In Nebraska, an individual 16 years or older can legally consent to participating in sexual activity. Unfortunately, the laws are quite confusing when it comes to consensual sex and participants’ ages. There have been many cases where a person who believed that they were engaging in consensual sex was later faced with statutory rape or sexual assault charges.
A wrongful sex crime conviction can have far-reaching consequences on an individual’s ability to work and build relationships in the future. They may face time in prison and large monetary fines. Along with the stain on a person’s reputation, and require him or her to register on the National Sex Offender Registry, which often make finding a job or a place to live difficult.
If you have been charged with statutory rape or sexual assault and have questions about the legal age of consent in the state of Nebraska, contact the attorneys at Berry Law. They can advise you of your rights and how state statutes that address the age of consent will influence the charges leveraged against you.
Consent in Nebraska
Society, and by extension the law, is increasingly recognizing that consent is more than a victim saying no to sexual advances. Depending on the circumstances, it can also mean that there was an absence of an enthusiastic yes. Nebraska doesn’t require victims of sexual assault to resist during unwanted sexual contact if it would be dangerous or useless. Accused perpetrators of sexual assault can be charged regardless of whether an alleged victim resisted.
For the purpose of discussing consensual sexual activity and the law, Nebraska classifies an adult as someone who is 19-years-old or older. State statute gives 16-year-olds the ability to consent to sexual activity with someone who is an adult under this definition. Sex between a person who is 15-years-old or younger and someone over age 19 is classified as sexual assault under Nebraska law, regardless of whether or not both parties willingly participated.
In such cases, consent can’t be used as a defense because the victim is not legally able to give his or her consent. Sexual assault occurs when a perpetrator subjects a victim to sexual activity that can include touching, fondling, fellatio, and intercourse.
Nebraska’s Romeo & Juliet Laws
The state recognizes that consenting, age-mate partners should be protected from prosecution for sexual assault. Romeo & Juliet Laws are meant to protect minors from facing criminal charges for having consensual sex with other minors.
Under these provisions, anyone 18 years of age or under can’t be convicted of statutory rape if the other consenting party is at least 12 years old. In some cases, the law outlines specific age differences that are exempt from prosecution under the law. For example, when a 17- and 15-year-old have consensual sex, the 17 year old cannot be charged with sexual assault.
Romeo & Juliet Laws do not protect situations in which the elder party is accused of abusing a relationship of power with the younger, even where there may be consent. This would include teacher-student relationships. The laws also don’t apply when the sexual activity contained violence or threats of violence, such as blackmail or physical abuse.
Explaining Sexual Assault Offenses According to Nebraska Law
Charges of sexual assault are assigned according to the nature of the offense and the ages of the victim and perpetrator. State statute outlines the sentencing guidelines and penalties that a court can apply to a defendant who is convicted of a sex crime.
First-Degree Sexual Assault
First-degree sexual assault occurs when the actor subjects another to sexual penetration (1) without consent of the victim, (2) when the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct, or (3) when the actor is 19 years old or older and the victim is between 12 and 15 years old.
First Degree Sexual Assault is a Class II felony and punishable by a minimum of one year and a maximum of 50 years in prison.
First-Degree Sexual Assault of a Child
First-degree sexual assault of a child occurs when (1) the actor, who is at least 19 years old, subjects another, who is under 12 years old, to sexual penetration or (2) the actor, who is at least 25 years old, subjects another, who is between 12 and 15 years old years old, to sexual penetration.
The penalty for first-degree sexual assault of a child is a Class 1B felony. Sentencing guidelines require a mandatory sentence of 25 years in prison and a maximum sentence of life.
Second-or-Third Degree Assault
Second- or third-degree sexual assault occurs when the actor, subject another to sexual contact (1) without consent or (2) when the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct. Whether the sexual contact is classified as second- or third- degree sexual assault of a child depends on whether the offender caused serious personal injury to the victim. A conviction for second-degree sexual assault can carry up 25 years imprisonment. A conviction for third-degree sexual assault can carry charges of at a maximum of 1 year imprisonment and/or up to a $1,000 fine.
Second-or-Third Degree Assault of a Child
Second- or third-degree sexual assault of a child occurs when the actor, who is at least 19 years old, subjects another, who is under 14 years old or younger to sexual contact. Whether the sexual contact is classified as second– or third– degree sexual assault of a child depends on whether the offender caused serious personal injury to the victim. A conviction for second-degree sexual assault can carry charges of at least 1 year imprisonment and up to 50 years imprisonment for a first offense. A conviction for third-degree sexual assault can carry charges of at a maximum of 3 years imprisonment and post release supervision, and/or up to a $10,000 fine.
Sexually Explicit Conduct/Visual Depictions Charges
With the rise of electronics, social media, and the Internet, the availability of sexually explicit photos and videos involving minors has increased. Possessing and distributing child pornography is illegal. Regardless of whether a minor has reached the age of consent, possession of sexually explicit material in which they are depicted is a Class IIA Felony for anyone over age 19. For example, a 16-year-old may legally consent to sexual activity with a 20-year-old, but the 20-year-old may not legally possess sexually explicit photos or videos portraying the 16-year-old.
An adult can be charged for knowingly possessing child pornography, including photos or videos that depict nudity or sexual acts involving an underage person. Even if the child is not participating in the sexual acts depicted, it’s illegal to portray an underage person even observing sexually explicit activity.
Confusion arises when minors voluntarily send or receive sexually explicit material depicting themselves to one another. The law recognizes that these are different scenarios involving willing participants. While age may not fully absolve a defendant of responsibility, the court views the charges and potential penalties in a different light when two minors are involved. Because the laws are very precise regarding this issue, it’s best to contact an attorney.
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What to Do If You’re Accused of Statutory Rape or Sexual Assault
While being charged with statutory rape or sexual assault is frightening, don’t try to smooth things over with your accuser and his or her family or friends. You may be hoping the charges go away on their own, but the most important step you can take is to contact an experienced criminal defense attorney who can advise you on what to do next. The attorneys at Berry Law have the background and knowledge you need to successfully defend yourself against statutory rape or sexual assault charges.
