Nebraska Revised Statute 28-1463.03

Revised Statutes » Chapter 28 » 28-1463.03
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28-1463.03. Visual depiction of sexually explicit conduct; prohibited acts; affirmative defense.

(1) It shall be unlawful for a person to knowingly make, publish, direct, create, provide, or in any manner generate any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers.

(2) It shall be unlawful for a person knowingly to purchase, rent, sell, deliver, distribute, display for sale, advertise, trade, or provide to any person any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers.

(3) It shall be unlawful for a person to knowingly employ, force, authorize, induce, or otherwise cause a child to engage in any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers.

(4) It shall be unlawful for a parent, stepparent, legal guardian, or any person with custody and control of a child, knowing the content thereof, to consent to such child engaging in any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers.

(5) It shall be an affirmative defense to a charge brought pursuant to subsection (1) of this section if the defendant was less than eighteen years of age at the time the visual depiction was created and the visual depiction of sexually explicit conduct includes no person other than the defendant.

(6) It shall be an affirmative defense to a charge brought pursuant to subsection (2) of this section if (a) the defendant was less than eighteen years of age, (b) the visual depiction of sexually explicit conduct includes no person other than the defendant, (c) the defendant had a reasonable belief at the time the visual depiction was sent to another that it was being sent to a willing recipient, and (d) the recipient was at least fifteen years of age at the time the visual depiction was sent.

Source

    Laws 1978, LB 829, § 1;
    R.S.1943, (1979), § 28-1463;
    Laws 1985, LB 668, § 3;
    Laws 2009, LB97, § 18.

Cross References

Annotations

A person who generates differing and multiple prohibited visual depictions or causes a child to engage in the creation of such visual depictions commits multiple offenses of subsection (1) or (3) of this section, even though each such differing visual depiction involves the same subject captured in a narrow timeframe. State v. Mather, 264 Neb. 182, 646 N.W.2d 605 (2002).

The sexual nature of a photograph is not determined solely from the subjects of the photograph, but from the motives of the persons generating the photograph. State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1993).

Under previous statute, the act of appearing in an obscene film depicting children was prohibited. State v. Jensen, 226 Neb. 40, 409 N.W.2d 319 (1987).

Subsection (1) of this section is neither overbroad nor vague under federal Constitution, but there is an open question of constitutionality under the Nebraska Constitution. One may "publish" by showing a videotape; the phrase "portrayed observer" is not unconstitutionally overbroad; the phrase "sexually explicit conduct" is not unconstitutionally vague; and sexual excitement is not an element or substantial motivational factor of some of the conduct proscribed under subsection (1) of this section. State v. Burke, 225 Neb. 625, 408 N.W.2d 239 (1987).