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Brauer sexual assualt decision upheld by state Supreme Court

The Nebraska Supreme Court upheld a ruling last week made in the state of Nebraska vs. Nathan Brauer, a sexual assault of a child case originally heard in Cheyenne County.

The only issue raised in the appeal was whether there was enough evidence to conclude, beyond a reasonable doubt, that the touching that occurred constituted sexual contact. Sexual contact has to be reasonably construed to be for the purpose of sexual arousal or gratification.

The justices were divided in their ruling. Four judges ruled in favor of upholding the district court’s decision, which included Chief Justice Michael Heavican, William Cassel, Michael McCormack and William Connolly, while three dissented.

After a bench trial in September 2012, Cheyenne County District Court found Brauer guilty of third degree sexual assault of a child, a felony. The court sentenced Brauer to two to three years in prison in December 2012.

The parents of the victim were old friends of Brauer’s. According to court documents, in the spring or early summer of 2011, the parents asked Brauer to watch their two children for a time. He agreed to watch the four year old victim and his one year old sibling. Brauer stopped baby sitting for the family in June when his services were no longer needed.

Around this time the four year old child began asking questions about inappropriate touching and at one point mentioned Brauer. Later, the child’s mother thought there was something wrong with him and upon questioning he finally told her that Brauer had touched his penis.

Soon after this the child was interviewed by law enforcement. During the interview he told police that Brauer had touched him once, over clothing while Brauer was babysitting him. The child said he told Brauer never to do that again, to which Brauer apologized, according to court documents.

Although Brauer initially denied ever touching the child inappropriately during an interview with Sidney Police Lieutenant Keith Andrew, he eventually admitted to the touch that the child had described. He denied any other sexual contact with the child.

“Although some facts suggest an innocent explanation, there are sufficient other facts—most notably, Brauer’s incriminating statements to law enforcement—which support the court’s finding,” the Supreme Court’s decision stated.

The Nebraska Supreme Court noted many facts in the case which supported the district court’s initial findings. Included was the fact that in the beginning, Brauer denied ever touching the boy, then said he might have accidentally touched him when picking him up or playing around and then admitted to touching the boy’s genital area. It was also noted that Brauer immediately apologized for the touch and made suicidal statements during an interview with police.

“Viewed together, the court saw this as evidence of consciousness of guilt,” the majority decision stated.

The context of the touching was also important in the court’s ruling. Brauer stated that he and the victim shared a hug and a kiss before the touching and that it made him feel good, although he clarified that it made him feel good mentally as opposed to sexually.

The court also acknowledged that the touching was bothering the victim in some way as evidenced by the fact that he began to act noticeably different after it occurred.

The final significant addition in these findings were statements that Brauer made in an interview with police which the court found to be admissions of guilt.

Brauer maintained that the state had not proved beyond a reasonable doubt that the touching that occurred was sexual contact.

“In support of his argument, Brauer argues, among other things, that the touch was minor, fleeting, and over the clothes, and that there were no ‘indicia of sexual arousal’,” the court’s statement said.

The court ruled that there was sufficient evidence to prove sexual contact.

“Brauer’s initial refusal to acknowledge the touch until repeatedly confronted by law enforcement officers, along with his clear understanding that what he had done was wrong, could allow the trial court to conclude that this was more than simply an innocent touch,” the Nebraska Supreme Court stated in its findings.

The court found Brauer’s admissions during an interview with Lt. Andrew to be most damning.

Although Brauer never admitted to the specific wording of a sexual release during the touch, he did admit to some sort of release like an adrenaline rush, an impulse or a release of hormones.

Brauer provided an innocent explanation. The victim had been going through a phase of hitting men in the groin and did so to Brauer. Then Brauer poked him back, he said. The court noted that Brauer had not mentioned this before the interview with Lt. Andrew and had not told friends or the parents this story.

Three justices dissented with the majority opinion.

“I fully recognize the need to protect children, but given the evidence in the record, I respectfully dissent,” the dissenting statement written by Lindsey Miller-Lerman said.

The dissenters agreed that no fact finder could conclude that the touching that occurred in this case constituted sexual contact beyond a reasonable doubt.

At no point in the interview with police did Brauer himself say he felt a rush of adrenaline and Brauer never admitted that the touching was sexual, although Lt. Andrew used the word several times during the interview. Although Brauer did use the word hormone in the interview, the dissenting justices maintained that they couldn’t know if he meant a sex-related hormone. They also acknowledged that the touching could have been a reaction to the child hitting Brauer in the groin.

“Of course, the reaction was inappropriate and ill advised, but that does not mean that it was for the purpose of sexual arousal or gratification,” the dissenting opinion stated.

Those who dissented did not believe that there was evidence to say that Brauer touched the victim for sexual purposes, but added that the touch might constitute negligent child abuse or another offense, but not the one with which Brauer was charged.

John Wright and Kenneth Stephan joined Miller-Lerman in this dissent.

Brauer was represented in this matter by Maren Lynn Chaloupka. In Cheyenne County district court, the case was prosecuted by Special Prosecutor Jean Rhodes and was heard by judge Derek Weimer.

 

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