Sex law index and discussion
Nebraska Sex Laws
Chapter 28. Crimes and Punishments.
Sexual assault; legislative intent.
28-317. It is the intent of the Legislature to enact
laws dealing with sexual assault and related criminal sexual
offenses which will protect the dignity of the victim at all
stages of judicial process, which will insure that the alleged
offender in a criminal sexual offense case have preserved the
constitutionally guaranteed due process of law procedures, and
which will establish a system of investigation, prosecution,
punishment, and rehabilitation for the welfare and benefit of the
citizens of this state as such system is employed in the area of
criminal sexual offenses.
Terms, defined.
28-318. As used in sections 28-317 to 28-321, unless
the 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
than the sexual behavior upon which the sexual assault is
alleged;
(4) Serious personal injury means great bodily injury
or disfigurement, 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
the victim's sexual or intimate parts or the intentional touching
of the victim's clothing 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 sexual or intimate
parts or the clothing covering the immediate area of the actor's
sexual or intimate parts when such touching is intentionally
caused by the actor. Sexual contact shall include only such
conduct which can be reasonably construed as being for the
purpose of sexual arousal or gratification of either party;
(6) Sexual penetration means sexual intercourse in its
ordinary meaning, cunnilingus, fellatio, anal intercourse, or any
intrusion, however slight, of any part of the actor's or victim's
body or any object manipulated by the actor into the genital or
anal openings of the victim's body which can 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
sexually assaulted;
(8) Without consent means:
(a)(i) The victim was compelled to submit due to the
use of force or threat of force or coercion, or (ii) the victim
expressed a lack of consent through words, or (iii) the victim
expressed a lack of consent through conduct, or (iv) the consent,
if any was actually given, was the result of the actor's
deception as to the identity of the actor or the nature or
purpose 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 to reasonably make known to the actor the
victim's refusal to consent; and
(c) A victim need not resist verbally or physically
where it would be useless or futile to do so; and
(9) Force or threat of force means (a) the use of
physical force which overcomes the victim's resistance or (b) the
threat of physical force, express or implied, against the victim
or a third person that places the victim in fear of death or in
fear of serious personal injury to the victim or a third person
where the victim reasonably believes that the actor has the
present or future ability to execute the threat.
Sexual assault; first degree; penalty.
LAW 28-319. (1) Any person who subjects another person to
sexual penetration (a) without consent of the victim, or (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 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 not less than twenty-five years and shall not be eligible for
parole.
Sexual assault; second or third degree; penalty.
28-320. (1) Any person who subjects another person to
sexual contact (a) without consent of the victim, or (b) who knew
or should have known that the victim was physically or mentally
incapable of resisting or appraising the nature of his or her
conduct is guilty of sexual assault in either the second degree
or third degree.
(2) Sexual assault shall be in the second degree and is
a Class III felony if the actor shall have caused serious
personal injury to the victim.
(3) Sexual assault shall be in the third degree and is
a Class I misdemeanor if the actor shall not have caused serious
personal injury to the victim.
Sexual assault of a child; penalty.
28-320.01. (1) A person commits sexual assault of a
child if he or she subjects another person fourteen years of age
or younger to sexual contact and the actor is at least nineteen
years of age or older.
(2) Sexual assault of a child is a Class IV felony for
the first offense and a Class III felony for all subsequent
offenses.
Sexual assault; evidence of past sexual behavior; when
admissible; procedure.
28-321. (1) If the defendant intends to offer evidence
of specific instances of the victim's past sexual behavior,
notice of such intention shall be given to the prosecuting
attorney and filed with the court not later than fifteen days
before trial.
(2) Upon motion to the court by either party in a
prosecution in a case of sexual assault, an in camera hearing
shall be conducted in the presence of the judge, under guidelines
established by the judge, to determine the relevance of evidence
of the victim's or the defendant's past sexual behavior.
Evidence of a victim's past sexual behavior shall not be
admissible unless such evidence is: (a) Evidence of past sexual
behavior with persons other than the defendant, offered by the
defendant upon the issue whether the defendant was or was not,
with respect to the victim, the source of any physical evidence,
including but not limited to, semen, injury, blood, saliva, and
hair; or (b) evidence of past sexual behavior with the defendant
when such evidence is offered by the defendant on the issue of
whether the victim consented to the sexual behavior upon which
the sexual assault is alleged if it is first established to the
court that such activity shows such a relation to the conduct
involved in the case and tends to establish a pattern of conduct
or behavior on the part of the victim as to be relevant to the
issue of consent.
28-351 Abuse, defined
28-367 Sexual abuse, defined
Bigamy; penalty; exception.
28-701. (1) If any married person, having a
husband or
wife living, shall marry any other person, he shall be
deemed
guilty of bigamy, unless as an affirmative defense it
appears
that at the time of the subsequent marriage:
(a) The accused reasonably believes that the prior
spouse is dead; or
(b) The prior spouse had been continually absent for a
period of five years during which the accused did not
know the
prior spouse to be alive; or
(c) The accused reasonably believed that he was legally
eligible to remarry.
(2) Any unmarried person who knowingly marries a
person
who is married commits bigamy.
(3) Bigamy is a Class I misdemeanor.
Incestuous marriages; declared void.
28-702. Incestuous marriages are marriages
between
parents and children, grandparents and grandchildren
of every
degree, between brothers and sisters of the half as well
as the
whole blood, and between uncles and nieces, aunts
and nephews.
Incestuous marriages are declared to be absolutely
void. This
section shall extend to children and relations born out
of
wedlock.
Incest; penalty.
28-703. (1) Any person who shall knowingly
intermarry
or engage in sexual penetration with any person who
falls within
the degrees of consanguinity set forth in section
28-702 or any
person who engages in sexual penetration with his or
her minor
stepchild commits incest.
(2) Incest is a Class III felony.
(3)(a) For purposes of this section, the definitions
found in section 28-318 shall be used.
(b) The testimony of a victim shall be entitled to the
same weight as the testimony of victims of other
crimes under
this code.
Terms, defined.
28-710. For purposes of sections 28-710 to 28-727,
unless the context otherwise requires:
(1) Department shall mean the Department of Social
Services;
(2) Law enforcement agency shall mean the police
department or town marshal in incorporated municipalities, the
office of the sheriff in unincorporated areas, and the Nebraska
State Patrol; and
(3) Abuse or neglect shall mean knowingly,
intentionally, or negligently causing or permitting a minor child
to be:
(a) Placed in a situation that endangers his or her
life or physical or mental health;
(b) Cruelly confined or cruelly punished;
(c) Deprived of necessary food, clothing, shelter, or
care;
(d) Left unattended in a motor vehicle if such minor
child is six years of age or younger;
(e) Sexually abused; or
(f) Sexually exploited by allowing, encouraging, or
forcing such person to solicit for or engage in prostitution,
debauchery, public indecency, or obscene or pornographic
photography, films, or depictions.
Privileged communications; not grounds for
excluding evidence.
28-714. The privileged communication between patient
and physician, between client and professional counselor, and
between husband and wife shall not be a ground for excluding
evidence in any judicial proceeding resulting from a report
pursuant to sections 28-710 to 28-717.
Prostitution; penalty.
28-801. (1) Any person who performs, offers, or agrees
to perform any act of sexual penetration, as defined in
subdivision (6) of section 28-318, with any person not his or her
spouse in exchange for money or other thing of value commits
prostitution.
(2) Prostitution is a Class I misdemeanor.
Pandering; penalty.
28-802. (1) A person commits pandering if such person:
(a) Entices another person to become a prostitute; or
(b) Procures or harbors therein an inmate for a house
of prostitution or for any place where prostitution is practiced
or allowed; or
(c) Inveigles, entices, persuades, encourages, or
procures any person to come into or leave this state for the
purpose of prostitution or debauchery; or
(d) Receives or gives or agrees to receive or give any
money or other thing of value for procuring or attempting to
procure any person to become a prostitute or commit an act of
prostitution or come into this state or leave this state for the
purpose of prostitution or debauchery.
(2) Pandering is a Class IV felony.
Pandering; evidence.
28-803. (1) Any person referred to in section 28-802
shall be a competent witness in any prosecution thereunder to
testify to any and all matters, including conversation with the
accused, or by the accused with third persons, in his presence,
notwithstanding having married the accused either before or after
the violation of any of the provisions of such section; and the
act and state of marriage shall not be a defense to any violation
of such section.
(2) Pandering shall be an exception to the husband-wife
privilege as provided in section 27-505.
Keeping a place of prostitution; penalty.
28-804. (1) Any person who has or exercises control
over the use of any place which offers seclusion or shelter for
the practice of prostitution and who knowingly grants or permits
the use of such place for the purpose of prostitution commits the
offense of keeping a place of prostitution.
(2) Keeping a place of prostitution is a Class I
misdemeanor.
Prostitution cases; incriminating testimony; how
treated.
28-804.01. In all cases arising under sections 28-801
to 28-804, no person shall be excused from testifying against
another person by reason of such testimony tending to
incriminate
the person testifying, but the testimony so given, unless
voluntary, shall in no case be used against the person so
testifying in any criminal prosecution or otherwise.
Debauching a minor; penalty.
28-805. (1) Any person not a minor commits the offense
of debauching a minor if he or she shall debauch or deprave the
morals of any boy or girl under the age of seventeen years by:
(a) Lewdly inducing such boy or girl carnally to know
any other person; or
(b) Soliciting any such boy or girl to visit a house of
prostitution or other place where prostitution, debauchery, or
other immoral practices are permitted or encouraged, for the
purpose of prostitution or sexual penetration; or
(c) Arranging or assisting in arranging any meeting for
such purpose between any such boy or girl and any female or
male
of dissolute character or any inmate of any place where
prostitution, debauchery, or other immoral practices are
permitted or encouraged; or
(d) Arranging or aiding or assisting in arranging any
meeting between any such boy or girl and any other person for
the
purpose of sexual penetration.
(2) Debauching a minor is a Class I misdemeanor.
Public indecency; penalty.
28-806. (1) A person, eighteen years of age or over,
commits public indecency if such person performs or procures, or
assists any other person to perform, in a public place and where
the conduct may reasonably be expected to be viewed by
members of
the public:
(a) An act of sexual penetration; or
(b) An exposure of the genitals of the body done with
intent to affront or alarm any person; or
(c) A lewd fondling or caressing of the body of another
person of the same or opposite sex.
(2) Public indecency is a Class II misdemeanor.
Terms, defined.
28-807. As used in sections 28-807 to 28-829, unless
the context otherwise requires:
(1) Adult shall mean any married person or any
unmarried person of the age of eighteen years or older;
(2) Commercial film and photographic print processor
shall mean any person who for compensation develops exposed
photographic film into negatives, slides, or prints or who for
compensation makes prints from negatives or slides. The term
shall include, but not be limited to, any employee of such a
person but shall not include employees of law enforcement
agencies and prosecuting attorneys involved in the investigation
and prosecution of criminal offenses or to persons involved in
legitimate medical, scientific, or educational activities;
(3) Distribute shall mean to transfer possession,
whether with or without consideration, by any means;
(4) Disseminate shall mean to manufacture, issue,
publish, sell, lend, distribute, transmit, exhibit, or present
materials or to offer in person or through an agent or by placing
an advertisement for the same, whether with or without
consideration, or agree to do the same;
(5) Knowingly shall mean having general knowledge of,
reason to know, or a belief or reasonable ground for belief which
warrants further inspection or inquiry of the character and
content of any material, taken as a whole, described in this
section, which is reasonably susceptible to examination by the
defendant;
(6) Harmful to minors shall mean that quality of any
description or representation, in whatever form, of nudity,
sexual conduct, sexual excitement, or sadomasochistic abuse,
when
it (a) predominantly appeals to the prurient, shameful, or morbid
interest of minors, (b) is patently offensive to prevailing
standards in the adult community as a whole with respect to what
is suitable material for minors, and (c) is lacking in serious
literary, artistic, political, or scientific value for minors;
(7) Material or work shall mean any book, magazine,
newspaper, comic book, pamphlet, or other printed or written
material or any picture, drawing, photograph, figure, image,
motion picture, whether or not positive or negative exhibited or
screened, play, nightclub, live performance, television
production, other pictorial representation or electric
reproduction, recording transcription, mechanical or otherwise,
or other articles, equipment, machines, or materials;
(8) Minor shall mean any unmarried person under the age
of eighteen years;
(9) Nudity shall mean the showing of the human,
post-pubertal male or female genitals, pubic area, or buttocks
with less than a full opaque covering, the depiction of covered
male genitals in a discernibly turgid state, or the showing of
the female breast with less than a full opaque covering of any
portion thereof below the top of the nipple;
(10) Obscene shall mean (a) that an average person
applying contemporary community standards would find that the
work, material, conduct, or live performance taken as a whole
predominantly appeals to the prurient interest or a shameful or
morbid interest in nudity, sex, or excretion, (b) the work,
material, conduct, or live performance depicts or describes in a
patently offensive way sexual conduct specifically set out in
sections 28-807 to 28-829, and (c) the work, conduct, material,
or live performance taken as a whole lacks serious literary,
artistic, political, or scientific value;
(11) Place shall mean any building, structure, or place
or any separate part or portion thereof or the ground itself;
(12) Person shall mean any individual, partnership,
limited liability company, firm, association, corporation,
trustee, lessee, agent, assignee, or other legal entity;
(13) Performance, whether with or without
consideration, shall mean any play, motion picture, dance, or
other exhibition performed before an audience;
(14) Promote shall mean to manufacture, issue, sell,
give, provide, lend, mail, deliver, transfer, transmit, publish,
distribute, circulate, disseminate, present, exhibit, or place an
order for advertising or to knowingly offer in person or through
an agent or agree to do the same;
(15) Sexual conduct shall mean acts of masturbation,
homosexuality, sodomy, sexual intercourse, or prolonged
physical
contact with a person's clothed or unclothed genitals, pubic
area, or buttocks or, if such person is female, breast;
(16) Sexual excitement shall mean the condition of
human male or female genitals when in a state of sexual
stimulation or arousal; and
(17) Sadomasochistic abuse shall mean flagellation or
torture by or upon a nude person or a person clad in
undergarments, a mask, or a bizarre costume or the condition of
being fettered, bound, or otherwise physically restrained when
performed to predominantly appeal to the shameful or morbid
interest.
Obscene literature and material; sale to minor,
unlawful; penalty.
28-808. (1) It shall be unlawful for a person
knowingly to sell, deliver, distribute, display for sale, or
provide to a minor or knowingly to possess with intent to sell,
deliver, distribute, display for sale, or provide to a minor:
(a) Any picture, photograph, drawing, sculpture, motion
picture film, or similar visual representation or image of a
person or portion of the human body or any replica, article, or
device having the appearance of either male or female genitals
which predominantly pruriently, shamefully, or morbidly depicts
nudity, sexual conduct, sexual excitement, or sadomasochistic
abuse and which, taken as a whole, is harmful to minors; or
(b) Any book, pamphlet, magazine, printed matter
however produced, or sound recording which contains any matter
enumerated in subdivision (1)(a) of this section or explicit and
detailed verbal descriptions or narrative accounts of sexual
excitement, sexual conduct, or sadomasochistic abuse of a
predominantly prurient, shameful, or morbid nature and which,
taken as a whole, is harmful to minors.
(2) Any person who violates this section shall be
guilty of a Class I misdemeanor.
Obscene motion picture, show, or presentation; admit minor;
unlawful; penalty.
28-809. (1) It shall be unlawful for any person
knowingly to exhibit to a minor or knowingly to provide to a
minor an admission ticket or pass or knowingly to admit a minor
to premises whereon there is exhibited a motion picture, show, or
other presentation which, in whole or in part, predominantly
pruriently, shamefully, or morbidly depicts nudity, sexual
conduct, or sadomasochistic abuse and which, taken as a whole,
is harmful to minors.
(2) Any person who violates this section shall be
guilty of a Class I misdemeanor.
Prosecution; defense.
28-810. It shall be a defense to a prosecution under
sections 28-808 and 28-809 that:
(1) Such person had reasonable cause to believe that
the minor involved was eighteen years of age or more, and that
such reasonable cause is based on but not limited to the
presentation by the minor exhibited to such person of a draft
card, driver's license, birth certificate, or other official or
apparently official document purporting to establish that such
minor was eighteen years of age or more;
(2) The minor was accompanied by his parent or guardian
and such person had reasonable cause to believe that the person
accompanying the minor was the parent or guardian of that
minor;
(3) Such person had reasonable cause to believe that
the person was the parent or guardian of the minor; and
(4) Such person's activity falls within the defenses to
a prosecution contained in section 28-815.
False representation; unlawful employment of
minor; exceptions; penalty.
28-811. (1) It shall be unlawful for any minor to
falsely represent to any person mentioned in section 28-808 or
28-809, or to his or her agent, that such minor is eighteen years
of age or older with the intent to procure any materials set
forth in section 28-808 or with the intent to procure such
minor's admission to any motion picture, show, or other
presentation as set forth in section 28-809.
(2) It shall be unlawful for any person to knowingly
make a false representation to any person mentioned in section
28-808 or 28-809, or to his or her agent, that he or she is the
parent or guardian of any minor or that any minor is eighteen
years of age with the intent to procure any material set forth in
section 28-808 or with the intent to procure such minor's
admission to any motion picture, show, or other presentation as
set forth in section 28-809.
(3) It shall be unlawful for any person to hire as an
employee a minor whose duties it will be to assist in any manner
the sale, delivery, distribution, or exhibition of material
declared obscene by sections 28-807 to 28-829, except that this
section shall not apply if such minor's parents or legal guardian
should consent to such employment by giving the employer a
written affidavit prior to the minor's employment.
(4) Any person who violates this section shall be
guilty of a Class II misdemeanor.
Obscene literature or material; prepares;
distributes; promotes; penalty.
28-813. (1) It shall be unlawful for a person
knowingly to (a) print, copy, manufacture, prepare, produce, or
reproduce obscene material for the purpose of sale or
distribution, (b) publish, circulate, sell, rent, lend, transport
in interstate commerce, distribute, or exhibit any obscene
material, (c) have in his or her possession with intent to sell,
rent, lend, transport, or distribute any obscene material, or (d)
promote any obscene material or performance.
(2) It shall be unlawful for a person to place an order
for any advertising promoting the sale or distribution of
material represented or held out to be obscene, whether or not
such material exists in fact or is obscene. In all cases in
which a charge or violation of this section is brought against a
person who cannot be found in this state, the executive authority
of this state may demand extradition of such person from the
executive authority of the state in which such person may be
found.
(3) A person commits an offense of promoting obscene
material if knowing its content and character he or she (a)
disseminates for monetary consideration any obscene material,
(b)
produces, presents, or directs obscene performances for monetary
consideration, or (c) participates for monetary consideration in
that part of a performance which makes it obscene.
(4) Any person who violates this section shall be
guilty of a Class I misdemeanor.
Sexually explicit conduct; visual depiction;
unlawful; penalty.
28-813.01. (1) It shall be unlawful for a person to
knowingly possess any visual depiction of sexually explicit
conduct, as defined in section 28-1463.02, which has a minor as
one of its participants or portrayed observers.
(2) Any person who violates this section shall be
guilty of a Class II misdemeanor.
Commercial film and photographic print
processor; immune from liability; when.
28-813.02. Any commercial film and photographic print
processor who has knowledge of or observes, within the scope of
his or her professional capacity or employment, and who
participates in an investigation or the making of any report
pertaining to any film, photograph, videotape, negative, or slide
depicting a child under the age of eighteen years engaged in an
act of sexually explicit conduct, as defined in section
28-1463.02, or participates in a judicial proceeding resulting
from such participation shall be immune from any liability, civil
or criminal, that might otherwise be incurred or imposed, except
for maliciously false statements.
Criminal prosecutions; trial by jury; waiver; instructions to
jury; expert witness.
28-814. (1) Criminal prosecutions involving the
ultimate issue of obscenity, as distinguished from the issue of
probable cause, shall be tried by jury, unless the defendant
shall waive a jury trial in writing or by statement in open court
entered in the minutes.
(2) The judge shall instruct the jury that the
guidelines in determining whether a work, material, conduct, or
live exhibition is obscene are: (a) The average person applying
contemporary community standards would find the work taken as a
whole goes substantially beyond contemporary limits of candor in
description or presentation of such matters and predominantly
appeals to the prurient, shameful, or morbid interest; (b) the
work depicts in a patently offensive way sexual conduct
specifically referred to in sections 28-807 to 28-829; (c) the
work as a whole lacks serious literary, artistic, political, or
scientific value; and (d) in applying these guidelines to the
determination of whether or not the work, material, conduct or
live exhibition is obscene, each element of each guideline must
be established beyond a reasonable doubt.
(3) In any proceeding, civil or criminal, under
sections 28-807 to 28-829, where there is an issue as to whether
or not the matter is obscene, either party shall have the right
to introduce, in addition to all other relevant evidence, the
testimony of expert witnesses on such issue as to any artistic,
literary, scientific, political or other societal value in the
determination of the issue of obscenity.
Prosecution; defense.
28-815. It shall be a defense to a prosecution under section 28-813 that:
(1) Such person's activity consists of teaching in
regularly established and recognized educational institutions,
galleries or libraries, or the publication or use of standard
textbooks, films, tapes or visual aids of any such institution,
or the practice of licensed practitioners of medicine or of
pharmacy in their regular business or profession, or the
possession by established schools teaching art, or by public art
galleries, or artists or models in the necessary line of their
art, or to relevant references to, or accounts or portrayal of,
nudity, sex, or excretion in religion, art, literature, history,
science, medicine, public health, law, the judicial process, law
enforcement, education, public libraries, or news reports and
news pictures by any form of news media of general circulation;
(2) Such person has no financial interest in an
activity, product, or event entitling such person to participate
in the promotion, management, proceeds, or profits of the
activity, product, or event, and such person's only connection
with the activity, product, or event entitles such person to a
reasonable salary or wages for services actually rendered; and
(3) The provisions of sections 28-807 to 28-829 with
respect to the exhibition or the possession with the intent to
exhibit of any obscene film shall not apply to a motion picture
projectionist, usher, or ticket taker acting within the scope of
his employment if such projectionist, usher, or ticket taker has
no financial interest in the place wherein he is so employed.
Such person shall be required to give testimony regarding such
employment in all judicial proceedings brought under sections
28-807 to 28-829 when granted immunity by the trial judge.
Violations; declaratory judgment.
28-816. Any city, village, or county, through its
chief law enforcement officer in which a person, firm or
corporation violates or is about to violate sections 28-807 to
28-829 or has in his or its possession with intent to so violate,
or is about to acquire possession with intent to so violate, any
work, material, conduct or live performance which is obscene or
an instrument of obscene use, or purports to be for such use or
purpose, may maintain an action in the district court against
such person, firm or corporation for a declaratory judgment under
the Uniform Declaratory Judgments Act for the purpose of
obtaining a judicial determination as to whether or not such
work, material, conduct or live performance is obscene.
CATCHLINE Prosecution; temporary restraining order or injunction; when.
28-817. (1) The plaintiff, after the commencement of
such action may, if he deems it necessary in order to prevent the
continued use of such work, material, conduct or live
performance, request a temporary restraining order or injunction
against such person, firm or corporation to prevent the violation
or further violation except as provided in this section.
(2) No other temporary restraining order or injunction
shall issue in advance of final adjudication by the trial court
in actions brought under the provisions of sections 28-816 to
28-818 when the question of whether the work, material, conduct
or live performance is obscene is in issue. If an injunction is
requested, any party to the action shall be entitled to a trial
of the issues within ten calendar days after service of the
summons has been completed, and a decision shall be rendered by
the court within two judicial days of the conclusion of the trial.
Order or judgment of injunction; contents.
28-818. If an order or judgment of injunction be
entered, such order or judgment shall contain either a provision
directing the person to surrender to the sheriff or police the
work, material, conduct or live performance which has been
adjudicated to be obscene for seizure and impoundment by the
court or to destroy or remove the same from the state. No order
or judgment directing such firm, person, corporation or other
legal entity to destroy or to remove such work, material, conduct
or live performance from the state under such supervision as the
court may direct shall issue until after a final judgment has
been made as the result of an appeal or in the absence of an
appeal. The court shall require satisfactory proof of compliance
with such order.
Action; service of summons; effect.
28-819. Every person who sells, distributes, or
acquires possession with intent to sell, exhibit, or distribute
any of the work, material, conduct or live performance described
in section 28-808, after service upon him of summons in such
action, shall be chargeable with knowledge of the contents
thereof in any subsequent prosecution.
Declaratory judgment; use of.
28-820. Any person who exhibits, sells or distributes,
or is about to exhibit, sell or distribute or has in his or its
possession with intent to sell or distribute, or is about to
acquire possession with intent to exhibit, sell or distribute,
any work, material, conduct or live performance shall, if such
person has genuine doubt as to the question of whether such work,
material, conduct or live performance is in fact within the terms
and provisions of sections 28-807 to 28-829, have the right to
bring an action in the district court for declaratory judgment
under the Uniform Declaratory Judgments Act against the
appropriate chief law enforcement officer of the city, village or
county in which the work, material, conduct or live performance
is located or is intended to be disseminated, distributed, or
exhibited, for a judicial determination as to whether or not such
work, material, conduct or live performance is obscene. Any such
action may be consolidated with a pending action brought under
the provisions of sections 28-816 to 28-818, and the defendant
in any action brought under this section may seek a declaratory
judgment or request a temporary restraining order or an
injunction therein in accordance with the provisions of sections
28-816 to 28-818.
Conviction more than twice; continue business dealing in obscene
work or conduct; effect.
28-821. Any person who is convicted more than twice
under sections 28-807 to 28-829 and continues to use, occupy,
establish or conduct a business selling, distributing,
disseminating, or exhibiting any obscene work, material, conduct
or live performance shall be deemed to be maintaining a nuisance
and shall be enjoined as provided for in sections 28-807 to 28-829.
CATCHLINE Nuisance; action to abate; punished as for contempt; when.
28-822. Whenever a nuisance exists as provided for in
sections 28-807 to 28-829, any city, village, or county, through
its chief law enforcement officer, may bring an action in equity
to abate such a nuisance and to perpetually enjoin the person
maintaining the same from further maintenance thereof. If any
person continues to use the building or place for such purpose he
shall be punished as for contempt.
Temporary injunction; where brought; hearing; restraining order;
issuance; inventory; rights of owner of property.
28-823. The action provided for in section 28-821
shall be brought in the district court of the county in which the
act of nuisance is being conducted. After filing of the
petition, application for a temporary injunction may be made to
the district court or judge thereof who shall grant a hearing
within ten calendar days after the filing.
When such application for temporary injunction is made,
the court or judge thereof may, on application of the
complainant, issue a restraining order as otherwise provided for
in sections 25-1062 to 25-1080, restraining the defendant and all
other persons from removing or in any manner interfering with the
personal property and contents of the place where such nuisance
is being conducted until the decision of the court or judge
granting or refusing such temporary injunction and until the
further order of the court thereon. The officers serving such
restraining order shall forthwith make and return into court an
inventory of the personal property and contents situated in and
used in conducting or maintaining such nuisance and further
violations of sections 28-807 to 28-829. The owner of any real
or personal property closed or restrained or to be closed or
restrained may appear between the filing of the complaint and the
hearing on the application for permanent injunction, and upon
payment of all costs incurred and upon the filing of a bond by
the owner of the real property with sureties to be approved by
the clerk of the district court in the full value of the property
to be ascertained by the court, conditioned that such owner will
immediately abate the nuisance and prevent the same from being
established or kept until the decision of the court is rendered
on the application for a permanent injunction, and the court, if
satisfied with the good faith of the owner of the real property
and of innocence on the part of the owner of the personal
property of any knowledge of the use of such personal property as
a nuisance and that, with reasonable care and diligence, such
owner could not have known thereof, shall deliver such real or
personal property, or both, to the respective owners thereof, and
discharge or refrain from issuing at the time of the hearing on
the application for the temporary injunction any order closing
such real property or restraining the removal or interference
with such personal property. The release of any real or personal
property under this section shall not release it from any
judgment, lien, penalty, or liability to which it may be
subjected. In no event shall any work, material, conduct or live
performance not adjudicated to be obscene under sections
28-807 to 28-829 be enjoined.
Trial; precedence; evidence; admissible; existence of nuisance;
enjoin defendant.
28-824. The action provided for in sections 28-807 to
28-829 shall be set down for trial and shall have precedence over
all other cases except crimes, election contests, or injunctions.
In such action evidence of the general reputation of the place or
an admission or finding of guilt of any person under the criminal
laws of this state against obscenity at any such place shall be
admissible for the purpose of proving the existence of such
nuisance and shall be prima facie evidence of such nuisance and
of knowledge of and acquiescence and participation therein on the
part of the person charged with maintaining such nuisance. If
the existence of the nuisance is established upon the trial, a
judgment shall be entered which shall perpetually enjoin the
defendant or the same defendant acting directly or indirectly
through other persons from further maintaining the nuisance at
the place complained of or at any other location whether within
or without the judicial district of the court hearing such
proceedings for a period of three years.
Nuisance; existence; order of abatement; closing order.
28-825. If the existence of a nuisance is admitted or
established in an action as provided for in sections 28-807 to
28-829, an order of abatement shall be entered as a part of the
judgment in the case, which order shall direct the removal from
the place of all personal property and contents used in
conducting the nuisance, and not already released under authority
of the court as provided in section 28-823, and shall direct the
sale of such thereof as belonging to the defendants notified or
appearing in the manner provided for the sale of personal
property under execution. Such order shall also require the
renewal for one year of any bond furnished by the owner of the
real property as provided for in sections 28-807 to 28-829 or, if
not so furnished, shall continue for one year any closing order
issued at the time of the granting of the temporary injunction
or, if no such closing order was then issued, shall include an
order directing the effectual closing of the place against its
use for any illegal purpose unless otherwise released. The owner
of any place closed and not released under bond may then appear
and obtain such release in the manner and upon fulfilling the
requirements provided for in sections 28-807 to 28-829. The
release of the property under this section shall not release it
from any judgment, lien, penalty, or liability to which it may be
subject. Owners of unsold personal property and contents so
seized may appear and claim the same within ten days after such
order of abatement is made and prove innocence to the
satisfaction of the court of any knowledge of such use thereof
and that with reasonable care and diligence they could not have
known thereof. Every defendant in the action is presumed to have
had knowledge of the general reputation of the place. If such
innocence is established, such unsold personal property and
contents shall be delivered to the owner, otherwise it shall be
sold as provided in this section and all consideration received
is recoverable as damages to the county where the nuisance was
located.
Tenant or occupant of building; use to commit violations;
conviction; right of possession in owner.
28-826. If a tenant or occupant of a building or
tenement under lawful title used such place for the purposes of
committing a violation of sections 28-807 to 28-829, and if such
tenant or occupant is convicted of such violation, such
conviction shall make the lease or other title which he holds
void at the option of the owner, and without any act of the
owner, cause the right of possession to revert and vest in such
owner, who may without further process of law make immediate
entry upon the premises and retake possession.
Material or work; adjudicated obscene; contraband; proceeds of
sale to county; other copies; disposal.
28-827. Material or work introduced in evidence and
judicially adjudicated to be obscene is contraband and there are
no property rights therein. All monetary consideration received
for such work, material, conduct or live performance is
recoverable as damages to the county where sold or exhibited.
The defendant, as part of the court order, shall be required to
remove from the state all other identical copies owned or
controlled by such defendant within five days after a court
determination of obscenity thereof or the same shall be deemed
forfeited to the state for destruction by the state.
Proceeding, civil or criminal; application to court for copy of
material; order; contempt of court, when.
28-828. In any proceeding, civil or criminal under
sections 28-807 to 28-829, the party charged with possession of
any obscene material shall be required, upon application by
petitioner and order of the court, to provide one copy of such
material to petitioner to be used in the preparation and trial of
such proceedings. Failure to comply with this section shall be
punishable as contempt of court.
Sections; uniform application; laws and regulations of political
subdivisions; void.
28-829. In order to provide for the uniform
application of sections 28-807 to 28-829 within this state, it is
intended that the sole and only regulation of the commercial
distribution of any work, material, conduct or live performance
described as obscene shall be under sections 28-807 to 28-829,
and no municipality, county, or other governmental unit within
this state shall make any law, ordinance or regulation relating
to obscenity, or licenses or taxes respecting the obscene work,
material, conduct or live performance as regulated by the state
under sections 28-807 to 28-829. All such laws, ordinances,
regulations, special or discriminatory taxes, or licenses,
whether enacted or issued before or after sections 28-807 to
28-829, shall be void, unenforceable, and of no effect.
Indecency with an animal; penalty.
LAW 28-1010. A person commits indecency with an animal
when such person subjects an animal to sexual penetration as
defined in subdivision (6) of section 28-318. Indecency with an
animal is a Class III misdemeanor.
Terms, defined.
28-1463.02. As used in the Child Pornography
Prevention Act, unless the context otherwise requires:
(1) Child, in the case of a participant, shall mean
any person under the age of eighteen years and, in the case of a
portrayed observer, shall mean any person under the age of
sixteen years;
(2) Erotic fondling shall mean touching a person's
clothed or unclothed genitals or pubic area, breasts if the
person is a female, or developing breast area if the person is a
female child, for the purpose of real or simulated overt sexual
gratification or sexual stimulation of one or more persons
involved. Erotic fondling shall not be construed to include
physical contact, even if affectionate, which is not for the
purpose of real or simulated overt sexual gratification or sexual
stimulation of one or more of the persons involved;
(3) Erotic nudity shall mean the display of the human
male or female genitals or pubic area, the human female breasts,
or the developing breast area of the human female child, for the
purpose of real or simulated overt sexual gratification or sexual
stimulation of one or more of the persons involved;
(4) Sadomasochistic abuse shall mean flagellation or
torture by or upon a nude person or a person clad in
undergarments, a mask, or bizarre costume, or the condition of
being fettered, bound, or otherwise physically restrained when
performed to predominantly appeal to the morbid interest;
(5) Sexually explicit conduct shall mean: (a) Real or
simulated intercourse, whether genital-genital, oral-genital,
anal-genital, or oral-anal between persons of the same or
opposite sex or between a human and an animal or with an
artificial genital; (b) real or simulated masturbation; (c) real
or simulated sadomasochistic abuse; (d) erotic fondling; (e)
erotic nudity; or (f) real or simulated defecation or urination
for the purpose of sexual gratification or sexual stimulation of
one or more of the persons involved; and
(6) Visual depiction shall mean live performance or
photographic representation.
Visual depiction of sexually explicit conduct; prohibited acts.
28-1463.03. (1) It shall be unlawful for a person to
knowingly make, publish, direct, create, provide, or in any
manner generate any visual depiction of sexually explicit conduct
which has a child as one of its participants or portrayed
observers.
(2) It shall be unlawful for a person knowingly to
purchase, rent, sell, deliver, distribute, display for sale,
advertise, trade, or provide to any person any visual depiction
of sexually explicit conduct which has a child as one of its
participants or portrayed observers.
(3) It shall be unlawful for a person to knowingly
employ, force, authorize, induce, or otherwise cause a child to
engage in any visual depiction of sexually explicit conduct which
has a child as one of its participants or portrayed observers.
(4) It shall be unlawful for a parent, stepparent,
legal guardian, or any person with custody and control of a
child, knowing the content thereof, to consent to such child
engaging in any visual depiction of sexually explicit conduct
which has a child as one of its participants or portrayed
observers.
Violation; penalty.
28-1463.04. Any person who violates section 28-1463.03
shall be guilty of a Class III felony for the first offense and
shall be guilty of a Class II felony for each subsequent offense.
Visual depiction of sexually explicit acts related to possession;
violation; penalty.
28-1463.05. (1) It shall be unlawful for a person to
knowingly possess with intent to rent, sell, deliver, distribute,
trade, or provide to any person any visual depiction of sexually
explicit conduct which has a child as one of its participants or
portrayed observers.
(2) Any person who violates this section shall be
guilty of a Class IV felony for each offense.
Chapter 29. Criminal Procedure.
Prosecutions; complaint, indictment, or information; filing; time
limitations; exceptions.
29-110. (1) Except as provided in subsections (2) and
(3) of this section, no person or persons shall be prosecuted for
any felony, excepting only treason, murder, arson, and forgery,
unless the indictment for the same shall be found by a grand jury
within three years next after the offense shall have been done or
committed or unless a complaint for the same shall be filed
before the magistrate within three years next after the offense
shall have been done or committed and a warrant for the arrest of
the defendant shall have been issued nor shall any person be
prosecuted, tried, or punished for any misdemeanor or other
indictable offense below the grade of felony or for any fine or
forfeiture under any penal statute unless the indictment,
information, or action for the same shall be found or instituted
within one year and six months from the time of committing the
offense or incurring the fine or forfeiture or within one year
for any offense the punishment of which is restricted by a fine
not exceeding one hundred dollars and to imprisonment not
exceeding three months. This section shall not extend to any
person fleeing from justice. When any suit, information, or
indictment for any crime or misdemeanor is limited by any statute
to be brought or exhibited within any other time than is limited
by this section, then the same shall be brought or exhibited
within the time limited by such statute. If any indictment,
information, or suit is quashed or the proceedings in the same
set aside or reversed on writ of error, the time during the
pendency of such indictment, information, or suit so quashed, set
aside, or reversed shall not be reckoned within this statute so
as to bar any new indictment, information, or suit for the same
offense.
(2) No person or persons shall be prosecuted for sexual
assault in the first degree, second degree, or third degree
pursuant to section 28-319 or 28-320, sexual assault of a child
pursuant to section 28-320.01, kidnapping pursuant to section
28-313, false imprisonment pursuant to section 28-314 or
28-315,
child abuse pursuant to section 28-707, pandering pursuant to
section 28-802, debauching a minor pursuant to section 28-805,
or an offense pursuant to section 28-813, 28-813.01, or 28-1463.03
when the victim is under sixteen years of age at the time of the
offense (a) unless the indictment for the same shall be found by
a grand jury within seven years next after the offense has been
committed or within seven years next after the victim's sixteenth
birthday, whichever is later, or (b) unless a complaint for the
same shall be filed before the magistrate within seven years next
after the offense has been committed or within seven years next
after the victim's sixteenth birthday, whichever is later, and a
warrant for the arrest of the defendant shall have been issued.
The limitations prescribed in this subsection shall include all
inchoate offenses pursuant to the Nebraska Criminal Code and
compounding a felony pursuant to section 28-301.
(3) No person or persons shall be prosecuted for a
violation of the Securities Act of Nebraska pursuant to section
8-1117 unless the indictment for the same shall be found by a
grand jury within five years next after the offense shall have
been done or committed or unless a complaint for the same shall
be filed before the magistrate within five years next after the
offense shall have been done or committed and a warrant for the
arrest of the defendant shall have been issued.
(4) The changes made to this section by Laws 1990, LB
1246, shall apply to offenses which occurred prior to April 15,
1990, or which occur on or after such date.
(5) The changes made to this section by Laws 1993, LB
216, shall apply to offenses which occurred prior to September 9,
1993, or which occur on or after such date.
Plea agreement; terms, defined.
29-119. For purposes of sections 23-1201, 29-119,
29-120, and 29-2261, unless the context otherwise requires:
(1) A plea agreement shall mean that as a result of a
discussion between the defense counsel and the prosecuting
attorney:
(a) A charge is to be dismissed or reduced; or
(b) A defendant, if he or she pleads guilty to a
charge, may receive less than the maximum penalty permitted by
law; and
(2) Victim shall mean a person who, as a result of a
homicide as defined in sections 28-302 to 28-306, a first degree
sexual assault as defined in section 28-319, a first degree
assault as defined in section 28-308, a sexual assault of a child
as defined in section 28-320.01, a second degree assault as
defined in section 28-309, a first degree false imprisonment as
defined in section 28-314, a second degree sexual assault as
defined in section 28-320, or a robbery as defined in section
28-324, has had a personal confrontation with the offender and
shall also include a person who has suffered serious bodily
injury as defined in section 28-109 as a result of a motor
vehicle accident when the driver was charged with a Class W
misdemeanor as provided in section 60-6,196 or 60-6,197 or
with
violation of a city or village ordinance enacted in conformance
with either of such sections. In the case of a homicide, victim
shall mean at least one family representative but shall not
include the alleged perpetrator of the homicide. In the case of
a sexual assault of a child, victim shall mean the child victim
and the parents, guardians, or duly appointed legal
representative of the child victim but shall not include the
alleged perpetrator of the sexual assault.
Sexual assault; testimony; corroboration not required.
29-2028. The testimony of a person who is a victim of
a sexual assault as defined in sections 28-319 to 28-320.01 shall
not require corroboration.
Community service; sentencing; when; failure to perform; effect;
exception to eligibility.
29-2278. An offender may be sentenced to community
service (1) as an alternative to a fine, incarceration, or
supervised probation, or in lieu of incarceration if he or she
fails to pay a fine as ordered, except when the violation of a
misdemeanor or felony requires mandatory incarceration or
imposition of a fine, (2) as a condition of probation, or (3) in
addition to any other sanction. The court shall establish the
terms and conditions of community service including, but not
limited to, a reasonable time limit for completion. If an
offender fails to perform community service as ordered by the
court, he or she may be arrested and after a hearing may be
resentenced on the original charge, have probation revoked, or be
found in contempt of court. No person convicted of an offense
involving serious bodily injury or sexual assault shall be
eligible for community service.
Test, counseling, and reports; when required; Department of
Correctional Services; Department of Health; duties; cost;
appeal; effect.
29-2290. (1) Notwithstanding any other provision of
law, when a person has been convicted of sexual assault pursuant
to sections 28-317 to 28-320, sexual assault of a child pursuant
to section 28-320.01, or any other offense under Nebraska law
when sexual contact or sexual penetration is an element of the
offense, the presiding judge shall, at the request of the victim
as part of the sentence of the convicted person when the
circumstances of the case demonstrate a possibility of
transmission of the human immunodeficiency virus, order the
convicted person to submit to a human immunodeficiency virus
antibody or antigen test. Such test shall be conducted under the
jurisdiction of the Department of Correctional Services. The
Department of Correctional Services shall make the results of the
test available only to the victim, to the parents or guardian of
the victim if the victim is a minor or is mentally incompetent,
to the convicted person, to the parents or guardian of the
convicted person if the convicted person is a minor or mentally
incompetent, to the court issuing the order for testing, and to
the Department of Health.
(2) If the human immunodeficiency virus test indicates
the presence of human immunodeficiency virus infection, the
Department of Correctional Services shall provide counseling to
the convicted person regarding human immunodeficiency virus
disease and referral to appropriate health care and support
services.
(3) The Department of Correctional Services shall
provide to the Department of Health the result of any human
immunodeficiency virus test conducted pursuant to this section
and information regarding the request of the victim. The
Department of Health shall notify the victim or the parents or
guardian of the victim if the victim is a minor or mentally
incompetent and shall make available to the victim counseling and
testing regarding human immunodeficiency virus disease and
referral to appropriate health care and support services.
(4) The cost of testing under this section shall be
paid by the convicted person tested unless the court has
determined the convicted person to be indigent.
(5) Filing of a notice of appeal shall not
automatically stay an order that the convicted person submit to a
human immunodeficiency virus test.
(6) For purposes of this section:
(a) Convicted shall include adjudicated under juvenile
proceedings;
(b) Convicted person shall include a child adjudicated
of an offense described in subsection (1) of this section; and
(c) Sentence shall include a disposition under juvenile
proceedings.
(7) The Department of Correctional Services, in
consultation with the Department of Health, shall adopt and
promulgate rules and regulations to carry out this section.
Terms, defined.
29-2923. For purposes of the Convicted Sex Offender Act:
(1) Aftercare treatment program shall mean any public
or private facility or service which offers treatment on an
outpatient basis or in a minimally restricted setting, which
treatment is appropriate for a convicted sex offender after he or
she has successfully completed an inpatient treatment program
operated by the Department of Public Institutions; and
(2) Convicted sex offender shall mean a person who is
convicted of sexual assault in the first degree as provided in
section 28-319, sexual assault in the second degree as provided
in section 28-320, sexual assault of a child as provided in
section 28-320.01, incest as provided in section 28-703, or
attempt to commit sexual assault in the first degree pursuant to
section 28-201 and sentenced to a term of imprisonment in a
Department of Correctional Services adult correctional facility.
Sentences authorized.
29-2924. Nothing in the Convicted Sex Offender Act
shall be construed to prohibit a court from sentencing a person
convicted of a crime identified in subdivision (2) of section
29-2923 to probation or community service or imposing any
other
sentence or condition allowed by law.
Department of Correctional Services; Department of Public
Institutions; duties; evaluation of offender.
29-2925. Within sixty days of the date of commitment
to the Department of Correctional Services of a convicted sex
offender to serve his or her sentence, the Department of Public
Institutions shall conduct an evaluation of the offender for
purposes of determining whether treatment in a treatment
program
operated by the Department of Public Institutions is appropriate
for the offender. The evaluation process shall be based upon
criteria and procedures established by the Department of Public
Institutions. The Department of Correctional Services shall
provide the Department of Public Institutions access to all
correctional and presentence records determined by the
Department
of Public Institutions to be relevant to the evaluation process.
Determination that treatment is not appropriate; review;
procedure; no appeal.
29-2926. (1) If the Department of Public Institutions
determines that treatment in an inpatient treatment program
operated by the Department of Public Institutions is not
appropriate for a convicted sex offender, the offender may
request the sentencing judge to review the determination in
accordance with subsection (2) of this section.
(2) Within thirty days of the determination of the
Department of Public Institutions that the treatment in an
inpatient treatment program operated by the Department of
Public
Institutions is not appropriate for a convicted sex offender, the
offender may apply to the sentencing judge for a review of the
denial of treatment. The review shall be conducted under the
following rules of procedure:
(a) The court may allow each party to call witnesses on
its behalf at such party's expense. Witnesses may be subpoenaed
at the expense of the party calling the witness;
(b) Each party shall be allowed to be represented by
counsel at such party's expense;
(c) Each party may be allowed to cross-examine adverse
witnesses;
(d) The Nebraska Evidence Rules shall not apply unless
expressly provided for by law, and the court may consider all
evidence which in its discretion is relevant to whether the
determination of the department is appropriate;
(e) The court may affirm the determination of the
department, remand the matter for further proceedings, or reverse
or modify the determination if such determination is unsupported
by competent, material, and substantial evidence in view of the
entire record as made on review or if the determination is
arbitrary and capricious; and
(f) The review pursuant to this section shall not be
subject to appeal.
Determination that treatment is appropriate; notice; court
decision; considerations.
29-2927. If the Department of Public Institutions
finds that the convicted sex offender is a potential treatment
candidate, the department may notify the sentencing court of its
findings, provide the court a summary of the evaluation results,
and request the court to decide whether the offender is eligible
for future determination of sentence upon successful completion
of an inpatient treatment program operated by the department. In
making such decision, the court may consider (1) the evaluation
results, (2) the nature of the crime, and (3) any other
information the court considers relevant. The department shall
consider the court's decision in determining whether the offender
is appropriate for treatment.
Treatment in inpatient treatment program; determination;
procedure; departments; duties.
29-2928. (1) If the Department of Public Institutions
determines that treatment in an inpatient treatment program
operated by the Department of Public Institutions is appropriate
for a convicted sex offender, that the offender will enter the
treatment program voluntarily, and that space is available in the
program, the Director of Correctional Services shall transfer the
offender to the treatment program designated by the Director of
Public Institutions for treatment. The Department of
Correctional Services shall be responsible for physical transfer
of the offender to the treatment facility.
(2) If the Department of Public Institutions determines
that treatment in an inpatient treatment program operated by the
Department of Public Institutions is not appropriate for a
convicted sex offender, the offender shall serve the sentence in
a facility operated by the Department of Correctional Services
and may participate in treatment offered by the Department of
Correctional Services if the Department of Correctional Services
determines that such treatment is appropriate for the offender.
The Department of Correctional Services may make a
recommendation
concerning treatment as provided in subsection (4) of this
section.
(3) If the Department of Public Institutions determines
that treatment in an inpatient treatment program operated by the
Department of Public Institutions is not initially appropriate
for a convicted sex offender but may be appropriate at a later
time, a treatment decision may be deferred until a designated
time, no later than two and one-half years prior to the
offender's earliest parole eligibility date, when the offender
will be reevaluated.
(4) If the Department of Correctional Services
determines that an offender participating in treatment offered by
the Department of Correctional Services will benefit from a
treatment program operated by the Department of Public
Institutions, the Department of Correctional Services shall
notify the Department of Public Institutions and recommend
admission of the offender to the treatment program. The
evaluation process to determine whether such offender is to be
admitted into a treatment program operated by the Department of
Public Institutions pursuant to this subsection shall be based
upon criteria and procedures established by the Department of
Public Institutions and shall not be subject to appeal or review.
Inpatient treatment program; annual review and progress reports;
uncooperative offender; transfer; credit for time in treatment.
29-2929. (1) The inpatient treatment program operated
by the Department of Public Institutions shall conduct annual
reviews of each convicted sex offender in the program and submit
annual progress reports to the sentencing court and the
Department of Correctional Services.
(2) If the offender is uncooperative while in the
inpatient treatment program or is found not to be amenable to
treatment, the Director of Public Institutions shall cause the
offender to be returned to the Department of Correctional
Services in accordance with procedures established by the
Department of Public Institutions. The Department of
Correctional Services shall be responsible for physical transfer
of the offender from the inpatient treatment facility to the
Department of Correctional Services. The Department of Public
Institutions shall, at the time of the transfer, provide the
Department of Correctional Services a report summarizing the
offender's response to and progress while in treatment and the
reasons for the transfer and shall provide access to the
treatment records as requested by the Department of Correctional
Services.
(3) All days of confinement in a treatment program
operated by the Department of Public Institutions shall be
credited to the offender's term of imprisonment.
Inpatient treatment program; aftercare treatment program;
transfer; hearing.
29-2930. If the Department of Public Institutions
determines that the convicted sex offender has received the
maximum benefit of the inpatient treatment program operated by
the Department of Public Institutions and is ready for treatment
in an aftercare treatment program, the person in charge of the
inpatient treatment program shall submit a written report to the
sentencing court and the Department of Correctional Services
documenting such findings and recommendations. Within thirty
days of receipt of the report, the court shall conduct a hearing
on the offender's status.
Aftercare treatment program; court orders authorized; sentence
redetermination.
29-2931. (1) If the court finds that the convicted sex
offender has successfully completed an inpatient treatment
program operated by the Department of Public Institutions and
would benefit from treatment in an aftercare treatment program
under conditions set by the court consistent with public safety,
the court may issue an order directing the Department of
Correctional Services to release the offender and,
notwithstanding the time limitations found in subsection (1) of
section 29-2263, may resentence the offender to probation for a
period of time not greater than the remainder of the original
sentence. Successful participation in an aftercare treatment
program designated by the court shall be a condition of probation.
(2) If the court in its discretion finds that the
offender should not be released to an aftercare treatment
program, the court may issue an order (a) denying redetermination
of the sentence or (b) modifying the original sentence to allow
eligibility for parole at an earlier date than allowed by the
original sentence. The offender shall be returned to serve the
remainder of the sentence in a facility operated by the
Department of Correctional Services and may participate in
treatment offered by the Department of Correctional Services if
the Department of Correctional Services determines that such
treatment is appropriate for the offender.
(3) The court may exercise other sentence
redetermination options in accordance with the treatment needs of
the offender, the safety of society, and state law, except that
the court shall not return the offender to an inpatient treatment
program operated by the Department of Public Institutions.
Offender resentenced to probation; discharge plan.
29-2932. If the convicted sex offender has been
treated in an inpatient treatment program operated by the
Department of Public Institutions and is resentenced to
probation, the Department of Correctional Services shall release
the offender to the probation officer responsible for the
offender. The Department of Public Institutions shall develop an
individual discharge plan and provide the designated aftercare
treatment program a copy of the discharge plan and relevant
treatment information.
Aftercare treatment program; probation officer; duties; placement
change; hearing; court orders authorized.
29-2933. (1) The designated aftercare treatment
program may make recommendations to the responsible probation
officer concerning treatment placement changes for a convicted
sex offender and shall submit written reports documenting its
findings and recommendations. Within thirty days of receipt of a
report, the probation officer shall review the report, develop a
written statement supporting or opposing the recommendations, and
submit the report and statement to the sentencing court. Within
thirty days of receipt of the report and statement, the court
shall conduct a hearing regarding placement.
(2) If the court determines that the treatment needs of
the offender warrant a placement change, the court may issue an
order modifying the conditions of probation consistent with
public safety and requiring successful participation in an
alternative designated aftercare treatment program.
(3) If the court determines that the offender no longer
requires active aftercare treatment, the court may issue an order
removing the requirement of aftercare treatment as a condition
while maintaining or modifying other conditions of probation.
(4) If the court determines that the treatment needs of
the offender do not warrant alternative placement, the offender
may be returned to the original designated aftercare treatment
program for further treatment.
Person committed under prior law; procedures.
29-2934. (1) Each person committed as a mentally
disordered sex offender pursuant to sections 29-2911 to 29-2921
as such sections existed prior to July 15, 1992, who is being
treated in a regional center or other secure public institution
operated by the Department of Public Institutions and has at
least one year remaining on his or her sentence as of such date
shall, within one hundred eighty days after such date, be
returned to the district court which committed him or her for
review and disposition consistent with the terms of this section.
(2) Each person committed to a regional center or other
secure public institution operated by the Department of Public
Institutions as a mentally disordered sex offender by a court
pursuant to sections 29-2911 to 29-2921 as such sections existed
prior to July 15, 1992, who is in a facility operated by the
Department of Correctional Services awaiting treatment as of such
date shall be placed in a treatment facility operated by the
Department of Public Institutions for evaluation and treatment as
soon as practical after space and staff become available. Within
thirty days of such placement, the Department of Public
Institutions shall determine, based on criteria and procedures
established by the Department of Public Institutions, whether the
offender will remain in the treatment program or be returned to
the Department of Correctional Services to await court review or
the end of his or her sentence. Within thirty days after the
evaluation-and-treatment period, if the offender has at least one
hundred eighty days remaining on his or her sentence, he or she
shall be returned to the committing district court for review and
disposition consistent with the terms of this section.
(3) The Department of Public Institutions shall prepare
and present a report and recommendations for each offender to be
reviewed by the district court under subsection (1) or (2) of
this section.
(4) Each person identified in subsections (1) and (2)
of this section who was committed as a mentally disordered sex
offender by a court after having entered a plea of guilty or nolo
contendere shall, upon return to the district court, elect
whether to be resentenced under the Convicted Sex Offender Act or
continue his or her commitment pursuant to sections 29-2911 to
29-2921 as such sections existed prior to July 15, 1992.
(5) For each person identified in subsections (1) and
(2) of this section who was committed as a mentally disordered
sex offender by a court after having entered a plea of not guilty
and for each person identified in subsection (4) of this section
who elected to be resentenced under the act, subsections (6),
(7), and (8) of this section shall apply.
(6) If the court finds that the offender is treatable
in an inpatient treatment program operated by the Department of
Public Institutions, the offender shall be returned to or placed
in such a treatment program and sections 29-2929 to 29-2933 shall
apply.
(7) If the court finds that the offender is not
amenable to treatment, is uncooperative in treatment, or has
reached the maximum benefit of treatment in an inpatient
treatment program operated by the Department of Public
Institutions but cannot be placed in an aftercare treatment
program under conditions set by the court consistent with public
safety, the offender shall be placed in a facility operated by
the Department of Correctional Services to serve the remainder of
his or her original sentence.
(8) If the court finds that the offender has
successfully completed an inpatient treatment program operated by
the Department of Public Institutions and can be treated in an
aftercare treatment program under conditions set by the court
consistent with public safety, the court shall proceed in
accordance with section 29-2931 and sections 29-2932 and 29-2933
shall apply.
Department of Public Institutions; access to data and information
for evaluation; authorized.
29-2935. For purposes of evaluating the treatment
process, the Office of Probation Administration, the Department
of Correctional Services, the Board of Parole, and the designated
aftercare treatment programs shall allow appropriate access to
data and information as requested by the Department of Public
Institutions.