new york state laws: SEX OFFENSES

Important Notice: The following information is general in nature and is for GENERAL INFORMATIONAL PURPOSES ONLY. The viewing of the information contained herein does not constitute legal advice, nor does it create or imply an attorney-client relationship. It should be noted that this web site is an Advertisement for legal services and should not be used in any manner to guide you in making legal decisions. You should speak with a qualified attorney when seeking legal advice.

Sexual Offenses and Penalties under New York State Penal Law
New York State Penal Code, Article 130, and the New York State Sexual Assault Reform Act (SARA) are the laws that govern the prosecution of sexual offenses in New York State and Suffolk County as well as other counties. The following information is an interpretation of New York State Penal Code and should not be substituted for any information or advice offered by the local District Attorney's Office.

Under New York State Law, a sexual offense occurs in Suffolk County when certain sexual acts are perpetrated against a victim without his or her consent. The law defines both the behavior and the physical nature of a sex offense and the lack of consent involved. "Lack of consent" can be defined as: (a) occurring as a result of physical force, coercion, or by threat either expressed or implied; (b) occurring when a victim is physically unable to indicate lack of consent because the victim is unconscious or because of a physical disability that makes one unable to physically or verbally communicate lack of consent; (c) the result of mental incapacitation in which the victim is temporarily incapable of understanding or controlling his or her conduct because of a drug or other intoxicating substance; or (d) when the victim is under 17 years of age.

DEFINITIONS UNDER NEW YORK STATE PENAL LAW (summary)

Suffolk County/ Sexual Misconduct
Under New York State Penal law, sexual misconduct in Suffolk County is defined as engaging in sexual intercourse with a female without their consent, or engaging in deviate sexual conduct with a person without the latter's consent. Sexual misconduct is classified as a Class A misdemeanor and definite sentence of imprisonment up to one (1) year.

Sexual Abuse
Under New York State Penal law, if a person is forced to engage in any form of sexual contact in Suffolk County without consenting, it is considered sexual abuse. Sexual abuse is classified as a Class A misdemeanor -- Class D felony depending on the severity of offense and particular circumstances, and can carry a maximum sentence of 15years' imprisonment.

Rape
Under New York State Penal law, if a person engages in nonconsensual intercourse in Suffolk County due to physical force (forcible compulsion), due to coercion or threat--actual or implied, engages in sexual nonconsensual intercourse with another person who is less than 17 years old, or engages in sexual intercourse with another person who incapable of giving informed consent due to physical, emotional, or psychological disability or impairment the act is considered rape. Rape is classified as a felony offense, Class B-D, depending on the severity of the offense and can carry a maximum sentence of 25 years.

Sodomy
Under New York State Penal law, if a person engages in nonconsensual deviate intercourse in Suffolk County due to physical force, coercion, or threat--actual or implied--the act is considered sodomy. Sodomy is classified as a felony offense, up to Class B felony, depending on the severity of the offense and can carry a maximum sentence of 25 years.

SEX OFFENSES

Section 130.00 Sex offenses;  definitions of terms - Suffolk County 

 The following definitions are applicable to this article:

 1. "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight.

2. (a) "Oral sexual conduct" means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina. 

(b) "Anal sexual conduct" means conduct between persons consisting of contact between the penis and anus.

 3. "Sexual contact" means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party.  It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.

4. For the purposes of this article "married" means the existence of the relationship between the actor and the victim as spouses which is recognized by law at the time the actor commits an offense proscribed by this article against the victim.

 5. "Mentally disabled" means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct.

 6. "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.

 7. "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

 8. "Forcible compulsion" means to compel by either:

  a. use of physical force;  or

  b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.

 9. "Foreign object" means any instrument or article which, when inserted in the vagina, urethra, penis or rectum, is capable of causing physical injury.

10. "Sexual conduct" means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact.

 11. "Aggravated sexual contact" means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis or rectum of a child, thereby causing physical injury to such child.

 12. "Health care provider" means any person who is, or is required to be, licensed or registered or holds himself or herself out to be licensed or registered, or provides services as if he or she were licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry under any of the following: article one hundred thirty-one, one hundred thirty-two, one hundred thirty-three, or one hundred forty-one of the education law.

13. "Mental health care provider" shall mean a licensed physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker.


Suffolk County Criminal Lawyer
Section 130.05 Sex offenses;  lack of consent - Suffolk County

 1. Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.

 2. Lack of consent results from:

  (a) Forcible compulsion;  or

  (b) Incapacity to consent;  or

  (c) Where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor's conduct; or

(d) Where the offense charged is rape in the third degree as defined in subdivision three of section 130.25, or criminal sexual act in the third degree as defined in subdivision three of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances.

 3. A person is deemed incapable of consent when he or she is:

  (a) less than seventeen years old;  or

  (b) mentally disabled;  or

  (c) mentally incapacitated;  or

  (d) physically helpless;  or

  (e) committed to the care and custody of the state department of correctional services or a hospital, as such term is defined in subdivision two of section four hundred of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such department or hospital.  For purposes of this paragraph, "employee" means (i) an employee of the state department of correctional services who performs professional duties in a state correctional facility consisting of providing custody, medical or mental health services, counseling services, educational programs, or vocational training for inmates;

   (ii) an employee of the division of parole who performs professional duties in a state correctional facility and who provides institutional parole services pursuant to section two hundred fifty-nine-e of the executive law;   or

   (iii) an employee of the office of mental health who performs professional duties in a state correctional facility or hospital, as such term is defined in subdivision two of section four hundred of the correction law, consisting of providing custody, or medical or mental health services for such inmates; or

  (f) committed to the care and custody of a local correctional facility, as such term is defined in subdivision two of section forty of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility.  For purposes of this paragraph, "employee" means an employee of the local correctional facility where the person is committed who performs professional duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for inmates; or

  (g) committed to or placed with the office of children and family services and in residential care, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to or placed with such office of children and family services and in residential care. For purposes of this paragraph, "employee" means an employee of the office of children and family services or of a residential facility who performs duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for persons committed to or placed with  the office of children and family services and in residential care; or

  (h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination. 
 
Section 130.10 Sex offenses; limitation; defenses. - Suffolk County

1.  In any prosecution under this article in which the victim's lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent.

2. Conduct performed for a valid medical or mental health care purpose shall not constitute a violation of any section of this article in which incapacity to consent is based on the circumstances set forth in paragraph (h) of subdivision three of section 130.05 of this article.

3. In any prosecution for the crime of rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55 in which incapacity to consent is based on the circumstances set forth in paragraph (h) of subdivision three of section 130.05 of this article it shall be an affirmative defense that the client or patient consented to such conduct charged after having been expressly advised by the health care or mental health care provider that such conduct was not performed for a valid medical purpose.

4. In any prosecution under this article in which the victim`s lack of consent is based solely on his or her incapacity to consent because he or she was less than seventeen years old, mentally disabled, or a client or patient and the actor is a health care provider, it shall be a defense that the defendant was married to the victim as defined in subdivision four of section 130.00 of this article.


Section 130.16 Sex offenses;  corroboration - Suffolk County

A person shall not be convicted of any offense defined in this article of which lack of consent is an element but results solely from incapacity to consent because of the victim`s mental defect, or mental incapacity, or an attempt to commit the same, solely on the testimony of the victim, unsupported by other evidence tending to:

 (a) Establish that an attempt was made to engage the victim in sexual intercourse, oral sexual conduct, or sexual contact, as the case may be, at the time of the occurrence;  and

 (b) Connect the defendant with the commission of the offense or attempted offense. 

Suffolk County Criminal Lawyer 

Section 130.20 Sexual misconduct. - Suffolk County 

 A person is guilty of sexual misconduct when:

  1. He or she engages in sexual intercourse with another person without such person's consent; or

  2. He or she engages in oral sexual intercourse with another person without such person's consent;  or

  3. He or she engages in sexual conduct with an animal or a dead human body.

 Sexual misconduct is a class A misdemeanor.
 

Section 130.25 Rape in the third degree. - Suffolk County

 A person is guilty of rape in the third degree when:

  1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old;

  2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or

3. He or she engages in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent.

 Rape in the third degree is a class E felony. 
 
Section 130.30 Rape in the second degree.  - Suffolk County

 A person is guilty of rape in the second degree when:

1. being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or

2. he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.

 Rape in the second degree is a class D felony.
 

Section 130.35 Rape in the first degree. - Suffolk County

 A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person:

  1. By forcible compulsion;  or

  2. Who is incapable of consent by reason of being physically helpless;  or

  3. Who is less than eleven years old; or

  4. Who is less than thirteen years old and the actor is eighteen years old or more.

 Rape in the first degree is a class B felony. 


Section 130.38 Consensual sodomy. - Suffolk County

(Repealed Eff. 2/1/01, Ch.1, L.2000)

Section 130.40 Criminal sexual act in the third degree.

 A person is guilty of criminal sexual act in the third degree when:

  1. He or she engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old;

  2. Being twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old; or

3. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity of consent.

Criminal sexual act in the third degree is a class E felony.
 

Section 130.45 Criminal sexual act in the second degree. - Suffolk County

 A person is guilty of criminal sexual act in the second degree when:

1. being eighteen years old or more, he or she engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old; or

2. he or she engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

It shall be an affirmative defense to the crime of criminal sexual act in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.

Criminal sexual act in the second degree is a class D felony. 
 
Section 130.50 Criminal sexual act in the first degree. - Suffolk County

 A person is guilty of criminal sexual act in the first degree when he engages in oral sexual conduct or anal sexual conduct with another person:

  1. By forcible compulsion;  or

  2. Who is incapable of consent by reason of being physically helpless;  or

  3. Who is less than eleven years old; or

  4. Who is less than thirteen years old and the actor is eighteen years old or more.

 Criminal sexual act in the first degree is a class B felony.
 

Section 130.52 Forcible touching. - Suffolk County

A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor`s sexual desire.

For the purposes of this section, forcible touching includes the squeezing, grabbing or pinching.

Forcible touching is a class a misdemeanor.


Section 130.53 Persistent sexual abuse. - Suffolk County

A person is guilty of persistent sexual abuse when he or she commits the crime of forcible touching, as defined in section 130.52 of this article, sexual abuse in the third degree, as defined in section 130.55 of this article, or sexual abuse in the second degree, as defined in section 130.60 of this article, and, within the previous ten year period, has been convicted two or more times, in separate criminal transactions for which sentence was imposed on separate occasions, of forcible touching, as defined in section 130.52 of this article, sexual abuse in the third degree as defined in section 130.55 of this article, sexual abuse in the second degree, as defined in section 130.60 of this article, or any offense defined in this article, of which the commission or attempted commission thereof is a felony.

Persistent sexual abuse is a class E felony.


Section 130.55 Sexual abuse in the third degree. - Suffolk County

 A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent;  except that in any prosecution under this section, it is an affirmative defense that (a) such other person's lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person.

 Sexual abuse in the third degree is a class B misdemeanor. 
 
Section 130.60 Sexual abuse in the second degree. - Suffolk County

 A person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is:

  1. Incapable of consent by reason of some factor other than being less than seventeen years old;  or

  2. Less than fourteen years old.

 Sexual abuse in the second degree is a class A misdemeanor.
 

Section 130.65 Sexual abuse in the first degree. - Suffolk County

 A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact:

  1. By forcible compulsion;  or

  2. When the other person is incapable of consent by reason of being physically helpless;  or

  3. When the other person is less than eleven years old.

 Sexual abuse in the first degree is a class D felony.
 

Section 130.65-a Aggravated sexual abuse in the fourth degree. - Suffolk County

1. A person is guilty of aggravated sexual abuse in the fourth degree when:

(a) He or she inserts a foreign object in the vagina, urethra, penis or rectum of another person and the other person is incapable of consent by reason of some factor other than being less than seventeen years old; or

(b) He or she inserts a finger in the vagina, urethra, penis or rectum of another person causing physical injury to such person and such person is incapable of consent by reason of some factor other than being less than seventeen years old.

2. Conduct performed for a valid medical purpose does not violate the provisions of this section.

Aggravated sexual abuse in the fourth degree is a class E felony.


Section 130.66 Aggravated sexual abuse in the third degree. - Suffolk County

 1. A person is guilty of aggravated sexual abuse in the third degree when he inserts a foreign object in the vagina, urethra, penis or rectum of another person:

  (a) By forcible compulsion;  or

  (b) When the other person is incapable of consent by reason of being physically helpless;  or

  (c) When the other person is less than eleven years old.

 2. A person is guilty of aggravated sexual abuse in the third degree when he or she inserts a foreign object in the vagina, urethra, penis or rectum of another person causing physical injury to such person and such person is incapable of consent by reason of being mentally disabled or mentally incapacitated.

3. Conduct performed for a valid medical purpose does not violate the provisions of this section.

 Aggravated sexual abuse in the third degree is a class D felony.
 

Section 130.67 Aggravated sexual abuse in the second degree - Suffolk County

 1. A person is guilty of aggravated sexual abuse in the second degree when he inserts a finger in the vagina, urethra, penis, or rectum of another person causing physical injury to such person:

  (a) By forcible compulsion;  or

  (b) When the other person is incapable of consent by reason of being physically helpless;  or

  (c) When the other person is less than eleven years old.

 2. Conduct performed for a valid medical purpose does not violate the provisions of this section.

 Aggravated sexual abuse in the second degree is a class C felony.
 

Suffolk County Criminal Lawyers
 Section 130.70 Aggravated sexual abuse in the first degree - Suffolk County

 1. A person is guilty of aggravated sexual abuse in the first degree when he inserts a foreign object in the vagina, urethra, penis or rectum of another person causing physical injury to such person:

  (a) By forcible compulsion;  or

  (b) When the other person is incapable of consent by reason of being physically helpless;  or

  (c) When the other person is less than eleven years old.

 2. Conduct performed for a valid medical purpose does not violate the provisions of this section.

 Aggravated sexual abuse in the first degree is a class B felony.
 

Section 130.75 Course of sexual conduct against a child in the first degree. - Suffolk County

1. A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration:

(a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, with a child less than eleven years old; or

(b) he or she, being eighteen years old or more, engages in two or more acts of sexual intercourse, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, with a child less than thirteen years old.

2. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section.

 Course of sexual conduct against a child in the first degree is a class B felony. 
 
Section 130.80 Course of sexual conduct against a child in the second degree - Suffolk County

1. A person is guilty of course of sexual conduct against a child in the second degree when, over a period of time not less than three months in duration:

(a)  he or she engages in two or more acts of sexual conduct with a child less than eleven years old: or

(b) he or she , being eighteen years old or more, engages in two or more acts of sexual conduct with a child less than thirteen years old.

2. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section.

 Course of sexual conduct against a child in the second degree is a class D felony.
 

Section 130.85 Female genital mutilation - Suffolk County

 1. A person is guilty of female genital mutilation when:

  (a) a person knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not reached eighteen years of age;  or

  (b) being a parent, guardian or other person legally responsible and charged with the care or custody of a child less than eighteen years old, he or she knowingly consents to the circumcision, excision or infibulation of whole or part of such child's labia majora or labia minora or clitoris.

 2. Such circumcision, excision, or infibulation is not a violation of this section if such act is:

  (a) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner;  or

  (b) performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.

 3. For the purposes of paragraph (a) of subdivision two of this section, no account shall be taken of the effect on the person on whom such procedure is to be performed of any belief on the part of that or any other person that such procedure is required as a matter of custom or ritual.

 Female genital mutilation is a class E felony.


Section 130.90 Facilitating a sex offense with a controlled substance. - Suffolk County

A person is guilty of facilitating a sex offense with a controlled substance when he or she:

1. knowingly and unlawfully possesses a controlled substance or any preparation, compound, mixture or substance that requires a prescription to obtain and administers such substance or preparation, compound, mixture or substance that requires a prescription to obtain to another person without such person`s consent and with intent to commit against such person conduct constituting a felony defined in this article; and 

2. commits or attempts to commit such conduct constituting a felony defined in this article.

Facilitating a sex offense with a controlled substance is a class D felony.

Call
631 · 727 · 6966