NRS 200.366 – Sexual Assault / Rape Laws in Nevada

Under NRS 200.366, Nevada law defines the crime of sexual assault (rape) as engaging in penetrative sex with a person who does not consent or is not capable of consenting. A conviction is punishable by a term of life in state prison.

Five key things to know about Nevada sexual assault laws are:

1. Sex is non-consensual whether the victim indicates “no” or is too intoxicated or incapacitated to give valid consent.
2. There are several possible rape defenses, including that you were falsely accused, the accuser consented to the sex, or no sexual penetration occurred.
3. Depending on the available evidence, it may be possible to get a rape charge reduced through a plea bargain or dismissed outright. Or if the case goes to a jury trial, the prosecutor would bear the very high burden of proving guilt beyond a reasonable doubt.
4. There is no statute of limitations for rape prosecutions as long as the victim filed a police report within 20 years of the incident or there is DNA evidence establishing your identity.
5. Sexual assault is prosecuted as a category A felony in Nevada and carries lifetime sexual offender registration.

Age of victim in Nevada rape case	The possibility of parole
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 you have 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 you have a prior conviction(s) of sexual assault or a sexual offense against a child	Life without the possibility of parole

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

• 1. What is the legal definition of sexual assault in Nevada under NRS 200.366?
• 2. How do prosecutors prove guilt?
• 3. What are the penalties?
• 4. Do I have to register as a sex offender?
• 5. What are common legal defenses?
• 6. What are the immigration consequences?
• 7. Can the record be sealed?
• 8. How long do prosecutors have to bring rape charges?
• 9. What other crimes can I be charged with?
• 10. What rights do victims have in rape cases?
• 11. Can victims sue for sexual assault?

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

Nevada law defines sexual assault (also referred to as rape) as having penetrative sex with another person against that person’s will. It is the most serious crime in the state second only to murder.¹

Specifically, NRS 200.366 states that rape is any act 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.”

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, you could instead face charges for open and gross lewdness (NRS 201.210) or lewdness with a minor (NRS 201.230), depending on the victims’ age.³

1.1. Lack of consent

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 you know — 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

1.2. Spousal rape

Sexual assault is prosecuted the same whether it occurs between strangers or people who know each other, such as date rape. Though with 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 you where you admit to the alleged rape; and/or
• expert medical testimony supporting the victim’s account of the alleged rape

2.1. Statutes of limitation

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. Plus there is no time limit if the victim filed a police report within 20 years of the rape or if DNA establishes your 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 you may be eligible for parole depends upon three factors:

1. the age of the victim at the time of the rape,
2. your criminal history, and
3. whether the rape caused the victim substantial bodily harm⁷

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. Though 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.

Though 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
• you 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
• you 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 I have to register as a sex offender?

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

If you get released on parole, you are required to register within 48 hours of being released. Plus you must check in with a local law enforcement agency at least once every 90 days.¹¹

4.1. Failing to register

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

• 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, carrying:

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

Certainly, if you are sentenced to life without parole, you never need to register because you are never released from custody.

5. What are common legal defenses?

Even though rape is one of the most serious crimes you can be accused of, it also lends itself to several effective defenses. In our experience at Las Vegas Defense Group, we have been able to get rape charges reduced or dismissed by showing:

1. There were falsely accusations;
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. There were false accusations

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 you were 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 you, the sexual assault case should be dismissed.

5.2. The accuser consented to the sex

Rape is forcing someone to have sexual penetration against their will (or when they are 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:

• 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 you were 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 you 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, which carries much lesser penalties than a sexual assault.

Or if 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 battery (NRS 200.481).¹⁴ The sentence is lower than that of sexual assault, and you 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 (CIMT) as well as
• an aggravated felony.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.

7. Can the record be sealed?

Rape convictions can never be sealed from Nevada criminal records; the conviction remains on your record forever.¹⁶ Though if you are acquitted of rape at trial — or if the charge gets dismissed — then you can pursue a record seal right away.

Learn about the Nevada record sealing process.¹⁷

Nevada’s prohibition against sealing rape convictions is another reason why it is so important for you to try to negotiate a charge reduction or dismissal. If you have rape convictions on your record, you face discrimination from potential employers, landlords, and lenders. Plus you 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 you for rape if either:

• DNA evidence identifies you; 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 I 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

Open or gross lewdness (NRS 201.210) is a very vague offense often that is charged when you allegedly touch 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,” 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 or a gross misdemeanor depending on your age.

9.3. Incest

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

Sexual conduct between students and secondary school employees (NRS 201.540) and 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:

• 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?

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

• battery,
• false imprisonment, and/or
• intentional infliction of emotional distress

It is not uncommon to get acquitted of a 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.

If you lose civil lawsuits, you may be ordered to pay hefty compensatory damages to cover the plaintiff’s:

• medical bills,
• pain and suffering,
• lost wages,
• loss of future earnings, and/or
• other out-of-pocket costs

Additionally, the judge may order you to pay punitive damages as a way to “punish” you. 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.

Call a Nevada criminal defense attorney…

Facing rape charges in Nevada? Call our Las Vegas sexual assault attorneys right away for a consultation. We will do everything to try to get your charges dismissed or reduced without a trial. Though 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.

Arrested in California? Go to our article on Penal Code 261 PC.

Arrested in Colorado? Go to our article on CRS 18-3-402.

---

Legal References