2017 Nebraska Revised Statutes
Chapter 28 - CRIMES AND PUNISHMENTS
28-813.01 Sexually explicit conduct; visual depiction; unlawful; penalty; affirmative defense; forfeiture of property.
Sexually explicit conduct; visual depiction; unlawful; penalty; affirmative defense; forfeiture of property.
(1) It shall be unlawful for a person to knowingly possess any visual depiction of sexually explicit conduct, as defined in section 28-1463.02, which has a child, as defined in such section, as one of its participants or portrayed observers.
(2)(a) Any person who is under nineteen years of age at the time he or she violates this section shall be guilty of a Class IV felony for each offense.
(b) Any person who is nineteen years of age or older at the time he or she violates this section shall be guilty of a Class IIA felony for each offense.
(c) Any person who violates this section and has previously been convicted of a violation of this section or section 28-308, 28-309, 28-310, 28-311, 28-313, 28-314, 28-315, 28-319, 28-319.01, 28-320.01, 28-833, 28-1463.03, or 28-1463.05 or subsection (1) or (2) of section 28-320 shall be guilty of a Class IC felony for each offense.
(3) It shall be an affirmative defense to a charge made pursuant to this section that:
(a) The visual depiction portrays no person other than the defendant; or
(b)(i) The defendant was less than nineteen years of age; (ii) the visual depiction of sexually explicit conduct portrays a child who is fifteen years of age or older; (iii) the visual depiction was knowingly and voluntarily generated by the child depicted therein; (iv) the visual depiction was knowingly and voluntarily provided by the child depicted in the visual depiction; (v) the visual depiction contains only one child; (vi) the defendant has not provided or made available the visual depiction to another person except the child depicted who originally sent the visual depiction to the defendant; and (vii) the defendant did not coerce the child in the visual depiction to either create or send the visual depiction.
(4) In addition to the penalties provided in this section, a sentencing court may order that any money, securities, negotiable instruments, firearms, conveyances, or electronic communication devices as defined in section 28-833 or any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices be forfeited as a part of the sentence imposed if it finds by clear and convincing evidence adduced at a separate hearing in the same prosecution, conducted pursuant to section 28-1601, that any or all such property was derived from, used, or intended to be used to facilitate a violation of this section.
- Laws 1988, LB 117, § 6;
- Laws 2003, LB 111, § 1;
- Laws 2009, LB97, § 15;
- Laws 2015, LB605, § 45;
- Laws 2016, LB1106, § 7.
- Registration of sex offenders, see sections 29-4001 to 29-4014.
A person knowingly possesses child pornography in violation of this section when he or she knows of the nature or character of the material and of its presence and has dominion or control over it. State v. Mucia, 292 Neb. 1, 871 N.W.2d 221 (2015).
“Possess” under this section includes constructive possession. State v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014).
Where a person, using file-sharing software, intentionally searches for, downloads, views, and then deletes child pornography computer files, that person has “knowingly possess[ed]” child pornography. State v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014).