Types of Rape Charges and Potential Defenses


Allegations of rape can have long-lasting effects on a person’s life, even when those allegations are later found to be false. Such accusations leave a mark on your good name and can make it difficult to secure employment or housing for years to come.

Rape is a form of sexual assault. Charges for sexual assault in Nebraska can range from a misdemeanor offense to a Class II felony punishable by up to 50 years in prison. In addition to possible prison time, facing rape charges in Omaha can result in fines and mandatory registration on the Nebraska Sexual Offender Registry. If charged with a felony offense, you could also lose your civil liberties, including the right to own a firearm or to vote in elections.

If you’ve been accused of rape, contact the criminal defense team at Berry Law. Their attorneys have the experience you need to build a defense against sex crime charges. They can intervene on your behalf to secure the best possible outcome for your situation, protect your rights, and defend your reputation.

What is Sexual Assault as it Relates to Rape?

The state of Nebraska recognizes three degrees of sexual assault. Those designations determine the sentencing guidelines for sex crime convictions. Lack of consent is a critical factor in all sexual assault and rape cases. First-degree sexual assault is what the general public most often associates with the crime of rape, but sexual assault can encompass any sexual contact that is non-consensual in nature.

Third-Degree Sexual Assault

Sexual assault in the third degree occurs when there is any non-consensual sexual contact or touching between parties, or if the accused individual ignored a victim’s mental or physical disability in such a way that would have prevented that person from giving consent. In third-degree sexual assault cases, the assault does not result in any serious bodily harm to the victim.

Third-degree sexual assault is a Class I misdemeanor. Sentencing guidelines for this charge can include up to one year in jail and/or a $1,000 fine, as well as a possible requirement to register as a sexual offender.

Second-Degree Sexual Assault

Any sexual contact or touching without consent, or willfully ignoring a victim’s mental or physical disability that would have prevented them from being capable of consent, and that also results in serious bodily harm to the victim, is charged as second-degree sexual assault.

Punishable by up to 20 years in prison, second-degree sexual assault is a Class IIA felony.

First-Degree Sexual Assault

Sexual assault in the first degree, which includes rape, is defined as any non-consensual sexual penetration, which can include sexual intercourse, digital penetration, oral sex, sodomy, or any other sexual activity involving penetration.

A person can be charged with first-degree sexual assault in cases where the victim was sleeping, incapacitated by drugs or alcohol, or too young to legally give consent during the sexual encounter. Forcible penetration, in which the sexual encounter occurred without consent and by force is a common reason for rape charges. All second-and first-degree sexual assault convictions require registration on the Sexual Offender Registry.

What Are the Penalties for Rape in Omaha?

Nebraska statue 28-319 specifically outlines the conditions necessary for first-degree sexual assault charges to apply under the law. An individual who subjects another person to sexual penetration without his or her consent  can be charged with first-degree sexual assault.

Further, perpetrators who knew or should have known that a victim was mentally or physically incapable of resisting or of understanding the nature of the sexual encounter that they participated in, can be charged with first-degree sexual assault.

Defendants who are 19 years of age or older who are accused of sexual penetration of a victim who is at least 12, but less than 16 years of age can also be charged under this offense.

First-degree sexual assault is a Class II felony. It carries a potential prison sentence of between one and 50 years, with the possibility of a lifetime requirement to register as a sexual offender. A judge may give consideration during sentencing as to whether or not the victim sustained serious personal injury caused by the defendant, which could result in a longer sentence than if the victim was unharmed.

Second convictions for sexual assault in the first degree are subject to a mandatory minimum sentence of 25 years in prison under sentencing guidelines. When rape occurs in conjunction with other crimes, additional charges may be added to the sexual assault charge. It’s common for prosecutors in Omaha to file false imprisonment charges alongside first-degree sexual assault charges.

Are There Other Charges that Can Stem from an Allegation of Rape?

Rape allegations often involve accusations that the defendant knowingly restrained or abducted his or her accuser during the rape. False imprisonment in the first degree is a Class IIIA felony that could add up to an additional three years to a prison sentence if convicted, as well as a possible $10,000 fine. False imprisonment in the second degree may be used when the defendant is accused of knowingly restraining a victim without the proper legal authority to do so. This charge is a Class I misdemeanor, and carries a lesser sentence of up to one year in prison and a $1,000 fine.

In some cases, a person accused of rape could also face kidnapping charges if the prosecutor alleges that the defendant abducted the victim and restrained them for the purpose of seeking a ransom, to terrorize them, or to commit a felony, such as rape. Kidnapping is a Class IA felony, with an additional possible term up to life in prison if convicted.

When the kidnapped individual is voluntarily released without suffering serious bodily injuries, the kidnapping charges may be reduced to a Class II felony with a prison term between one and 50 years.

What is Statutory Rape?

In sexual assault cases involving a minor, the accused is typically charged with statutory rape. Statutory rape occurs when the age difference between the alleged perpetrator and the victim doesn’t allow for legal consent to sexual activity under state law. Even if both parties willingly participated in sexual activity, consent is not a defense for statutory rape cases because the victim has not reached the legal age of consent as it’s set by the state of Nebraska.

What are Possible Defenses Against Rape Charges?

You are innocent until proven guilty in the eyes of the court, and you have the right to refuse to speak with law enforcement until you can consult with your lawyer. Telling your story to police right away may feel like it will prove your innocence, but it could make the situation worse. Easy-to-fumble words or the wrong turn of phrase while under stress could be used against you later in court.

If you’ve been accused or charged with rape or sexual assault, it’s best to consult with an attorney experienced in defending rape cases immediately. They can begin building a defense against false rape allegations that could threaten your reputation, your livelihood, your relationships and your freedom.


If the victim of a sexual assault has passed the legal age of consent, a defense attorney could attempt to show that he or she consented to the sexual encounter in question with the defendant. Through the testimony of witnesses, an attorney may be able to prove that the alleged victim admitted that the encounter was consensual. Text messages, emails, photos, or social media accounts could also be used to illustrate admission of consent.

This is a difficult defense to prove because it usually comes down to the defendant’s word against the victim’s.

Lack of Evidence

The prosecution in many sexual assault cases is working solely from the victim’s testimony that states that he or she was raped. A defense attorney may point out the lack of any physical evidence to prove that a crime occurred or that the physical evidence present points to another suspect. DNA tests can be particularly helpful in excluding the defendant as a suspect entirely.


If the defense can present an alibi that proves the defendant could not have committed the crime because he or she was in another location during the time the assault occurred, charges may be dropped. An attorney may also point to additional evidence suggesting the true identity of the victim’s attacker or evidence that shows the victim simply misidentified their attacker by mistake.

False Allegations

While the vast majority of sexual assault reports are rooted in truth, false rape allegations can and do occur either intentionally or because the alleged victim is mistaken or confused. Mistakes made by law enforcement in sexual assault investigations can lead to false rape allegations as well.

False allegations can stem from a number of factors, including regret, confusion, fear of another’s reaction, revenge, or jealousy. Charges can be brought against an accuser who intentionally makes false rape allegations so that justice can be restored and innocent names can be cleared.

Contact a Defense Attorney Today

The criminal defense team at Berry Law has secured not guilty verdicts for many clients who have been wrongly accused of rape. Let them work for you.

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