Consent and the Capacity to Consent in Sexual Assault Cases


In the state of Nebraska, any unwanted sexual contact can result in criminal charges. A sexual assault conviction can be devastating to your career and your future. In fact, a sexual assault charge by itself can even cause severe damage to your reputation. One of the biggest issues in sexual assault cases, and rightfully so, is consent and the capacity to consent. Understanding the role that consent plays in these cases can help you to avoid an unwarranted sex assault charge in the future.

Consent in Sexual Assault Cases

Consent is not considered a defense or a factor when the alleged sexual contact occurs with a child. On the other hand, consent always plays a role in sexual assault cases that involve adults. If a victim does not consent to sexual contact and it occurs, it’s a crime in the state of Nebraska. In cases where verbal exchanges are acknowledged (both parties agree that one person said: “Yes. I want to have sex,” or “No. I don’t want to have sex”), it is easy to determine if there is consent or a lack thereof. If there is no clear verbal agreement, then you must look at other aspects of the encounter.

Assuming that an adult has the capacity to consent, that consent can manifest itself in a number of ways. One of the most common ways somebody consents to sexual contact is by physical reciprocation. If an adult has the capacity to consent and actively engages in sexual contact, that will usually be considered consent. The opposite is also true: if a person physically resists sexual contact, that indicates a lack of consent in sexual assault cases.

The Capacity to Consent

While children are considered unable to consent, Nebraska state law takes into account an adult’s inherent capacity to consent in matters that could be considered sexual assault allegations. An intoxicated person, even if normally able to consent to sexual contact, may not be able to affirmatively consent if they have had to much to drink. Mentally handicapped persons are also considered unable to affirmatively consent to sexual contact. What that generally means is that although somebody intoxicated or somebody who has a mental handicap may expressly indicate or act as if they want to engage in sexual conduct or a sexual relationship, the law indicates that the intoxication or the intellectual disability does not allow them to consent to sexual activity.

For example, let’s say a couple who has been dating for a number of years goes to a New Year’s Eve party. At the party, the husband or the wife gets severely intoxicated. For this example, let’s say it’s the wife. Even though those two people may have engaged in sexual contact many times in the past, this situation could result in criminal charges if the wife were so inebriated that she couldn’t consent to sexual contact, even though she has consented to sexual contact many times in the past. Again, intoxication or some other mental capacity can strip a person’s ability to consent to sexual contact. The fact that there was previous sexual contact or the fact that the couple is in a relationship has no bearing on whether criminal charges will be filed.

If charges were filed in the example used above, a good defense attorney would demonstrate a prior history of engaging in sexual contact in instances where one party had been too intoxicated. In this case, the attorney could make the claim that the actor or the person charged with the crime didn’t know that the victim was not consenting to sexual contact and was relying upon past behaviors to suggest that the behavior in the incident was okay.

Who has the Burden in Determining Capacity to Consent?

The burden is on the actor to know whether the person is too intoxicated or has a disability that may make it so that person can’t engage in sexual activity. The burden is always on the actor to make sure that the other person involved can consent. That goes both ways. This means that whether you’re the male or the female, the person who initiates sexual contact must know that the other person is willing and able to consent to that sexual activity.

The Role Age Plays in Sexual Assault Cases

For a number of years, the cutoff age for consent in sex assault cases was 15. Essentially, if you were 16 you could have sex with anybody over the age of 16. But a person who was 15 years of age or under was determined to be legally incapable of giving consent. That law recently changed. Now, the laws suggest that an 18-year-old can have sex with a 14-year-old. If you’re 19, however, you cannot have sex with a 14-year-old. On the other hand, if you’re 25 years of age or older, you can have sex with someone who is 16 or older. So, it’s important to know that at 16 years of age, an individual has the ability to give consent to sexual contact with any person of that age or older. Determining the consent for individuals aged 14-16 can be difficult. The graph below shows the age guidelines for minors in Nebraska.

Age of MinorAge of Other PartyLegality
Less than 14 years of ageAnyIllegal
14-15 years of age14-18 years of ageLegal
14-15 years of age19+ years of ageIllegal
16-18 years of age16+ years of ageLegal


What if Somebody Lies About Their Age?

If an individual lies about their age, it does not make the act legal. There are some facts that a defense attorney could bring up if this were to happen, but it’s ultimately the duty of the actor or the adult to know the age or the capacity of the person with whom he or she is having sex with. So, although a 15-year-old may claim that they are 16 so they can consent to sexual contact, this does not make it legal under Nebraska law.

What are the Different Penalties for Sexual Assault?

Unwanted sexual touching of any person is generally a crime, and the severity of the penalty depends upon whether the victim is an adult or a child and the nature of the sexual contact. Sexual touching of an adult over the clothing is typically a misdemeanor sexual assault. Any unwanted skin-to-skin sexual contact is a felony. And, of course, any sexual contact with a child is a felony.

Dedicated Criminal Defense Attorneys

At Berry Law, our team has defended hundreds of clients facing sexual assault allegations. We understand the severity of these cases and the impact that they may have on a person’s career. If you have been charged with sexual assault, please contact one of our skilled sex crime attorneys to schedule a confidential consultation today.

Leave a Reply

Your email address will not be published.


Call 402-466-8444

to speak to a member of our team today.

Contact Us Today!
Berry Law Firm

    Load More
    Berry Law Berry Law Firm N/A 402-215-0979