Sixteen is the age of consent in Nebraska, and adults who engage in sexual activity with children under that age may face criminal charges for statutory rape (also called sexual assault in Nebraska).
Nebraska has different degrees of sexual assault, based on the age of the child and the defendant. In statutory rape cases, the determinative fact is age of the victim and, in states like Nebraska, the age of the defendant. It does not matter whether the underage person consents to or initiates the sexual activity, because lawmakers have determined that a person under “the age of consent” is legally unable to agree to sexual activity with adults.
Of course, people who commit sex acts against others without their consent can also be charged and convicted of sex crimes, assault, or both. (For more information on assault crimes in Nebraska, see our articles on misdemeanor assault in Nebraska, and felony assault in Nebraska.)
Getting Legal Guidance
The information in this article provides an overview of the law relating to statutory rape. If you are trying to determine the legality of any kind of conduct, make sure to consult an experienced criminal defense attorney. The law is complex and changes regularly.
Sexual assault of a child in the first degree. Under Nebraska’s laws, a person commits the crime of first degree sexual assault of a child (the most serious type of statutory rape) by:
Sexual penetration includes intercourse, oral and anal sex, and any penetration of the sexual parts of the victim’s body or the defendant’s body. (Neb. Rev. Stat. Ann. §§ 28-318, 28-319.01 (2018).)
Sexual assault in the first degree. A person who is at least 19 years old but under the age of 25 who engages in sexual penetration with a child who is at least 12 years old but under the age of 16 commits the crime of first degree sexual assault. While first degree sexual assault is still a very serious crime, it is punished less severely than first degree sexual assault of a child. (Neb. Rev. Stat. Ann. §§ 28-318, 28-319 (2018).)
For example, a 26-year-old man who has oral sex with a 15-year-old girl could be convicted of first degree sexual assault of a child. If the man were only 21 years old, then he could only be convicted of first degree sexual assault.
A person who is at least 19 years old who engages in sexual activity short of penetration with a child who is 14 years of age or younger also commits a crime in Nebraska (third degree sexual assault of a child). For example, a 20-year-old who fondles the buttocks of a 13-year-old could be convicted of third degree child sexual assault. (Neb. Rev. Stat. Ann. §§ 28-318, 28-320.01 (2018).)
People who lure or try to lure children to engage in sexual conduct can be convicted of the crime of child enticement, even if there is never any actual sexual contact between the child and the adult. One common scenario that can result in criminal prosecution for enticement is an adult engaging in sexually explicit talk with a child (or someone posing as a child) over email or instant messaging. (Neb. Rev. Stat. Ann. § 28-320.02 (2018).)
Defendants charged with statutory rape have the usual defenses available to all criminal defendants, starting with “Someone else committed this crime” and arguing that the asserted conduct did not take place.
Nebraska’s lawmakers have enacted a “Romeo and Juliet” exception, named after Shakespeare’s famous young lovers, to protect young people from criminal charges for participating in consensual sexual activity with other young people. Under Nebraska’s laws, people age 18 years old and younger cannot be convicted of statutory rape. For example, a 17-year-old who has consensual sex with a 15-year-old cannot be convicted of sexual assault under Nebraska’s laws. (Neb. Rev. Stat. Ann. §§ 28-318, 28-319, 28-319.01 (2018).)
However, it is always a serious crime for someone who is 19 years old or older to engage in sexual activity with someone younger than 16, and a conviction for doing so can result in significant prison time.
It is not a defense to a charge of statutory rape that the defendant believed the child to be of age, even if the child actively conceals or misrepresents his or her age. (State v. Campbell, 239 Neb. 14, 473 N.W.2d 420 (1991).) Sometimes in statutory rape cases, teens have lied to the defendants and others about their ages. It does not matter. If a child is under the age of 16, an adult can be prosecuted for statutory rape, no matter how reasonable it may have been to believe the child.
In many states, it is a defense to a charge of statutory rape that the defendant and the child are married, but not in Nebraska. Nebraska was the first state to abolish the marital rape exemption, and it did so for statutory rape cases as well as forcible rape cases.
First degree sexual assault of a child is a Class IB felony, punishable by at least 15 years (and up to life) in prison. First degree sexual assault is a Class II felony, punishable by one to 50 years in prison. Sexual assault of a child in the third degree is a Class IIIA felony, punishable by up to three years in prison, a fine up to $10,000, or both.
Second and subsequent convictions for sexual assault and sexual assault on a child are punished even more severely, often by mandatory minimum terms of 25 years in prison.
(Neb. Rev. Stat. Ann. §§ 28-105, 28-319, 28-319.01, 28-320.01 (2018).)
People who are convicted of engaging in sexual penetration or other sexual conduct with children who are underage are required to register as sex offenders in Nebraska. Most sex offenders must register for 25 years, some for life. (Neb. Rev. Stat. Ann. §§ 29-4003, 29-4005 (2018).)
A conviction for sexual assault can have serious and lasting consequences, including time in prison and sex offender registration. If you are charged with sexual assault in Nebraska, you should talk to a local criminal defense attorney about your case. An attorney can tell you what to expect in court, protect your rights, and prepare your case to obtain the best possible outcome.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated September 20, 2018