62 NSU STUDENT HANDBOOK 2023-24 gun, knife, or other weapon is used which could and probably would result in serious personal injury if the crime were successfully completed.) C. Sexual assault means any offense that constitutes rape, fondling, incest, or statutory rape: 1) Rape has the same meaning as given above in § 3(B)(2)(b). 2) Fondling means the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity. 3) Incest means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by SDCL § 25-1-6, which provides that: Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, or aunts and nephews, and between cousins of the half as well as of the whole blood, are null and void from the beginning, whether the relationship is legitimate or illegitimate. The relationships provided for in this section include such relationships that arise through adoption. 4) Statutory Rape means sexual intercourse with a person who is under the statutory age of sixteen. D. Stalking means: 1) Engaging in a course of conduct directed at a specific person that would cause a reasonable person to: a) Fear for the person’s safety or the safety of others; or b) Suffer substantial emotional distress. 2) For the purposes of this definition: a) Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property. b) Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim. c) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling. E. Consent may be implied from the facts and circumstances surrounding the commission of an act. Consent will not be found where an act has been done through the use of force, coercion, or threats of immediate and great bodily harm. Submission does not equal consent, and to establish consent, a party charged must utterly negate any element of force, coercion, or threat. Consent, once given, may be retracted. Consent will not be found 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
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