984 N.W.2d 909
Neb.2023Background
- Amanda and Daniel dated in 2018–2019; Amanda alleges multiple instances of nonconsensual sexual contact, including penile penetration. They broke up in Jan. 2019 but had intermittent contact thereafter.
- In Aug. 2020 Daniel allegedly admitted by phone that he had penetrated Amanda and sought her forgiveness; Amanda reported the matter to her pastor, which led to a criminal investigation.
- Daniel was tried and acquitted; on the day of acquittal (May 26, 2022) Amanda filed for an ex parte sexual assault protection order under Neb. Rev. Stat. § 28-311.11, which the district court granted.
- Daniel requested a show-cause hearing; at the contested hearing Amanda testified and offered her affidavit, and Daniel presented no contrary evidence. The district court found Amanda credible, concluded a sexual assault occurred by a preponderance, and continued the order for 1 year.
- Daniel appealed, arguing the district court erred by refusing to consider the risk of future harm and that, applying the correct standard, there was insufficient evidence to continue the order. The Nebraska Supreme Court reviewed de novo and affirmed.
Issues
| Issue | Amanda's Argument | Daniel's Argument | Held |
|---|---|---|---|
| Whether evidence of the risk of future harm is relevant at a § 28-311.11 show-cause hearing | Only proof of a sexual assault offense is required to continue an ex parte order | The court must examine risk of future harm before continuing an order; risk is relevant | Risk of future harm is relevant and may be considered; statute is forward‑looking and enjoins future conduct |
| Whether Amanda proved a sexual assault by a preponderance of the evidence | Amanda’s testimony and affidavit satisfy the preponderance standard | Daniel disputed the claim but offered no evidence at the hearing | Amanda carried her burden; the court’s credibility finding was upheld on de novo review |
| Whether the remoteness of the alleged assault defeats entitlement to a protection order | Passage of time is not dispositive; surrounding circumstances matter | The assault occurred years earlier, so no present risk justifying continuation | Remoteness is a factor but not determinative; here facts (confession, renewed contact, fear of retaliation, community proximity) supported continuance |
| Burden allocation and presumptions at a contested hearing | Petitioner must prove assault; then respondent must show cause why order should not remain | Court misread statute if it assumed need for protection without risk inquiry | Petitioner must prove the sexual assault; relevant evidence of future harm may be presented; once petitioner meets burden, burden shifts to respondent to overcome presumption the order remains in effect |
Key Cases Cited
- Mollring v. Nebraska Dept. of Health & Human Servs., 983 N.W.2d 536 (2023) (statutory language given plain meaning)
- Yerania O. v. Juan P., 969 N.W.2d 121 (2022) (protection orders analogous to injunctions)
- Garrison v. Otto, 970 N.W.2d 495 (2022) (courts may weigh likelihood of future harm in protective‑order context)
- Maria A. on behalf of Leslie G. v. Oscar G., 919 N.W.2d 841 (2018) (domestic abuse protection orders require forward‑looking inquiry into future risk)
- S.B. v. Pfeifler, 920 N.W.2d 851 (2018) (petitioner must prove a sexual assault offense by a preponderance of the evidence)