Upholding a district court’s conviction of first-degree sexual assault, the Nebraska Supreme Court concluded that there was sufficient evidence to support the sexual assault conviction for a defendant who voluntarily performed fellatio on a non-consenting person. State v. Garcia, 311 Neb. 648 (May 27, 2022).

In Garcia, a couple had been invited over to the home of their neighbor and co-worker. While at Garcia’s home, after drinking beer and rum, as well as smoking some marijuana, the victim indicated that he was tired and wanted to go home. The victim eventually fell asleep while waiting for his girlfriend to finish her conversation with Garcia. After she was unsuccessful in trying to wake him, the victim’s girlfriend returned to her home and retrieved a blanket to wrap him in before leaving Garcia’s home for the night. The victim woke up hours later and shockingly realized he was completely naked, and Garcia was performing fellatio on him. Upset, the victim grabbed his clothes, dressed, and went home. Upon informing his girlfriend what had occurred, the victim contacted the police. During his interview with law enforcement, Garcia eventually admitted that he had performed fellatio on the victim.

As a result of the victim and Garcia’s statements, Garcia was charged with first degree sexual assault. The district court found Garcia guilty of sexual assault and sentenced him to 2 to 4 years’ imprisonment. Upon appealing his conviction to the appellate court, the Nebraska Supreme Court upheld his conviction of first-degree sexual assault.

The Nebraska Supreme Court found the term sexual penetration defined in the statute explicitly included fellatio, and therefore Garcia had indeed admitted engaging in sexual penetration. Specifically, the court had previously defined fellatio as, “the practice of obtaining sexual satisfaction by oral stimulation of the penis.” Moreover, the fact that the victim testified that he did not consent to the fellatio by Garcia, he was asleep and did not awake until he ejaculated, realized it was Garcia who was fellating him, and objected and left Garcia’s home, was sufficient evidence to support that the fellatio was nonconsensual. Additionally, there was sufficient evidence that Garcia knew or should have known the victim was not in a position to comprehend the nature of Garcia’s conduct based on the victim’s testimony that he was drinking alcohol, smoked marijuana, fell asleep to the point that he could not be woke, as well as that he urinated on himself, removed his clothing, and switched locations from one couch to another, all without any recollection of what had occurred.

This Garcia decision confirms that sexual penetration, which includes fellatio by definition, is not merely limited to only the act of a victim being forced to perform fellatio upon a defendant. Under Nebraska law, a person commits first degree sexual assault by voluntarily performing fellatio on a victim without the victim’s consent, and knowing or should have known that the victim was in no position to appraise the nature of the defendant’s conduct.

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