Being accused of any criminal offense is certainly something to be concerned about; however, if you have been accused of a sex offense you have even more reason to be concerned given the far-reaching negative repercussions of a conviction for a sex crime. In fact, just being accused of a sex offense can have a negative impact on your career and your personal life. If you find yourself facing accusations relating to a sex offense, keep in mind that being accused is not the same as being convicted. You may, after all, have an excellent defense that will prevent the State of Nebraska from being able to secure a conviction. Consent, for example, is a commonly used criminal defense to allegations relating to sex offenses. Before you start counting on consent as your defense, however, you need to know what “consent” means when used as a defense to a crime and when consent is not a viable defense. Because every criminal prosecution involves a unique set of facts and circumstances, it is always best to have an experienced Nebraska criminal defense attorney review and evaluate your specific case to determine if consent is a viable defense in your case. In the meantime though, it may help to learn more about the criminal defense of consent in Nebraska.
How Is “Consent” Defined in Nebraska?
In the State of Nebraska, the Nebraska Revised Statutes Section 28-318 governs terms associated with sex offenses and defines “without consent” as follows:
(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;
As you can see, the answer to the question whether or not an alleged victim consented is determined by the individual facts and circumstances surrounding the conduct alleged to have occurred. In some cases it is very clear that an alleged victim did not consent; however, it is common as well for it to be unclear as to whether consent occurred or not. Given the nature of the subject matter there are frequently no witnesses to the actual conduct that forms the basis of the criminal accusations. It then becomes a “he said” vs. “she said” debate.
When Is Consent Not a Viable Criminal Defense?
Under some circumstances, consent cannot be a defense without regard to the conduct of the alleged victim. If the alleged victim was under the legal age of consent (usually 17 in Nebraska) or was mentally and/or physically incapacitated to the point that he/she could not legally give consent, you cannot allege consent as a criminal defense if accused of a sex offense. This typically applies in cases where what people commonly refer to as “statutory rape” is alleged to have occurred. A minor cannot legally consent to sexual conduct. It does not matter what the minor said or did, it cannot amount to consent in the eyes of the law. In fact, a minor can even initiate sexual conduct and it is still not considered consent under Florida law. There is a “Romeo and Juliet” exception in Nebraska that allows a person who is at least 16 to consent if the other participant is not more than two years older. The same applies to a victim who does not have the mental capacity to consent. Nothing a mentally disabled victim did or said can be used to form the basis for a consent defense because he/she could not legally give consent.
Contact Us
If you have been charged with a sex offense crime and you believe that the alleged victim consented to the conduct that forms the basis of the allegations against you, it is in your best interest to consult with an experienced Nebraska criminal defense attorney immediately. Contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney today.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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