What is a Protection Order?
A protection order is a lawful order by a court preventing one person from contacting another. In domestic assault and sex assault cases, law enforcement and victim advocates encourage accusers to obtain protection orders against the accused. Once the order is in place, if the accused contacts the accuser, the accused will be charged with a crime.
Unfortunately for the accused, a sex assault or domestic assault protection order is not only a public record, but it can also prevent the accused from possessing a firearm while the order is pending. Furthermore an accuser may petition the court for a protection order even if police find no crime has been committed. In some cases where the accuser fails to obtain a sex assault protection order or a domestic abuse protection order under §42-924, he or she will make an attempt to obtain a harassment protection under §28-311.09, which does not require proof of domestic violence or sexual assault.
How Does Someone Obtain a Sex Assault Protection Order?
Under Nebraska law, Neb. Rev. Stat. § 28-311.11, states that to obtain an order, the petitioner must state the events and dates of the act constituting the sexual offense.
The statute defines sexual assault as sexual assault under:
- §28-319: Sexual assault in the first degree, which is penetration without consent of the victim;
- §28-319.01: First degree sexual assault of a child;
- §28-320: Sexual assault of the second or third degree, which is sexual contact without consent, either causing or not causing serious personal injury, respectively;
- §28-320.01: Second or third degree sexual assault of a child; or
- An attempt of these offenses.
The statute includes attempting to subject another person to sexual contact or sexual penetration without consent. “Without consent” is defined in § 28-318(8) as including compelled submission due to force or threat of force or coercion, or verbal or physical resistance, unless resistance would be futile.
If the court issues the protection order, the order will enjoin the accused from
- imposing any restraint upon the accuser;
- harassing, threating, molesting, attacking, or otherwise disturbing the peace of the accuser; or
- telephoning, contacting, or otherwise communicating with the accuser.
The court can issue the order ex parte (without the accused or his lawyer being present). Once the accused is served, he has five days to respond and request a show-cause hearing, which will be held within 30 days.
How Do I Respond to False Allegations?
It can be helpful to consult with an experienced sexual assault defense attorney prior to taking action. In some cases, a poorly handled sex assault protection order hearing could result in statements being used against the accused at a criminal trial.
If you have been falsely accused of sexual assault, contact Berry Law Firm’s team of defense attorneys today.