28-319.01. Sexual assault of a child; first degree; penalty.

522 words·~2 min read·/ne/chapter-28/28-319-01

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)A person commits sexual assault of a child in the first degree:

(a)When he or she subjects another person under twelve years of age to sexual penetration and the actor is at least nineteen years of age or older; or

(b)When he or she subjects another person who is at least twelve years of age but less than sixteen years of age to sexual penetration and the actor is twenty-five years of age or older.

(2)Sexual assault of a child in the first degree is a Class IB felony with a mandatory minimum sentence of fifteen years in prison for the first offense.

(3)Any person who is found guilty of sexual assault of a child in the first degree under this section and who has previously been convicted

(a)under this section,

(b)under section 28-319 of first degree or attempted first degree sexual assault,

(c)under section 28-320.01 before July 14, 2006, of sexual assault of a child or attempted sexual assault of a child,

(d)under section 28-320.01 on or after July 14, 2006, of sexual assault of a child in the second or third degree or attempted sexual assault of a child in the second or third degree, or

(e)in any other state or federal court under laws with essentially the same elements as this section, section 28-319 , or section 28-320.01 as it existed before, on, or after July 14, 2006, shall be guilty of a Class IB felony with a mandatory minimum sentence of twenty-five years in prison.

(4)In any prosecution under this section, the age of the actor shall be an essential element of the offense that must be proved beyond a reasonable doubt.

The age classifications of the victim in subdivision (1)(a) of this section are rationally related to plausible policy reasons considered by lawmakers, including the concern of protecting young people. The relationship of the classifications to legislative goals was not so attenuated as to render the distinction arbitrary or irrational, and it does not violate the Equal Protection Clause of the 14th Amendment of the Constitution of the United States or Article I, sec. 3, of the Nebraska Constitution. State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019).

For purposes of the authorized limits of an indeterminate sentence, both "mandatory minimum" as used in subsection

(2)of this section and "minimum" as used in section 28-105 in regard to a Class IB felony mean the lowest authorized minimum term of the indeterminate sentence. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).

The mandatory minimum sentence required by subsection

(2)of this section affects both probation and parole: Probation is not authorized, and the offender will not receive any good time credit until the full amount of the mandatory minimum term of imprisonment has been served. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).

The range of penalties for sexual assault of a child in the first degree, first offense, under subsection

(2)of this section, is 15 years' to life imprisonment. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).