§ 28-1805 — Child sexual abuse material; prohibited acts; affirmative defense; penalty

Nebraska § 28-1805

• Jurisdiction: Nebraska
• Ch. 28: Crimes and Punishments

Text

(1) It shall be unlawful for a person to knowingly make, direct, create, or in any manner generate any child sexual abuse material.
(2) It shall be unlawful for a person knowingly to purchase, rent, sell, deliver, distribute, display for sale, advertise, trade, publish, circulate, or provide to any person any child sexual abuse material.
(3) It shall be unlawful for a person to knowingly employ, force, authorize, induce, or otherwise cause a child to appear or be depicted in any child sexual abuse material.
(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 appearing or being depicted in any child sexual abuse material.
(5) For a defendant who was eighteen years of age or older but under nineteen years of age at the time of the offense, it shall be an affirmative defense to a charge made pursuant to subsection (1) of this section that:
(a) The visual depiction:
(i) Portrays a child who is fifteen years of age or older;
(ii) Was knowingly and voluntarily generated by the child depicted therein;
(iii) Was knowingly and voluntarily provided by such child; and
(iv) Portrays only one child other than the defendant;
(b) The defendant has not provided or made available the visual depiction to another person except such child; and
(c) The defendant did not coerce such child to either create or send the visual depiction.
(6) For a defendant who was under eighteen years of age at the time of the offense, it shall be an affirmative defense to a charge made pursuant to subsection (1) of this section that:
(a) The difference in age between the defendant and the child portrayed is less than four years;
(b) The visual depiction:
(i) Was knowingly and voluntarily generated by the child depicted therein;
(ii) Was knowingly and voluntarily provided by such child; and
(iii) Portrays only one child other than the defendant;
(c) The defendant has not provided or made available the visual depiction to another person except such child; and
(d) The defendant did not coerce such child to either create or send the visual depiction.
(7) Any person who is under nineteen years of age at the time he or she violates this section shall be guilty of a Class III felony for each offense.
(8) 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 ID felony for each offense.
(9) Any person who violates this section and who has previously been convicted of a covered offense shall be guilty of a Class IC felony for each offense.

Legislative History

Source: Laws 1978, LB 829, § 1; R.S.1943, (1979), § 28-1463; Laws 1985, LB 668, § 3; Laws 2009, LB97, § 18; Laws 2019, LB630, § 5; R.S.Supp.,2024, § 28-1463.03; Laws 2025, LB383, § 5. Operative Date: September 3, 2025 Cross References: Registration of sex offenders, see sections 29-4001 to 29-4014. 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 Constitution of Nebraska. 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).