What is a sexual assault protection order?
A sexual assault protection order is a court order that can protect you from an abuser if you are the victim of a “sexual assault offense.”1
1 NE R.S. § 28-311.11(1)
What is the legal definition of a sexual assault offense?
A “sexual assault offense” includes (click on the term to read the actual statute or continue reading to see a “plain language” explanation of the crime):
- sexual assault;
- sexual contact or sexual penetration without consent; and
- sexual assault of a child.1
Sexual assault means that the abuser sexually “penetrates” you or exposes you to “sexual contact” (defined below):
- without your consent;
- while you were physically or mentally unable to resist or understand what was happening (and the abuser knew or should have known your condition); or
- while the abuser is 19 years old or older and you are between the ages of 12 and 16.2
Sexual contact occurs when an abuser intentionally does any of the following with the purpose of causing sexual arousal:
- touches your sexual or intimate body parts or the clothing covering your sexual or intimate body parts;
- causes you to touch his/her sexual or intimate body parts or the clothing covering his/her sexual or intimate body parts; or
- touches a child with his/her sexual or intimate body parts on any part of the child’s body.3
Sexual penetration means sexual intercourse, including oral sex, anal intercourse, or any invasion (even a small one) to any part of your body or the abuser’s body. Sexual penetration also includes any object that the abuser uses to penetrate your genital or anal openings in a way that cannot be reasonably considered as being for medical or health purposes. Sexual penetration does not have to include the discharge of semen.4
1 NE R.S. § 28-311.11(14)
2 NE R.S. §§ 28-319(1); 28-320(1)
3 NE R.S. § 28-318(5)
4 NE R.S. § 28-318(6)
What happens when I apply for a sexual assault protection order?
When you apply for a sexual assault protection order, there are four things that may happen:
- The judge may sign the protection order “ex parte,” which means without a hearing where both parties are present and before the other party receives notice. A judge may grant your ex parte order if s/he believes that you would suffer severe harm, loss, or damage before there could be a hearing with both you and the abuser;
- The judge could deny the ex parte order and instead, schedule an evidentiary hearing within fourteen days at which point the respondent can “show cause” why an order should not be issued;
- The judge could decide that your in your situation, it would be more appropriate for you to have a harassment protection order or a domestic abuse protection order and could hold a hearing where the abuser would have to “show cause” why the judge should not issue one of those orders; or
- The judge may choose to deny the protection order without a hearing if it appears from your petition that you do not qualify for the requested order.1
If you get the ex parte order, the order is then served to the abuser and s/he has ten days to request what is called a “show-cause hearing” to present his/her evidence and ask that the order be dismissed. At this hearing, the abuser must prove to the judge why the order should not remain in effect and you will have to prove why you should keep the order. If the abuser requests a show-cause hearing, the judge will schedule the hearing within 30 days and will notify you and the harasser of the court date.1
Note: If you want the abuser to be prohibited from having a firearm, the judge must hold a protection order hearing. You, as the victim, can request this hearing if the abuser does not make the request.2
How long does a sexual assault protection order last?
If the judge does not grant your ex parte sexual assault protection order, you may still have a chance to return to court for a final order. The abuser must be served with notice of the case. If the abuser requests a hearing, the courts will schedule a hearing within 14 days of service so that you have a chance to prove that you need a final sexual assault protection order. If the judge grants you an order at that hearing, the order will remain in effect for one year.1
If the judge grants an ex parte sexual assault protection order, the abuser must be served with a copy of that order and have a chance to request a hearing. If the abuser requests the hearing, the judge will use the hearing to decide whether to cancel your order or continue it for one year. If the abuser does not request a hearing within 5 days of being served with the protection order (or if the judge grants you an order at that hearing), the order will remain in effect for one year without having any further court hearings.1
In either case, if the abuser doesn’t request the show-cause hearing, you would not have to face the abuser in court.
1 NE R.S. § 28-311.11(7)
What protections can I get in a sexual assault protection order?
In a sexual assault protection order, the judge can order that the abuser not:
- place any limits on you or your freedom;
- harass, threaten, assault, molest, attack, or otherwise disturb your peace; and
- telephone, contact, or otherwise communicate with you.1
1 NE R.S. § 28-311.11(1)
If the abuser lives in a different state, can I still get an order against him/her?
When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.
There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:
- The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
- One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
- If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.
However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.
You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.
Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.