Does South Dakota's Marsy's Law (Article VI, § 29) reach civil lawsuits, ordinance violations, minor traffic tickets, and Sexual Assault Response Team meetings, or is it limited to traditional criminal and juvenile cases?

Plain-English summary

SD voters adopted Article VI, § 29 (Marsy's Law) in November 2016. The amendment gave 19 enumerated rights to crime victims, including rights to notice of proceedings, to be heard at hearings, to refuse interviews with the defense, and to prevent disclosure of information that could be used to locate or harass them. Within weeks of adoption, questions started piling up about how far the new rights reached. Did Marsy's Law apply in a divorce or wrongful-death lawsuit? At a city traffic court? At a multi-agency Sexual Assault Response Team meeting?

The 2017 AG answered all three with bounded yes-or-no rulings. Marsy's Law applies only to the criminal and juvenile justice systems "as defined by the Legislature." It does not apply to civil court proceedings, which are private actions between parties even when one party is the state on a petty-offense matter (because SD treats petty offenses as civil proceedings under SDCL 22-6-7). It does not apply to ordinance violations standing alone, because an ordinance is not a "crime or delinquent act" until the Legislature has defined it as such. It applies to traffic offenses only when the offense is statutorily a crime (a Class 2 misdemeanor speed limit violation, for example) and there is an identifiable primary or ancillary victim of "the commission or attempted commission" of the offense.

For SART meetings, the AG returned to a rule he had already announced in Official Opinion 16-02: Marsy's Law protections are not automatic. The government can share information until a victim unambiguously invokes the right to prevent disclosure. SART meetings, in which victim advocates, medical responders, public health officials, law enforcement, and prosecutors share information about sexual assault cases, are not prohibited; they are only constrained by an actual invocation of the right by an actual victim.

The opinion did the kind of definitional work that ballot-initiative amendments often need shortly after passage. The constitutional text referred to "crime," "delinquent act," "criminal justice system," and "juvenile justice system" without defining them. The AG turned to statutory definitions and case law to fill those terms in. The result was a careful narrowing of what could otherwise have been read as a sweeping application of victim rights into every government interaction touching on potential wrongdoing.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Marsy's Law (Article VI, § 29) was substantially amended by SD voters in November 2018 (Constitutional Amendment Y) to require affirmative invocation of rights and to narrow some definitions, which align with parts of this 2017 opinion's reading but also recalibrate the framework. Anyone relying on Marsy's Law analysis today should read both the 2018 constitutional text and any post-2018 AG opinions and SD Supreme Court cases addressing application.

What the opinion meant at the time

For SD prosecutors in 2017, the opinion drew a workable line. Marsy's Law applied in criminal felony and misdemeanor cases (Title 22, 23, 23A) and in juvenile delinquency cases (Title 26 Chapter 8C) where there was an identifiable victim. It did not require victim-rights overlays on civil lawsuits or petty offense tickets. Charging and process decisions could proceed without retroactively notifying every conceivable "victim" in a civil matter or a routine traffic stop.

For city and county prosecutors handling ordinance violations, the opinion clarified that municipal ordinance prosecutions did not trigger Marsy's Law. City of Sioux Falls v. Christensen (1962) had already treated municipal ordinance prosecutions as a separate species from state criminal prosecutions, and the AG extended that principle to the new victim-rights regime.

For SART teams across SD, the opinion confirmed that the interagency meetings could continue with information sharing in the ordinary course. SART work depends on victim advocates, nurses, public health, law enforcement, and prosecutors discussing case details. The opinion told them that Marsy's Law did not freeze that discussion absent an actual victim invocation.

For victim advocates working with sexual assault survivors, the opinion meant the survivor's ability to control disclosure was real but had to be invoked. The default rule was not silence; the default rule was the pre-Marsy's-Law information-sharing regime, modified by individual victim choice.

For traffic enforcement officers, the opinion meant most speeding and stop-sign tickets did not generate Marsy's Law rights. The exception was the rare traffic offense with an identifiable victim (a hit-and-run with an injured pedestrian, for example) where a primary or ancillary victim could invoke rights.

Common questions

Q: What is Marsy's Law?
A: A 2016 SD constitutional amendment (Article VI, § 29) modeled on California's "Marsy's Law for All" framework. It enumerated 19 rights for crime victims, including notice of proceedings, the right to be heard, the right to refuse defense interviews, and the right to prevent disclosure of information that could lead to harassment or harm.

Q: Does Marsy's Law apply in civil court?
A: No. The AG read the constitutional text as limited to the criminal and juvenile justice systems. A divorce, a wrongful-death suit, a probate fight, or any other civil proceeding does not trigger Marsy's Law rights.

Q: What about petty offenses?
A: SDCL 22-6-7 expressly says petty offenses are civil proceedings. So a petty offense (parking tickets, most minor traffic infractions) does not trigger Marsy's Law.

Q: What about ordinance violations?
A: An ordinance violation standing alone is not a crime under SD law. An ordinance is a legislative act of a county or municipality, not a state criminal statute. City of Sioux Falls v. Christensen (1962) treated ordinance violations as distinct from state criminal prosecutions. Marsy's Law does not apply.

Q: What about criminal traffic offenses?
A: A criminal traffic offense (Class 2 misdemeanor speed violations under SDCL 32-25-4 and -7, stop sign violations under SDCL 32-29-2.1 and -3) is technically a crime. But Marsy's Law applies only when there is an identifiable primary or ancillary victim who has invoked rights. Most routine traffic crime tickets have no identifiable victim; in those, Marsy's Law does not engage.

Q: Who is a "primary" or "ancillary" victim?
A: A primary victim is someone who suffered direct or threatened physical, psychological, or financial harm from the crime, or against whom the crime was committed. An ancillary victim is a family member (spouse, parent, grandparent, child, sibling, grandchild, guardian, similar relation) or the lawful representative of a deceased, incompetent, minor, or incapacitated victim. The framework comes from Official Opinion 16-02.

Q: Are SART meetings prohibited under Marsy's Law?
A: No. Law enforcement and other SART participants can attend and share information unless and until a victim unambiguously invokes the right to prevent disclosure. The default is information sharing in the ordinary course of SART work.

Q: What is the relationship to Official Opinion 16-02?
A: 16-02 was the AG's first major Marsy's Law opinion (December 2016), establishing that victim rights had to be unambiguously invoked to attach and creating the primary/ancillary victim framework. 17-01 builds on 16-02 to answer the second wave of questions about which proceedings trigger the framework at all.

Q: How does this opinion read after the 2018 Marsy's Law amendments?
A: The November 2018 Constitutional Amendment Y revised the SD Marsy's Law framework, including making invocation more explicit and clarifying some definitions. Anyone analyzing application today should read the post-2018 text and any subsequent AG opinions or SD Supreme Court cases that have addressed application.

Background and statutory framework

Marsy's Law as adopted in SD in November 2016 imported the national Marsy's Law model into Article VI of the SD Constitution. The model originated in California in 2008 (Proposition 9, named after Marsy Nicholas, a stalking-homicide victim) and spread through state ballot measures in subsequent years. The text typically enumerates 17 to 19 rights including notice of all proceedings, the right to be heard at hearings about plea, sentencing, parole, and release, the right to refuse defense interview requests, the right to confer with the prosecution, the right to restitution, and the right to prevent disclosure of locating information.

The framework imported into SD was broad in scope but used terms ("crime," "delinquent act," "criminal justice system," "juvenile justice system") without definitions. Article VI, § 29 also includes the conditional clause "beginning at the time of victimization," which the AG had to interpret in light of which proceedings could meaningfully be said to involve "victimization."

SD's criminal and juvenile justice statutes provide the relevant definitional anchors. SDCL Title 22 (Criminal Code), Title 23 (Criminal Procedure), and Title 23A (Criminal Procedure Code) define the criminal justice system. SDCL 22-1-4 splits crimes into felonies and misdemeanors. SDCL 22-6-7 separates petty offenses out as civil proceedings, which the AG read as removing them from "crime" status for Marsy's Law purposes.

SDCL Title 26 (Juvenile Court) defines the juvenile justice system. SDCL 26-8C-2 defines a "delinquent child" as one who violated a federal, state, or local law for which an adult would face criminal penalties, excluding state or municipal hunting, fishing, boating, park, or traffic laws classified as misdemeanors or petty offenses. SDCL 26-8B-2 defines a "child in need of supervision."

Municipal and county ordinances are governed by SDCL 7-18A-1(2) (county ordinance defined as legislative act of board of county commissioners) and SDCL 9-19-1 (municipal ordinance defined as legislative act of municipality). Ordinance violations are not state crimes, even where the conduct is criminal-like. City of Sioux Falls v. Christensen (1962) treated municipal ordinance proceedings as separate from state criminal prosecutions, refusing to apply state criminal presumptions to municipal DUI under an ordinance.

The 2017 AG opinion threads these definitional sources to bound Marsy's Law application. The amendment text talks about victims of "the commission or attempted commission of a crime or delinquent act." If "crime" is defined by Title 22 and "delinquent act" by Title 26, and ordinance violations and petty offenses are excluded from those definitions, then Marsy's Law does not apply to those proceedings. The constitutional text's "criminal and juvenile justice processes" language is read consistently with the statutory definitions of those systems.

The SART meeting analysis is a direct extension of Official Opinion 16-02's invocation rule. The constitutional amendment does not automatically prohibit government from sharing information. It gives victims the right to prevent disclosure when they invoke that right. Until invocation, the pre-amendment information-sharing rules govern. SART meetings, which are essential to coordinated sexual assault response, can continue with the same information sharing they had before, subject to victim-controlled override.

Citations and references

Constitutional provision:
- S.D. Const. art. VI, § 29 (Marsy's Law)

Statutes:
- SDCL Titles 22, 23, 23A (criminal justice)
- SDCL 22-1-4 (felony/misdemeanor)
- SDCL 22-6-7 (petty offense as civil)
- SDCL Title 26 (juvenile)
- SDCL 26-8C-2 (delinquent child)
- SDCL 26-8B-2 (child in need of supervision)
- SDCL 7-18A-1(2) (county ordinance)
- SDCL 9-19-1 (municipal ordinance)
- SDCL 32-25-4, 32-25-7, 32-29-2.1, 32-29-3 (criminal traffic offenses)

Cases:
- Davis v. State, 2011 S.D. 51, 804 N.W.2d 618
- Doe v. Nelson, 2004 S.D. 62, 680 N.W.2d 302
- Breck v. Janklow, 2001 S.D. 28, 623 N.W.2d 449
- South Dakota Bd. of Regents v. Meierhenry, 351 N.W.2d 450 (S.D. 1984)
- Brendtro v. Nelson, 2006 S.D. 71, 720 N.W.2d 670
- City of Sioux Falls v. Christensen, 116 N.W.2d 389 (S.D. 1962)

Prior AG opinions:
- Official Opinion 16-02 (Marsy's Law invocation and victim categories)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1686
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2017-01.pdf

Original opinion text

QUESTIONS:

1. Whether Article VI, § 29 applies to civil court proceedings?

2. Whether Article VI, § 29 applies to ordinance violations and minor traffic offenses?

3. Whether Article VI, § 29 applies to Sexual Assault Response Team meetings?

ANSWERS:

1. Article VI, § 29 does not apply to civil court proceedings in this State.

2. Article VI, § 29 does not apply to ordinance violations when it is determined that no alleged criminal or delinquent act, as defined by the Legislature, has occurred. Article VI, § 29 may apply to those traffic offenses defined as a crime or delinquent act and where an identifiable victim exists.

3. Article VI, § 29 only applies to Sexual Assault Response Team meetings when a victim unambiguously invokes his or her rights.

IN RE QUESTION 1:

"[T]he object of constitutional construction is 'to give effect to the intent of the framers of the organic law and the people adopting it.'" Davis v. State, 2011 S.D. 51, ¶ 77, 804 N.W.2d 618, 643 (quoting Doe v. Nelson, 2004 S.D. 62, ¶ 12, 680 N.W.2d 302, 307) (Gilbertson, C.J., concurring). To accomplish that task, a "constitutional provision must be read giving full effect to all of its parts." Breck v. Janklow, 2001 S.D. 28, ¶ 10, 623 N.W.2d 449, 454 (citing South Dakota Bd. Of Regents v. Meierhenry, 351 N.W.2d 450, 452 (S.D. 1984)). When the constitutional provision's language is "quite plain," then it is "construe[d] according to its natural import." Brendtro v. Nelson, 2006 S.D. 71, ¶ 16, 720 N.W.2d 670, 675. Secondary sources are used if the constitutional provision's language is ambiguous. Id. (citations omitted).

Article VI, § 29 (commonly referred to as Marsy's Law), grants nineteen enumerated rights to a "victim . . . beginning at the time of victimization." A victim is defined as "a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed." S.D. Const. art. VI, § 29 (emphasis added). Official Opinion 16-02 termed this type of victim as a "primary victim." A victim is also "any spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship, and includes a lawful representative of a victim who is deceased, incompetent, a minor, or physically or mental incapacitated." S.D. Const. art. VI, § 29. Official Opinion 16-02 described these victims as "ancillary victims." The rights granted to victims by the measure are meant "to ensure the victim has a meaningful role throughout the criminal and juvenile justice systems. . . . All provisions of this section apply throughout the criminal and juvenile justice processes[.]" S.D. Const. art. VI, § 29 (emphasis added).

The language of the Article VI, § 29, however, does not define the terms "crime," "delinquent act," "criminal justice system," or "juvenile justice system." It is therefore appropriate to look to other sources, including statutes and case law to define these terms. Brendtro, 2006 S.D. 71, ¶ 30, 720 N.W.2d at 680. The definition of these terms defines the scope of the measure.

It is generally recognized that the criminal justice system in South Dakota involves the investigation, apprehension prosecution, defense, sentencing, and punishment of those who are suspected or convicted of criminal offenses. SDCL Titles 22, 23 and 23A. Further, the Legislature has determined that "[a]ny crime is either a felony or a misdemeanor. A felony is a crime which is or may be punishable by imprisonment in the state penitentiary. Every other crime is a misdemeanor." SDCL 22-1-4. The Legislature has also determined that petty offenses "are civil proceedings in which the state is the plaintiff." SDCL 22-6-7.

The juvenile justice system generally addresses violations of law by persons not old enough to be held responsible for those acts as adults. SDCL Title 26. In the juvenile justice system, offenders are labeled as either a delinquent child or a child in need of supervision. A delinquent child is defined as "any child ten years of age or older who, regardless of where the violation occurred, has violated federal, state, or local law or regulation for which there is a penalty of a criminal nature for an adult[.]" SDCL 26-8C-2. Exempted from this definition are "state or municipal hunting, fishing, boating, park, or traffic laws that are classified as misdemeanors, or petty offenses or any violation of § 35-9-2 or 32-23-21." Id. A child in need of supervision includes "[a]ny child who has violated any federal, state, or local law or regulation for which there is not a penalty of a criminal nature for an adult, except violations of subdivision 34-46-2(2), or petty offenses[.]" SDCL 26-8B-2.

In comparison to the above, the civil justice system is the method by which society "decide[s] or delineate[s] private rights and remedies" between individual parties. Civil Proceeding, Black's Law Dictionary (10th ed. 2014). In general, all types of actions other than criminal proceedings are civil in nature.

As noted above, the rights granted to victims by Article VI, § 29 apply only to violations of law addressed by the criminal or juvenile justice systems. A civil proceeding is a private action and not part of the criminal or juvenile justice systems. I therefore conclude Article VI, § 29 does not apply to civil court proceedings or civil litigation in South Dakota.

IN RE QUESTION 2:

As stated previously, the provisions of Article VI, § 29, apply only to criminal or juvenile delinquent offenses. These offenses have been defined by the Legislature through the enactment of state statute. SDCL 22-1-4; SDCL 26-8C-2. Ordinance violations are neither. See City of Sioux Falls v. Christensen, 116 N.W.2d 389, 390 (S.D. 1962) (stating statutory presumptions related to the "criminal prosecution" for the offense of driving under the influence of an alcoholic beverage were deemed to be not applicable to a violation of municipal ordinance). Instead, ordinances are pieces of legislation enacted by a local authority. See SDCL 7-18A-1(2) ("Ordinance" defined as a legislative act of a board of county commissioners), and SDCL 9-19-1 ("ordinance" defined as a legislative act of a municipality). While the violation of an ordinance may be treated as criminal in nature in terms of conduct regulated or penalty imposed, an ordinance violation in-and-of itself is not an act that has been deemed punishable by the Legislature as a criminal or juvenile delinquent offense. As such, I conclude the provisions of Article VI, § 29, do not apply to the violation of ordinances.

You have also inquired whether the provisions of Article VI, § 29, apply to minor traffic offenses. As already stated, petty offenses are civil proceedings in South Dakota. Article VI, § 29 would not be applicable to those traffic offenses punishable as a petty offense.

There are traffic offenses that are criminal offenses. Some individuals may consider those offenses minor in that they often do not involve an identifiable victim. For example, violating a maximum posted speed limit on an interstate or other highway is statutorily categorized as a Class 2 misdemeanor. SDCL 32-25-4 and 32-25-7. Likewise, failure to stop at a stop sign or to sufficiently yield at the direction of a yield sign is also a Class 2 misdemeanor. SDCL 32-29-2.1 and 32-29-3. Because these offenses are crimes, as defined by the Legislature, Article VI, § 29 is potentially applicable. However, the plain language of Article VI, § 29 is only applicable when a primary or ancillary victim is harmed by "the commission or attempted commission" of the offense, and the victim has affirmatively invoked his or her rights. AGO 16-02. Where a criminal traffic offense is committed, but there is no identifiable primary or ancillary victim to invoke the rights available under Article VI, § 29, I conclude the measure does not apply.

IN RE QUESTION 3:

Sexual Assault Response Teams (SART) are multidisciplinary and interagency teams of trained providers who share resources and work together to aid victims of sexual assault. SART members generally include victim advocates, emergency medical responders, public health officials, law enforcement personnel, and prosecuting attorneys. To accomplish the SART goal, team members meet to share information and resources. You have asked whether the provisions Article VI, § 29 apply to SART meetings and would prevent law enforcement from disclosing victim information during these meetings.

As I stated in AGO 16-02, a victim must unambiguously invoke his or her rights guaranteed by Article VI, § 29 in order to receive its protections. "[T]he government is not automatically prohibited from releasing information or records. . . . Rather, the government is prohibited from releasing certain information when a victim invokes his or her right to prevent disclosure." AGO 16-02 (interpreting Article VI, § 29). This applies with equal force to SART meetings. Law enforcement is not prohibited from attending and disclosing information during such meetings unless a victim invokes his or her right to prevent the disclosure of that information. See id.

CONCLUSION

It is my opinion that Article VI, § 29 does not apply to civil court proceedings, nor does it apply to violations of local government ordinances. However, Article VI, § 29 may apply to traffic offenses if the offense is defined as a crime by the Legislature and an identifiable victim exists. Finally, law enforcement is not prohibited from attending and disclosing information during Sexual Assault Response Team meetings unless a victim unambiguously invokes his or her right to prevent the disclosure of information. I believe the above interpretations give effect to the purpose of the language of Article VI, § 29 and the terms used therein. To conclude otherwise would extend the language of the constitutional provisions beyond its purpose and create a "strained, unpractical[,] or absurd result." Brendtro, 2006 S.D. 71, ¶ 30, 720 N.W.2d at 680.

Sincerely,

Marty J. Jackley

ATTORNEY GENERAL