State v. Koperski
1998 Neb. LEXIS 134, 254 Neb. 624, 578 N.W.2d 837 (1998)
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Rule of Law:
In a first-degree sexual assault prosecution, a trial court must instruct the jury on the defense of consent when the defendant produces evidence that, viewed in its entirety, could reasonably be seen by the jury as an indication of the alleged victim's affirmative and freely given consent. The standard for evaluating consent is objective, focusing on the reasonableness of the defendant's interpretation of the complainant's manifested words and conduct, not the defendant's subjective belief.
Facts:
- K.O. and her friend Marti G. attended a party at the home of David Koperski.
- Later that night, after finding they were locked out of their planned accommodation, Marti called Koperski, who agreed to let them stay at his house where an after-hours party was in progress.
- Feeling ill at the second party, K.O. fell asleep on the living room couch.
- After the party ended, Koperski approached K.O. on the couch, leading to a sexual encounter with conflicting accounts.
- K.O. testified that after an initial consensual kiss, Koperski became aggressive, ignored her repeated verbal objections of "no," forcibly pulled down her pants, and penetrated her against her will, using his body weight to overcome her.
- Koperski testified that K.O. initiated passionate kissing, they mutually removed a comforter between them, he believed she was helping remove his pants, and when she eventually said "no" in a crescendo-like fashion, he immediately stopped.
- K.O. remained on the couch for the rest of the night and did not seek help from Koperski's roommates or her friend who were also in the house.
- The following day, after returning home and speaking with others, K.O. reported to a hospital that she had been raped.
Procedural Posture:
- David Koperski was charged with first-degree sexual assault and tried in the district court (trial court).
- At the conclusion of the trial, Koperski's counsel requested a jury instruction on the issue of consent, which the trial court refused to give.
- A jury convicted Koperski of first-degree sexual assault.
- Koperski (appellant) appealed the conviction to the Nebraska Court of Appeals (intermediate appellate court), arguing the trial court erred by failing to instruct on consent.
- The Court of Appeals affirmed the district court's judgment.
- Koperski (petitioner) then successfully petitioned the Nebraska Supreme Court (highest court) for further review.
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Issue:
Does a trial court commit prejudicial error by refusing to instruct a jury on the defense of consent in a first-degree sexual assault prosecution where the defendant adduces evidence that could reasonably be viewed as indicating the alleged victim's consent?
Opinions:
Majority - Gerrard, J.
Yes. A trial court commits prejudicial error by refusing to instruct the jury on the defense of consent where the evidence supports such a defense. Although lack of consent is not an explicit element of the Nebraska sexual assault statute at issue, consent operates as a defense because it can negate the essential element of overcoming the victim by force. The defendant’s subjective belief or mistake of fact regarding consent is not a defense; instead, the inquiry is objective. The jury must determine whether the victim's manifestations of consent, through words or conduct, were such that a reasonable person in the circumstances would have understood that the victim affirmatively and freely consented. In this case, Koperski's testimony provided sufficient evidence to warrant a consent instruction, as a jury could have found his belief that K.O. consented to be objectively reasonable based on her alleged conduct. The trial court's failure to give the instruction was prejudicial, as evidenced by the jury's explicit question during deliberations about whether they could consider the issue of consent.
Analysis:
This decision establishes an objective standard for the defense of consent in Nebraska sexual assault cases, clarifying that the focus is on the defendant's conduct and the reasonableness of their interpretation of the victim's manifested behavior, rather than the defendant's subjective state of mind. By mandating a jury instruction on consent whenever there is evidentiary support, the court ensures that the defendant's primary theory of defense is properly considered by the fact-finder. This ruling distinguishes between a legally cognizable consent defense based on objective reasonableness and an invalid defense based on a mere subjective mistake of fact, thereby shaping how such cases are litigated and instructed.
