Assault on a Child in New York

Sexual assault of a child is a serious crime in New York, punished through a broad range of sex offenses with heightened penalties when committed against minors. These offenses carry serious penalties, with collateral consequences extending far beyond a lengthy prison term.

For example, sex offenders are subject to the Sex Offender Registration Act, which requires offenders to register and publicly disclose their status for a minimum period of 20 years. Because of this, it is especially important to have legal counsel in sex offense cases in order to defend against any unforeseen consequence of a sex offense conviction.

Enhanced-Penalty Crimes

This article focuses on two crimes that provide enhanced penalties for egregious or repeated sexual misconduct against minors:

a course of sexual conduct against a child, and
predatory sexual assault against a child.

If you believe you may have committed a sex offense against a minor, this article provides further information regarding these enhanced-penalty crimes, including the elements of the crimes, available legal defenses, as well as how to best minimize your sentencing risk.

Statutes Defining Sexual Assault of a Child

As mentioned above, in most cases, sex offenses against children are punished through enhanced-penalty versions of the generic sex offense.

For example, sexual abuse in the third degree, punished as a class B misdemeanor, is enhanced to a second-degree offense (a class A misdemeanor) if it is committed against someone under fourteen years old. And if the victim is under eleven years old, the offense is again enhanced to the first degree, punished as a class D felony.

In addition to the enhanced sentence that you can receive by committing sex crimes against a minor, in repeat or egregious cases, you can be charged with the following crimes with even higher penalties:

New York Penal Law § 130.80 – Course of sexual conduct against a child in the second degree: This occurs when a person commits at least two acts of “sexual conduct” in a period of time three months or longer, and the child is less than eleven years old, or the person is over eighteen years old, and the child is less than thirteen years old.

An act of “sexual conduct” is defined as touching the intimate parts of another person to gratify a sexual desire. This is a class D felony.

New York Penal Law § 130.75 – Course of sexual conduct against a child in the first degree: This occurs when a person engages in “course of sexual conduct against a child in the second degree” as defined in New York Penal Code § 130.80, except that at least one of the predicate acts of “sexual conduct” involved sexual intercourse or oral or anal sexual conduct. This is a class B felony.

New York Penal Law § 130.95 – Predatory sexual assault: This occurs when someone commits one of the following four crimes:
rape in the first degree
a criminal sexual act in the first degree
aggravated sexual abuse in the first degree, or;
a course of sexual conduct against a child in the first degree; and:
uses or threatens the use of a weapon
causes serious injury to the victim
has committed any of the four offenses against at least one other victim, or;
has previously been convicted of a felony sex offense, incest, or the use of a child in a sexual performance as defined in New York Penal Law § 263.05.

This is a class A-II felony.

New York Penal Law § 130.96 – Predatory sexual assault against a child: This occurs when someone who is over eighteen years old commits one of the following four crimes against someone who is under thirteen years old:
rape in the first degree
A criminal sexual act in the first degree
aggravated sexual abuse in the first degree, or;
a course of sexual conduct against a child in the first degree.

This is a class A-II felony.

Predicate Offenses

Predatory sexual assault and predatory sexual assault against a child requires that a person commit various predicate offenses, which are briefly described below:

Rape in the first degree (N.Y. Penal Law § 130.35): This occurs when someone engages in sexual intercourse with another by force, or when the other person is physically helpless, or less than eleven years old.
A criminal sexual act in the first degree (N.Y. Penal Law § 130.50): This occurs when someone commits oral or anal sexual conduct with another by force, or when the other person is physically helpless, or less than eleven years old.
Aggravated sexual abuse in the first degree (N.Y. Penal Law § 130.70): This occurs when someone inserts an object into the vagina, urethra, penis, or anus of another person by force, or when the other person is physically helpless, or less than eleven years old.
Use of a child in a sexual performance (N.Y. Penal Law § 263.05): This occurs when someone employs, directs, or persuades a child less than seventeen years old to participate in any performance involving actual or simulated sexual conduct, including masturbation and exhibition of the genitals.

The Elements of Course of Sexual Conduct Against a Child

The “elements” of an offense are the things that the prosecutor must prove in order for you to be found guilty of the offense. For a defendant to be convicted of course of sexual conduct against a child in the second degree, all of the following must be proven at trial:

You must touch the intimate body parts of another; AND
For the purpose of gratifying your sexual desires; AND
On at least two occasions or instances; AND
Those instances must be spread over a period equal to or greater than three months; AND
The victim must be less than eleven years old, OR
You must be greater than eighteen years old, AND the victim must be less than thirteen years old.

For a defendant to be convicted of course of sexual conduct against a child in the first degree, an additional element must be satisfied:

At least one of the acts described in element 1 must be comprised of sexual intercourse, oral sexual conduct, or anal sexual conduct.

There are a few things to note about this offense.

First, this offense has a specific intent requirement in element 2. This is the highest culpability standard in criminal law – you must act with the intent or purpose of gratifying your sexual desires. Mere knowledge will not be sufficient.

Accidentally or unintentionally touching the private parts of a child will not satisfy the elements of the crime. However, intent can be inferred through circumstantial evidence.

Second, the period of time for the commission of the acts of sexual conduct has no maximum time limit. In other words, you will be liable for this offense even if the two acts of sexual conduct were committed over the span of several years.

For example, in People v. Riback, 870 N.Y.S.2d 517 (App. Div. 3d Dep’t 2008), the Court affirmed multiple counts for this offense where the acts of sexual conduct were committed over three-year and five-year periods.
In People v. Carter, the Appellate Division explained that a four-and-a-half-year period was not excessive because the offense is a “continuing offense.”

Third, for element #7 (required for the first-degree course of sexual conduct against a child), the definition of oral sexual conduct and anal sexual conduct is quite broad. Oral sexual conduct only requires contact between a mouth and a penis, anus, vulva, or vagina.

Anal sexual conduct only requires contact between a penis and an anus. Mere contact will do – penetration is not required. On the other hand, sexual intercourse requires actual penetration.

Elements for Predatory Sexual Assault

For a defendant to be convicted of predatory sexual assault, all of the following must be proven at trial:

You must commit rape in the first degree; OR
You must commit a criminal sexual act in the first degree; OR
You must commit aggravated sexual abuse in the first degree; OR
You must commit course of sexual conduct against a child in the first degree; AND
You must use or threaten the use of a weapon; OR
You must commit any of the offenses described in elements 1 through 4 against at least two persons; OR
You must have a previous conviction for a felony sex offense, incest, or use of a child in a sexual performance as defined in N.Y. Penal Law § 263.05

For a defendant to be convicted of predatory sexual assault against a child, all of the following must be proven at trial:

You must commit rape in the first degree; OR
You must commit a criminal sexual act in the first degree; OR
You must commit aggravated sexual abuse in the first degree; OR
You must commit course of sexual conduct against a child in the first degree; AND
You must be over eighteen years of age; AND
Your victim must be less than thirteen years of age.

Related Federal Offenses to Sexual Assault of a Child

18 U.S.C. § 2241(c) – Aggravated sexual abuse with a child

This occurs when someone crosses a state boundary with the intent of having sex or committing sexual conduct with a child less than 12 years old, and knowingly engages in the sexual conduct with such a child less than 12 years old or is between 12 and 16 years old and is at least four years younger than the offender.

This offense is punished by a mandatory minimum sentence of 30 years, and up to a life sentence.

Related New York Offenses to Sexual Assault of a Child

Any of the above-mentioned crimes (rape, aggravated sexual abuse, criminal sexual act) can likely be brought in conjunction with a course of sexual conduct against a child or predatory sexual assault against a child. The following additional crimes may be charged along with the sexual assault of a child under New York law:

New York Penal Law § 260.10 – Endangering the welfare of a child – This occurs when someone acts in a way likely to be harmful to a child’s physical, mental, or moral welfare, or directs that child to do something that presents a significant risk to his life or health. This is a class A misdemeanor.
New York Penal Law § 130.20 – Sexual Misconduct – This occurs when someone engages with another person in sexual intercourse, or oral sexual conduct, or anal sexual conduct, without the other person’s consent. This is a class A misdemeanor.

New York Penal Law §§ 130.55-130.65 – Sexual abuse – This occurs when someone engages in sexual conduct with another person without that other person’s consent. This ranges from a class B misdemeanor to a class D felony.

New York Penal Law § 130.91 – Sexually Motivated Felony – This occurs when someone commits a felony for the purpose of his or her own sexual gratification. For example, assault in the second degree, if committed during a sexual act, will likely constitute a ‘sexually motivated felony.’ A sexually motivated felony is punished as a violent felony offense, resulting in much harsher sentences.

New York Penal Law § 120.02 – Reckless assault of a child – This occurs when someone over the age of eighteen recklessly causes serious injury to the brain of a child younger than five years old by shaking, slamming, or throwing the child. This is a class D felony.

Penalties

The course of sexual conduct against a child in the second degree is a class D felony, is a class D felony, with a maximum sentence of 7 years and a maximum fine of $5,000.

The course of sexual conduct against a child in the first degree is a class B felony, with a minimum sentence of one year, a maximum sentence of 25 years, and a maximum fine of $5,000.

Predatory sexual assault is a class A-II felony, with a minimum sentence of three years, a maximum sentence of life, and a maximum fine of $5,000.

Predatory sexual assault against a child is a class A-II felony, with a minimum sentence of three years, a maximum sentence of life, and a maximum fine of $5,000.

Sentencing Enhancements

Your sentence can significantly increase if you have a prior felony conviction. For example, if you are found guilty of second degree placing a false bomb or hazardous substance, a class E felony, someone with no prior felony offense could receive no jail time.

However, a second felony offender will receive at least an 18-month sentence. Under New York’s three-strikes law, someone with two prior felony convictions will face at least a 15-year sentence for the same offense.

Collateral Consequences of a Felony Conviction

A felony conviction also has various other collateral consequences. They include:

● Reputational harm and loss of job

● Time and money spent defending yourself in court

● Loss of gun ownership rights

● Potential deportation if you are an immigrant

● Inability to obtain job-related licenses and certifications.

● An increased sentence for future convictions

Additionally, the Sex Offender Registration Act requires offenders of certain sex offenses to be publicly disclosed and registered, for at least 20 years.

Navigating the relevant sentencing rules is extremely consequential. You should retain and consult with an attorney as soon as possible to understand your sentencing risk should you be found guilty of an offense.

Legal Defenses to Sexual Assault of a Child

Due to the harsh sentences that follow from being deemed a sex offender, and the fact that the sentences are further increased if you are convicted of the above-mentioned crimes, it is crucial that your counsel vigorously represent your interests at trial and during plea negotiations.

The following powerful legal defenses may be utilized by a skilled attorney to minimize your sentencing risk and win an acquittal.

Defense #1: Marriage

New York Penal Law § 130.10 provides that it is an affirmative defense to a sex offense involving the lack of consent of someone under the age of seventeen that the defendant is married to the victim.

Defense #2: Lesser Included Offense

In People v. Lancaster, 41 N.Y.S.3d 129 (App. Div. 3d Dep’t 2016), the Appellate Division held that the defendant’s convictions for criminal sexual act in the first degree, rape in the first degree, and aggravated sexual abuse in the first degree were lesser included offenses to the crime of predatory sexual assault.

In other words, the elements of those lesser offenses were fully incorporated into, and part of, the elements for predatory sexual assault. The Appellate Division then held that the defendant’s convictions for those lesser offenses must be vacated.

While this is not a full defense (after all, one has to be found guilty of predatory sexual assault), this defense can significantly reduce your sentence because, in effect, you cannot be convicted for multiple crimes arising out of the identical offense conduct. Similarly, defense counsel can request jury instructions on the lesser-included offense rather than the harsher sex-assault offense, in order to minimize your sentencing risk.

Defense #3: Lack of criminal intent

As discussed above, the element for a course of sexual conduct against a child in the second degree has a specific intent requirement – i.e., that you engage in sexual contact with the purpose or intent to gratify your (or the other person’s) sexual desires.

Courts have reversed or vacated convictions where the prosecution fails to demonstrate the specific intent element required by statute. However, because intent can be established through circumstantial evidence, defense counsel must skillfully rebut any evidence that may give rise to an inference that you had the requisite criminal intent.

Defense #4: No evidence of offense committed over a time period

In People v. Juara, 719 N.Y.S.2d 102 (App. Div. 2d Dep’t 2001), the Appellate Division vacated a conviction for a course of sexual conduct against a child in the first degree, because the prosecution failed to present evidence that the alleged sexual abuse was ongoing throughout a period of time.

Thus, in a similar case, you may be entitled to defense if the prosecution fails to present adequate evidence that your misconduct continued throughout the alleged time period.

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