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State v. Van11/12/2004
Although Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed. 2d 508 (2003), was decided subsequent to these cases, it does not undermine their reasoning. The Lawrence Court did not extend constitutional protection to any conduct which occurs in the context of a consensual sexual relationship. Rather, the Court indicated that State regulation of such conduct was inappropriate "absent injury to a person or abuse of an institution the law protects." 539 U.S. at 567. In addition, it specifically noted that the case it was deciding did not involve "persons who might be injured." 539 U.S. at 578. We therefore conclude that §§ 28-308 and 28-309 are not unconstitutional as applied to Van.
We note that Van also argues that the assault statutes are arbitrarily applied, in that their literal application would criminalize such things as surgeries, tattoos, and body piercing. We regard this argument as a facial challenge to the constitutionality of the assault statutes. See State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996) (challenge that statute vests unbridled discretion in county attorney is facial). Van did not, however, file a motion to quash in district court. A facial challenge to a statute is waived if a party fails to file a timely motion to quash in the district court. State v. Caddy, 262 Neb. 38, 628 N.W.2d 251 (2001). We therefore do not reach the issue of arbitrary application.
Van was also convicted of committing terroristic threats and first degree false imprisonment. "A person commits terroristic threats if he or she threatens to commit any crime of violence . . . ith the intent to terrorize another." § 28-311.01(1)(a). A person commits false imprisonment under § 28-314(1) if he or she "knowingly restrains or abducts another person (a) under terrorizing circumstances or under circumstances which expose the person to the risk of serious bodily injury ; or (b) with intent to hold him in a condition of involuntary servitude." Like the assault statutes, the object of these criminal statutes is to protect citizens from injury and to maintain public order, institutions which the law does and should protect. We do not interpret Lawrence as restricting the ability of the State to regulate such conduct through its criminal laws and, accordingly, conclude that neither statute is unconstitutional as applied to Van.
(ii) Rape Shield Law
Nebraska's rape shield law, codified at § 28-321, provides in relevant part that evidence of a victim's past sexual behavior is not admissible except as follows:
Evidence of past sexual behavior with persons other than the defendant, offered by the defendant upon the issue whether the defendant was or was not, with respect to the victim, the source of any physical evidence evidence of past sexual behavior with the defendant when such evidence is offered by the defendant on the issue of whether the victim consented to the sexual behavior upon which the sexual assault is alleged if it is first established to the court that such activity shows such a relation to the conduct involved in the case and tends to establish a pattern of conduct or behavior on the part of the victim as to be relevant to the issue of consent.
Prior to trial, the State filed a motion to exclude evidence of J.G.C.'s past sexual behavior pursuant to § 28-321, on grounds that there was no sexual activity between J.G.C. and Van prior to December 7, 2001, and that J.G.C.'s sexual behavior prior to that date was irrelevant. Following an evidentiary hearing on the motion, the district court entered an order determining that the details of J.G.C.'s prior sexual activity, including events, dates, and partners, were inadmissible under the rape
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