NY Sex Crimes against children can be punishable by decade-long sentences. Many require Sex Offender Registration Act (“SORA”) Registration. This means your SORA Registration can still impact your ability to get a job, live in a certain area. Additionally, if your SORA Reporting is a Level 2 or a Level 3, your neighbors will be able to find your photo, address and details of your crime through The New York State Sex Offender Registry.

It is absolutely essential that you take the process of interviewing and selecting a New York Sex Crimes attorney very seriously. These are very high-stakes cases that require an effective defense strategy.

Rape Charges Involving Children in New York

New York law contains several rape offenses that may apply when the alleged victim is under the age of consent. The particular offense depends on several factors, including the ages of the people involved, the nature of the alleged sexual contact, whether force or another form of lack of consent is alleged, and whether the alleged victim was legally incapable of consent.

New York Penal Law § 130.05 provides that a person who is less than 17 years old is incapable of consent. However, that does not mean that every sexual act involving a person under 17 automatically constitutes the same rape offense. Each degree of rape has its own statutory elements.

Since September 1, 2024, New York’s rape statutes encompass vaginal sexual contact, oral sexual contact, and anal sexual contact. The former crimes of Criminal Sexual Act in the First, Second, and Third Degrees were repealed and incorporated into the rape statutes.

Rape in the Third Degree – Penal Law § 130.25

Among other circumstances covered by the statute, a person may be guilty of Rape in the Third Degree when, being 21 years old or older, that person engages in:

  • vaginal sexual contact;
  • oral sexual contact; or
  • anal sexual contact

with another person who is less than 17 years old.

The age-based provisions are currently found in Penal Law §§ 130.25(4), (5), and (6).

Penalties and Sentencing for Rape in the Third Degree under NY PL 130.25

Rape in the Third Degree under PL 130.25, is a Class E Non-Violent Felony. It is therefore punishable by 1 1/2 to 4 years in prison. An alternative definite sentence of 1 year or less, or probation may be imposed. Conditional Discharge is not authorized.

What is a Conditional Discharge?

Conditional discharge is a sentence that is imposed by the Court that does not involve imprisonment or probation supervision. A conditional discharge is not authorized for these felony sex offenses because they must be sentenced under Penal Law §70.80.

More about NY Conditional Discharge

What is Probation?

Probation is a non-jail sentence that involves the defendant being released under the supervision of the probation department. Section 65.00 of the New York Penal Law explains probationary sentences. In order to sentence someone to probation, the Judge first must make a finding that:

  • Incarceration is not necessary for the protection of the public;
  • Defendant is in need of guidance, training or other assistance, that can effectively be administered through probation supervision.
  • Such disposition is not inconsistent with the ends of justice.

For Felony Sex Assault matters, the length of probation is 10 years. For Class A Misdemeanor Sex Assault matters, the length of probation is 6 years.

Rape in the Second Degree – Penal Law § 130.30

A person may be guilty of Rape in the Second Degree when, being 18 years old or older, that person engages in vaginal, oral, or anal sexual contact with another person who is less than 15 years old.

These age-based offenses are contained in Penal Law §§ 130.30(1), (2), and (3).

The statute provides an affirmative defense to these age-based subdivisions when the defendant was less than four years older than the other person at the time of the alleged act.

An affirmative defense has a specific meaning under New York law. Under Penal Law § 25.00, the defendant bears the burden of establishing an affirmative defense by a preponderance of the evidence.

Penalties and Sentencing for NY Rape in the Second Degree

Rape in the Second Degree is a Class “D” Violent Felony. It is punishable by 2 to 7 years in prison. However, if there are mitigating circumstances, probation and an alternative definite sentence of one year or less are both authorized sentences. The length of probation for Rape in the Second Degree is ten years.

Importantly, Rape in the Second Degree requires SORA Registration.

Rape in the First Degree – Penal Law § 130.35

Rape in the First Degree includes vaginal, oral, or anal sexual contact with a person:

  • who is less than 11 years old; or
  • who is less than 13 years old when the actor is 18 years old or older.

Rape in the First Degree also applies to certain conduct involving forcible compulsion or a person who is incapable of consent because the person is physically helpless.

Penalties and Sentencing for NY Rape in the First Degree, Under Penal Law Section 130.35

New York Rape in the First Degree is a Class B Violent Felony, punishable by 5 to 25 years in prison. There is no alternative sentence involving probation or a conditional discharge. Importantly, these New York Sex Crimes against children require SORA Registration.

Mistake About Age

New York law generally does not permit a defendant to avoid criminal liability merely by claiming that the defendant believed the other person had reached the legally relevant age. Whether a particular defense is available depends on the offense charged and the facts of the case.

For that reason, allegations involving the age of the parties should be evaluated under the precise statute charged rather than under a generalized rule about “statutory rape.”

Historical Law: Criminal Sexual Act Charges for Conduct Before September 1, 2024

Before September 1, 2024, New York separately classified certain oral and anal sexual conduct as Criminal Sexual Act in the First, Second, or Third Degree under former Penal Law §§ 130.50, 130.45, and 130.40.

Those statutes have been repealed. Conduct occurring on or after September 1, 2024 is governed by the current rape statutes, which include vaginal sexual contact, oral sexual contact, and anal sexual contact.

The former Criminal Sexual Act statutes may nevertheless remain relevant when evaluating alleged conduct that occurred before September 1, 2024. Because the applicable law depends on when the alleged conduct occurred, older cases should be analyzed under the statutes in effect at the time of the alleged offense.

Predatory Sexual Assault and Predatory Sexual Assault Against a Child Charges

Predatory Sexual Assault (New York Penal Law Section 130.95) and Predatory Sexual Assault Against a Child Charges (New York Penal Law Section 130.96) provide for enhanced penalties of 10 to 25 years on charges of rape, aggravated sex abuse or course of sexual conduct against a child with aggravating circumstances.

Predatory Sexual Assault

Under New York Penal Law Section 130.95, a person is guilty of predatory sexual assault when: 1. He or she commits one of the designated crimes i.e. Rape in the First Degree, Aggravated Sexual Abuse in the First Degree, or Course of Sexual Conduct against a Child in the First Degree, AND

2. In the course of the commission or flight from the crime, he or she: (a) Causes serious physical injury to the victim, OR

(b) Uses or threatens the immediate use of a dangerous instrument; OR

2. He or she commits a designated crime against more than one person; OR

3. He or she has a prior conviction for Incest (NY Penal Law 255.25) OR

use of a Child in a Sexual Performance (NY Penal Law 263.05).

Penalties and Sentencing for Predatory Sexual Assault

Predatory Sexual Assault is an A-II Felony, which is one of the most serious charges in New York Penal Law. Other A-II felonies include:

  • Criminal Possession of a Controlled Substance in the Second Degree;
  • Criminal Sale of a Controlled Substance in the Second Degree;
  • Criminal Use of a Chemical or Biological Weapon in the Second Degree.

Specifically, for Predatory Sexual Assault, the sentencing range is 10 to 25 years. This charge is subject to SORA Registration.

Predatory Sexual Assault Against a Child

Predatory Sexual Assault Against a Child is codified in New York Penal Law Section 130.96. Specifically, Penal Law Section 130.96 provides:

A person is guilty of predatory sexual assault against a child when:

1. Being 18 years old or more,

2. He or she commits any of these crimes:

  1. Rape in the First Degree,
  2. Aggravated Sexual Abuse in the First Degree,
  3. Course of Sexual Conduct Against a Child in the First Degree, and

3. The victim is less than 13 years old.

Penalties and Sentencing for Predatory Sexual Assault Against a Child

Similar to the Predatory Sexual Assault Charge, Predatory Sexual Assault Against a Child is an A-II Felony. It is punishable by 10 to 25 years in prison. Additionally, this charge is also subject to SORA Registration.

Forcible Touching and Sex Abuse involving Children

Forcible Touching (PL 130.52),

Under New York Penal Law Section 130.52, Forcible Touching is forcibly touching of another person’s sexual or intimate parts for own sexual gratification or degradation of another. New York’s forcible touching charge does not have an age requirement, and thus applies to children and adults alike. However, oftentimes New York charge of forcible touching of children gets charged with Endangering the Welfare of a Child.

Penalties and Sentences for New York Forcible Touching Charges

Forcible Touching is a Class A Misdemeanor and is therefore punishable by up to 364 days in prison. Probation is an authorized sentence for the New York charge of Forcible Touching. However, although the length of probation on misdemeanor charges usually is 2 or 3 years, on sexual offenses the length of probation is 6 years. Therefore, for a forcible touching charge, the length of probation is 6 years. SORA Registration is not required, unless the victim is younger than 17 (New York age of consent).

New York Child Sex Abuse Charges

There are three different degrees of New York Child Sex Abuse Charges:

  • Sex Abuse in the First Degree (PL 130.65)
  • Sex Abuse in the Second Degree (PL 130.60)
  • Sex Abuse in the Third Degree (PL 130.55)

Although these statutes do not just contain NY sex crimes against children, they each have a provision relating to individuals below the New York age of consent (17).

New York Sexual Abuse in the Third Degree (PL 130.55),

Under New York Penal Law 130.55, a person commits the crime of Sexual Abuse in the Third Degree when he or she submits another person to sexual contact without the latter’s consent.

Affirmative Defense to New York Sexual Abuse in the Third Degree

There is an affirmative defense to the charge of New York Sexual Abuse in the Third Degree. Specifically, the elements of the affirmative defense are:

  • Lack of consent was solely because complainant was under 17 years old
  • The contact was otherwise consensual;
  • Complainant was more than 14 years old, AND
  • Defendant was less than 5 years older than the complainant.
Penalties and Sentences for New York Sex Abuse in the Third Degree

Sexual Abuse in the Third Degree is a Class B Misdemeanor. As such, it can be punishable by up to 90 days in jail. Practically speaking, these types of cases usually resolve themselves without any jail time.

Sex Abuse in the Third Degree is subject to SORA Registration only if:

  • The victim is less than eighteen years of age;
  • The defendant has a prior conviction for a sex offense, a sexually violent offense, forcible touching or sexual abuse in the third degree or an attempt to commit these crimes. Importantly, it doesn’t matter whether the prior conviction required SORA Registration or when the prior conviction occurred.

New York Sexual Abuse in the Second Degree (PL 130.60)

This New York sex crime is a higher level charge than Sexual Abuse in the Third Degree, because it has additional aggravating elements.

New York Penal Law Section 130.60 provides that 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 other than being less than 17 years old; OR

2. Less than 14 years old.

Penalties and Sentences for Sexual Abuse in the Second Degree

NY Sexual Abuse in the Second Degree is a Class A Misdemeanor. As such, this charge is punishable by up to 1 year in prison. Additionally, probation is a sentencing option. New York Sexual Abuse in the Second Degree is subject to SORA Registration, regardless of the victim’s age, or the defendant’s prior criminal record.

New York Sexual Abuse in the First Degree (PL 130.65)

Subsections (3) and (4) of the Penal Law apply to NY crimes against children. Subsection (3) applies to sexual contact with persons under 11 years old, while subsection (4) applies to persons less than 13 years old, when the actor is 21 years old or older. Specifically, these two Sex Abuse in the First Degree sections provide that:

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

(3) When the other person is less than 11 years old; OR

(4) When the other person is less than 13 years old AND

the actor is 21 years old or older.

Penalties and Sentences for Sex Abuse in the First Degree

New York Sexual Abuse in the First Degree is a Class D violent felony. It is punishable by 2 to 7 years in prison. However, in cases where there are mitigating circumstances, a definite sentence of 1 year or less may be imposed. Additionally, probation can be a sentencing option. New York Sex Abuse in the First Degree is subject to SORA Registration.

Course of Sexual Conduct Against a Child

New York has two different statutes criminalizing Course of Sexual Conduct against a Child:

  • Course of Sexual Conduct Against a Child in the First Degree (PL 130.75)
  • Course of Sexual Conduct against a Child in the Second Degree (PL 130.80)

Difference in these charges is explained below:

New York Course of Sexual Conduct Against a Child in the First Degree

Under New York Penal Law Section 130.75, a person commits Course of Sexual Conduct against a Child in the First Degree when he or she, over a period of 3 months or more:

1. 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 11 years old; OR

2. Being 18 years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than 13 years old.

Importantly, a person may not later be prosecuted for any other sexual offense involving the same victim if the other charged crime occurred within the period of the time period for which this New York Sex Crime is charged. However, if the new charge falls outside Course of Sexual Conduct Against a Child time period, then the new charge can be charged separately.

Penalties and Sentences for New York Course of Sexual Conduct against a Child in the First Degree

Course of Sexual Conduct against a Child in the First Degree is a Class B violent felony. This New York Sex Crimes Against a Child is punishable by 5 to 25 years in prison. Additionally, NY Course of Sexual Conduct Against a Child in the First Degree is subject to SORA Registration.

New York Course of Sexual Conduct against a Child in the Second Degree

New York Course of Sexual Conduct Against a Child in the Second Degree is a lower-level crime than NY’s Course of Sexual Conduct Against a Child in the First Degree.

New York Penal Law Section 130.80 defines New York Course of Sexual Conduct Against a Child in the Second Degree as over a period of time 3 months or more in duration:

1. Engaging in two or more acts of sexual conduct with a child less than 11 years old; or

2. Being 18 years old or more, engaging in two or more acts of sexual conduct with a child less than 13 years old.

Similarly to NY Penal Law Section 130.75, a person cannot later be prosecuted for any other sexual offense involving the same victim, so long as the charge falls into the same period as one charged under Course of Sexual Conduct Against a Child in the Second Degree.

Definition of Sexual Conduct and Sexual Contact for NY Sex Crimes Against Children

Just like most other terms, New York Sexual Conduct and Sexual Contact have special meanings for criminal charges. New York Penal Law § 130.00 distinguishes between “sexual contact” and the broader term “sexual conduct.”.

Under New York Penal Law 130.00, Sexual Contact generally refers to the touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either party. Sexual Conduct is broader in scope. Referring to any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. (Meaning either the defendant or the victim).

Sexual Conduct includes the touching of the defendant by the victim, as well as the touching of the victim by the defendant. It doesn’t matter if:

  • the touching was directly or through clothing, OR
  • if there was emission of ejaculate by the defendant upon any part of the victim, clothed or unclothed.

Penalties and Sentences for NY Course of Sexual Conduct against a Child in the Second Degree

This New York Sex Crime Against Children is a Class D violent felony. Therefore, this charge is punishable by 2 to 7 years. In situations with mitigating circumstances, this charge can carry a definite sentence of 1 year or less or a probationary sentence. The duration of probation for Course of Conduct against a Child in the Second Degree, is 10 years.

Luring, Kidnapping, Sex Trafficking of Children

Luring a Child (PL 120.70)

Under New York law, it is a crime to lure a child (defined as anyone under the age of 17) into a car, place, boat, building or any other isolated area for the purpose of committing any of the following crimes:

  • Violent Felony (as that term is defined in NY PL Section 70.02);
  • Murder in the Second Degree (PL 125.25);
  • Murder in the First Degree (PL 125.27);
  • Any Sex Crime from Article 130 of the New York Penal Law (PL 130.00 – 130.96);
  • Promoting Prostitution in the Second Degree (PL 230.30);
  • Promoting Prostitution in the First Degree (PL 230.32);
  • Compelling Prostitution (PL 230.33);
  • Sex Trafficking (PL 230.34);
  • Incest in the Third Degree (PL 255.25);
  • Incest in the Second Degree (PL 255.26);
  • Incest in the First Degree (PL 255.27);
  • Use of a Child in a Sexual Performance (PL 263.05);
  • Promoting an Obscene Sexual Performance by a Child (PL 263.10);
  • Promoting a Sexual Performance by a Child (PL 263.15);

Penalties and Sentences for Luring a Child

In New York, Luring a Child under Penal Law Section 120.70 is a Class E non-violent felony. However, if the underlying offense the defendant intended to commit is:

  • Class “A” Felony, then Luring a Child is a Class C Non-Violent Felony.
  • Class “B” Felony, then Luring a Child is a Class D Non-Violent Felony.
Sentencing Ranges

Luring a Child as a Class E felony is punishable by 1 1/3 to 4 years in prison. Probation is an authorized sentence.

Luring a Child as a Class D felony is punishable by 2 1/3 to 7 years in prison. Probation is an authorized sentence.

Luring a Child as a Class C felony is punishable by 5 to 15 years. Probation is an authorized sentence.

Kidnapping of Children

In addition to the luring charge, individuals who abduct children may be prosecuted for kidnapping. New York has two kidnapping charges – Kidnapping in the First Degree (PL Section 135.25) and Kidnapping in the Second Degree (PL Section 135.20).

Kidnapping in the Second Degree

This New York charge requires an abduction of another person. This charge is a Class B violent felony and is punishable by 5 to 25 years in prison.

Kidnapping in the First Degree

Similarly to Kidnapping in the Second Degree, this charge requires an abduction of another person. However, there must be an aggravating factor present, such as:

  • Intent to compel someone to pay ransom, or engage in particular conduct;
  • Restraint of abducted person for over 12 hours with intent to inflict physical pain or abuse him sexually, or accomplish a commission of a felony.
  • Death of the person abducted.

This charge is an A-I felony and is therefore punishable by 15 to 40 years in prison.

Sex Trafficking of a Child (PL 230.34-a)

New York has a criminal charge for Sex Trafficking of Children, which is separate from the provision criminalizing Sex Trafficking of Adults.

Under New York Penal Law Section 230.34-a, a person is guilty of Sex Trafficking of a Child when:

1. Being at least 21 years old,

2. Intentionally advances or profits from prostitution, of another person, who is under 18 years old.

Penalties and Sentencing for New York Sex Trafficking of a Child

This NY Sex Crime Against Children is a Class B Violent Felony. As such, it is punishable by 5 to 25 years. Additionally, this charge is subject to SORA Registration.

Predatory Sexual Assault Against a Child

Predatory Sexual Assault Against a Child in New York, is a “bump up” charge to the crimes of Rape in the First Degree, Aggravated Sexual Abuse in the First Degree, or Course of Sexual Conduct Against a Child in the First Degree. This bump up applies to cases where the defendant is 18 years old or more, and the victim is less than 13 years old. Specifically, the elements of this charge are as follows:

Under NY Penal Law Section 130.96, a person is guilty of New York Predatory Sexual Assault Against a Child when:

1. Being 18 years old or more;

2. Commits rape in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree; AND

3. The victim is less than 13 years old.

Penalties and Sentence for New York Predatory Sexual Assault Against a Child

This New York Sex Crime is a Class A-II Felony and therefore is punishable by 10 to 25 years. Additionally, this charge is subject to SORA Registration.

Endangering the Welfare of a Child

New York has several criminal charges relating to general conduct that may be injurious to the physical, mental, or moral wellbeing of children. Specifically, these NY crimes are:

  • Endangering the Welfare of a Child (PL 260.10);
  • Disseminating Indecent Material To Minors in the First Degree (PL 235.22)
  • Disseminating Indecent Material To Minors in the Second Degree (PL 235.21)

Endangering the Welfare of a Child

This charge prohibits knowingly acting in a manner that is likely to be injurious to the physical, mental or moral welfare of a child less than 17 years old.

Penalties and Sentencing for Endangering the Welfare of a Child

New York’s Endangering the Welfare of a Child (commonly abbreviated as “EWC”) is a class A misdemeanor and is punishable by up to 1 year in jail. Frequently, these EWC cases resolve themselves without jail time. Rather, they often involve counseling or a treatment program.

Disseminating Indecent Material To Minors in the First Degree (PL 235.22)

Under New York Penal Law Section 235.22, Disseminating Indecent Material to Minors in the First Degree, a person cannot share with a minor content which in whole or in part depicts or describes actual or simulated nudity, sexual conduct or sado-masochistic abuse, in order to invite or induce a minor into sexual contact or a sexual performance.

Penalties and Sentencing for Disseminating Indecent Material to Minors in the First Degree

New York’s Disseminating Indecent Material to Minors in the First Degree is a Class D non-violent felony. As such, this charge is punishable by 2 1/3 to 7 years in prison. However, probation, or a definite sentence of up to 1 year is permissible. This charge is also subject to SORA Registration.

Disseminating Indecent Material To Minors in the Second Degree (PL 235.21)

New York also has the charge of Disseminating Indecent Material to Minors in the Second Degree, which is a lower degree felony than Disseminating Indecent Material to Minors in the First Degree. The difference between these charges is that the sharing of the content for the Second Degree charge does not require an intent to induce a minor into sexual conduct or into a sexual performance.

Penalties and Sentencing for Disseminating Indecent Material to Minors in the Second Degree

Disseminating Indecent Material to Minors in the Second Degree is a
Class E non-violent Felony. As such, the charge is punishable by 1 1/3 to 4 years in prison. However definite sentences of up to a year or probationary sentences are authorized for New York Disseminating Indecent Material to Minors in the Second Degree.

Possession or Creation of Child Pornography

There are both New York and federal criminal laws regarding possession, promotion, facilitation or production of child pornography (commonly referred to as “CP”). The legal term for child pornography under New York Law is “sexual performance” or “obscene sexual performance.”

Examples of New York Child Pornography Charges are:

  • Use of a Child in a Sexual Performance (PL 263.05);
  • Promoting an Obscene Sexual Performance by a Child (PL 263.10);
  • Possessing an Obscene Sexual Performance by a Child (PL 263.11);
  • Promoting a Sexual Performance by a Child (PL 263.15);
  • Possessing a Sexual Performance by a Child (PL 263.16);
  • Facilitating a Sexual Performance by a Child With Controlled Substance or Alcohol (PL 263.30).

Penalties vary considerably depending on the particular state or federal offense, the conduct alleged and the defendant’s history. Certain federal offenses carry mandatory minimum sentences, while many New York offenses do not.

More about ny child pornography charges

Contact an Experienced NY Sex Crimes Against Children Criminal Defense Attorney Today

NY Sex Crimes against children are perceived by both the prosecutors and the juries to be some of the most serious crimes. Most of them are subject to SORA Registration. This means that even after you complete your probation or jail term, the community and your neighbors will still be aware of your conduct, for decades to follow. If not for the rest of your life.

These are incredibly high-stakes cases. You need a top rated New York Sex Crimes Criminal Defense Attorney. One with experience in the investigating, defending and litigating these matters. Please call us at 212-729-9494 or contact us today for your initial consultation to find out if we are the right firm for you.