New York Criminal Sexual Act charges prohibit oral or anal conduct either with an underage person or without the person’s consent. New York has three Criminal Sexual Act Charges, all of which are felonies. Specifically, these charges are:

  • New York Criminal Sexual Act in the First Degree (PL 130.50)
  • New York Criminal Sexual Act in the Second Degree (PL 130.45)
  • New York Criminal Sexual Act in the Third Degree (PL 130.40)

If you have been arrested or believe that you are under investigation for New York Criminal Sexual Act Charges, you need to act quickly and contact a top-rated New York City criminal defense attorney today.

What is New York Criminal Sexual Act in the Third Degree?

New York Criminal Sexual Act in the Third Degree prohibits oral or anal sexual conduct with (1) a person who is unable to consent, (2) a person under 17 years old, or (3) a person who did not consent.

Individuals Unable to Consent:

The following individuals are legally incapable of consent, even though they may be a willing participant in the act:

  1. Individuals under age 17;
  2. Intoxicated individuals;
  3. Mentally disabled persons;
  4. Mentally incapacitated individuals;
  5. Physically helpless individuals;
  6. Individuals committed to or placed with the Office of Children and Family services and in residential care, and the actor is an employee;
  7. Individuals committed to the care and custody of the State Department of Corrections, Hospitals, when the actor is an employee of such institution;
  8. Detained individuals or prisoners in the custody of a police officer or another law enforcement official. Sexual Conduct with a 16 year old while being over 21 years old.

The addition of prisoners or detailed individuals has been added to the New York Penal Law in July of 2018, as a result of the Anna Chambers case. Prior to July 2018, it was not illegal for New York law enforcement to engage in sexual conduct with individuals in their custody.

Elements of New York Criminal Sexual Act in the Third Degree

A person is guilty of Criminal Sexual Act in the Third Degree under New York Penal Law Section 130.40 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; OR
  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 to consent. 

What is Lack of Consent Under New York Law?

Lack of consent results from the complainant clearly expressing that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood the complainant’s words and acts as an expression of lack of consent to such an act under all circumstances.

The standard is whether a reasonable person, in the actor’s shoes would have understood the complainant’s words or acts as an expression of lack of consent to such act under all the circumstances. It doesn’t matter that the actor thought otherwise, all that matters is what a reasonable person in the actor’s situation would have so understood.

Lack of Knowledge About the Person’s Age is Not a Defense

Under New York Law, lack of knowledge or mistaken belief that a person is at least 17 years old is not a defense to the statutory Criminal Sexual Act charge (New York Penal Law 130.40(2). This means that even if you truly believe that the person is of age, but you are wrong, you can still be prosecuted under New York Penal Law 130.40(2).

What is the sentence for New York Criminal Sexual Act in the Third Degree Charges?

Criminal Sexual Act in the Third Degree is a Class E Non-Violent Felony. As such, this charge is punishable by 1 1/3 to 4 years. However, sentences of probation and a conditional discharge are also authorized for Criminal Sexual Act in the Third Degree Charges. This charge is not subject to New York SORA Registration.

What is New York Criminal Sexual Act in the Second Degree?

New York Criminal Sexual Act in Second Degree is a more serious charge than New York Criminal Sexual Act in the Third Degree. This charge prohibits oral or anal sexual conduct with either (1) a person under the age of 15 or (2) a person incapable of consent by reason of being mentally disabled of mentally incapacitated.

Elements of New York Criminal Sexual Act in the Second Degree

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. 

What is the Sentence for New York Criminal Sexual Act in the Second Degree Charges?

Criminal Sexual Act in the Second Degree is a Class D Violent Felony. As such, this charge is punishable by 2 to 7 years in prison. However, if the judge finds in light of the Defendant’s nature and characteristics and the circumstances of the offense that there are mitigating circumstances, the judge is able to sentence a first time offender to probation or a determinate sentence of one year or less. Additionally, this charge is subject to New York SORA Registration.

What is New York Criminal Sexual Act in the First Degree?

Elements of New York Criminal Sexual Act in the First Degree

A person is guilty of Criminal Sexual Act in the First Degree when he or she 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. 

What is the New York Legal Definition of Forcible Compulsion?

Under New York Penal Law, the term forcible compulsion has a special legal meaning. Forcible Compulsion means to intentionally compel something either by:

  1. Physical Force; OR
  2. A threat, whether express or implied, which places a person in fear of:
    1. Immediate death or physical injury to himself or herself OR another person, OR
    2. In fear that he or she OR another person will immediately be kidnapped.

What is the New York Legal Definition of Physical Helplessness?

Under New York Law, physical helplessness is a legal term. It means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

What is the sentence for New York Criminal Sexual Act in the First Degree Charges?

Criminal Sexual Act in the First Degree is a Class B Violent Felony. As such, it is punishable by 5 to 25 years imprisonment. Unlike the other Criminal Sexual Act Charges (Second and Third Degree), this charge is not eligible for probationary sentence. Additionally, this charge is subject to New York SORA Registration.

Defenses to New York Criminal Sexual Act Charges

Marriage

Marriage is a defense to prosecutions when victim’s lack of consent is based solely on his or her incapacity to consent when because he or she was:

  • Less than 17 years old,
  • Mentally disabled,
  • A client or patient and the actor was a healthcare provider,
  • Detained or otherwise in custody of a law enforcement official,
  • Committed to the care and custody or supervision of a law enforcement official,
  • Committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital and the actor is the employee.

However, marriage is only a defense to the above-described charges if there was the existence of a relationship between the Defendant and the victim, which was recognized by law at the time of the alleged commission of the crime.

Age Difference of Less than 4 Years

Under New York Law, it is an affirmative defense to a prosecution for Criminal Sexual Act in the Second Degree that the Defendant was less than four (4) years older than the victim at the time of the alleged act. An affirmative defense is something that the defense needs to establish and bring out at trial. Once that happens, the burden shifts to the prosecutor to disprove an affirmative defense beyond a reasonable doubt.

Contact Top Rated New York Criminal Sexual Act Criminal Defense Attorneys

If you have been accused or charged with a Criminal Sexual Act in New York, the stakes of your case are very high. You are facing a felony criminal record, and serious jail time. Criminal Sexual Act in the First and in the Second Degree charges require Sex Offender Registration pursuant to Sex Offender Registration Act (SORA). Contact us today for a consultation regarding your New York Criminal Sexual Act charges.