The state of Nebraska recognizes 16 as the age that a person can legally consent to participating in sexual activity. Unfortunately, the laws are not black and white 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, requirements to register on the National Sex Offender Registry 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. 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, molestation, sodomy, incest, rape, or attempted rape.
An adult at least 20 years of age who has sexual relations with a minor under age 16 will be charged with statutory rape under state law. The age of the victim and the perpetrator are typically used as mitigating factors in state sentencing guidelines. The larger the age gap, the harsher the penalties tend to be.
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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 over the age of 12. In some cases, the law outlines specific age differences that are exempt from prosecution under the law. For example, when the older individual is still under age 19, the other party must be at least 13-years-old.
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.
Even with Romeo & Juliet Laws in place, a defendant could still face charges. However, the charges may be reduced from a felony to a misdemeanor offense, and if convicted, the court could exempt them from registering as a sex offender or lessen the length of time registration is required. In some cases, a judge will allow a first offense under these circumstances to be expunged from a defendant’s record as long as there aren’t subsequent incidents.
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
This charge is brought against a suspect accused of sexual penetration without consent at any age. In the case of consensual sex, a victim who is at least 12-years-old is still legally unable to provide consent. Therefore, a suspect who is 19 years or older who engages in a sexual relationship with a child between the ages of 12 and 15 can be charged with First Degree Sexual Assault, regardless of whether either or both parties say the sexual encounter was consensual.
This is a common charge in cases of sexual abuse, molestation, and incest, or in situations where a perpetrator should have known that the victim was under age, physically frail, mentally or cognitively unable to provide consent, or intoxicated.
First Degree Sexual Assault is a Class II felony and punishable by one to up to 50 years in prison.
First-Degree Sexual Assault of a Child
When a person over the age of 19 is accused of subjecting a child under 12 to sexual penetration, or if the accused party is 25 years or older and engages in sexual penetration with a child between 12 and 15, they are charged with First-Degree Sexual Assault of a Child.
If convicted, this charge is a Class 1B felony. Sentencing guidelines require a mandatory minimum sentence of 15 years in prison for a first offense.
Second-or-Third Degree Sexual Assault of a Child
These charges are used when the child is 14-years-old or younger and the perpetrator is older than 19 and can carry charges of up to 50 years imprisonment for a first offense, and a minimum mandatory sentence of 25 years for subsequent offenses.
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 over the years. 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 II 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 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.
In cases where a defendant is under 19, the child portrayed must be at least 15-years-old to be held to these standards. If the older party is under 18, the age difference between them must be less than four years. These exceptions only apply if the child depicted willingly participated and consented to being photographed or filmed and if only one child is portrayed.
It is also illegal for a person under age 19 to knowingly and intentionally possess child pornography that depicts nudity or sexually explicit conduct involving another minor. A minor who is sent photos or videos of other minors depicting nudity, engaged in acts of a sexual nature, or observing sexually explicit acts can be charged with a crime if they store those photos on their phone or computer. This is a Class I misdemeanor, but subsequent violations are considered Class IV felonies, which allow for harsher penalties.
An attorney for a minor client could argue an affirmative defense against Sexually Explicit Conduct and Visual Depictions charges. By providing credible evidence to show that two consenting minors sent sexually explicit content to one another, charges could be dropped or reduced. Examples of evidence for an affirmative defense might include showing the court:
- The explicit material in question was shared with another defendant who is also less than 19-years-old, and the visual depiction is of a minor defendant who is at least 15-years-old or older.
- The photo or video was provided or created by the child it depicts.
- The content contained only that one child.
- The defendant did not provide or make the material available to any other person besides the depicted child.
- The defendant didn’t coerce or threaten the child to create or send the photo or video.
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 ignore the situation or 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. Don’t speak to law enforcement without having an attorney present. Even innocent comments or turns of phrases can be used against you later in a trial.
Avoid talking to anyone else involved in the case, including the alleged victim, his or her family and friends, or other potential witnesses about the charges you’re facing. There have been cases where defendants are accused of threatening or bribing a witness, which can result in additional charges being brought against you.