Sexual assault allegations can cause confusion, anxiety, shame, fear and panic. However, an experienced sexual assault attorney who has successfully navigated such cases, and who has specific knowledge of statutes, law enforcement officers and judges in the geographic area, can ensure everyone’s rights are defended and outcomes are as fair and legal as possible. For those who have been accused, this can be the most important fight of their lives and it’s important to have a legal advocate who will fight hard on their behalf.
All sexual assault allegations are serious and have the potential for devastating consequences. It’s a reality that what can seem like a minor issue or clear misunderstanding has the potential to spiral out of control, resulting in serious, lifelong consequences even for false accusations. The accused not only faces prison time, but also mandatory sex offender registration.
Sexual assault cases can be complicated, because it doesn’t take much to accuse someone and precipitate an arrest. An allegation alone is enough for an arrest. Unlike other criminal cases, witnesses and evidence are not required. Where does one begin to fight for his or her rights? It may be helpful to start with an understanding of three underlying ideas:
1. The best time to hire a sexual assault attorney is as soon as possible. A person facing sexual assault allegations was presumed guilty when law enforcement officers first learned of the allegation. It’s natural to want to cooperate. However, a person of interest in any investigation must remember anything they say can be used against them. It’s easy to admit facts that could be twisted by prosecutors prove guilt in a courtroom. For example, even admitting presence at a location when alleged sexual contact happened can be used by a prosecuting attorney. When officers begin asking questions, immediately exercising Miranda rights to stay silent and consult an attorney could avoid problems later. An attorney can help the accused deal with law enforcement in a manner less likely to be damaging.
2. Believing “the truth will prevail” with sexual assault allegations is not enough. The first thought of anyone who faces this charge is often that the court and law enforcement will do whatever it takes to seek the truth and support a fair outcome. Unfortunately, especially with the nation’s recent heightened focus on sexual assault and sexual harassment, even the slightest sex crime accusation can have serious personal consequences. Law enforcement officers, judges and juries are human, and like everyone else tend toward an automatic bias against the accused. An attorney’s priority is to persuade decision-makers in a sexual assault case to look at the facts without bias.
3. The most difficult issues to overcome are often related to consent. Many sex crime cases hinge on whether consent was obtained before sexual contact. An accused and victim may have different ideas about what signified consent. Law enforcement officers, judges and juries must wrestle with definitions of and evidence of consent to prove guilt. In some cases, as with recent cases covered by media, consensual contact is being mischaracterized many years later as sexual assault. A defense attorney’s job is often to show that the defendant had reason to believe there was consent for sexual contact.
Keep in mind each case is different and nuances of sexual assault defendant protection under the law are best left to an attorney experienced specifically in trying sexual assault cases in local jurisdictions. There are times when it can be useful to bring in a sexual assault attorney from another jurisdiction. This can be true, for example, when the case is being tried in rural area where there is no local counsel who can provide effective legal representation for sexual assault.
What Is Sexual Assault, and What are the Penalties for Sexual Assault?
In Nebraska, sexual assault crimes are legally defined and governed by Nebraska Statutes 28-319 and 28-320. Separate sections cover sexual assault of a child and sexual assault involving electronic communications. Statute 28-318 contains definitions related to sexual assault allegations. Other statutes or local laws related to the alleged sexual assault may come into play during the case.
Sexual assault crimes in Nebraska fall into two categories: sexual assault and sexual assault of a minor. Each has its own set of parameters and penalties (see below). All sex crime convictions require registration in the Nebraska sex crimes registry.
Official penalties are listed below, but non-legal consequences of a conviction or even a simple accusation can include the loss of a job or professional license, public embarrassment, damage to relationships, revocation of college admission, and other potentially devastating personal consequences. An attorney should know how to help the accused minimize these consequences, in addition to assisting in legal defense against the charges.
Levels of charges
- First degree: includes sexual penetration and assumption that the accused knew or should have known the victim was not consenting; the actor must be at least 19 years old and the victim must be from 12 to 16
- Second degree: same assumption as first degree sexual assault, but without penetration and with serious personal injury (physical or mental)
- Third degree: same assumptions as other two classifications, but without penetration and without serious personal injury
- First degree: Class II felony with 1 to 50 years in prison; sentencing must include consideration of serious personal injury; second conviction carries mandatory minimum of 25 years in prison
- Second degree: Class III felony with 0 to 4 years in prison
- Third degree: Class I misdemeanor with 0 to 1 year in jail
Sexual Assault of a Child
Levels of charges
- First degree: includes sexual penetration of a person under age 12 when actor is at least 19; when actor is 25 or older, includes sexual penetration of a person aged 12 to 16
- Second degree: includes sexual contact (without penetration) with a victim aged 14 or younger by an actor 19 or older, and includes serious personal injury to victim
- Third degree: includes sexual contact, but no penetration or serious personal injury
- First degree: Class IB felony with a potential sentence of 20 years to life including a mandatory sentence of at least 15 years in prison for first offense; with additional considerations or if there are previous convictions, a mandatory minimum sentence of 25 years in prison for a second offense.
- Second degree: Class II felony for first offense with 1 to 50 years in prison; if there are previous offenses, it is a mandatory 25 years in prison.
- Third degree: Class IIIA felony for first offense with a maximum penalty of five years in prison and/or $10,000 fine; subsequent offenses are Class IC felony with 5 to 50 years in prison
Sexual Assault Involving Electronic Communication Device
Classification: persuading a child 16 or younger (or police officer posing as such) by means of an electronic communication device to engage in an act violating laws governing sexual assault of a child (see above) – see Nebraska Revised Statute 28-320.02
Penalty: Class ID felony with 3 to 50 years in prison; with previous convictions, a Class IC felony with 5 to 50 years in prison
Other Sex Crimes in Omaha, Nebraska – and Title IX Sexual Assault Allegations
In Omaha jurisdictions, other chargeable crimes related to sexual assault include possession of child pornography and distribution of child pornography. Statutory rape takes place when an underage partner consents to sexual intercourse. Lewd conduct, defined as conducting a sex act in a public place, is a Class II misdemeanor. Complications occur in individual cases, such as when drugs are used in date rape or when a person is raped by a spouse.
Title IX of the Education Amendments of 1972 is a federal civil rights law allowing victims on college campuses to file a complaint without having to go through law enforcement. There are advantages to this, but there are also questions about whether rights of both accused and victim are served effectively through Title IX interventions. Often Students and faculty charged with Title IX violations face career ending consequences with little due process of law. With so much at stake, getting an attorney involved early in the process can make a big difference.
Next Steps for Those Accused of Sex Crimes in Omaha, Nebraska
Anyone wondering what to do if charged with a sex crime could consider these initial actions:
- Contact an experienced sexual assault attorney as soon as possible – Often having an attorney present to handle questions from law enforcement officers can make a difference in the result.
- Preserve electronic evidence from the alleged victim such as text messages and social media messages. Often, electronic evidence can disprove false allegations.
If you or a loved one is facing sexual assault allegations in the Omaha, Nebraska, or Lincoln, Nebraska, area – or in any Nebraska jurisdiction – contact Berry Law Firm today.