NE Code § 28-319 (2021)
2021 Nebraska Revised Statutes|Chapter 28 - Crimes and Punishments|28-319 - Sexual assault; first degree; penalty.

28-319.  Sexual assault; first degree; penalty.(1) Any person who subjects another person to sexual penetration (a) without the consent of the victim, (b) who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct, or (c) when the actor is nineteen years of age or older and the victim is at least twelve but less than sixteen years of age is guilty of sexual assault in the first degree.(2) Sexual assault in the first degree is a Class II felony. The sentencing judge shall consider whether the actor caused serious personal injury to the victim in reaching a decision on the sentence.(3) Any person who is found guilty of sexual assault in the first degree for a second time when the first conviction was pursuant to this section or any other state or federal law with essentially the same elements as this section shall be sentenced to a mandatory minimum term of twenty-five years in prison.Source   Laws 1977, LB 38, § 34;   Laws 1978, LB 748, § 5;   Laws 1993, LB 430, § 1;   Laws 1995, LB 371, § 4;  Laws 2006, LB 1199, § 5.  Cross References  Registration of sex offenders, see sections 29-4001 to 29-4014.Annotations  1. Constitutionality 2. Defenses 3. Elements 4. Evidence 5. Force 6. Generally 7. Lesser-included offense 8. Sentencing 9. Sexual penetration 10. Miscellaneous 1. Constitutionality A constitutional amendment adding first degree sexual assault to offenses for which bail may be denied, is constitutional and is not violative of the Fourteenth Amendment, Due Process Clause of the U.S. Constitution. Parker v. Roth, 202 Neb. 850, 278 N.W.2d 106 (1979). Statute held to be constitutional and not violative of equal protection under the Fourteenth Amendment. Country v. Parratt, 684 F.2d 588 (8th Cir. 1982). 2. Defenses For criminal prosecutions brought under subsection (1)(a) of this section, the trial court must instruct the jury on the defense of consent when evidence is produced which, under all of the circumstances, could reasonably be viewed by the jury as an indication of affirmative and freely given consent to sexual penetration by the alleged victim. State v. Koperski, 254 Neb. 624, 578 N.W.2d 837 (1998). In a charge of sexual assault on a child, it is no defense that the victim engaged in active concealment or misrepresentation of age, and evidence on the issue of the victim's chastity is irrelevant and inadmissible. State v. Campbell, 239 Neb. 14, 473 N.W.2d 420 (1991). Consent or reasonable mistake as to the age of the victim is not a defense to first degree sexual assault upon a child. State v. Navarrete, 221 Neb. 171, 376 N.W.2d 8 (1985). 3. Elements Subdivision (1)(b) of this section applies to a wide array of situations that affect a victim's capacity, including age. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019). Under subdivision (1)(b) of this section, whether the victim was incapable of consent depends upon a specific inquiry into the victim's capacity, i.e., whether the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019). The victim's lack of consent is not an element of the crime of sexual assault when the victim is incapable of resisting or appraising the nature of his or her conduct. In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018). To prove a lack-of-capacity sexual assault on the basis of a mental impairment, the State must prove beyond a reasonable doubt that the victim's impairment was so severe that he or she was mentally incapable of resisting or mentally incapable of appraising the nature of the sexual conduct with the alleged perpetrator. In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018). A jury instruction on attempted first degree sexual assault is flawed if it fails to state that the defendant’s substantial step must strongly corroborate the defendant’s criminal intent or that the State must prove the defendant intended to subject the victim to sexual penetration without her consent or when she was incapable of resisting or appraising the nature of her conduct. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014). To find a defendant guilty of attempted first degree sexual assault, a jury must find that the defendant intended to subject the victim to penetration without consent or when the victim was incapable of resisting or appraising the nature of his or her conduct and that the defendant took a substantial step that strongly corroborated this intent. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014). Serious personal injury is not an element of first degree sexual assault. It is a factor that a sentencing judge shall take into consideration in imposing sentence. State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004). The victim's lack of consent is not an element of the crime of sexual assault when the victim is incapable of resisting or appraising the nature of his or her conduct. State v. Rossbach, 264 Neb. 563, 650 N.W.2d 242 (2002). Intent is not an element of first degree sexual assault as defined by subsection (1) of this section. State v. Trackwell, 244 Neb. 925, 509 N.W.2d 638 (1994). Only in first degree sexual assault does the State have to prove that the actor subjected the victim to sexual penetration. State v. Narcisse, 231 Neb. 805, 438 N.W.2d 743 (1989). Consent is not relevant and the State need not prove lack of consent for a charge under subdivision (1)(c) of this section. State v. Cramer, 28 Neb. App. 469, 945 N.W.2d 222 (2020). 4. Evidence Under subsection (2) of this section, before imposition of a sentence on a defendant convicted of first degree sexual assault, a sentencing judge is not required to conduct an evidentiary hearing to determine whether the victim has sustained serious personal injury as a result of the sexual assault by the defendant; rather, concerning the question of personal injury to the victim, the judge shall consider information appropriately before the court in the sentencing process. State v. Bunner, 234 Neb. 879, 453 N.W.2d 97 (1990). 5. Force For use of a firearm to subject a victim to sexual penetration by force or threat of force, it is only necessary that the victim be aware of the firearm's presence; that the assailant, in proximity to the firearm and knowing the firearm's location, has realistic accessibility to that firearm; and that the victim reasonably believes that the assailant will discharge the firearm to harm the victim unless the victim submits to the act of the assailant. State v. Dondlinger, 222 Neb. 741, 386 N.W.2d 866 (1986). Removing articles of clothing from a sleeping person, physically spreading her legs, and performing nonconsenual cunnilingus is "force" sufficient to violate the statute. State v. Moeller, 1 Neb. App. 1046, 510 N.W.2d 500 (1993). 6. Generally Cunnilingus, that is, stimulation by the tongue or lips of any part of a female's genitalia, is an act which may subject the actor to prosecution for first degree sexual assault. Once the perpetrator's lips or tongue touches any part of the female's genitalia, the act of cunnilingus is complete, irrespective of any actual penetration of the genitalia. State v. Brown, 225 Neb. 418, 405 N.W.2d 600 (1987). Whatever basis there may have been for assuming that the common-law rule of spousal exclusion was applicable under the former rape law of this state, such assumption was effectively abrogated by the Legislature when it enacted this section. State v. Willis, 223 Neb. 844, 394 N.W.2d 648 (1986). In a prosecution for sexual assault, the prosecutrix may testify on direct examination, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details. State v. Watkins, 207 Neb. 859, 301 N.W.2d 338 (1981). It is sufficient if the victim's testimony is corroborated as to material facts and circumstances which support her testimony as to the principal facts at issue. State v. Red Feather, 205 Neb. 734, 289 N.W.2d 768 (1980); State v. Rhodes, 201 Neb. 576, 270 N.W.2d 920 (1978). 7. Lesser-included offense A trial court is not required to sua sponte instruct on lesser-included offenses, but the trial court may do so if the evidence adduced at trial would warrant conviction of the lesser charge and the defendant has been afforded a fair notice of those lesser-included offenses. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003). Either the State or the defendant may request a lesser-included offense instruction where it is supported by the pleadings and the evidence. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003). Kidnapping is not a lesser-included offense of first degree sexual assault, nor is sexual assault a lesser-included offense of kidnapping; it is not impossible to commit one of these crimes without having committed the other. State v. Maeder, 229 Neb. 568, 428 N.W.2d 180 (1988). Sexual assault of a child is not a lesser-included offense of first degree sexual assault of a child. State v. Putz, 11 Neb. App. 332, 650 N.W.2d 486 (2002). Sexual assault in the second degree is not a lesser-included offense of sexual assault in the first degree. State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997). Sexual assault in the third degree is not a lesser-included offense of sexual assault in the first degree. State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997). 8. Sentencing Under subsection (2) of this section, before imposition of a sentence on a defendant convicted of first degree sexual assault, a sentencing judge is not required to conduct an evidentiary hearing to determine whether the victim has sustained serious personal injury as a result of the sexual assault by the defendant; rather, concerning the question of personal injury to the victim, the judge shall consider information appropriately before the court in the sentencing process. State v. Bunner, 234 Neb. 879, 453 N.W.2d 97 (1990). A sentence of thirty-five years without the possibility of parole for first degree sexual assault, second offense, did not constitute cruel and unusual punishment. State v. Brand, 219 Neb. 402, 363 N.W.2d 516 (1985). 9. Sexual penetration When a defendant is charged with first degree sexual assault under this section, the issue is not whether the defendant had sexual intercourse with the victim; rather, the issue is whether the defendant achieved even the slightest penetration. State v. Faatz, 234 Neb. 796, 452 N.W.2d 751 (1990). Only in first degree sexual assault does the State have to prove that the actor subjected the victim to sexual penetration. State v. Narcisse, 231 Neb. 805, 438 N.W.2d 743 (1989). 10. Miscellaneous Evidence was sufficient to support a conviction for first degree sexual assault where the victim testified she did not consent to having sex with anyone on the night of her party, an attendee at the party testified that the defendant said he had sex with the victim, and there was abundant testimony about the victim's intoxication. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020). The definition of "mentally incapable" could have been excluded from the court's instructions, as the language of subdivision (1)(b) of this section is sufficiently clear that a definitional instruction would not normally be necessary. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019). The evidence was sufficient to support a finding that a 10-year-old victim was incapable of appraising the nature of sexual conduct where the expert testimony provided an explanation of the brain capacities and reasoning abilities of a normal 10-year-old child and opined that the victim appeared to be a normally developed 10-year-old child. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019). The trial court's ambiguous instruction was harmless error because the potential ambiguity did not in fact mislead the jury, because the instructions taken as a whole, combined with the evidence and arguments presented at trial, clarified the ambiguity of "because of the victim's age" such that the jury understood "age" in this context to be a subjective review of the victim's developmental age. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019). Using the phrase "because of the victim's age" to preface the term "mentally incapable" is ambiguous as to whether age can be the sole basis for a finding that the victim was mentally incapable, without an individualized assessment of the victim's maturity. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019). Attempted first degree sexual assault on a child is a crime in Nebraska. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003). First degree sexual assault under subsection (1)(a) of this section is a general intent crime. State v. Sutton, 16 Neb. App. 287, 741 N.W.2d 713 (2008). Whether expert testimony is required to prove that a victim is physically or mentally incapable of consenting to or appraising the nature of the sexual contact is to be determined on a case-by-case basis; it was not required when a psychotherapist who specialized in treating sexually abused children used his training and experience to abuse his stepdaughters. State v. Collins, 7 Neb. App. 187, 583 N.W.2d 341 (1998).