14(3) starts to run from the last occurrence of tortious conduct, rather than three years from the discovery of the harm. 

i. (3)  An action for personal injury.

TOLLING:

1. Majority.  Yes.

a. S.D. Codified Laws § 15-2-22 (“If a person . . . was at the time the cause of action accrued, either: (1) Within the age of Majority as defined in chapter 26-1 . . . the time of the person’s disability is not a part of the time limited for the commencement of the action.”)

2. Discovery

a. Pecoraro v. Diocese of Rapid City, 435 F.3d 870, 874 (8th Cir. S.D. 2006) (applying S.D. Codified Laws § 26-10-25 to plaintiff’s claims & noting accrual occurred when plaintiff “discovered the childhood sexual abuse perpetrated…was the cause of [plaintiff’s] serious psychological injuries.”)

b. One Star v. Sisters of St. Francis, 2008 SD 55, P13, 752 N.W.2d 668, 675, 2008 S.D. LEXIS 81, 11 (S.D. 2008)(“SDCL 26-10-25, however, may delay the accrual until a plaintiff reasonably should have discovered the causal connection between the alleged abuse and the plaintiff’s injury. Therefore, we agree with One Star and Sorace that, under this statute, discovery of the injuries alone is not sufficient to start the running of the statute. Rather, there must also be discovery of some tie linking the acts of abuse to an injury; i.e., ‘that the injury or condition was caused by the act.’ SDCL 26-10-25.”)

c. BUT CAUSATION CAN BE NARROWLY DEFINED AS “INQUIRY NOTICE” (Because plaintiff knew that he had been sexually abused by two members of a religious order and was angry and left school as a result of the abuse, plaintiff was on inquiry notice more than three years before he brought his suit, and the three-year statute of limitations in S.D. Codified Laws § 26-10-25 barred his suit. Iron Wing v. Catholic Diocese, 2011 SD 79, 807 N.W.2d 108, 2011 S.D. LEXIS 136 (Nov. 30, 2011).

d. Maybe now no discovery vs. non perps (outside of FC etc).

i. Bernie v. Blue Cloud Abbey, 2012 SD 64, 821 N.W.2d 224, 2012 S.D. LEXIS 104 (Sept. 5, 2012). (The three year period in S.D. Codified Laws § 15-2-14(3) starts to run from the last occurrence of tortious conduct, rather than three years from the discovery of the harm. )

1. § 15-2-14(3)  “An action for personal injury”

 None for rape of a victim less than thirteen years of age; or

rape via use of force, coercion, or threats of immediate and great bodily harm. S.D. Codified Laws § 22-22-1 (1)-(2). None for all class A, B or C felonies. S.D. Codified Laws § 23A-42-1. Victim’s age 25, or +7 years from crime, whichever is later, for rape of a child aged 13-16 years, criminal sexual contact with a child, intoxicated rape, and incapacitated rape. S.D. Codified Laws § 22-22-7; S.D. Codified Laws § 22-22-1 (3)-(5).

S.D. Codified Laws § 23A-42-1. No limitation on certain felonies. (“There is no limitation on the time within which a prosecution for Class A, Class B, or Class C felony must be commenced.”)

S.D. Codified Laws § 22-22-7 Sexual contact with child under sixteen — Felony or misdemeanor. (“Any person, sixteen years of age or older, who knowingly engages in sexual contact with another person, other than that person’s spouse if the other person is under the age of sixteen years is guilty of a Class 3 felony. If the victim is at least thirteen years of age and the actor is less than five years older than the victim, the actor is guilty of a Class 1 misdemeanor. Notwithstanding § 23A-42-2, a charge brought pursuant to this section may be commenced at any time before the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.”)

Language was added in 1994: Former § 22-22-7. (“Sexual contact with child under sixteen — Felony or misdemeanor. Any person, sixteen years of age or older, who knowingly engages in sexual contact with another person, other than that person’s spouse if the other person is under the age of sixteen years is guilty of a Class 3 felony. If the actor is less than three years older than the other person, the actor is guilty of a Class I misdemeanor. Notwithstanding § 23A-42-2, a charge brought pursuant to this section may be commenced at any time before the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.”) See, 1994 S.D. SB 10, 1994 S.D. ALS 166, 1994 S.D. Laws 166, 1994 S.D. CH 166, 1994 S.D. SB 10

S.D. Codified Laws § 22-22-1. Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:

(1)  If the victim is less than thirteen years of age; or

(2)  Through the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim’s presence, accompanied by apparent power of execution; or

(3)  If the victim is incapable, because of physical or mental incapacity, of giving consent to such act; or

(4)  If the victim is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis; or

(5)  If the victim is thirteen years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim.

A violation of subdivision (1) of this section is rape in the first degree, which is a Class C felony. A violation of subdivision (2) of this section is rape in the second degree which is a Class 1 felony. A violation of subdivision (3) or (4) of this section is rape in the third degree, which is a Class 2 felony. A violation of subdivision (5) of this section is rape in the fourth degree, which is a Class 3 felony. Notwithstanding the provisions of § 23A-42-2, no statute of limitations applies to any charge brought pursuant to subdivisions (1) or (2) of this section. Otherwise a charge brought pursuant to this section may be commenced at any time prior to the time the victim becomes of age twenty-five or within seven years of the commission of the crime, whichever is longer.

APPLICABILITY:  SOL for rape in sub (1) and rape sub(2) was None in 2012. Previously SOL would have been to age 25 (or 7 years) (same as rape (3,) (4), and (5) still are.)

“The 2012 amendment to S.D. Codified Laws § 22-22-1, in the fifth sentence of the second paragraph, substituted “the provisions of § 23A-42-2, no statute of limitations applies to any charge” for “§ 23A-42-2 a charge,” added “subdivisions (1) or (2) of,” and deleted “may be commenced at any time prior to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer” at the end, and added the last sentence of the second paragraph.”

Enacted, March 2, 2012,  2012 S.D. ALS 125 | 2012 S.D. Laws 125 | 2012 S.D. CH 125 | 2012 S.D. SB 68 (“An Act to provide that no statute of limitations applies to certain rape offenses.”

2012 S.D. SB 68, 2012 S.D. ALS 125, 2012 S.D. Laws 125, 2012 S.D. CH 125, 2012 S.D. SB 68

PREVIOUS SOL of Age 25 was in place since 1994.

Formerly read: (“A violation of subdivision (1) of this section is rape in the first degree, which is a Class 1 felony. A violation of subdivision (2), (3), or (4) of this section is rape in the second degree, which is a Class 2 felony. A violation of subdivision (5) or (6) of this section is rape in the third degree, which is a Class 3 felony. Notwithstanding § 23A-42-2 a charge brought pursuant to this section may be commenced at any time prior to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.”) See, 1994 S.D. SB 10, 1994 S.D. ALS 166, 1994 S.D. Laws 166, 1994 S.D. CH 166, 1994 S.D. SB 10