Bill would prohibit minor consent defense

Members of the Judiciary Committee heard testimony March 13 on a bill that would provide stronger sexual assault protections.

Sen. Tony Vargas
Sen. Tony Vargas

LB478, introduced by Omaha Sen. Tony Vargas, would prohibit consent by a minor under 18 from being used as a defense or mitigating factor in a civil case arising out of a sexual assault perpetrated by an adult in a position of authority over the minor.

Vargas said that in 2017 a Florida court found four third graders at least partially at fault when they were molested by a teacher.

“It should be easy to say that a third grader cannot consent to sexual activity or that a third grader cannot be ‘careless and negligent’ or ‘old enough to know better’ when a teacher molests them,” Vargas said. “We have a duty as elected officials to protect the most vulnerable among us.”

He said there currently is nothing in Nebraska statutes that prevents victims in civil cases from being blamed under a defense known as “comparative negligence,” which means both parties share fault in a matter.

John Lindsay, representing the Nebraska Association of Trial Attorneys, spoke in support of the bill. LB478 would close a loophole in state statute, he said.

“The Nebraska Legislature for years has said that a minor under the age of 16 is incapable of consenting,” Lindsay said, adding that if a minor cannot legally consent it would be “absurd” to hold them partially at fault in a sexual assault case.

No one testified in opposition to the bill and the committee took no immediate action on it.

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