Sexual Assault Charges and Defenses

Person's hands handcuffed behind their back during a sexual assault arrest in Omaha | Berry Law

Being falsely accused of or charged with a sex crime can be devastating to an individual’s career, relationships, and finances. If convicted of rape, sexual abuse, or other sex-related crimes, penalties can include long prison sentences, fines, lengthy terms of supervised release, and lifetime registration on the Sexual Offender Registry. Even in cases where charges are later dropped or the accused is acquitted, sexual assault or battery charges can stain a reputation for years to come and make it difficult to secure employment in some cases.

If you’ve been accused of or charged with a sexual offense, contact the criminal defense attorneys at Berry Law. They can listen to the charges leveraged against you and recommend a plan for defending yourself in what might be the most important battle of your life.

Sexual Assault

Under Nebraska law, sexual assault occurs when a perpetrator subjects a victim to sexual activity without his or her consent. Examples of unwanted sexual contact include touching, fondling, molestation, forced sodomy, incest, rape, and attempted rape.

Rape is more specifically defined as unwanted oral, anal or vaginal penetration, regardless of how slight, by a body part or object and is a felony offense. The term sexual battery describes any sexual contact with another person’s body without his or her consent with the goal of being sexually gratified, sexual aroused, or for the purpose of sexual abuse.

Defining Consent

Sixteen is the age of consent in Nebraska. Sex between a person 15 years of age or younger and someone who is 19 years of age or older is defined as sexual assault under Nebraska law regardless of whether both parties willingly participated. This is because Nebraska recognizes 16 as the age when a person can legally consent to sex.

For individuals over age 16, the law declares a lack of consent in situations where the victim:

  • Was threatened or forced to have sex.
  • Verbally expressed a lack of consent (he or she said no).
  • Expressed a lack of consent through his or her actions. For example, the victim pulled away from the perpetrator or attempted to push them away.
  • Was deceived or tricked into giving consent.
  • Was asleep, passed out or otherwise unconscious.
  • Was too drunk or high to give consent.
  • Is mentally impaired, developmentally disabled, or has a cognitive impairment.

Nebraska sexual assault law doesn’t require a victim to resist during unwanted sexual contact if it would be dangerous or useless to do so. Even if it’s later found that a victim didn’t resist, unwanted sexual contact can be classified as sexual assault and charges can be filed.

The law also states that there are certain conditions under which a perpetrator should have known that a victim was not mentally or physically able to give consent, such as when the victim is underage, physically frail, mentally or cognitively incapacitated, or intoxicated.


The degrees of sexual assault outlined by state statutes determine the penalties the court can apply in the event that a defendant is convicted of a sex crime in Nebraska. The age of the victim, the age of the perpetrator, whether or not penetration occurred, and injuries inflicted on the victim are all factors in determining the degrees of sexual assault.

First Degree Sexual Assault typically requires that penetration occurred and is punishable by up to 50 years in prison for a first offense or a minimum of 25 years in prison for a second offense. It’s also used in situations where the victim is under the age of consent and the perpetrator is over a certain age, such as in child molestation or incest cases.

When both the victim and perpetrator are over the age of 19 and unwanted sexual contact occurred that resulted in injury to the victim, the perpetrator may be charged with Second Degree Sexual Assault. Penalties can range from one to 20 years imprisonment, two years of post-release supervision, and up to a $25,000 fine.

Third Degree Sexual Assault is a misdemeanor punishable by up to one year in prison and a fine of up to $1,000. Typically used in cases where serious injury didn’t occur to the victim, Third Degree Sexual Assault usually involves issues of consent.

A wrongful sexual offense conviction can be devastating to the course of someone’s life since it requires inclusion on the Sexual Offender Registry. In some cases, this requirement can remain for a lifetime, making it difficult to secure employment or find a place to live for many years following a conviction.

What to Do if You’ve Been Wrongfully Accused of Sexual Assault

Avoid speaking with anyone involved in the case, such as the alleged victim, his or her family or friends, or potential witnesses. Refusing to discuss the allegations with anyone protects a defendant’s Constitutional rights and forces law enforcement to gather their own evidence to build a case. In some situations, a defendant who speaks to others involved in an ongoing investigation could be accused of trying to intimidate a witness or tamper with evidence, which invites other legal implications.

Many people believe that cooperating with police in a sexual assault investigation will signal their innocence and clear their name. However, a poorly worded statement to law enforcement while under stress can later be used as evidence against a defendant in court and lead to a possible conviction.

If you’ve been accused or charged with sexual assault, don’t speak to police without an attorney present. Accused persons have the right to refuse to answer questions and to have representation by counsel during questioning. Hiring an experienced criminal defense attorney will ensure the best possible outcome for your case. The attorneys at Berry Law understand how police will attempt to build a case against you moving forward and can recommend the best strategy for your situation.

While it may feel like an admittance of guilt to hire an attorney, remember that innocent people can still be convicted of crimes they didn’t commit. Securing legal counsel that can listen to your story and determine which defense is best for your case could be the difference between being found innocent or guilty of a crime you didn’t commit.

Common Legal Defenses for Sexual Assault

There are many defenses you can use when facing a sexual assault charge.


Sex is only criminal when it involves non-consensual sexual activity. If evidence is presented to the court that shows that intercourse was consensual, the defendant has not committed a crime and charges may be dropped.

One drawback to a consent defense is that it involves one party’s word against the other’s. Without hard evidence of consent, it can be difficult to prove that sex was consensual, and using an alleged victim’s past sexual history can make a jury unsympathetic toward a defendant.

In cases of statutory rape, where one party is under the age of legal consent, a consent defense can’t be used because the victim is legally incapable of giving consent according to the law.

Lack of Evidence

The burden of proof in a sexual assault case is on the prosecution to show that a sexual assault did in fact take place. Without sufficient evidence, the prosecution may have a difficult time proving that a crime has been committed beyond a reasonable doubt and a jury would be forced to return a not guilty verdict.


If the defense is able to show evidence that the accused is innocent, charges may be dropped. This could include an alibi that proves the defendant was elsewhere during the alleged assault, DNA evidence that exonerates a defendant of the crime, or illustrated misidentification of the defendant by a witness.

False Accusations

While the National Sexual Violence Resource Center has done research that shows that false reporting of sexual assault is low, it does happen. In cases where the defense can demonstrate that an alleged victim falsely reported a sexual assault or had ulterior motives for doing so, charges may be dropped.

There are generally two types of false allegations of sexual assault. The first arises from false memories. In these cases, the alleged victim truly believes he or she was assaulted. The memory of an experience feels so real that the individual is convinced that he or she is remembering something that really happened to them, such as a rape or sexual abuse.

Because very young children are more vulnerable to false memories than adults, this tends to occur more often in that population, especially if a child has been manipulated to believe they were sexually assaulted.

The vast majority of false sexual assault allegations are reported by adults and are intentional in nature. Possible motives for accusing an innocent individual of sexual assault include revenge, jealousy, monetary gain, to create an alibi, to express regret or deny consensual sexual activity, to garner attention or sympathy, anger, mental instability, or to gain leverage in a divorce or child custody case.

If it’s found that someone has made a false accusation of sexual assault, that individual can be held liable in court for both civil and criminal penalties. The injured party can file a personal injury lawsuit and seek reimbursement for monetary damages stemming from having to hire a defense, loss of income and reputation, and other expenses.

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