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Court Upholds Bariteau’s Sexual Contact Conviction by Inserting New Preposition in Law?

Bob Mercer notes the state Supreme Court’s split decision upholding Timothy J. Bariteau’s conviction of sexual contact with a child under sixteen years of age. Victoria Wicks describes the nefarious conduct in detail, as does the Supreme Court’s August 3 ruling.

Bariteau violated the trust of his congregants and his wife by flirting with and touching a girl in his church youth group. When the girl was 14, Bariteau had sexual conversations with her on Facebook and Snapchat. He transmitted sexual photos of himself to the girl (I’m still boggled that such transmissions ever strike any adult as a good idea). An aroused Bariteau engaged in pants-on-pants contact, rubbing his front and his hands on her clothed backside. Bariteau also kissed the girl’s neck.

Bariteau deserves to have his collar yanked. But did he break the law for violation of which he is serving eight years in the pen?

Bariteau was convicted of sexual contact with a child under sixteen, a Class 3 felony under SDCL 22-22-7. The very next statute on the books, SDCL 22-22-7.1, defines sexual contact:

As used in this chapter, the term, sexual contact, means any touching, not amounting to rape, whether or not through clothing or other covering, of the breasts of a female or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party.

The statute seems to say that an individual who touches the breasts of a girl or the genitals or anus of any child, directly or through clothing, for lustful purposes is committing a crime. Bariteau was touching a child for lustful purposes, but he did not touch the breasts, genitals, or anus of his victim. He made that argument in court, and the state offered no evidence to the contrary. His act crossed all sorts of lines, but it didn’t cross the legal line of SDCL 22-22-7.1.

Justices Kern, Gilbertson, and Wilbur of the Supreme Court disagree. Where I read the sexual contact definition as, “Individual touches a child’s privates,” the Court reads, “Individual touches a child’s privates or touches a child with his or her own privates.” The court maintains that Bariteau’s actions were clearly sexual contact and that to conclude otherwise would be “absurd.” “Certainly, the Legislature did not intend such an interpretation when it broadly defined ‘sexual contact,'” writes the Court. “Moreover, the Legislature enacted this statute ‘to protect the morals of children and to prevent their defilement.'”

I’m just speculating here, but I’ll bet the Legislature intended to protect children from the defilment of Bariteau’s kissing their necks… or they darn well should have. But kissing isn’t mentioned in the statute. Bariteau’s kissing the child’s neck was lustful and wrong, but it would not meet the definition of sexual contact under this statute, and that act is mentioned only once in the ruling, in the background, not in the legal reasoning or justification for conviction. It is absurd to think Bariteau can kiss a fourteen-year-old’s neck without getting in hot water, but SDCL 22-22-7.1 does not heat that water.

Justices Zinter and Severson appear to agree with my strict interpretation. In the dissent, Justice Zinter agrees that Bariteau’s act is “reprehensible” but writes that the majority is rewriting one key preposition in SDCL 22-22-7.1:

The absurdity doctrine does not, however, apply because adherence to the ordinary meaning of the words actually used does not create an absurdity. SDCL 22-22-7 and SDCL 22-22-7.1 criminalize a wide range of sexual acts that are uniformly accepted as criminal misconduct. Therefore, the meaning of that text makes sense. The problem is that by prohibiting the “touching of” specified body parts of the victim, but not the “touching with” the body parts of the defendant, the Legislature simply failed to anticipate Bariteau’s different kind of act. And rectifying that oversight is a legislative rather than judicial function [Justice Steven Zinter, dissent, State v. Bariteau, 2016 S.D. 57, 2016.08.03, p. 18].

No one is defending Bariteau’s violations of morality and trust. Bariteau’s acts are reprehensible. But if the Legislature has not written a law that clearly prohibits such acts, we can’t throw people in prison for such acts, and the Court shouldn’t write those laws for the Legislature. The Court’s ruling may provide sufficient case-law cover for future prosecutions, but the 2017 Legislature should revise its definition of sexual contact to make sure predators like Bariteau face punishment for their exploitative behavior.


  1. Darin Larson 2016-08-08

    Cory, I have another reading of the statute in question in mind. Couldn’t the statute be read to prohibit the defendant from rubbing his private parts, through clothing or otherwise, on the victim. He touched his genitalia on the backside of the victim with intent to arouse or gratify himself. I don’t read the statute to say that the parts of the victim being touched are limited to the three body areas.

  2. Darin Larson 2016-08-08

    I just read your story again and I see that I am in agreement with the court’s holding. To wit: “Individual touches a child’s privates or touches a child with his or her own privates.”

  3. Darin Larson 2016-08-08

    The problem as I see it with Cory and the dissent in this case is that they do not read the definition of sexual contact in context of the sentence “with a child under the age of 16.” The “with” that the dissent and Cory say is missing is supplied by SDCL 22-22-7.

  4. Roger Elgersma 2016-08-08

    They should add that no one should caress or touch a child in any way while aroused. No matter if the erect penis of a man or an erect nipple of a woman touches the child, the aroused person emits pheronomes(erotic aromas) that do arouse the other person. The arousal signifies intent of why the touching is happening. It is fine to hug kids, but not with the wrong reasons. So no touching at all should happen while aroused.

  5. Mark Winegar 2016-08-08

    SDPB’s reporting this morning made it clear as far as I’m concerned that this man is guilty. He also violated a sacred trust by committing his crime while portraying himself as someone who ought to be well above such acts. Such incidents ought to give families pause before putting their trust in any person or institution.

  6. Douglas Wiken 2016-08-08

    It appears to me that another kind of “crime” needs to be defined for situations like this if it is not actual nakedness or rape or violence or bondage, etc. tied to some kind of psychological evaluation, etc. The penalties need to be related to Janklow driving through a stop sign and killing somebody and getting only a few months punishment.

  7. Troy Jones 2016-08-08

    As much as I’d love to find a way to parse the words to Darin’s and the Courts, I can’t help but read the actual legal language to be clear that contact is not what parts the perpetrator uses to touch the victim but the parts the perpetrator touches on the victim.

    The law needs to be clarified in my opinion. That said, I can understand why the language isn’t too broad because not all touching is illicit and too often a touch is just what people need during certain situations*. I still cringe when I think of an anecdote I know to be true (told to me by a witness)- A lower elementary age girl falls in playground and suffers severe scrapes and has blood running from her head. She grabs the male teacher who came to her aid such that her head was in a delicate place. And the teacher pushes her away out of fear it could threaten his career.

    Our over-sexualized world has made fully appropriate acts of comfort and compassion suspect.

    * I come from a mixed family with regard to affection. Some want hugs if you are going down to the basement for a minute while the others wouldn’t hug you if you were going to the moon for a year. Personally, I’m with the former.

  8. Craig 2016-08-08

    I’ll take sentences I never thought I would type for $500 Alex: Just update the statute to read “buttocks” rather than “anus” and call it a day.

    You’ll never cover all situations. Some people are sexually aroused by touching feet, or others are aroused by playing with hair. All we can do is write laws to protect most of us from most of us.

    Roger E: “So no touching at all should happen while aroused.” Can’t disagree… but that is nearly impossible to police. You have to know intent, and the human body can sometimes do things on its own even if there is no sexual arousal. I’d hate to put a woman behind bars merely because it was a bit cold in the room.

  9. caheidelberger Post author | 2016-08-08

    Craig, what if we struck the list of specific parts altogether? What if we just say, “sexual contact, means touching another person in any way, not amounting to rape, with the intent to arouse or gratify the sexual desire of either party”? That language would certainly bust Bariteau or anyone in a similar situation.

    I’d say we should apply “Keep It Simple, Stupid” to these statutes, but that’s asking for trouble.

  10. caheidelberger Post author | 2016-08-08

    I’m intrigued by how Darin and the court can read the statute clearly one way, while Troy and I can read it clearly the other. That tells me the language isn’t clear enough for law.

    I share Troy’s concerns about over-sexualization and fear crowding out normal expressions of human compassion. We can see a clear difference behind Bariteau’s misbehavior and the decent expressions of honest caring Troy describes. The problem is codifying that difference.

    I’m still looking for the statute that busts Bariteau for kissing the child’s neck. That was clearly an expression of lust, not caring; where’s the statute that criminalizes that clearly inappropriate kiss?

  11. Darin Larson 2016-08-08

    Craig, so a defendant can rub his privates on a child’s leg and that’s ok under your quick fix and call it a day?

    Cory says “What if we just say, “sexual contact, means touching another person in any way, not amounting to rape, with the intent to arouse or gratify the sexual desire of either party”

    What if the perp is having the victim do the touching?

    My reading and the majority reading in this Bariteau decision take into account any touching by either party.

  12. Darin Larson 2016-08-08

    Cory, I think the kiss is battery.

  13. Troy Jones 2016-08-08


    I can’t remember the legal term but some laws are written such intent isn’t a test of guilt or innocent because proving intent too often requires getting in one’s head.

    For instance, not intending to drive 90 mph is a not defense for going over the speed limit. Being clocked at 90 is a violation of law. Period.

    Personally, I want certain acts in this area just defined as illegal and put the burden on the accused to present the extenuating circumstances like driving someone injured to the hospital to get off for speeding.

    On the other hand, any of us who have been on a crowded elevator trying to let off the person in the back has inadvertently violated someone’s space and could be wrongly construed. The driving over the limit speed limit standard is too harsh.

    I know it seems like I’m talking out of both sides of my mouth. I’m just trying to have clarity to the extent we can properly use the speeding ticket standard without encompassing the “one-offs” or where initial perceptions can be wrong. But in the case at hand, there is a string of ongoing specific wrong acts which should be clearly illegal and easy to prove in court. Maybe that is how we get it done. Multiple acts are in and of themselves a definition of intent to do bad.

    P.S. I agree on the kissing of the neck so long as it doesn’t become criminal when I put my tightened lips and blow to my almost five month old granddaughters feet, belly and neck. I live for hearing her giggle and would flout the law if it is made illegal. She starts smiling and kicking her feet as soon as she sees me purse my lips. :)

  14. grudznick 2016-08-08

    Inappropriate is in the eye of the offended party.

    If Mr. Mike, who is from Iowa, comes up to me and rocks my chair around and claps me on the shoulder in a manly yet forceful way that causes pain to my crippled bones and I feel it’s inappropriate, then here in South Dakota I say it’s inappropriate. I can’t speak for Iowa.

  15. bearcreekbat 2016-08-08

    Here is an often cited case from the federal system that arose out of Pine Ridge with a similar issues. In this case the Court reversed a sexual abuse conviction because the testimony of the alleged victim did not follow the language of the statute.

    The statute in question required proof of “penetration, however slight.” The victim’s testimony was ambiguous and the Court declared “The statute is anatomically specific, and the testimony lacks the necessary specificity.”

  16. caheidelberger Post author | 2016-08-08

    Troy, I don’t read you as talking out of both sides of your mouth. I read you as trying to codify a sensitive and complicated issue. I want very much for the Legislature to take up this matter in January and clarify this statute… but part of me dreads the headlines, press coverage, and soundbites that will come from the conversation and that unscrupulous campaigners could twist into attack ads.

    I agree that intent is very hard to address… but if we don’t include some component of reasonably discernible intent, we end up with all sorts of elevator prosecutions. I hate to leave people vulnerable to perverts, but we do need to preserve the assumption of innocence for defendants and the burden of proof on the prosecution. The Bariteau case seems to have been pretty easy to prove, because Bariteau admitted the suspect behavior to multiple people. The only area of dispute was whether the admitted action met the statutory definition of “sexual contact.” On the crowded elevator, Jill bumps Jack’s privates, Jack yelps, Jill looks aghast and apologizes… if Jack wants to press charges, he’s going to have to get Jill to confess she meant to do it and faked the apology or get witnesses to say that when she got off the elevator she was bragging about copping a feel.

    Zerberts—agreed! Nothing but giggles and joy. Your relations with your grandchildren are safe from any bill I write. But if you zerbert a fourteen-year-old girl in the church sound booth, you’ve got problems.

  17. caheidelberger Post author | 2016-08-08

    Grudz, that clap on the shoulder isn’t sexual contact. It could be assault… but I’m betting that unless Mike knows you’re a frail old geezer (and on the Internet, no one knows you’re a dog), you’ll have a hard time winning a full battery conviction. Now if Mike comes back the next day to do it again, you might have a better case… although I’m willing to back Mike up if he chooses to argue that you had it coming. I think we could get three out of five judges to buy that argument.


  18. caheidelberger Post author | 2016-08-08

    Darin, would forcing a child victim (as in this case) to do the touching fall under sexual exploitation?

    Kiss as battery? Hmm… I look under Chapter 22-18, Assaults and Personal Injuries… kiss won’t be assault unless it involves injury (unless hickeys?), menace, or fear. The kiss could be prosecuted under SDCL 22-18-26.1, which makes causing someone to come into contact with saliva, with the intent to assault, a Class 1 misdemeanor.

    But really, the kiss shouldn’t be under Assault. It should be under Sex Offenses, along with the other behaviors that put pedophiles on the sex offender list.

  19. Darin Larson 2016-08-08

    Cory, Battery under the common law was an offensive touching, but I see that SD has not codified it in the criminal law. Assault involves injury that is why I didn’t mention it. I agree that there should be a crime for the kiss, but it may only be disorderly conduct under SD law.

    I can’t answer your question off the top of my head on sexual exploitation.

  20. Troy Jones 2016-08-09


    Is Zerberts a universally accepted term? Never heard of it before. But, it deserves a name.

    Seriously, I agree on assumption of innocence and burden of proof but the burden can be defined as only having to pass a factual test (car was going over the speed limit) without regard to intent. But, on the other hand, I get the other side. Was the breath of air a woman/girl feels on her neck intended to arouse or the result of a sympathetic sigh? It’s why I keep going back to a pattern of behavior dropping the standard which allows some lenience on one-offs. I’m just nervous about having a standard which includes intent because it is so easy to just say “My intent was to be comforting and it wasn’t sexual” and how are you going to prove otherwise beyond reasonable doubt? But, if one has done it multiple times (more than once to the same person or once to more than one person), I think intent is deemed factual.

    Maybe this is too sensitive/provacative of an analogy and I would be wise to avoid using it but I can’t come up with something as illustrative. Please do not deem this as softening my abhorrence of rape and conviction it should be pursued harshly.

    Two college-age people are drunk at a party and hook-up. Consent and capacity to grasp whether consent is given is impaired for both. The burden of proof requires an exhaustive examination of the facts etc. I get that. But, if the guy consistently pursues the drunkest gals, I think he becomes a predator who when sober has formed a strategy to pursue those whose consent is impaired and the burden to determine intent is lower for the second guy than the first.

    Make sense?

  21. Craig 2016-08-09

    Cory: “What if we just say, “sexual contact, means touching another person in any way, not amounting to rape, with the intent to arouse or gratify the sexual desire of either party”?”

    I think the problem is the “intent” part. How do we know what someone’s intent is unless they just openly admit it? Perhaps that is up to the courts to decide. At least with the focus upon sexual parts, we cover the vast majority of cases and ensure someone doesn’t walk away under the “I was never aroused” defense. Sure there are people out there who might get aroused by touching someone’s foot… but we can’t possibly cover ever scenario and we have other laws already on the books to address assault and battery.

    Darin: “Craig, so a defendant can rub his privates on a child’s leg and that’s ok under your quick fix and call it a day?”

    My reading of the current statute already makes this illegal. The statute doesn’t state who must do the touching, but if includes genitalia then it is already illegal.

  22. bearcreekbat 2016-08-09

    In reality proving a defendant’s wrongful intent is probably one of the easiest elements for a prosecutor to prove. All a prosecutor need do is introduce some evidence that would allow a jury to infer criminal intent. Often proof of the criminal act alone is sufficient for a jury to find criminal intent. Add to that a myriad of other circumstantial evidence supporting such an inference and the defendant is usually toast.

  23. bearcreekbat 2016-08-09

    A huge problem for the defendant is his inability to tell the jury that he did not have a criminal intent. In most cases it is suicide for a defendant to take the stand and be subjected to cross examination by a prosecutor. Typically, after an effective cross examination the jury is inclined to disbelieve any defendant’s claim of an innocent intent. And courts frequently have ruled that the mere disbelief of a defendant’s testimony is a sufficient basis for a jury to infer criminal intent. This is another huge advantage for a prosecutor in convincing a jury to infer criminal intent.

  24. caheidelberger Post author | 2016-08-09

    Troy, I cautiously like your argument about establishing a pattern of behavior. I share your caution—we still need to be able to bust the Stanfordesque predator for one instance of rape—”I only penetrated her once against her will” can never be a defense. But we’re not talking about rape; we’re talking about casual contact—the elevator bump/brush—that could be mistaken for sexual contact. One oopsie in the elevator may not be prosecutable; two oopsies, and Clumsy Mugsy had better get a lawyer and wait for the next elevator next time.

    In Bariteau’s case, there was a clear pattern of behavior, fueled by Bariteau’s stunning inability to overcome his apparently never-tested libido to recover his moral clarity long enough to ask himself what the heck he was doing and to hear the obvious answer: “Something that needs to stop NOW.”

    So now I’m wondering, if Troy’s “pattern of behavior” standard has merit for our sexual contact definition and criminal prohibition, can we clearly define certain touching or behavior that gets two strikes and the worse category of behavior that gets only one strike?

  25. caheidelberger Post author | 2016-08-09

    BCB, I’m alarmed by the picture you paint of prosecutorial advantage. Allowing that inference of criminal intent and putting the defendant at such a disadvantage on the stand that he not dare speak and offer his own statement of his innocence seem to undermine the presumption of innocence… or call for a far greater, stricter adherence to that principle.

    Interesting here that Bariteau’s guilt was not in question, only whether the actions he committed satisfied the statutory definition.

  26. caheidelberger Post author | 2016-08-09

    Darin, as I scrolled through Chapter 22-18, I wondered if disorderly conduct might capture the behavior in question. But I don’t know if we can read kissing into SDCL 22-18-35, either:

    Any person who intentionally causes serious public inconvenience, annoyance, or alarm to any other person, or creates a risk thereof by:

    1. Engaging in fighting or in violent or threatening behavior;
    2. Making unreasonable noise;
    3. Disturbing any lawful assembly or meeting of persons without lawful authority; or
    4. Obstructing vehicular or pedestrian traffic;

    is guilty of disorderly conduct….

    Maybe we can hook onto “threatening behavior”, but that feels like a stretch.

  27. Darin Larson 2016-08-09

    Cory, I agree that disorderly conduct statute doesn’t really fit either for kissing. You can tell I’m not a criminal defense attorney. Here I thought SD would have some rock solid criminal statutes, being a law and order red state and all. It seems we have some holes to fill in our proverbial criminal wall of shameful conduct. Leave it to the liberal media in this state to have to educate our conservative legislature on how to keep us safe! :)

  28. bearcreekbat 2016-08-10

    Cory, typically a judge will instruct the jury that it should not infer guilt based on a defendant’s failure to testify, and a prosecutor cannot refer to that failure to testify in argument to the jury.

    The problem for a defendant arises when he actually does testify. Then there is no limiting jury instruction and the prosecutor is allowed to point out inconsistencies in the defendant’s testimony, however small or insignificant they might be, and then argue that the testimony is untruthful and should be considered evidence of guilt.

    Thus in most criminal cases it does not help a defendant to testify and deny whatever he is accused of. Hence, typically the only evidence showing intent will be circumstantial evidence that has not been rebutted by the defendant’s testimony under oath. This makes it relatively easy for a prosecutor to convince a jury to infer the required wrongful intent.

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