NRS 200.366 - Sexual Assault / Rape Laws in Nevada

Updated



NRS 200.366 is the Nevada statute that defines the crime of sexual assault and rape. Sexual assault is as any kind of penetrative sex with a person who does not consent or is not capable of consenting.

Specifically, NRS 200.366 reads that "[s]ubjects another person to sexual penetration, or forces another person to make a sexual penetration on himself or herself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct."

The current cultural climate of #MeToo and Time's Up has renewed the public's awareness of what legally constitutes consent. Under Nevada law, sex is non-consensual whether the victim indicates "no" or is too intoxicated or incapacitated to give valid consent.

Sexual assault is prosecuted as a category A felony in Nevada. A conviction carries a life sentence in Nevada State Prison as well as lifetime sexual offender registration in Nevada. Whether a defendant can be released on parole depends on:

  1. the age of the victim;
  2. if the victim sustained substantial bodily harm in Nevada (NRS 0.060); and
  3. the defendant's criminal history

Age of victim in Nevada rape case

Penalties for Nevada rape conviction

16 or older

  • Life in prison without the possibility of parole; or
  • Life in prison with the possibility of parole after 15 years; or
  • Life in prison with the possibility of parole after 10 years (only if the victim sustains no substantial bodily harm)

Under 16, and the defendant has no prior conviction(s) of sexual assault or a sexual offense against a child

  • Life without the possibility of parole (if the child sustains substantial bodily harm); or
  • Life in prison with the possibility of parole after 25 years (if the child is aged 14 or 15 and sustains no substantial bodily harm); or
  • Life in prison with the possibility of parole after 35 years (if the child is under 14 and sustains no substantial bodily harm)

Under 16, and the defendant has a prior conviction(s) of sexual assault or a sexual offense against a child

  • Life without the possibility of parole

There are several possible arguments to fight Nevada sexual assault charges under NRS 200.366, including:

  • The defendant was falsely accused;
  • The accuser consented to the sex; or
  • No sexual penetration occurred

Depending on the available evidence, it may be possible to get a rape charge reduced through a plea bargain in Nevada or dismissed outright. Or if the case goes to a jury trial in Nevada, the prosecutor would bear the very high burden of proving guilt beyond a reasonable doubt.

In this article, our Las Vegas Nevada criminal defense attorneys discuss the following sexual assault topics:

gavel over paper that says sexual assault (NRS 200.366)
Sexual assault under NRS 200.366 is the second most serious offense in Nevada. The first is murder.

1. What is the legal definition of sexual assault in Nevada under NRS 200.366?

Nevada law defines sexual assault (a.k.a. rape) as having penetrative sex against the other person's will. It is the most serious crime in the state second only to murder.1

NRS 200.366 outlaws all types of non-consensual penetrative sex, including:

  • vaginal intercourse
  • fellatio
  • cunnilingus
  • anilingus
  • anal sex
  • digital sex ("fingering")
  • inserting body parts or objects in a vagina or anus
  • penetrative sexual acts with an animal2

Non-consensual sexual touching that falls short of penetration --  such as groping -- is not rape. In these cases, the accused could instead face charges for the Nevada crime of open and gross lewdness (NRS 201.210) or the Nevada crime of lewdness with a minor (NRS 201.230), depending on the victims' age.3

Lack of consent occurs not only when the alleged victim articulates "no" or signals "no" to having sex. Lack of consent also includes circumstances where the perpetrator knows -- or should know -- that the alleged victim has no capacity to understand what is happening. Examples include when the alleged victim is:

  • sleeping,
  • drunk,
  • high,
  • passed out (such as in the recent Bill Cosby "aggravated indecent assault" case, where the victim was given a drink with sedatives that caused her to lose consciousness4),
  • overdosed on drugs, 
  • being in a coma or vegetative state, or
  • severely mentally disabled
gavel
Spouses who have unforced sex with their sleeping spouse can arguably escape prosecution for rape under Nevada law.

Sexual assault is prosecuted the same whether it occurs between strangers or people who know each other, such as the Nevada crime of date rape. But with the Nevada crime of spousal rape (NRS 200.373), non-consensual sex between spouses is arguably legal as long as it is not accomplished by force or the threat of force; an example would be if the spouse was sleeping.5

2. How do prosecutors prove guilt?

Unless there was a video recording of the alleged rape, sexual assault can be extremely difficult for the D.A. to prove because it often comes down to a case of "he says, she says." It is not enough to show that the two people involved had sex -- prosecutors have to show that the victim did not consent or was unable to give consent to the sex.

Therefore, the D.A. tries to compile as much circumstantial evidence as possible, such as:

  • witnesses who saw or heard the alleged rape or the victim resisting;
  • witnesses who saw the victim in an incapacitated state (unable to give consent) shortly before or after the alleged rape;
  • text or email communications by the accused where he/she admits to the alleged rape; and/or
  • expert medical testimony supporting the victim's account of the alleged rape

Rape victims have twenty (20) years after the incident to report the rape to police before it becomes too late for the D.A. to prosecute it. And there is no time limit if the victim filed a police report within 20 years of the rape or if DNA establishes the suspect's identity.6 However, it is usually harder for the prosecution to prove guilt the more time that passes between the alleged rape and when the victim reports it. The more time goes by, the higher a chance that witnesses' memories fade, physical evidence disappears, and video surveillance gets erased.

3. What are the penalties?

Sexual assault is a category A felony, the most serious class of Nevada crime. The sentence is life in prison and sex offender registration (scroll down to section 3 for more information). Whether the defendant may be eligible for parole depends upon three factors:

  1. the age of the victim at the time of the rape,
  2. the defendant's criminal history, and
  3. whether the rape caused the victim substantial bodily harm7
gavel and handcuffs
Rape carries life in prison in Nevada.

Note that "substantial bodily harm" comprises either:

  • prolonged physical pain,
  • an injury which creates the substantial risk of death,
  • serious, permanent disfigurement, or
  • protracted loss or impairment of the function of any bodily member or organ8

Finally, note that rape carries lifetime supervision under NRS 176.0931. But it may be possible to get off lifetime supervision after 10 years.

3.1. When the victim was sixteen or older:

If the victim sustains substantial bodily harm from the rape, then a Nevada judge may impose a sentence of:

  • life in prison without the possibility of parole, or
  • life in prison with the possibility of parole after fifteen (15) years.

But if the victim sustains no substantial bodily harm from the rape, then the sentence is life in prison with the possibility of parole after ten (10) years.

3.2. When the victim was fourteen or fifteen:

The sentence for rape is life in prison without the possibility parole if either:

  • the victim sustained substantial bodily harm, and/or
  • the defendant had a prior conviction of sexual assault or a sexual offense against a child

Otherwise, the judge will impose life in prison with the possibility of parole after twenty-five (25) years.

3.3. When the victim is thirteen or younger:

The sentence for rape is life in prison without the possibility parole if either:

  • the victim sustained substantial bodily harm, and/or
  • the defendant had a prior conviction of sexual assault or a sexual offense against a child

Otherwise, the judge will impose life in prison with the possibility of parole after thirty-five (35) years.9

4. Do defendants have to register as a sex offender?

People convicted of rape in Nevada are required to register for life as a Tier III sex offender in Nevada (NRS 179D.117). Tier III offenders are publicly searchable on the Nevada Sex Registry online database.10

Convicted rapists who get released on parole are required to register within 48 hours of being released. And they must check in with a local law enforcement agency at least once every 90 days.11

Failure to register as a sex offender is a category D felony in Nevada, carrying:

"sex offender" written in scrabble letters
Convicted rapists are required to register as sex offenders in Nevada.
  • one to four (1 - 4) years in prison,
  • and possibly $5,000 in fines

A subsequent failure to register (within seven years of the first failure) is a category C felony in Nevada, carrying:

  • one to five (1 - 5) years in prison,
  • and possibly $10,000 in fines12

Certainly, convicted rapists sentenced to life without parole never need to register because they are never released from custody.

5. What are common legal defenses?

Even though rape is one of the most serious crimes a person can be accused of, it also lends itself to several effective defenses. The following are just some strategies defense lawyers may employ in Nevada sexual assault cases:

  1. The defendant was falsely accused;
  2. The accuser consented to the sex; or
  3. No sexual penetration occurred

A rape charge is only the beginning of a criminal case, and it may be possible to get the rape charge "pleaded down" to a lesser offense or dropped completely. As long as the state cannot show guilt beyond a reasonable doubt, sexual assault charges should be dropped.13

5.1. The defendant was falsely accused

Judges and prosecutors know that innocent people can get falsely accused of rape whether it is out of anger, revenge, a misunderstanding, or a way to win child custody. Common evidence that may show that the defendant was a victim of false allegations include:

  • text messages, emails, or audio recordings from the accuser which show a motivation to lie about getting raped;
  • witnesses who may have heard the accuser discussing the fabricated rape; or
  • expert medical testimony that may show that any of the victim's injuries were self-inflicted

If the attorney can raise a reasonable doubt by showing that someone may have falsely accused the defendant, the sexual assault case should be dismissed.

5.2. The accuser consented to the sex

Rape is forcing someone to have sexual penetration against his/her will (or when he/she is too incapacitated to resist). As long as the prosecutor fails to show that the sex was non-consensual, Nevada sexual assault charges cannot stand.

There are rarely video or audio recordings of sexual encounters in rape cases; therefore, defense attorneys look to other evidence, such as:

consent in the dictionary
Consent is a defense to rape charges.
  • text messages from the accuser after the alleged assault which indicate that the accuser consented;
  • eyewitnesses who saw the accuser sober and fully conscious around the time of the alleged assault; or
  • expert medical testimony which indicates that the accused was not the victim of assault

Note that the age of consent in Nevada under 200.364 is sixteen (16) years old, and that consensual sex between adults and children under sixteen (16) may be prosecuted as statutory rape. Scroll down to section 8.2 for more information.

5.3. No sexual penetration occurred

NRS 200.366 prohibits only non-consensual penetrative sex. If the prosecutor fails to prove that penetrative sex occurred, then the charge should be either dismissed or reduced to a lesser charge.

For instance if all the prosecutor can show is that the defendant committed non-consensual sexual groping, then the charge should be reduced to open and gross lewdness. A first-time offense is typically prosecuted as a gross misdemeanor in Nevada, which carries much lesser penalties than a sexual assault.

Or suppose that the D.A. has evidence a victim was physically assaulted but lacks evidence of sexual assault specifically. The prosecution may then be willing to reduce the rape charge down to the Nevada crime of battery (NRS 200.481).14 The sentence is lower than that of sexual assault, and the defendant would not have to register as a sex offender in Nevada.

6. What are the immigration consequences?

Rape is considered a crime involving moral turpitude in Nevada (CIMT) as well as an aggravated felony in Nevada.15 Therefore, non-U.S. citizens convicted of rape will almost certainly be deported from the U.S. once they finish serving their prison sentences.

It is important that aliens facing rape charges in Nevada seek experienced legal counsel immediately to fight the charges or try to negotiate them down to a non-deportable offense. Learn about the criminal defense of immigrants in Nevada.

7. Can the record be sealed?

Rape convictions can never be sealed from Nevada criminal records; the conviction remains on the defendant's record forever.16 But if the defendant is acquitted or rape at trial -- or if the charge gets dismissed -- then the defendant can pursue a record seal right away. Learn about the Nevada record sealing process.17 

magnifying glass
Rape convictions may never be sealed from Nevada criminal records.

Nevada's prohibition against sealing rape convictions is another reason why it is so important for defendants accused of rape to try to negotiate a charge reduction or dismissal. People with rape convictions on their record face discrimination from potential employers, landlords, and lenders. And they can be disqualified for -- or stripped of -- professional licenses.

8. How long do prosecutors have to bring rape charges?

The D.A. has no time limit to prosecute a suspect for rape if either:

  • DNA evidence identifies the suspect; or
  • The victim filed a police report within 20 years of the alleged rape

Otherwise, there is a 20-year statute of limitations for Nevada prosecutors to bring sexual assault charges.18

9. What other crimes can defendants be charged with?

For general information about sex crimes against children, see our article on Nevada child sex crimes.

9.1. Open or gross lewdness

The Nevada crime of open or gross lewdness (NRS 201.210) is a very vague offense often that is charged when someone allegedly touches another person in a sexual manner that does not rise to the level of rape. A first-time offense is a gross misdemeanor, carrying up to 364 days in prison and/or up to $2,000 in fines.

9.2. Statutory sexual seduction

Also called "statutory rape," the Nevada crime of statutory sexual seduction (NRS 200.368) occurs when an adult eighteen (18) or older has sex with and a child who is:

  • fifteen (15) or fourteen (14) years old, and
  • at least four (4) years younger than the adult

It makes no difference if the child consented to the sex. Statutory rape can be a category B felony in Nevada or a gross misdemeanor depending on the age of the accused.

9.3. Incest

The Nevada crime of incest (NRS 201.180) occurs when relatives closer than second cousins marry or have sexual intercourse whether it is consensual or not. Like rape, incest is a category A felony. Depending on the egregiousness of the situation, the prison sentence ranges from two (2) years to life.

9.4. Sexual conduct between teachers and students

The Nevada crime of sexual conduct between students and secondary school employees (NRS 201.540) and the Nevada crime of sexual conduct between students and college employees (NRS 201.550) occur when teachers or school employees who are twenty-one (21) or older have sexual relations with certain pupils above the age of consent (age 16 or older). It makes no difference if the sex is consensual. This offense is published as a category C felony, carrying one to five (1 - 5) years in prison and possibly $10,000 in fines.

10. What rights do victims have in rape cases?

Nevada lawmakers recognize that rape is a traumatic experience. In an effort to encourage victims to report, Nevada law enacted the following safeguards:

upset woman
Rape victims can usually keep their identities confidential in criminal cases.
  • Victims who report to police may request rape kits, which in Nevada are called SAFE kits -- short for "sexual assault forensic evidence." Police are required to submit SAFE kits to the applicable forensic laboratory responsible for conducting a genetic marker analysis no later than 30 days after receiving the kit. Each lab that receives a kit must test it within 120 days.19
  • Any identifying information about alleged rape victims remain confidential in court filings unless the judge in the case rules otherwise. This measure is to help protect victims' privacy and protect them from harassers.20
  • Should the case go to trial, evidence of victims' prior sexual conduct is inadmissible to challenge the victims' credibility (with some exceptions); this rule is called the "Rape Shield Law."21

11. Can victims sue for sexual assault?

People accused of rape face not only criminal but also civil charges. Depending on the case, the accuser may try to sue the perpetrator for:

It is not uncommon for defendants to get acquitted of criminal rape case but to lose in civil court. This is because the burden of proof that the accuser has to meet in civil court is only "by a preponderance of the evidence." This is a lower bar than "beyond a reasonable doubt," which prosecutors have to meet in criminal cases. 

Defendants who lose civil lawsuits may be ordered to pay hefty compensatory damages to cover the defendant's:

Additionally, the judge may order the defendant to pay punitive damages as a way to "punish" the defendant. Punitive damages may be as much as three times the amount of compensatory damages.

Learn more in our article about lawsuits by sexual assault victims in Nevada.

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Call our Las Vegas rape lawyers at 702-DEFENSE for a FREE consultation today.

Call a Nevada criminal defense attorney...

Facing rape charges in Nevada? Call our Las Vegas sexual assault attorneys at 702-DEFENSE (702-333-3673) right away for a FREE consultation. We will do everything to try to get your charges dismissed or reduced without a trial. But if the situation calls for it, our experienced trial attorneys are prepared to take the matter to the jury and fight for a full acquittal.

¿Habla español? Ve a nuestro artículo sobre los delitos de agresión sexual en Nevada.

Arrested in California? Go to our article on California sexual assault laws (Penal Code 261 PC).

Arrested in Colorado? Go to our article on Colorado sexual assault laws (18-3-402 C.R.S.).


Legal References

  1. NRS 200.366.  
  2. NRS 200.364  Definitions.  ("'Sexual penetration' means cunnilingus, fellatio, or any intrusion, however slight, of any part of a person's body or any object manipulated or inserted by a person into the genital or anal openings of the body of another, including sexual intercourse in its ordinary meaning. The term does not include any such conduct for medical purposes.")
  3. NRS 201.210; NRS 201.230.
  4. Bill Cosby found guilty on all three counts in sexual assault retrial, PBS.org (April 26, 2018).
  5. NRS 200.373. Sexual assault of spouse by spouse. It is no defense to a charge of sexual assault that the perpetrator was, at the time of the assault, married to the victim, if the assault was committed by force or by the threat of force.
  6. NRS 171.085; NRS 171.083.
  7. NRS 200.366.
  8. NRS 0.060; see, e.g., Turpin v. Sheriff Clark County, 87 Nev. 236, 239-240, 484 P.2d 1083, 1085 (1971)("The physician who treated the rape victim testified that there was considerable tearing of the area around the vagina and the rectum. There were three or four lacerations within the vagina. There was considerable bleeding, and so much pain that the victim had to be anesthetized. Such testimony constitutes sufficient competent evidence of substantial bodily harm as alleged in the indictment.").
  9. NRS 200.366.
  10. NRS 179D.117.
  11. NRS 179D.480.
  12. NRS 179D.550.
  13. NRS 175.191.
  14. NRS 200.481.
  15. INA 212(a)(2)(a)(i); 8 U.S.C. § 1101; Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir., 2013)("An 'aggravated felony' is defined as 'murder, rape, or sexual abuse of a minor" or "a crime of violence ... for which the term of imprisonment [is] at least one year.'").
  16. NRS 179.245.
  17. NRS 179.255.
  18. Assembly Bill 142 (2019); NRS 171.083; NRS 171.085.
  19. Nevada Assembly Bill 97 (2017); NRS 200.3786.
  20. NRS 200.3771.
  21. NRS 50.090; Miller v. State, 105 Nev. 497, 501, 779 P.2d 87, 89 (1989)("[P]rior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute "previous sexual conduct" for rape shield purposes.Specifically, in such cases, the defendant is not attempting to inquire into the complaining witness' sexual history to reveal unchaste character. On the contrary, the defendant seeks to prove for impeachment purposes that the complaining witness has, in the past, made false accusations concerning sexual behavior.")

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