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Nebraska Sexting Laws

Nebraska sexting laws (28-1463.03) dictate that anyone found in possession of pictures (still or moving) depicting a child engaged in sexual conduct is guilty of child pornography possession. That means sexting teens in the state risk felony child pornography charges.

Quick take:

  • Teens and adults found guilty of possession or distribution of child pornography must register as sex offenders.
  • Teen offenders face prosecution in juvenile or adult court depending on facts presented.
  • Nude selfies taken by anyone below 19 constitutes child pornography.
  • Sending nude selfies constitutes child pornography if the person depicted is below 18.
  • Nudes sent without the receiver’s consent constitutes harassment by phone or electronic device.

Nebraska sexting laws summary

 Child pornography creation, possession, and distribution are all state and federal felonies. However, under state law, if the person receiving the image was below 18. And the sender is or was at least fifteen years of age, and knowingly created a photo or image that only depicts one person. The receiving teen is not guilty of child pornography possession on condition that he or she did not solicit nor disseminate or display the image to another person.

That means that anyone who solicits sexually explicit images from a minor, attempts, or conspires to solicit, then shares the image with a third person is guilty of multiple offenses.

What is vital to remember is that Nebraska law prohibits sexting between teens or anyone below 18. Furthermore, if there is the creation of sexually explicit images, the crime escalates into child pornography creation, dissemination, and distribution depending on the facts presented.

The second factor is the number of people involved. For example, if a teen sends you a photo, and you did not solicit, entice, or in any other way encourage the teen to send the image. You are not guilty. But as mentioned, if you display or share the image with someone outside the relationship, then you are guilty of child pornography possession and distribution.

If you receive sexually explicit photos, videos, or images from a minor without solicitation or coercion, we recommend taking reasonable steps to delete the photo or inform the appropriate authority (school, parents, or law enforcement).

Nebraska State statute 28-813.01 provides an affirmative defense that can mitigate punishment for sexting if certain conditions such as age, age difference, and whether or not the image/movie was distributed.

When does sexting become child pornography in Nebraska?

Under chapter 28 “Crimes and Punishment 28-813.01,” the term child refers to anyone below 19 years of age. Consequently, any image, video, photo, or simulation depicting a child engaged in sexual conduct is illegal to possess, observe, share, and create. Possessing child pornography is a class 4 felony in Nebraska. A class 4 felony in Nebraska is punishable by up to five years in prison, and a fine up to $10000, if the accused is below 19.

 If the offender is an adult/above 19, the crime escalates into a class 3 felony. a class 3 felony carries a fine of up to $25000 and a prison sentence up to 20 years.

What if you send or display the image to a third person?

Under Nebraska child pornography laws, willful distribution, selling, receiving, transporting, or shipping of child pornography is punishable by a minimum of ten years in prison and a maximum of 30 years. If the accused has prior records, then he or she qualifies for enhanced punishment.

What is the punishment for sexting in Nebraska?

Teens who commit petty or misdemeanor offenses related to sexting, say, sending inappropriate texts, will face prosecution in juvenile court. The punishment options available in the juvenile system include a court warning, probation, house arrest, parole, supervision, or incarceration in a juvenile facility.

What if the teen committed a federal crime or felony?

Depending on the facts presented, the teen may face multiple charges. But because of the juvenile act, it is unlikely that the child will face federal charges. but he or she may face trial in adult court. In adult court, child pornography creation, possession, and distribution are serious felony charges that carry the sentences mentioned above. Furthermore, upon conviction, the teen must register as a sex offender.

Under state law, anyone convicted of the following offenses must register as a sex offender:

Attempt, solicitation, being an accessory, aiding and abetting, or conspiring to commit any of the crimes listed below

  • Sexually explicit conduct; visual depiction 28-813.
  • Visual depiction of sexually explicit conduct of a child 28-1463.03/28-14563.05
  • Pandering of a minor 28-802
  • Debauching a minor 28-805

See the full list here

Affirmative Defense

State statute 28-813.01 provides two affirmative defenses.

  • The accused was less than 19 years of age on the condition that:
  • The age difference between the accused and the minor depicted was less than four years.
  • The sender created and distributed the photo knowingly and voluntarily, that is, no coercion, solicitation, or encouragement from the accused.
  • Only one child is depicted in the image.
  • The accused did not share, display, transmit or send the image to another person.
  • The defendant was less than 18 years of age and;
  • The minor in the photo voluntarily generated the image without coercion or solicitation.
  • The age difference between the accused and minor portrayed was less than four years.

What to remember

  • If the accused has a prior record, the crime escalates into a Class IC felony.
  • The court may order the accused to forfeit any property used, or intended to be used for violation of the statute. That includes money, securities, firearms, electronic communication devices, computers, and anything else that applies.

Nebraska sexting laws and debauching a minor

Under 28-808 “Debauching a Minor; Penalty,” a person is guilty of debauching a minor if he or she (1) lewdly induces a minor to engage in sexual conduct. (2) solicits a minor to visit a house of prostitution. (3)  the person aids or assists in arranging a meeting between a minor and another person to engage in sexual conduct.

Debauchery is a class 1 misdemeanor in Nebraska that may escalate into pandering if a person entices, persuades, inveigles, procures, or in any other way encourages a minor or adult to leave his or her state to engage in debauchery or prostitution. That is according to 28-802. “Pandering: Penalty.” Under the statute, it is also illegal to entice an adult or minor to become a prostitute, give or receive money, or anything of value in exchange for an act of prostitution.

Remember, pandering is a class 2 felony in Nebraska. If the victim is a child, the offender qualifies for enhanced punishment.

 Nebraska sexting laws and soliciting a minor

Chapter 28 section 28-320.02. outlaws and punishes soliciting, coaxing, enticing, or luring a child or a law enforcement officer pretending to be a child to engage in sexual conduct. The law applies whether the act is committed in person, or via an electronic device, including computers and smartphones.

Anyone who violates the statute is guilty of a Class ID felony. If the accused has prior records, the crime escalates into a Class IC felony. class ID/IC felony in Nebraska is punishable by up to 50 years in prison.

Nebraska sexting laws, violation of privacy, and unsolicited sexts

Under chapter 28: 28-311.08, “Unlawful Intrusion,” it is unlawful to intentionally record or photograph a person’s intimate area without consent, it is also illegal to display, make public, or disseminate images or recordings taken under circumstances where there is a reasonable expectation of privacy. Anyone who knowingly photographs someone using a hidden device is guilty of a Class IV felony. if the person intentionally makes public, distributes, or displays the image to someone else, that person is guilty of a Class IIA felony.

Any subsequent violations constitute a class II felony.

  Threatening to distribute or make public sexually explicit images of anyone (sextortion) is a class I misdemeanor. If the victim is below 18 or is a child, and the offender an adult, the adult must register as a sex offender upon conviction.

Under the statute, reasonable expectation of privacy or a place of solitude refers to a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, any facility, public or private, used as a restroom, tanning booth, locker room, shower room, fitting room, or dressing room.”

Nebraska sexting laws and Phone sexual harassment

Sending nudes or sexually explicit images without consent of the person depicted or person receiving is a form of sexual harassment in Nebraska. Furthermore, Under section 28-1310 “Intimidation by Telephone call or Electronic Communication,” using obscene language or suggesting any obscene act via telephone or other communication devices. Section 4 of the statute reads in part electronic communication means any writing, sound, visual image, or data of any nature that is received or transmitted by an electronic communication device as defined in section.”

Obscene under 28-807 refers to quote an average person applying contemporary community standards would find that the work, content, act, or live performance taken as a whole predominantly appeals to the prurient interest or a shameful or morbid interest in nudity, sex, or excretion, (1) 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 (2) The work, conduct, material, or live performance taken as a whole lacks serious literary, artistic, political, or scientific value.”

If you are the victim of unsolicited or non-consensual sexts/phone harassment, you may take civil action against the offender to recover damages. We suggest consulting with an attorney near you.

References

Other Nebraska Laws

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