Criminal Sex Act in New York
Are You at Risk of Prosecution?
You can be charged with a criminal sexual act in New York, or one of several related charges, if you engage in oral or anal sex with someone who does not or cannot consent; or intentionally touch someone’s intimate areas without their consent.
At a glance, these charges might seem like they only apply to aggressive sexual actions committed by violent predators. The reality, however, is not always so clear-cut.
People don’t walk around signing notarized consent forms every
time they engage in sexual activity. It is possible for good, honest people to
get themselves caught up in tough situations regarding sexual consent. Here are
some common occurrences that could lead to you receiving criminal sexual act or
forcible touching charges:
- You have a one-night stand with a girl you just met without asking her age, and she turns out to be a very mature-looking 16-year-old.
- You work in a state corrections facility and have oral or anal sex with an inmate.
- You hook up with a guy too drunk to control his conduct – even if you yourself are drunk as well.
- You get angry and aggressive near your romantic partner, which could lead them to think you will hurt them if they don’t have sex with you.
- You fall towards someone on a crowded train and accidentally grab them in an intimate ar
The Legal Definition of Criminal Sexual Acts
There are several state statutes relating to criminal sexual acts within the New York Penal Law. These charges range from a Class A misdemeanor all the way up to a Class B violent felony, depending on the circumstances of your case.
130.40 – Criminal Sexual Act in the Third Degree
This charge is for people who engage in oral or anal sex without receiving legal consent. You may receive this charge if you meet one or more of the following criteria:
- You engaged in oral or anal sex with someone who was incapable of consent at the time of your sexual conduct.
- You, being 21 years or older, engaged in oral or anal sex with someone 16 years or younger.
- You engaged in oral or anal sex without the other person’s consent, despite the person being capable of giving consent.
For the purposes of this charge and those that follow, “oral sex” consists of contact between the mouth and penis, mouth and anus, or mouth and vagina. “Anal sex” consists of contact between the penis and anus. Penetration is not necessary. This offense is a Class E felony
130.45 – Criminal Sexual Act in the Second Degree
This charge is a higher grade of the same crime in the third degree. You may receive this more serious charge if you meet either of the following criteria:
- You, being 18 years or older, engaged in oral or anal sex with someone 14 years or younger.
You engaged in oral or anal sex with someone who was incapable of consent due to being mentally disabled or mentally incapacitated. This offense is a Class D violent felony
130.50 – Criminal Sexual Act in the First Degree
This charge is the highest grade of this crime. You may receive this charge if you meet one or more of the following criteria:
engaged in oral or anal sex with someone:
- By use of physical force or threat of harm to them or someone else.
- Who was unconscious or otherwise physically incapable of communicating their lack of consent.
- Who were 10 years or younger.
- Who were 12 years or younger while you were 18 years or older.
- This offense is a Class B violent felony.
130.52 – Forcible Touching
This charge is for people who intentionally touch someone else’s intimate body parts for no legitimate reason. You may receive this charge if you meet either of the following criteria:
- You forcibly touched someone’s intimate body parts to degrade or abuse them, or to satisfy your own sexual desire.
- You subjected someone to sexual contact for the above purposes while they were a passenger on a bus, train, or subway car whose operation is authorized by New York State or any city or town within it.
For the purposes of this charge, the definition of forcible touching includes squeezing, grabbing, or pinching. Also, note that your touching must be intentional and serve no legitimate purpose to be convicted of this crime; truly accidental contact is not considered forcible touching. This offense is a Class A misdemeanor.
130.53 – Persistent Sexual Abuse
This charge is for repeat criminal sexual offenders. You may only receive this charge if you meet both of the following criteria:
- You committed the crime of forcible touching, sexual abuse in the third degree, or sexual abuse in the second degree – as outlined in 130.52, 130.55, and 130.60 of New York Penal Law.
- You were convicted on two or more separate occasions – at any point in the past ten years while you were not in prison – of the above crimes or any other felony crimes in Article 130 of New York Penal Law.
To be clear, you cannot receive this charge unless you have been convicted of a criminal sexual crime within the past decade. You must be a repeat offender. This offense is a Class E felony.
Charges of criminal sexual acts may be brought in addition to, or in place of, charges for certain other related offenses under Article 130 of New York Penal Law. These include:
Rape in the Third, Second, or First Degree
This charge is nearly identical to the charge of a criminal sexual act in the third, second, or first degree. There is only one difference between the two crimes:
- Rape involves engaging in “sexual intercourse.”
- Criminal sexual act involves engaging in “oral or anal sexual conduct.”
New York Penal Law defines “sexual intercourse” as occurring “upon any penetration, however slight.” As noted earlier, criminal sexual acts do not require penetration. This is a Class E, D, or B felony depending on the severity of the charge.
Sexual Abuse in the Third, Second, or First Degree
This charge is for people who subject another person to sexual contact without their consent. The severity of the charge, as with rape and criminal sexual act, depends on the ages of the people involved and the reasons that consent is not or cannot be given.
New York Penal Law defines “sexual contact” as “touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either party.” This is a Class B or A misdemeanor or a Class D felony depending on the severity of the charge.
Aggravated Sexual Abuse in the Fourth, Third, Second, or First Degree
This charge is for people who insert a finger or foreign object into the vagina, urethra, penis, rectum, or anus of another person without consent. The severity of the charge depends on the ages of the people involved, the reasons that consent is not or cannot be given, and whether the act causes physical injury.
This is a Class E, D, C, or B felony depending on the severity of the charge.
Who Detects, Investigates, and Prosecutes Criminal Sexual Acts?
The detection of criminal sexual acts differs for every case. Generally speaking, the victim of a criminal sexual act must report the crime directly to the authorities or to someone with a duty to report the crimes (such as a teacher or guidance counselor.)
However, for someone else to report the crime. A severely mentally handicapped person may not be able to report the crime on their own, but that doesn’t mean it will not be reported. Once detected, criminal sexual acts are investigated by different agencies and bureaus depending on the location and circumstances of the crime. Some examples include:
- All sexual crimes in NYC are typically handled by the Special Victims Division of the NYPD.
- The Campus Sexual Assault Victims Unit might play a role in investigating criminal sexual acts that occur on a college campus in the state.
- The Special Victims Unit of New York State sometimes referred to as the Child Abuse Unit might play a role in investigating criminal sexual acts that involve children.
No matter who is accusing you of a sexual crime, or who investigates you, the State of New York will always be the entity prosecuting you in a court of criminal law. The State prosecutes and punishes sexual crimes to protect its people and their right to control who touches and uses their body. If you suspect you might be charged with any of these sexual crimes, don’t hesitate to contact experienced legal counsel.
The statutory penalties for criminal sexual acts vary considerably depending on the specific charge(s) you receive. The penalties can include fines, prison time, or a combination of both.
Criminal Sexual Act in the Third Degree
- This conviction is a Class E felony.
- The maximum fine is $5,000, and the maximum prison sentence is four years
Criminal Sexual Act in the Second Degree
- This conviction is a Class D violent felony.
- The maximum fine is $5,000, and the maximum prison sentence is seven years.
Criminal Sexual Act in the First Degree
- This conviction is a Class B violent felony.
- The maximum fine is $5,000, and the maximum prison sentence is twenty-five years.
- This conviction is a Class A misdemeanor.
- The maximum fine is $1,000, and the maximum prison sentence is one year.
Persistent Sexual Abuse
- This conviction is a Class E violent felony.
- The maximum fine is $5,000, and the maximum prison sentence is four years.
Keep in mind that your criminal record is important when it comes to sentencing. You may receive a lighter sentence if you have a spotless record, and a heavier sentence if you’re a repeat offender.
Due to the nature of these crimes, a conviction means you must register as a sex offender within the New York State Sex Offender Registry. That’s right: each of the 5 criminal sexual acts outlined on this page (and all of the related offenses) are grounds for registration as a sex offender.
The specifics of your registration are not determined until after you have served your prison sentence and are released back into society as a free person. A sentencing court will examine the facts of your particular case and then:
- assign you a repeat offense risk level between 1-3; and
- determine if you will also receive a designation as a sexual predator, a sexually violent offender, a predicate sex offender.
If you are assigned risk level 1 AND no designation, you will be registered as a sex offender for the next 20 years. If you are assigned risk level 2 or 3 OR any designation, you will be registered as a sex offender for life.
What will happen if you are registered?
Once you are registered, your local law enforcement agency can issue a community notification with information about you – including your name, home address, work address, vehicle description, and your specific conviction.
You must also keep the NY Division of Criminal Justice Services up-to-date with your life. You will need to:
- The report in person to a police department for a photograph once every 3 years as a Level 1 or 2 offender, or every year as a Level 3 offender;
- verify your address annually;
- report a new address within 10 days of moving;
- report if you are attending or working at a university or college;
- provide your internet service provider (ISP), internet account names, and email addresses.
Make no mistake: the consequences of criminal sexual act convictions extend far beyond any fines or prison sentences. They can ruin your life.
Legal Defenses to Criminal Sexual Act Charges
Luckily for you, it is possible to fight these charges and win your case – with the right counsel. Experienced defense attorneys know how to challenge the prosecution and protect you in a court of law. Here are two common paths that a successful defense might take
Your most powerful legal defense might be to claim actual innocence. In other words, you and your attorney will make an argument that you did not actually commit the action you are accused of committing.
For these charges, you will generally be denying that you ever physically engaged in the sexual act at the heart of your charge. The burden of proof is on the prosecution to prove that you are guilty beyond a reasonable doubt, which means you only need to raise a reasonable doubt as to whether you committed the accused actions.
How you go about proving your innocence will vary greatly depending on your case. Here are two common ways to argue for actual innocence:
- Alibi: You can present evidence that you were not present at the scene of the crime at the time when it supposedly occurred. It is, after all, impossible to engage in a sexual crime if you are not present. Some examples of alibis include:
- A credit card statement was showing you were at a restaurant or movie theater.
- A plane ticket or hotel receipt showing you were traveling.
- Social media posts showing you were elsewhere.
- Witnesses were testifying that they were with you at the time of the crime.
- Mistaken Identity: You can question whether you were properly identified by the prosecutor, accuser, and/or witnesses of the crime. Eyewitness testimonies are not always accurate, and you can use this to your advantage. Some questions to ask include:
- Is it reasonably possible that the accuser could be mixing you up with someone else?
- Can the accuser recall the clothing you were wearing at the time of the crime, or unique body markings (e.g., tattoos, birthmarks, scars, etc…)?
- Is the accuser’s description of their attacker specific enough that it must match you?
The physical act of oral or anal sex, on its own, is not inherently criminal. Touching someone’s intimate areas is also not inherently criminal. The lack of consent is the other half of any criminal sexual act, which makes it a viable avenue to explore in a defense strategy.
You can argue that you performed the accused physical, sexual action, but that you only did so with consent. If you received consent to engage in oral or anal sex, or to touch someone’s intimate areas, then it is not a criminal act. The burden of proof is on the prosecutor to prove, beyond a reasonable doubt, that you did not receive consent for your physical, sexual actions.
New York Penal Law also directly supports this defense if the accuser’s lack of consent was the result of mental disability, mental incapacitation, or physical helplessness – as long as you did not know of the facts or conditions responsible for their incapacity to consent. If you know you physically committed a sexual act and think consent is your best defense strategy, be sure to consult with an experienced attorney.
Call us for help.
Don’t risk your future. These charges won’t go away on their own, and neither will the consequences if you’re convicted. Our criminal defense attorneys know how to help you avoid fines, prison time, and lifetime registration as a sex offender.
For questions about criminal sexual acts in New York, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us. We’re here to help you every step of the way.