In re Interest of Kalen M., A-16-1205

Juvenile court adjudicated Kalen M., born Feb 2, 2003, as a juvenile who committed first-degree sexual assault (petition alleged conduct in Dec 2015–Jan 2016).
Victim born Nov 2003 and has autism and ADHD; alleged anal penetration by Kalen.
Kalen admitted during a police interview to approximately two centimeters of anal penetration and acknowledged the victim had autism, but also described the victim as a "really smart kid" who sometimes blamed Kalen for misbehavior.
Medical exam showed rectal bleeding but examiner attributed it more likely to constipation; exam neither confirmed nor excluded sexual abuse.
Juvenile court found the State proved the offense beyond a reasonable doubt; Kalen appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State proved beyond a reasonable doubt that Kalen knew or should have known the victim was mentally or physically incapable of resisting or appraising the nature of the conduct	State: Kalen admitted penetration and knew the victim had autism, supporting knowledge of incapacity	Kalen: Evidence did not show the victim’s level of impairment or that Kalen knew the victim was incapable of resisting or appraising; autism alone is insufficient	Reversed: admission of penetration established actus reus, but State failed to prove the required knowledge of victim’s incapacity beyond a reasonable doubt; adjudication reversed and remanded with directions to dismiss

State v. Rossbach, 264 Neb. 563 (addresses two-part test for victim incapacity and perpetrator knowledge)
State v. Collins, 7 Neb. App. 187 (recognizes competent persons can nonetheless be incapable of resisting; discusses incapacity analysis)
In re Interest of J.M., 223 Neb. 609 (discusses sexual assault elements where victim lacks capacity)
Reavis v. Slominski, 250 Neb. 711 (discusses incapacity as basis for sexual assault)
In re Interest of Becka P., 296 Neb. 365 (standard of review for juvenile adjudications)
In re Interest of Adrian B., 11 Neb. App. 656 (use of criminal-law guidance in juvenile adjudication review)