The amendment restructures the criminal invasion of privacy statute by consolidating and clarifying the three prohibited acts—voyeurism, distribution of voyeuristic material, and deepfakes—while adjusting penalties so that voyeurism and distribution violations are Class 1 misdemeanors (Class 6 felonies for repeat or child victims), and deepfake creation/distribution is a Class 5 felony. This STRENGTHENS the bill's enforcement against nonconsensual intimate imagery by creating clearer distinctions between offense types and establishing proportionate felony penalties for digitally fabricated material.
26.454.10 26.454.11 101st Legislative Session 41 2026 South Dakota Legislature Senate Bill 41 HOUSE ENGROSSED Introduced by: The Chair of the Committee on Judiciary at the request of the Attorney General Underscores indicate new language. Overstrikes indicate deleted language. ENROLLED AN ACT ENTITLED An Act to revise a provision related to criminal invasions of privacy, prohibit the 1 creation and distribution of digitally fabricated material of an identifiable 2 individual, and provide penalties therefor. 3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 4 Section 1. That § 22-21-4 be AMENDED: 5 22-21-4. No person may individual, without the consent or knowledge of the 6 individual depicted or recorded, and with the intent to self-gratify or alarm, annoy, 7 embarrass, harass, invade the privacy of, threaten, or cause emotional, financial, physical, 8 psychological, or reputational harm to that individual, may: 9 (1) Use Intentionally use any device to photograph or visually record: 10 (a) Any other person record the individual without clothing or under or through the clothing, 11 or with another person a third individual depicted in a sexual act, for the purpose 12 of viewing the body of, or the undergarments worn by, that other person; 13 (b) Without the consent or knowledge of that other person; and 14 (c) With the intent to self-gratify, to harass, or embarrass and invade the privacy of 15 that other person, under circumstances in which the other person has a reasonable 16 expectation of privacy the individual; 17 (2) Use, disclose, or Intentionally disclose, disseminate, distribute, sell, or use, by any 18 means, any recording or photograph in violation of described in subdivision (1), in 19 order to self-gratify, to harass, (1); or to embarrass and invade the privacy of that 20 other person; or 21 (3) Knowingly and intentionally disseminate or sell any image or recording of another 22 person: 23 (a) That has been intentionally manipulated to create a realistic but false image or 24 recording that would cause a reasonable person to mistakenly believe that the 25 image or recording is authentic; 26 26.454.10 2 41 Underscores indicate new language. Overstrikes indicate deleted language. (b) That depicts the person as totally nude; in a state of undress to expose the genitals, 1 pubic area, buttocks, or female breast; or with another person in a sexual act; 2 (c) Without the consent or knowledge of the person whose image is depicted; and 3 (d) With the intent to self-gratify, to harass, or embarrass and invade the privacy of 4 the person whose image is depicted; or 5 (3) Knowingly and intentionally create, disclose, disseminate, distribute, or sell, by any 6 means, digitally fabricated material depicting the identifiable individual: 7 (a) In a state of nudity, as defined in § 22-24A-2, such that an ordinary person 8 viewing the material would conclude that the depiction is of the identifiable 9 individual in such a state of nudity; or 10 (b) Engaging in sexual contact, sexual intercourse, deviant sexual activity, or 11 sexually explicit conduct such that an ordinary person viewing the material 12 would conclude that the depiction is of the identifiable individual engaging 13 in sexual contact, sexual intercourse, deviant sexual activity, or sexually 14 explicit conduct. 15 26.454.11 2 41 SB41 ENROLLED A violation of this section subdivision (1) or (2) is a Class 1 misdemeanor. However, 16 a violation of this section is a Class 6 felony if, misdemeanor, unless the victim is seventeen years of age 17 or younger and the perpetrator is at least twenty-one years of age at the time the 18 photograph or recording is made, in which case the violation is a Class 6 felony. Any 19 subsequent violation of subdivision (1) or (2) is a Class 6 felony. A violation of subdivision 20 (3) is a Class 5 felony. 21 Section 2. That a NEW SECTION be added to chapter 22-21: 22 Terms used in § 22-21-4 mean: 23 (1) "Digitally fabricated material," an image, photograph, video, or other visual 24 depiction that: 25 (a) Appears to an ordinary person to be an authentic depiction of an identifiable 26 individual; and 27 (b) Is adapted, generated, or modified to falsely depict an individual's 28 appearance, conduct, or voice; and 29 (2) "Identifiable," recognizable as a specific individual by the individual's face, likeness, 30 or other distinguishing characteristics. 31 26.454.11 3 41 SB41 ENROLLED An Act to revise a provision related to criminal invasions of privacy, prohibit the creation and distribution of digitally fabricated material of an identifiable individual, and provide penalties therefor. I certify that the attached Act originated in the: Senate as Bill No. 41 Secretary of the Senate President of the Senate Attest: Secretary of the Senate Speaker of the House Attest: Chief Clerk of the House Senate Bill No. 41 File No. ____ Chapter No. ______ Received at this Executive Office this _____ day of _____________, 2026 at ____________M. By for the Governor The attached Act is hereby approved this ________ day of ______________, A.D., 2026 Governor STATE OF SOUTH DAKOTA, ss. Office of the Secretary of State Filed ____________, 2026 at _________ o'clock __M. Secretary of State By Asst. Secretary of State