PIERRE, S.D. (KELO) — A proposal clarifying the legal definition of rape is advancing in the South Dakota Legislature.

But a companion measure that would treat a victim’s silence as a refusal of consent isn’t faring as well.

Republican Sen. Tim Reed took the two bills to a Senate Judiciary Committee hearing Tuesday. The panel endorsed both SB-90 and SB-91. They’ll be debated by the Senate later this week.

The fight is how to treat a person who isn’t incapable or incapacitated but doesn’t consent and doesn’t say no — in other words, stays silent or freezes.

Republican Sen. David Wheeler added an amendment to the ‘silence’ bill to require that “the perpetrator knows or reasonably should know the victim is not consenting” for the act to be fourth-degree rape.

Reed told Wheeler it was an unfriendly amendment.

Reed said the person needs to clearly consent. “What we’re talking about here is cooperation,” Reed said.

Lara Roetzel, a former Pennington County state’s attorney, said she learned in 27 years as a prosecutor that people can’t choose how they’ll respond in a traumatic circumstance. She said the response in the “animal kingdom” often is to freeze in order to survive trama.

“We’ve all heard or seen ‘playing possum,’” Roetzel said.

But Terra Larson, representing the South Dakota Association of Criminal Defense Lawyers, said by not requiring the perpetrator to have knowledge turns fourth-degree rape into a strict-liability crime. State law already says fourth-degree rape is subject to 15 years in prison and a lifetime listing on the sex-offender registry.

“It doesn’t matter if you’ve done it a hundred times in the past,” Larson said about what could go amiss. “It doesn’t matter if the person was just reading the signals wrong.” She noted that it also could be misused by a spouse seeking the house and custody of children in a divorce proceeding.

Larson said Minnesota’s law, by comparison, carries a two-year maximum sentence for a first offense in that situation of silence, with the ability to get off the sex-offender registry, while the second offense is a seven-year max.

Said Wheeler about the danger posed by Reed’s original proposal, “If they thought they had consent but they didn’t, that’s a huge change in that person’s life.”

Reed also ran into difficulties last year when he tried to better define rape in a single bill. It rolled through the House, but his Senate prime — Wheeler — wasn’t able to get it out of a Senate hearing.