Fighting False Rape Accusations


While the vast majority of rape allegations are based in fact, approximately two percent of all reports are later proved to be false. These unfounded claims can have devastating consequences for the person accused, including embarrassment and damage to his or her reputation, personal relationships and career.

False accusations of rape occur for many reasons. In some instances, the parties involved may have misread mixed signals or been under the influence of drugs or alcohol during the sexual encounter in question, which can lower inhibitions and impede decision-making. They can also arise from a misunderstanding of what actually constitutes sexual assault in the eyes of the law.

Accusers may make allegations to gain attention or out of embarrassment for their participation in a consensual encounter, or to get back at a former sexual partner due to jealousy or anger. Whatever the reason, rape is a serious accusation with potentially life-changing consequences, and it shouldn’t be handled alone.

If you’ve been wrongfully accused or charged with rape, contact a member of the criminal defense team at Berry Law. They can advise you of your rights and protect your interests as they fight alongside you to prove your innocence.

What is the Definition of Rape in Nebraska?

Rape involves non-consensual intercourse or sexual penetration of the mouth, anus, or vagina by a person or foreign object, regardless of how slight. Rape can occur with or without force. In fact, the state of Nebraska does not require a rape victim to resist during unwanted sexual contact if they feel it would be dangerous or useless to do so.

The dividing line between sex and rape is consent. Two adults must consent and willingly agree to engage in sexual activity. If either was incapacitated due to drugs or alcohol, or if one of the parties is incapable of giving consent due to his or her age, physical incapacitation, or cognitive impairment, then it’s possible for the other party to be charged with rape.

Other scenarios that may demonstrate a lack of consent include the following if the victim:

  • Was threatened or forced to participate in sexual activity against his or her will
  • Verbally expressed a lack of consent
  • Expressed a lack of consent through his or her actions or reactions, such as pulling or pushing away
  • Was deceived or tricked into participating in sexual activity
  • Was asleep, passed out, or otherwise unconscious

How is Rape Charged in the State of Nebraska?

Rape is a first-degree felony offense punishable by up to 50 years in prison for a first conviction and a minimum mandatory sentence of 25 years for a second offense. In addition to long prison sentences, the penalties for rape can also include lengthy terms of supervised release and mandatory lifetime registration on the Sexual Offender Registry.

Requirements to register as a sexual offender can lead to frequent check-ins with law enforcement, lost employment opportunities, difficulty finding new employment, the revocation of professional licenses, lost custody of minor children, and the inability to live in a particular area or neighborhood near schools or playgrounds. Registered offenders may also have difficulty accessing post-secondary education.

What Should I do if I’m Facing False Rape Allegations?

While it can seem daunting to be wrongfully charged with rape, and feelings of anger and frustration may be running high, keep strong emotions in check. An evidentiary hearing is typically held, which allows the defense to speak to the charges being brought against the defendant. Having an experienced criminal defense attorney involved from the get-go generally ensures better outcomes in sexual assault cases.

Hire Representation

Hiring an attorney is not an admission of guilt. Remember, innocent people are charged, convicted, and sentenced to prison for rapes they didn’t commit. There have been cases where individuals served significant time behind bars before they were exonerated on the basis of DNA evidence or because their accuser recanted his or her original statement. Hiring representation is an assurance that someone is looking out for the interests of the defendant.

Avoid Interacting With the Accuser

Don’t talk to the accuser or his or her family members or friends. It may be tempting to call and offer an explanation or defense against the accusations, but doing so may hurt a case in the long run. There have been instances where a defendant who reached out to his or her accuser is later charged with intimidation of a witness or tampering with evidence in addition to the sexual assault charges they were already facing.

If contact with an accuser can’t be avoided because of shared custody of children or employment in the same workplace, be sure to have a third party present during any interactions. This person can serve as a witness and help avoid the possibility of further accusations.

Limit communication to written formats such as text messages or emails so that conversations are documented. Avoid communication over social media accounts entirely.

Have an Attorney Present

Defendants are not obligated to discuss rape allegations with police and have the right to request that their attorney be present while they are being questioned. Doing so protects a defendant’s Constitutional rights and forces law enforcement to gather evidence and build a case.

When an individual is under high levels of stress, as when being charged with a crime, a poorly worded statement or innocent slip of the tongue under pressure can be used against them later in court. Keep in mind that anything a defendant says or does can be used in a trial.

Keep Records

Keep detailed accounts of events and a list of any possible witnesses to the interactions between the accused and the victim. Individuals who can attest to a defendant’s character or provide an alibi for the time of the alleged rape will be helpful later. Share key details and information, regardless of how insignificant it may seem, involving events that led up to the accusations of rape.

What Are Some Common Defenses Against Wrongful Rape Charges?

Only an attorney familiar with the particulars of a case can offer advice on the best defense strategy for the situation. Each case is different, and relying on the expertise of a lawyer who is familiar with the criminal justice system, and how it operates in relation to rape cases, is best. Here are some common defenses against false sexual assault allegations:


The defense in a rape case may attempt to show that two consenting adults participated in the sexual encounter in question. Evidence in the form of text messages, emails, voicemails or witness accounts could be presented to the court to illustrate that intercourse was consensual between the defendant and the accuser. In such cases, a crime has not actually been committed and charges may be dropped.

Consent is a difficult defense in rape cases because it pits the word of the defendant against his or her accuser. Using an alleged victim’s past sexual history as defense evidence can backfire and make a jury unsympathetic toward the defendant.

Using consent as a defense strategy is only a possibility in cases where both parties have reached the legal age of consent, which is 16 years old in Nebraska. For adults 19 or older, sex with anyone 15 years or younger is charged as statutory rape, regardless of whether or not both parties willingly participated because a minor cannot legally consent to sex.

Lack of Evidence

The burden of proving that a crime was committed falls on the prosecution. Without sufficient physical evidence, the state may not be able to prove its case against the defendant beyond a reasonable doubt. If the defense can point to a lack of evidence in the case, a jury may be forced to return a not guilty verdict.

Innocence/Mistaken Identity

A defense attorney in a sexual assault case could present evidence that shows that the accused is innocent by pointing to another suspect. They may also attempt to argue that their client could not have participated in the alleged sexual assault because they have an alibi that makes it impossible for them to have been there at the time of the attack. DNA evidence has exonerated wrongfully accused defendants of rape in some cases.

Impotency or Physical Inability

If a defendant suffers from a medical condition that would leave them unable to participate in sexual activity, an attorney could call a physician to testify to the inability of the accused to engage in intercourse.

False Accusation/Non-Credible Victim

In situations where the accuser may have had an ulterior motive such as revenge, jealousy, monetary gain, or to gain leverage in a divorce or child custody case, a defense attorney may try to discredit their testimony. Likewise, if that individual has shown other signs of mental instability, a jury may consider them an unreliable witness.

False reports of rape are rare, but they do happen. In some cases, an accuser may truly believe that a rape occurred because the memory of the rape feels real to them. This would be more common in young children or in individuals with a significant history of past trauma.

When dealing with an accuser who knowingly and intentionally made a false report, charges may later be brought against that individual.

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