New York Sexual Abuse charges apply to situations where one individual subjects another to unwanted sexual contact without consent. These charges can result in a felony record, jail time, as well as having to register as a sex offender under the Sex Offender Registration Act (commonly called “SORA”).
Under New York Law, there are three different Sexual Abuse charges. Specifically, they are:
- Sexual Abuse in the First Degree,
- Sexual Abuse in the Second Degree, AND
- Sexual Abuse in the Third Degree.
New York Sexual Abuse in the First Degree is the most serious of these charge, while Sexual Abuse in the Third Degree is the least serious. Nonetheless, if you are charged with Sexual Abuse, regardless of the degree, you ought to take your case very seriously. Not doing so, can result in adverse life-long consequences.
The difference between these three New York Sexual Abuse charges is explained below.
New York Sexual Abuse in the Third Degree
Under New York Law, Sexual Abuse in the Third Degree is codified in Penal Law Section 130.55. Under Section 130.55, a person is guilty of New York Sexual Abuse in the Third Degree, when s/he subjects another person to sexual contact without the person’s consent.
Affirmative Defenses to NY Sexual Abuse in the Third Degree
There is an affirmative defense to this statute that is frequently called the “Romeo and Juliet exception.” That is, if inability to consent is solely related to age, and the actor is within 5 years of the person touched, the actor has an affirmative defense to these charges. Specifically, the elements of the affirmative defense are:
- The person’s lack of consent was solely because they were under the age of 17,
- The person was more than 14 years old, AND
- The Defendant was less than 5 years older than such person.
Sentencing and Penalties for New York Sexual Abuse in the Third Degree
NY Sexual Abuse in the Third Degree is a Class “B” misdemeanor. As such, this charge is punishable by:
- Up to 90 days jail;
- Conditional Discharge (with conditions set by the sentencing court, such a completion of a program, or community service);
- Unconditional Discharge (no conditions set by the sentencing court);
- Time Served (even if that’s just a few hours).
SORA Registration for NY Sexual Abuse in the Third Degree
Generally, NY Sexual Abuse in the Third Degree is not subject to registration pursuant to Sex Offender Registration Act. However, there are two exceptions under which the charge is subject to SORA Registration. These two exceptions are:
- The complainant is under the age of 18, OR
- 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 any of these crime. It does not matter that the prior offense wasn’t subject to registration. It also doesn’t matter when the prior conviction occurred.
New York Sexual Abuse in the Second Degree
New York Sexual Abuse in the Second Degree is codified in Penal Law Section 130.60. This charge is similar to Sexual Abuse in the Third Degree, but it contains an additional element.
Under Penal Law Section 130.60, a person is guilty of Sexual Abuse in the Second Degree when s/he subjects another person to sexual contact and when such other person is:
- Incapable of consent by reason of some factor other than being less than 17 years old, OR
- Less than 14 years old.
Although not specified in the Penal Law 130.60(1) statute, other reasons for inability to consent may be:
- Mental disease or defect,
- Physical helplessness,
- Committed to the custody of Department of Corrections, OR
Sentencing and Penalties for New York Sexual Abuse in the Second Degree
Sexual Abuse in the Second Degree is a Class “A” Misdemeanor. As such, this charge is punishable by:
- Up to 1 year in jail,
- Probation (2 or 3 years),
- Split sentence (with up to 6 months jail, rest of the time on probation),
- Conditional discharge (with the sentencing court setting conditions of sentencing, such as community service or abiding by the order of protection),
- Unconditional discharge (no conditions set by the sentencing court),
- Time served (even if minimal).
SORA Registration for NY Sexual Abuse in the Second Degree
Convictions for Sexual Abuse in the Second Degree are subject to registration pursuant to Sex Offender Registration Act (commonly referred to as “SORA”).
New York Sexual Abuse in the First Degree
Sexual Abuse in the First Degree is codified in Penal Law Section 130.65. Under New York Penal Law Section 130.65, a person is guilty of Sexual Abuse in the First Degree when s/he subjects another person to sexual contact:
- By forcible compulsion;
- When the other person is incapable of consent by reason of being physically helpless;
- When the other person is less than 11 years old; OR
- When the other person is less than 13 years old and the actor is 21 years old or older.
What is Forcible Compulsion?
The term definition of what constitutes “forcible compulsion” is found in Penal Law 130.00, which contains the definitions of terms. Forcible compulsion involves either:
- The use of physical force, OR
- A threat, express pr implied, which place 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.
Sentencing and Penalties for New York Sexual Abuse in the First Degree
Under New York Law, Sexual Abuse in the First Degree is a Class “D” Violent Felony. As such, this charge is punishable by:
- A determinate sentence between 2 and 7 years, OR
- Probation if the Court find mitigating circumstances.
Potential Defenses to Sex Abuse Charges in New York
Each case is unique and requires multiple client meetings and countless hours of preparation. With that being said, these are some common defenses to Sex Abuse charges in New York. Their applicability depends on the degree of the Sex Abuse charge you have, as well as the evidence (or lack of evidence) against you.
Lack of consent is an element of each New York Sex Abuse charge, whether included in the charge or not. Thus, if the sexual contact was consensual, the individual cannot be convicted of any of the New York Sex Abuse charges (with the exception of Sex Abuse 3, if the age difference is over 5 years).
2. Lack of Knowledge
For cases involving individual who is unable to consent because s/he is mentally disabled, mentally incapacitated or physically helpless, it is affirmative defense that the defendant, at the time s/he engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent.
3. Legitimate Medical Purpose
If the sexual conduct was performed for a legitimate purpose, i.e. during the course of a medical examination, that is a defense to New York Sex Abuse charges. With that being said, just because a medical exam is performed by a medical professional, doesn’t mean that the prosecutor can’t bring a case and convict a medical professional of inappropriately touching a patient.
Contact Top Rated New York Sexual Abuse Criminal Defense Lawyers
If you have been charged with Sexual Abuse, or another New York sex crime, you need experienced counsel. These types of cases can result in a misdemeanor or felony record, as well as jail time. Perhaps the worst potential consequence of being convicted of a New York Sex crime, is wearing the “scarlet letter” of the sex offender registration. Finding the right attorney can make all the difference in your case. Read our client reviews and call us at 212-729-9494 or contact us today for your free initial consultation.