State Codes and Statutes
Statutes > Nebraska > Chapter28 > 28-31828-318. Terms, defined.As used in sections 28-317 to 28-322.04, unlessthe context otherwise requires:(1) Actor means a person accused of sexual assault;(2) Intimate parts means the genital area, groin, inner thighs,buttocks, or breasts;(3) Past sexual behavior means sexual behavior other thanthe sexual behavior upon which the sexual assault is alleged;(4) Serious personal injury means great bodily injury ordisfigurement, extreme mental anguish or mental trauma, pregnancy, disease,or loss or impairment of a sexual or reproductive organ;(5) Sexual contact means the intentional touching of thevictim's sexual or intimate parts or the intentional touching of the victim'sclothing covering the immediate area of the victim's sexual or intimate parts.Sexual contact shall also mean the touching by the victim of the actor's sexualor intimate parts or the clothing covering the immediate area of the actor'ssexual or intimate parts when such touching is intentionally caused by theactor. Sexual contact shall include only such conduct which can be reasonablyconstrued as being for the purpose of sexual arousal or gratification of eitherparty. Sexual contact shall also include the touching of a child with theactor's sexual or intimate parts on any part of the child's body for purposesof sexual assault of a child under sections 28-319.01 and 28-320.01;(6) Sexual penetration means sexual intercourse in its ordinarymeaning, cunnilingus, fellatio, anal intercourse, or any intrusion, howeverslight, of any part of the actor's or victim's body or any object manipulatedby the actor into the genital or anal openings of the victim's body whichcan be reasonably construed as being for nonmedical or nonhealth purposes.Sexual penetration shall not require emission of semen;(7) Victim means the person alleging to have been sexuallyassaulted;(8) Without consent means:(a)(i) The victim was compelled to submit due to the useof force or threat of force or coercion, or (ii) the victim expressed a lackof consent through words, or (iii) the victim expressed a lack of consentthrough conduct, or (iv) the consent, if any was actually given, was the resultof the actor's deception as to the identity of the actor or the nature orpurpose of the act on the part of the actor;(b) The victim need only resist, either verbally or physically,so as to make the victim's refusal to consent genuine and real and so as toreasonably make known to the actor the victim's refusal to consent; and(c) A victim need not resist verbally or physically whereit would be useless or futile to do so; and(9) Force or threat of force means (a) the use of physicalforce which overcomes the victim's resistance or (b) the threat of physicalforce, express or implied, against the victim or a third person that placesthe victim in fear of death or in fear of serious personal injury to the victimor a third person where the victim reasonably believes that the actor hasthe present or future ability to execute the threat. SourceLaws 1977, LB 38, § 33; Laws 1978, LB 701, § 1; Laws 1984, LB 79, § 3; Laws 1985, LB 2, § 2; Laws 1995, LB 371, § 3; Laws 2004, LB 943, § 4; Laws 2006, LB 1199, § 4; Laws 2009, LB97, § 11.Annotations1. Jury instruction2. Sexual contact3. Sexual penetration1. Jury instructionJury instruction approved, defining cunnilingus as including licking, kissing, sucking, or otherwise fondling the sex organ of a female with the mouth or tongue. State v. Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984).2. Sexual contactIn proving sexual contact, the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such a purpose. State v. Osborn, 241 Neb. 424, 490 N.W.2d 160 (1992)."Sexual contact," as defined in subsection (5) of this section, is established when the State proves that defendant intentionally touched the victim's underpants in the area between the legs. State v. Andersen, 238 Neb. 32, 468 N.W.2d 617 (1991).In proving "sexual contact," defined in subdivision (5) of this section, the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such a purpose. State v. Berkman, 230 Neb. 163, 430 N.W.2d 310 (1988).3. Sexual penetrationThe slightest intrusion into the genital opening is sufficient to constitute penetration, and such element may be proved by either direct or circumstantial evidence. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).Penetration need not be penile to be sufficient to establish first degree sexual assault. State v. Shepard, 239 Neb. 639, 477 N.W.2d 567 (1991).The act of fellatio constitutes a sexual penetration within the meaning of this section. State v. Gonzales, 219 Neb. 846, 366 N.W.2d 775 (1985).The slightest penetration of the sexual organs is sufficient, if established beyond a reasonable doubt, to constitute the necessary element of penetration in a prosecution for first degree sexual assault. State v. Tatum, 206 Neb. 625, 294 N.W.2d 354 (1980).
