Nebraska Revised Statute 28-318

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Chapter 28

28-318.

Terms, defined.

As used in sections 28-317 to 28-322.05, unless the context otherwise requires:

(1) Actor means a person accused of sexual assault;

(2) Intimate parts means the genital area, groin, inner thighs, buttocks, or breasts;

(3) Past sexual behavior means sexual behavior other than the sexual behavior upon which the sexual assault is alleged;

(4) Serious personal injury means great bodily injury or disfigurement, extreme mental anguish or mental trauma, pregnancy, disease, or loss or impairment of a sexual or reproductive organ;

(5) Sexual contact means the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts. Sexual contact also means the touching by the victim of the actor's sexual or intimate parts or the clothing covering the immediate area of the actor's sexual or intimate parts when such touching is intentionally caused by the actor. Sexual contact includes only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party. Sexual contact also includes the touching of a child with the actor's sexual or intimate parts on any part of the child's body for purposes of sexual abuse by a school employee under section 28-316.01 or sexual assault of a child under sections 28-319.01 and 28-320.01;

(6) Sexual penetration means sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the actor's or victim's body or any object manipulated by the actor into the genital or anal openings of the victim's body which can be reasonably construed as being for nonmedical, nonhealth, or nonlaw enforcement purposes. Sexual penetration shall not require emission of semen;

(7) Victim means the person alleging to have been sexually assaulted;

(8) Without consent means:

(a)(i) The victim was compelled to submit due to the use of force or threat of force or coercion, or (ii) the victim expressed a lack of consent through words, or (iii) the victim expressed a lack of consent through conduct, or (iv) the consent, if any was actually given, was the result of the actor's deception as to the identity of the actor or the nature or purpose of the act on the part of the actor;

(b) The victim need only resist, either verbally or physically, so as to make the victim's refusal to consent genuine and real and so as to reasonably make known to the actor the victim's refusal to consent; and

(c) A victim need not resist verbally or physically where it would be useless or futile to do so; and

(9) Force or threat of force means (a) the use of physical force which overcomes the victim's resistance or (b) the threat of physical force, express or implied, against the victim or a third person that places the victim in fear of death or in fear of serious personal injury to the victim or a third person where the victim reasonably believes that the actor has the present or future ability to execute the threat.

Annotations

  • 1. Jury instruction

  • 2. Sexual contact

  • 3. Sexual penetration

  • 4. Deception

  • 5. Miscellaneous

  • 1. Jury instruction

  • Jury instruction approved, defining cunnilingus as including licking, kissing, sucking, or otherwise fondling the sex organ of a female with the mouth or tongue. State v. Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984).

  • 2. Sexual contact

  • In the context of a conviction for third degree sexual assault under section 28-320, evidence of physical contact between the defendant's penis and the victim's shin was sufficient to support a finding of "sexual contact" as defined in subdivision (5) of this section. State v. Fuller, 279 Neb. 568, 779 N.W.2d 112 (2010).

  • In proving sexual contact, the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such a purpose. State v. Osborn, 241 Neb. 424, 490 N.W.2d 160 (1992).

  • "Sexual contact," as defined in subsection (5) of this section, is established when the State proves that defendant intentionally touched the victim's underpants in the area between the legs. State v. Andersen, 238 Neb. 32, 468 N.W.2d 617 (1991).

  • In proving "sexual contact," defined in subdivision (5) of this section, the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such a purpose. State v. Berkman, 230 Neb. 163, 430 N.W.2d 310 (1988).

  • Under subdivision (5) of this section, sexual contact means the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts, and it includes only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party. State v. Cheloha, 25 Neb. App. 403, 907 N.W.2d 317 (2018).

  • In proving sexual contact, as defined in subdivision (5) of this section, the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such purpose. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).

  • Nebraska does not criminalize sexual contact for the purpose of humiliating or degrading a person. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).

  • The issue of intent of sexual gratification in minors must be determined on a case-by-case basis, and the fact finder must consider all the evidence, including the offender's age and maturity, before deciding whether intent can be inferred. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).

  • Without some evidence of the child's maturity, intent, experience, or other factor indicating his or her purpose in acting, sexual ambitions must not be assigned to a child's actions. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).

  • 3. Sexual penetration

  • Pursuant to subdivision (6) of this section, fellatio meets the definition of penetration regardless of whether the victim is forced to fellate the defendant or the defendant fellates the victim. State v. Garcia, 311 Neb. 648, 974 N.W.2d 305 (2022).

  • The slightest intrusion into the genital opening is sufficient to constitute penetration, and such element may be proved by either direct or circumstantial evidence. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).

  • Penetration need not be penile to be sufficient to establish first degree sexual assault. State v. Shepard, 239 Neb. 639, 477 N.W.2d 567 (1991).

  • The act of fellatio constitutes a sexual penetration within the meaning of this section. State v. Gonzales, 219 Neb. 846, 366 N.W.2d 775 (1985).

  • The slightest penetration of the sexual organs is sufficient, if established beyond a reasonable doubt, to constitute the necessary element of penetration in a prosecution for first degree sexual assault. State v. Tatum, 206 Neb. 625, 294 N.W.2d 354 (1980).

  • 4. Deception

  • A conviction for first degree sexual assault through the use of deception was supported by evidence that the victim, a young aspiring Olympian who trained at the defendant's gym, was told by the defendant that he needed to sexually penetrate her with his fingers to "adjust" her pelvis, that the defendant was 35 years older than the victim, that the defendant used deception for years to obtain the victim's consent and escalate the nature of the sexual penetration, and that the defendant told the victim that the penetration was necessary for "recovery" when she protested. State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).

  • The word "deception" means words or conduct, or both words and conduct, causing the victim to believe what is false. State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).

  • Under subdivision (8)(a)(iv) of this section, consent to sexual penetration that was the result of the actor's deception as to the identity of the actor qualifies as being without consent. State v. Prado, 30 Neb. App. 223, 967 N.W.2d 696 (2021).

  • 5. Miscellaneous

  • Pursuant to subdivision (6) of this section, fellatio is defined as the oral stimulation of the penis for the purpose of sexual satisfaction. State v. Garcia, 311 Neb. 648, 974 N.W.2d 305 (2022).

  • "[C]oercion," under subdivision (8)(a)(i) of this section, includes nonphysical force. State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).

  • Sufficient evidence existed to establish sexual contact when the defendant touched the buttocks of a 12-year-old girl over her clothing on multiple occasions, coupled with the defendant's position of authority over the victim, his knowledge of her "tough" upbringing, and his watching pornography immediately after touching the victim on one occasion. State v. Cheloha, 25 Neb. App. 403, 907 N.W.2d 317 (2018).