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LEGISLATURE OF NEBRASKA
ONE HUNDRED SIXTH LEGISLATURE
SECOND SESSION
LEGISLATIVE BILL 991
Introduced by Halloran, 33; Briese, 41; Murman, 38.
Read first time January 14, 2020
Committee: Judiciary
1 A BILL FOR AN ACT relating to sex offenses; to amend sections 28-311,
2 28-319.01, 28-320.02, 28-833, 28-1463.04, 29-2028, and 81-1850,
3 Reissue Revised Statutes of Nebraska, sections 42-1203 and
4 83-174.02, Revised Statutes Cumulative Supplement, 2018, and
5 sections 27-404, 27-412, 27-413, 28-101, 28-311.11, 28-318,
6 28-813.01, 28-1463.05, 29-110, 29-119, 29-4003, and 83-4,143,
7 Revised Statutes Supplement, 2019; to change provisions relating to
8 sexual assault under the Nebraska Evidence Rules, enhanced penalties
9 for certain sexual offenses, and sexual assault protection orders;
10 to create the offense of child enticement by a school official by
11 means of an electronic communication device; to create the offense
12 of sexual assault of a student; to define and redefine terms; to
13 prohibit enticement by electronic communication device by a school
14 official as prescribed; to provide a statute of limitations for
15 sexual assault of a student; to change provisions relating to
16 corroboration of victim testimony in sexual offenses; to add
17 registrable offenses under the Sex Offender Registration Act; to
18 change provisions relating to the Address Confidentiality Act,
19 victim notifications, evaluation of dangerous sex offenders, and
20 eligibility for participation in an incarceration work camp; to
21 change and provide penalties; to harmonize provisions; and to repeal
22 the original sections.
23 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 27-404, Revised Statutes Supplement, 2019, is
2 amended to read:
3 27-404 (1) Evidence of a person's character or a trait of his or her
4 character is not admissible for the purpose of proving that he or she
5 acted in conformity therewith on a particular occasion, except:
6 (a) Evidence of a pertinent trait of his or her character offered by
7 an accused, or by the prosecution to rebut the same;
8 (b) Evidence of a pertinent trait of character of the victim of the
9 crime offered by an accused or by the prosecution to rebut the same, or
10 evidence of a character trait of peacefulness of the victim offered by
11 the prosecution in a homicide case to rebut evidence that the victim was
12 the first aggressor. In a sexual assault case, reputation, opinion, or
13 other evidence of past sexual behavior of the victim is governed by
14 section 27-412; or
15 (c) Evidence of the character of a witness as provided in sections
16 27-607 to 27-609.
17 (2) Evidence of other crimes, wrongs, or acts is not admissible to
18 prove the character of a person in order to show that he or she acted in
19 conformity therewith. It may, however, be admissible for other purposes,
20 such as proof of motive, opportunity, intent, preparation, plan,
21 knowledge, identity, or absence of mistake or accident.
22 (3) When such evidence is admissible pursuant to this section, in
23 criminal cases evidence of other crimes, wrongs, or acts of the accused
24 may be offered in evidence by the prosecution if the prosecution proves
25 to the court by clear and convincing evidence that the accused committed
26 the crime, wrong, or act. Such proof shall first be made outside the
27 presence of any jury.
28 (4) Regarding the admissibility in a civil or criminal action of
29 evidence of a person's commission of another offense or offenses of
30 sexual assault under sections 28-319 to 28-322.05 and section 10 of this
31 act, see sections 27-413 to 27-415.
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1 Sec. 2. Section 27-412, Revised Statutes Supplement, 2019, is
2 amended to read:
3 27-412 (1) The following evidence is not admissible in any civil or
4 criminal proceeding involving alleged sexual misconduct except as
5 provided in subsections (2) and (3) of this section:
6 (a) Evidence offered to prove that any victim engaged in other
7 sexual behavior; and
8 (b) Evidence offered to prove any victim's sexual predisposition.
9 (2)(a) In a criminal case, the following evidence is admissible, if
10 otherwise admissible under the Nebraska Evidence Rules:
11 (i) Evidence of specific instances of sexual behavior by the victim
12 offered to prove that a person other than the accused was the source of
13 semen, injury, or other physical evidence;
14 (ii) Evidence of specific instances of sexual behavior of the victim
15 with respect to the accused offered by the accused to prove consent of
16 the victim if it is first established to the court that such behavior is
17 similar to the behavior involved in the case and tends to establish a
18 pattern of behavior of the victim relevant to the issue of consent; and
19 (iii) Evidence, the exclusion of which would violate the
20 constitutional rights of the accused.
21 (b) In a civil case, evidence offered to prove the sexual behavior
22 or sexual predisposition of any victim is admissible if it is otherwise
23 admissible under the Nebraska Evidence Rules and its probative value
24 substantially outweighs the danger of harm to any victim and of unfair
25 prejudice to any party. Evidence of a victim's reputation is admissible
26 only if it has been placed in controversy by the victim.
27 (3)(a) A party intending to offer evidence under subsection (2) of
28 this section shall:
29 (i) File a written motion at least fifteen days before trial
30 specifically describing the evidence and stating the purpose for which it
31 is offered unless the court, for good cause, requires a different time
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1 for filing or permits filing during trial; and
2 (ii) Serve the motion on all parties and notify the victim or, when
3 appropriate, the victim's guardian or representative.
4 (b) Before admitting evidence under this section, the court shall
5 conduct a hearing in camera outside the presence of any jury.
6 (4) Evidence of the victim's consent is not admissible in any civil
7 proceeding involving alleged:
8 (a) Sexual penetration when the actor is nineteen years of age or
9 older and the victim is less than sixteen years of age; or
10 (b) Sexual contact when the actor is nineteen years of age or older
11 and the victim is less than fifteen years of age; or .
12 (c) Sexual penetration or sexual contact when the actor is a school
13 official who is at least nineteen years of age and the victim is a school
14 student at least sixteen years of age and less than nineteen years of
15 age. For purposes of this subdivision, the terms school and school
16 official have the same meanings as in section 10 of this act.
17 Sec. 3. Section 27-413, Revised Statutes Supplement, 2019, is
18 amended to read:
19 27-413 For purposes of sections 27-414 and 27-415, offense of sexual
20 assault means any violation of sections 28-319 to 28-322.05 or section 10
21 of this act sexual assault under section 28-319 or 28-320, sexual assault
22 of a child under section 28-319.01 or 28-320.01, sexual assault by use of
23 an electronic communication device under section 28-320.02, sexual abuse
24 of an inmate or parolee under sections 28-322.01 to 28-322.03, sexual
25 abuse of a protected individual under section 28-322.04, sexual abuse of
26 a detainee under section 28-322.05, an attempt or conspiracy to commit
27 any such crime of the crimes listed in this section, or the commission of
28 or conviction for a crime in another jurisdiction that is substantially
29 similar to any such crime listed in this section.
30 Sec. 4. Section 28-101, Revised Statutes Supplement, 2019, is
31 amended to read:
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1 28-101 Sections 28-101 to 28-1357 and 28-1601 to 28-1603 and section
2 10 of this act shall be known and may be cited as the Nebraska Criminal
3 Code.
4 Sec. 5. Section 28-311, Reissue Revised Statutes of Nebraska, is
5 amended to read:
6 28-311 (1)(a) No person, by any means and without privilege to do
7 so, shall knowingly solicit, coax, entice, or lure or attempt to solicit,
8 coax, entice, or lure any child under the age of fourteen years to enter
9 into any vehicle, whether or not the person knows the age of the child.
10 (b) No person, by any means and without privilege to do so, shall
11 solicit, coax, entice, or lure or attempt to solicit, coax, entice, or
12 lure any child under the age of fourteen years to enter into any place
13 with the intent to seclude the child from his or her parent, guardian, or
14 other legal custodian or the general public, whether or not the person
15 knows the age of the child. For purposes of this subdivision, seclude
16 means to take, remove, hide, secrete, conceal, isolate, or otherwise
17 unlawfully separate.
18 (2) It is an affirmative defense to a charge under this section
19 that:
20 (a) The person had the express or implied permission of the parent,
21 guardian, or other legal custodian of the child in undertaking the
22 activity;
23 (b)(i) The person is a law enforcement officer, emergency services
24 provider as defined in section 71-507, firefighter, or other person who
25 regularly provides emergency services, is the operator of a bookmobile or
26 other such vehicle operated by the state or a political subdivision and
27 used for informing, educating, organizing, or transporting children, is a
28 paid employee of, or a volunteer for, a nonprofit or religious
29 organization which provides activities for children, or is an employee or
30 agent of or a volunteer acting under the direction of any board of
31 education and (ii) the person listed in subdivision (2)(b)(i) of this
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1 section was, at the time the person undertook the activity, acting within
2 the scope of his or her lawful duties in that capacity; or
3 (c) The person undertook the activity in response to a bona fide
4 emergency situation or the person undertook the activity in response to a
5 reasonable belief that it was necessary to preserve the health, safety,
6 or welfare of the child.
7 (3) Any person who violates this section commits criminal child
8 enticement and is guilty of a Class IIIA felony. If such person has
9 previously been convicted of (a) criminal child enticement under this
10 section, (b) sexual assault of a child in the first degree under section
11 28-319.01, (c) sexual assault of a child in the second or third degree
12 under section 28-320.01, (d) child enticement by means of an electronic
13 communication device or child enticement by a school official by means of
14 an electronic communication device under section 28-320.02, (e) sexual
15 assault of a student in the first or second degree under section 10 of
16 this act, or (f) (e) assault under section 28-308, 28-309, or 28-310,
17 kidnapping under section 28-313, or false imprisonment under section
18 28-314 or 28-315 when the victim was under eighteen years of age when
19 such person violates this section, such person is guilty of a Class IIA
20 felony.
21 Sec. 6. Section 28-311.11, Revised Statutes Supplement, 2019, is
22 amended to read:
23 28-311.11 (1) Any victim of a sexual assault offense may file a
24 petition and affidavit for a sexual assault protection order as provided
25 in subsection (3) of this section. Upon the filing of such a petition and
26 affidavit in support thereof, the court may issue a sexual assault
27 protection order without bond enjoining the respondent from (a) imposing
28 any restraint upon the person or liberty of the petitioner, (b)
29 harassing, threatening, assaulting, molesting, attacking, or otherwise
30 disturbing the peace of the petitioner, or (c) telephoning, contacting,
31 or otherwise communicating with the petitioner. The sexual assault
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1 protection order shall specify to whom relief under this section was
2 granted.
3 (2) The petition for a sexual assault protection order shall state
4 the events and dates or approximate dates of acts constituting the sexual
5 assault offense, including the most recent and most severe incident or
6 incidents.
7 (3) A petition for a sexual assault protection order shall be filed
8 with the clerk of the district court and the proceeding may be heard by
9 the county court or the district court as provided in section 25-2740.
10 (4) A petition for a sexual assault protection order may not be
11 withdrawn except upon order of the court. A sexual assault protection
12 order shall specify that it is effective for a period of one year unless
13 renewed pursuant to subsection (12) of this section or otherwise
14 dismissed or modified by the court. Any person, except the petitioner,
15 who knowingly violates a sexual assault protection order after service or
16 notice as described in subdivision (9)(b) of this section shall be guilty
17 of a Class I misdemeanor, except that any person convicted of violating
18 such order who has a prior conviction for violating a sexual assault
19 protection order shall be guilty of a Class IV felony.
20 (5)(a) Fees to cover costs associated with the filing of a petition
21 for issuance or renewal of a sexual assault protection order or the
22 issuance or service of a sexual assault protection order seeking only the
23 relief provided by this section shall not be charged, except that a court
24 may assess such fees and costs if the court finds, by clear and
25 convincing evidence, that the statements contained in the petition were
26 false and that the sexual assault protection order was sought in bad
27 faith.
28 (b) A court may also assess costs associated with the filing of a
29 petition for issuance or renewal of a sexual assault protection order or
30 the issuance or service of a sexual assault protection order seeking only
31 the relief provided by this section against the respondent.
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1 (6) The clerk of the district court shall make available standard
2 application and affidavit forms for issuance and renewal of a sexual
3 assault protection order with instructions for completion to be used by a
4 petitioner. Affidavit forms shall request all relevant information,
5 including, but not limited to: A description of the most recent incident
6 that was the basis for the application for a sexual assault protection
7 order and the date or approximate date of the incident and, if there was
8 more than one incident, the most severe incident and the date or
9 approximate date of such incident. The clerk and his or her employees
10 shall not provide assistance in completing the forms. The State Court
11 Administrator shall adopt and promulgate the standard application and
12 affidavit forms pr