In sex assault cases, law enforcement and victim advocates may encourage the accuser to obtain protection orders against the accused. A sexual assault protection order (SAPO) is a lawful order by a court at the request of the accuser. Once the order is in place, if the accused contacts the accuser, the accused will be charged with a crime.
Under Neb. Rev. Stat. §28-311.11, if the court issues the protection order the order will prohibit the accused from:
- imposing any restraint upon the accuser;
- harassing, threatening, molesting, attacking, or otherwise disturbing the peace of the accuser; or
- telephoning, contacting, or otherwise communicating with the accuser.
The court can issue the order ex parte (without the accused or their lawyer being present), or set the matter for hearing before deciding to issue the order or deny the request for the order. If the order is issued ex parte , the accused has five days to request a hearing after being served with the order, The purpose of the hearing is to determine whether the order should stay in place. That hearing is to be held within 30 days of filing of a request for a hearing.
An accuser can petition the court for a protection order even if law enforcement has decided not to file any charges.
In some cases, where the accuser fails to obtain a SAPO under Neb. Rev. Stat. §28-311.11, they will try to obtain a harassment protection under §28-311.09, which does not require proof of sexual assault.
A SAPO is on public record, potentially having an impact on the accused’s career, family life, and social well-being.
For a SAPO to be granted in Nebraska, does the act have to occur in Nebraska?
Not necessarily. However, if a SAPO is applied for in Nebraska based on an action that took place outside of Nebraska, the Nebraska court would have to look to the law of the state in which the act is alleged to have occurred in reaching a decision on whether to issue or decline the SAPO.
What must be proved for a SAPO to be issued?
For a court to issue the SAPO, the court must find the accuser has proved by a preponderance of the evidence that sexual assault or contact occurred. Neb Rev. Stat. §28-318(5), defines sexual contact to include: “only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party.”
Being the subject of a SAPO can impact the accused’s right to possess firearms.
How do I respond to false allegations?
It can be helpful to consult with an experienced sexual assault defense attorney prior to acting. While SAPO hearings are separate from criminal prosecutions, statements made by an accused party could be used against him or her in a subsequent criminal prosecution.