Nebraska Marital Rape Laws

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It is a felony in Nebraska for any person to force another to have sex, regardless of the relationship between the two. Simply put, Nebraska’s rape laws criminalize spousal rape.

This article is about Nebraska rape laws. For more information about spousal rape in general, see History of Marital Rape Laws.

Nebraska Sexual Assault Law

Nebraska law makes it a felony for any person to “subject another person to sexual penetration” without the other person’s consent or when the other person was “mentally or physically incapable of resisting or appraising the nature of his or her conduct.” (Neb. Rev. Stat. § 28-319.)

The fact that the alleged rapist and the victim are married does not preclude prosecution.

Under Nebraska law, sexual penetration means genital intercourse, cunnilingus, fellatio, and any penetration, however slight, by any part of the offender’s body or an object into the genital or anal openings of the victim’s body. (Neb. Rev. Stat. § 28-318 (6).) Under this law, penetration can occur without the emission of semen.

No Spousal Exception to Sexual Assault

Until 1976, state laws carried “spousal exceptions” to rape under which a husband who raped his wife could avoid conviction based on the marital relationship. However, Nebraska became the first state to abolish the spousal exception to rape. From that point forward, a rape defendant could not escape prosecution because he was married to his alleged victim. (State v. Willis, 394 N.W.2d 648 (1986).)

Spousal Privilege Not to Testify

As a general matter, spouses cannot be compelled to testify against each other and a criminal defendant can bar his spouse from testifying against him even if she wishes to do so. However, Nebraska law carves out an exception to this privilege where the defendant is charged with a crime of violence, such as rape, against his spouse. (Neb. Rev. Stat. § 27-505.) As a result, a wife may take the stand to testify against her husband if he is charged with raping her.

For more information about spousal privilege, see Can Spouses be Forced to Testify Against One Another?

Nebraska Rape Shield Law

A rape “shield law” generally bars evidence of a rape victim’s past sexual conduct from being admitted during the criminal rape trial. Nebraska, like many states, has a rape shield law, and it specifies that evidence of a rape victim’s past sexual behavior is not admissible in the rape trial unless the defendant offers the evidence to show that:

  • another person (and not the defendant himself) was the source of physical evidence of rape, including semen, blood, saliva, or hair samples, or
  • he and the victim had prior consensual sex if he has already established that the prior consensual sex is related (or similar) to the conduct alleged in the rape, and it tends to establish a pattern of behavior by the victim that is relevant to whether she consented during the alleged rape.

(Neb. Rev. Stat. § 28-321.) This is hardly an air-tight barrier to the introduction of evidence of the victim’s sexual history, especially her sexual history with the defendant under the second exception.

Defenses to Spousal Rape

As with any charge of rape, a defendant in a spousal rape case may raise certain defenses. Here are a few of those.

Consent

As noted, if a defendant can show that the victim actually consented to sex, he will be acquitted. But, if the victim was physically or mentally incapacitated from giving consent (for example, because she was unconscious or severely intoxicated), consent is not available as a defense.

A history of consensual sex of a type similar to that charged as rape may be admitted to aid a defense of consent.

No sexual assault by defendant

Where a defendant can show that he was not the source of physical evidence of the rape, such as by introducing physical evidence of the victim’s sexual conduct with another person, he may be acquitted.

Penalties for Spousal Rape in Nebraska

Sexual assault on a spouse or anyone else is a Class II felony in Nebraska and carries a possible sentence of between one and 50 years in prison. (Neb. Rev. Stat. § 28-105.) The sentencing judge will consider the injuries to the victim in determining the sentence to impose. (Neb. Rev. Stat. § 28-319 (2).) Injuries to be considered include mental anguish, diseases transmitted, and pregnancy. A person convicted of a second offense of sexual assault will receive a mandatory minimum sentence of 25 years in prison, with a maximum sentence of 50 years. (Neb. Rev. Stat. § 28-319 (3).)

See A Lawyer

A charge of sexual assault is always a serious matter that carries a risk of a long prison sentence. If you are charged with any sexual crime, you would be wise to seek a consultation with a criminal defense attorney in your area with experience in handling such cases.

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