NRS § 200.366 – Sexual Assault / Rape Laws in Nevada

NRS § 200.366 is the Nevada law that prohibits sexual assault (rape), which is penetrative sex with a person who does not consent or is not capable of consenting. Rape is a category A felony carrying life in state prison.

The chart below spells out if and when you may get paroled for a sexual assault conviction.

Here at Las Vegas Defense Group, we have decades of experience fighting – and winning – rape cases so that the charges get dropped or substantially reduced. In this article, our Las Vegas Nevada criminal defense attorneys discuss the following sexual assault topics:

• 1. Elements
• 2. Evidence
• 3. Penalties
• 4. Sex Offender Registration
• 5. Defenses
• 6. Immigration Consequences
• 7. Record Sealing
• 8. Statute of Limitations
• 9. Spousal Rape
• 10. Victims’ Rights
• 11. Civil Lawsuits
• Additional Resources

1. Elements

In Nevada, sexual assault (also called rape) is having penetrative sex with another person against their will. It is the most serious crime in the state after 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.”²

NRS 200.366 outlaws all types of non-consensual penetrative sex. This includes:

• Vaginal intercourse,
• Oral sex (fellatio or cunnilingus),
• Anilingus or anal sex,
• Digital sex (“fingering”),
• Inserting body parts or objects in a vagina or anus, and/or
• Penetrative sexual acts with an animal (“bestiality“).³

What is consensual sex?

Consensual sex is when you freely and voluntarily agree to have penetrative sex.

There is no consent to sex when the alleged victim articulates “no” or signals “no” to having sex.

There is also no consent when you know (or should know) that the alleged victim has no capacity to understand what is happening. Examples include when the alleged victim is:

• Asleep or passed out,
• Drunk or high,
• Overdosed (“OD’d”) on drugs,
• In a coma or vegetative state, and/or
• Severely mentally disabled.⁴

A recent example is Bill Cosby’s “aggravated indecent assault” case, where the victim was given a drink with sedatives that caused her to lose consciousness.⁵

2. Evidence

Sexual assault can be extremely difficult for the D.A. to prove beyond a reasonable doubt because it often comes down to a case of “he says, she says.” For instance, there is rarely video evidence of the alleged rape happening in real-time.

Therefore, the D.A. tries to compile “circumstantial evidence” that indicates a rape occurred, such as:

• Witnesses who saw or heard the alleged rape or the alleged victim resisting;
• Witnesses who saw the alleged victim in an incapacitated state 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 alleged victim’s account of the alleged rape.

When prosecutors produce potentially incriminating evidence, we work to discredit it by showing that:

• The forensic evidence was tainted by shoddy lab work;
• The police found the evidence through illegal means (such as an unlawful search);
• The evidence’s relevance to your case is outweighed by its potential for prejudice against you; and/or
• The sources of the evidence are unreliable and impeachable.⁶

3. Penalties

As a category A felony, rape always carries life in Nevada State Prison. Whether parole is possible turns on:

1. The allege victim’s age,
2. Your criminal history, and
3. Whether the alleged victim sustained “substantial bodily harm” (such as fractures, organ damage, or cuts needing stitches).

When the Victim Was 16 or Older

If the alleged victim was at least 16 and sustains substantial bodily harm from the rape, sexual assault in Nevada carries:

• Life in prison without the possibility of parole or
• Life in prison with the possibility of parole after 15 years.

Though if the alleged victim sustains no substantial bodily harm from the rape, then the sentence is life in prison with the possibility of parole after 10 years.⁷

When the Victim Was 14 or 15

When the alleged victim was 14 or 15, Nevada’s sentence for rape is life in prison with no possibility of 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 25 years.⁸

When the Victim Was 13 or Younger

Nevada’s sentence for rape of a victim 13 or younger is life in prison with no possibility of 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 35 years.⁹

4. Sex Offender Registration

If you are convicted of rape in Nevada, you must register for life as a Tier III sex offender.¹⁰

This means if you get parole, you have to register within 48 hours of being released.¹¹ Moreover, you must check in with a local law enforcement agency at least once every 90 days.¹²

Failing to register as a sex offender is its own felony crime, as the following table spells out.

5. Defenses

Here at Las Vegas Defense Group, we have represented literally thousands of people accused of sexual assault. In our experience, the following four defenses are particularly persuasive with judges, juries and prosecutors.

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, misunderstandings, or a way to win child custody. Common evidence we rely on to show that our clients 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 shows that accuser’s injuries were self-inflicted.

2) The Accuser Consented to the Sex

There are rarely video or audio recordings of sexual encounters in rape cases. To illustrate there was consent, we 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 the accuser was not the victim of an assault.

Note that since Nevada’s age of consent is 16, consensual sex between adults and children under 16 is a crime prosecuted as statutory rape (formally called “statutory sexual seduction”). However, there is a “Romeo and Juliet exception” that permits 14- and 15-year-olds to have consensual sex with partners less than four years older than them.¹³

3) It Is a Case of Mistaken Identity

Sexual assault is extremely traumatic, so it is not uncommon for victims to mistakenly pick the wrong person out of a lineup or to give inaccurate descriptions of their assailants to police.

We typically see mistaken identity cases when the assault occurred at a party or outside in the dark, especially if the victim may have been intoxicated.

When our clients are the victims of a “false ID,” we rely on the following evidence to place them away from the scene of the crime:

• Alibis,
• Video surveillance video,
• GPS records, and
• Forensic evidence.

4) No Sexual Penetration Occurred

NRS 200.366 prohibits only non-consensual penetrative sex. Therefore, if all the prosecutor can show is that you committed non-consensual sexual groping, then the court should reduce the charge to open and gross lewdness, which is usually a gross misdemeanor.

Alternatively, if prosecutors have no supporting evidence that anything sexual happened at all, the charge could be reduced to battery. Battery is only a misdemeanor as long as there are no serious injuries. Medical expert witnesses can help determine whether specific injuries are sex-related or not.¹⁴

6. Immigration Consequences

Not surprisingly, federal law classifies rape as both:

• A crime involving moral turpitude (CIMT) as well as
• An aggravated felony.¹⁵

Therefore, non-U.S. citizens convicted of rape will be deported from the U.S. following the prison sentence.

7. Record Sealing

Sexual assault convictions can never be sealed from Nevada criminal records. Whether you are found guilty at trial or through a plea, a rape conviction remains on your record forever.¹⁶

However, if you are acquitted of rape – or if the charge gets dismissed – then you can pursue a record seal right away. Once it is sealed, the case will not appear on future background checks (in most circumstances).¹⁷

Having a clean record greatly improves your prospects for employment, education, professional licenses, and housing.

8. Statute of Limitations

There is no time limit for Nevada district attorneys to prosecute you for rape if either:

• DNA evidence identifies you, or
• The alleged 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. Spousal Rape

Sexual assault is prosecuted the same whether it occurs between strangers or people who know each other, such as:

• Date rape or
• Rape between spouses.

Though according to the spousal rape statute, 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 were sleeping.¹⁹

10. Victims’ Rights

To encourage rape victims to report, Nevada law enacted the following three safeguards:

1. Victims who report to police may request rape kits, which in Nevada go by the name SAFE kits — short for “sexual assault forensic evidence.” Police must 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.
2. Any identifying information about victims remains 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
3. 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. Civil Lawsuits

If someone accuses you 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 win an acquittal in criminal court 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 a civil lawsuit, you may have 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.²²

The following table compares and contrasts the key elements of criminal and civil sexual assault cases.

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

Additional Resources

If you are a victim, our Las Vegas sexual assault attorneys suggest you refer to the following:

• RAINN – National sexual assault hotline providing free, confidential support for survivors 24/7.
• Crisis Support Services of Nevada – Free, confidential 24/7 support to survivors throughout Northern Nevada.
• Signs of Hope – 24/7 rape crisis hotline.
• The Nevada Coalition to End Domestic and Sexual Violence – Statewide advocacy, education and support of the front-line organizations that help victims.
• Nevada Victims of Crime Program – Financial assistance for survivors.

Legal References