NEBRASKA SEXUAL VIOLENCE CODES
*Nebraska is a mandatory Public Law 280 state.
Neb. Rev. Stat. § 28-317 declares the Nebraska legislature's intent in enacting the state's sex-based crime laws: to protect the dignity of victims all the way through the judicial process, provide alleged offenders their constitutionally guaranteed due process, and to establish a system of investigation, prosecution, punishment, and rehabilitation of sex crime offenders for the benefit of Nebraska's citizens.
Neb. Rev. Stat. § 28-318 defines the crucial terms used throughout Nebraska's sexual assault statutes. "Without consent" means: the actor used force or threat of force to accomplish the act; the victim's conduct or words signaled lack of consent; or the actor used deception to gain the victim's consent. "Force" or "threat of force" means the use of physical force to overcome the victim's resistance, or the threat of physical force, either directly expressed or implied, against the victim or a third person that inspires fear of death or serious personal injury, where the victim reasonably believes the actor can or will be able to carry out the threat(s). Any verbal or physical resistance by the victim that communicates his/her refusal to consent and reasonably puts the actor on notice of the victim's unwillingness to consent is enough for "non-consensual" or "lack of consent." However, if resistance is futile, the victim is not obligated to resist.
Neb. Rev. Stat. § 28-319 is Nebraska's First Degree Sexual Assault statute. It prohibits sexual penetration under three circumstances: without the victim's consent; penetration by an actor who knew or should have known that the victim was mentally or physically incapable of resisting or understanding the nature of his/her conduct; or penetration by an actor who is at least nineteen years of age with a victim between twelve and sixteen. First degree sexual assault is a Class II felony, and the judge will consider whether or not the victim was seriously injured in sentencing an offender. For offenders who have previously been convicted of first degree sexual assault in any state or in federal court, the court shall sentence that offender to at least twenty-five years in prison.
Neb. Rev. Stat. § 28-320 is Nebraska's Second or Third Degree Sexual Assault statute. It prohibits sexual contact under two circumstances: without the victim's consent; or contact by an actor who knew or should have known that the victim was mentally or physically incapable of resisting or understanding the nature of his/her conduct. If the actor seriously injures the victim, he/she commits Second Degree Sexual Assault, a Class III felony. If the victim suffered no serious injury, the actor commits Third Degree Sexual Assault, a Class I misdemeanor.
Neb. Rev. Stat. § 28-322 defines "inmate or parolee" as any individual confined in a Nebraska State Department of Correctional Services or city or county jail, or under parole supervision. "Person," for purposes of the statutes prohibiting sexual conduct with inmates or parolees, means any employee of the Department of Correctional services, Office of Parole Administration, or any city or county correctional facility/jail, including administrative employees and anyone working under a contract with those departments, and any non-spouse individual who has control over an inmate or their activities. "Person" also includes any individual employed by the Office of Probation Administration who performs official duties within any facility operated by the Department of Correctional Services or a city/county correctional or jail facility.
Neb. Rev. Stat. § 28-367 defines sexual abuse, which includes sexual assault and incest.
Neb. Rev. Stat. § 28-703 is Nebraska's incest statute. It prohibits intermarrying or engaging in sexual penetration with any person who falls within close degrees of familial relationships, or any person who engages in sexual penetration with his or her minor stepchild. The crime of incest is a Class III felony in Nebraska, and an incest victim's testimony carries the same weight as the testimony of any other crime victim.
Neb. Rev. Stat. § 29-4005 covers the Nebraska's registration format, information required for registration, the required consent form, sex offender name changes and duties, penalties for violating the registration requirements, and the information provided to the sheriff.
The procedures for release of information established by the Nebraska State Patrol shall provide for law enforcement and public notification using electronic systems. Information concerning the address or whereabouts of a sex offender may be disclosed to his or her victim or victims.
R.R.S. Neb. § 42-924 establishes Nebraska's procedures for protection order petitions. Any victim of domestic abuse may file a petition and affidavit for a protection order as provided. Upon the filing of such a petition and affidavit, the judge or court may issue a protection order without bond. A valid protection order prohibits the respondent from restricting the liberty of the protected person or threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of the protected person. The order prohibits the respondent from telephoning, contacting, or otherwise communicating with the protected person, removes the respondent from the premises, and prevents the respondent from returning to the protected person's residence, regardless of who owns the property. The order directs the respondent to stay away from any place specified by the court, awards the petitioner temporary custody of any minor children for up to ninety days, and/or orders other measures the judge deems necessary to protect the petitioner and any designated family or household member.
R.R.S. Neb. § 42-928 states that a peace officer will arrest a person with or without a warrant if the officer has probable cause to believe that the person has violated a valid protection order, a violation of an order excluding a person from certain premises, or a violation of a valid foreign protection order and the protected person provides the peace officer with a copy of a protection order or an order excluding a person from certain premises, or the peace officer determines that such an order exists after communicating with the local law enforcement agency.
R.R.S. Neb. § 42-931 states that Nebraska will recognize and enforce valid foreign protection order related to domestic or family abuse issued by a tribunal of another state, tribe, or territory pursuant to the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
"Foreign protection order" means a protection order issued by a tribunal of another state;
"Issuing state" means the state whose tribunal issues a protection order;
"Mutual foreign protection order" means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent;
"Protected individual" means an individual protected by a protection order;
"Protection order" means an injunction or other order issued by a tribunal under the domestic violence, family violence, or anti-stalking laws of the issuing state, to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to, another individual;
"Respondent" means the individual against whom enforcement of a protection order is sought;
"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band that has jurisdiction to issue protection orders; and
"Tribunal" means a court, agency, or other entity authorized by law to issue or modify a protection order.
person authorized by Nebraska law to seek enforcement of a protection order may seek enforcement of a valid foreign protection order in a court or tribunal of this state. The court shall enforce the terms of the order whether the order was obtained by independent action or in another proceeding, if it is an order issued in response to a complaint, petition, or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the court shall follow Nebraska's procedures for the enforcement of protection orders.
A Nebraska law enforcement officer, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were a Nebraska order. Presentation of a protection order that identifies both the protected individual and the respondent and, on its face, is currently in effect constitutes probable cause to believe that a valid foreign protection order exists. For purposes of this section, the protection order may be inscribed on a tangible medium (such as printed out on paper) or may have been stored in an electronic or other medium if it is retrievable in a form the officer can read. Presentation of a certified copy of a protection order is not required for enforcement.
R.R.S. Neb. § 42-936 establishes procedures for registering a foreign order of protection in Nebraska. To register a foreign protection order, an individual shall present a certified copy of the order to the Nebraska State Patrol for the registration of the order, or present a certified copy of the order to another agency designated by the state and request that the order be registered with the Nebraska State Patrol.
R.R.S. Neb. § 42-937 provides immunity for state and local agencies, law enforcement officers, prosecutors, court clerks, or state or local government officials. These individuals and agencies cannot be sued or charged with a crime for registering or enforcing foreign protection orders or arresting alleged violators, as long as he or she acted in good faith to comply with the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
R.R.S. Neb. § 42-940 applies the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act to protection orders issued before January 1, 2004, and to continuing actions for enforcement of foreign protection orders commenced before January 1, 2004. A request for enforcement of a foreign protection order made on or after January 1, 2004, for violations of a foreign protection order occurring before January 1, 2004, is governed by the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
(a) Any individual may register a foreign protection order in this state. To register a foreign protection order, an individual shall:
(1) present a certified copy of the order to the Nebraska State Patrol for the registration of such orders; or
(2) present a certified copy of the order to another agency designated by the state and request that the order be registered with the Nebraska State Patrol.
(b) Upon receipt of a foreign protection order, the agency responsible for the registration of such orders shall register the order in accordance with this section. After the order is registered, the responsible agency shall furnish to the individual registering the order a certified copy of the registered order.
(c) The agency responsible for the registration of foreign protection orders shall register an order upon presentation of a copy of a protection order which has been certified by the issuing state. A registered foreign protection order that is inaccurate or is not currently in effect shall be corrected or removed from the registry in accordance with the law of this state.
(d) An individual registering a foreign protection order shall file an affidavit by the protected individual stating that, to the best of the protected individual's knowledge, the order the petitioner, is currently in effect.
(e) A foreign protection order registered under the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act may be entered in any existing state or federal registry of protection orders, in accordance with applicable law.
(f) A fee shall not be charged for the registration of a foreign protection order.
Nebraska is a mandatory Public Law 280 state that has retroceded criminal jurisdiction back to the Winnebago and Omaha Reservations.