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Sex Offenses

In New York, Sex crimes are considered very serious. A conviction for a sex crime carries very serious consequences including substantial incarceration, and or a period of probation that is significantly longer than the amount of probation imposed on non sex crime convictions. In addition to jail and probation, almost all of those convicted of a sex crime in New York will be required to register as a sex offender under the New York Sex Offender Registration Act. If you have been charged with, or you believe you may be charged with a sex offense in New York, you should consult with a New York Criminal Lawyer immediately.

Below are the various New York sex offenses and the elements required to establish each of the charges.

Sexual misconduct (S 130.20)
A person is guilty of sexual misconduct when:
  1. He or she engages in sexual intercourse with another person withoutsuch person`s consent; or
  2. He or she engages in oral sexual conduct or anal sexual conductwith another person without such person's consent; or
  3. He or she engages in sexual conduct with an animal or a dead human body.
Sexual misconduct is a class A misdemeanor.

Rape in the third degree (S 130.25)
A person is guilty of rape in the third degree when:
  1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old;
  2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or
  3. He or she engages in sexual intercourse with another person without such person`s consent where such lack of consent is by reason of some factor other than incapacity to consent.
Rape in the third degree is a class E felony.

Rape in the second degree (S 130.30)
A person is guilty of rape in the second degree when:
  1. Being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or
  2. He or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.
It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.
Rape in the second degree is a class D felony.

S 130.35 Rape in the first degree.
A person is guilty of rape in the first degree when he or she engages in sexual intercourse 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.
Rape in the first degree is a class B felony.

Criminal sexual act in the third degree (S 130.40)
A person is guilty of criminal sexual act in the third degree 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;
  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.
Criminal sexual act in the third degree is a class E felony.

Criminal sexual act in the second degree (S 130.45)
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.
It shall be an affirmative defense to the crime of criminal sexual act in  the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.
Criminal sexual act in the second degree is a class D felony.
 
Criminal sexual act in the first degree (S 130.50)
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.
Criminal sexual act in the first degree is a class B felony.

Forcible touching (S 130.52)
A person is guilty of forcible  touching when such person intentionally, and for  no  legitimate  purpose,  forcibly  touches  the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of  gratifying the actor's sexual desire.

For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.

Forcible touching is a class A misdemeanor.

Persistent sexual abuse (S 130.53)
A  person  is guilty of persistent sexual abuse when he or she commits   the crime of forcible touching, as defined in  section  130.52  of  this   article,  sexual abuse in the third degree, as defined in section 130.55 of this article, or sexual abuse in the second  degree,  as  defined  in section  130.60  of  this  article,  and,  within  the previous ten year  period, excluding any time during which such person was incarcerated for any reason, has been convicted two or more times, in  separate  criminal transactions  for  which  sentence was imposed on separate occasions, of forcible touching, as defined in section 130.52 of this article,  sexual abuse  in the third degree as defined in section 130.55 of this article, sexual abuse in the second degree, as defined in section 130.60 of  this article, or any offense defined in this article, of which the commission or attempted commission thereof is a felony.

Persistent sexual abuse is a class E felony.

Sexual abuse in the third degree (S 130.55)
A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter`s consent; except that in any prosecution under this section, it is an affirmative defense that (a) such other person`s lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person.

Sexual abuse in the third degree is a class B misdemeanor.

Sexual abuse in the second degree (S 130.60)
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 of some factor other than being less than seventeen years old; or
  2. Less than fourteen years old.
Sexual abuse in the second degree is a class A misdemeanor.

Sexual abuse in the first degree (S 130.65)
A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact:
  1. By forcible compulsion; or
  2. When the other person is incapable of consent by  reason  of  being physically helpless; or
  3. When the other person is less than eleven years old; or
  4. When the other person is less than thirteen years old and the actor is twenty-one years old or older.
Sexual abuse in the first degree is a class D felony.

Aggravated sexual abuse in the fourth degree (S 130.65-a)
  1. A person is guilty of aggravated sexual abuse in the fourth degree when: (a) He or she inserts a foreign object in the vagina, urethra,  penis, rectum  or  anus  of another person and the other person is incapable of consent by reason of some factor other than being  less  than  seventeen years old; or (b)  He  or she inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury  to  such  person  and such  person is incapable of consent by reason of some factor other than being less than seventeen years old.
  2. Conduct performed for a valid medical purpose does not violate the provisions of this section.
Aggravated sexual abuse in the fourth degree is a class E felony.

Aggravated sexual abuse in the third degree (S 130.66)
  1. A  person is guilty of aggravated sexual abuse in the third degree when he or she inserts a foreign object in the vagina,  urethra,  penis, rectum or anus of another person: (a) By forcible compulsion; or (b)  When  the other person is incapable of consent by reason of being physically helpless; or (c) When the other person is less than eleven years old.
  2. A person is guilty of aggravated sexual abuse in the  third  degree when  he  or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such  person and  such  person  is  incapable  of consent by reason of being mentally disabled or mentally incapacitated.
  3. Conduct performed for a valid medical purpose does not violate the provisions of this section.
  Aggravated sexual abuse in the third degree is a class D felony.

Aggravated sexual abuse in the second degree (S 130.67)
  1. A person is guilty of aggravated sexual abuse in the second degree when he or she inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person: (a) By forcible compulsion; or (b) When the other person is incapable of consent by reason of being physically helpless; or (c) When the other person is less than eleven years old.
  2. Conduct performed for a valid medical purpose does not violate the provisions of this section.
Aggravated sexual abuse in the second degree is a class C felony.

Aggravated sexual abuse in the first degree (S 130.70)
  1. A  person is guilty of aggravated sexual abuse in the first degree when he or she inserts a foreign object in the vagina,  urethra,  penis, rectum or anus of another person causing physical injury to such person: (a) By forcible compulsion; or (b) When the other person is incapable of consent by reason of being physically helpless; or (c) When the other person is less than eleven years old.
  2. Conduct performed for a valid medical purpose does not violate the provisions of this section.
Aggravated sexual abuse in the first degree is a class B felony.

Course of sexual conduct against a child in the first degree (S 130.75)
  1. A  person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three  months in duration: (a)  he  or  she  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 eleven years old; or (b)  he  or  she,  being eighteen 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 thirteen years old.
  2. A person may not be subsequently prosecuted for  any  other  sexual offense  involving  the  same  victim  unless  the other charged offense occurred outside the time period charged under this section.
Course of sexual conduct against a child in the first degree is a class B felony.

Course of sexual conduct against a child in the second degree (S 130.80)
  1. A person is guilty of course of sexual conduct against a child in the second degree when, over a period of time not less than three months in duration: (a) he or she engages in two or more acts of sexual conduct with a child less than eleven years old; or (b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct with a child less than thirteen years old.
  2. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section.
Course of sexual conduct against a child in the second degree is a class D felony.

Female genital mutilation (S 130.85)
  1. A person is guilty of female genital mutilation when: (a) a person knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not reached eighteen years of age; or (b) being a parent, guardian or other person legally responsible and charged with the care or custody of a child less than eighteen years old, he or she knowingly consents to the circumcision, excision or infibulation of whole or part of such child`s labia majora or labia minora or clitoris.
  2. Such circumcision, excision, or infibulation is not a violation of this section if such act is: (a) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or (b) performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.
  3. For the purposes of paragraph (a) of subdivision two of this section, no account shall be taken of the effect on the person on whom such procedure is to be performed of any belief on the part of that or any other person that such procedure is required as a matter of custom or ritual.
Female genital mutilation is a class E felony.

Facilitating a sex offense with a controlled substance (S 130.90)
A  person  is  guilty  of facilitating a sex offense with a controlled substance when he or she:
  1. Knowingly and unlawfully possesses a controlled  substance  or  any  preparation, compound, mixture or substance that requires a prescription to  obtain  and  administers  such  substance  or preparation, compound, mixture or substance that requires a prescription to obtain  to  another person  without  such person's consent and with intent to commit against such person conduct constituting a felony defined in this article; and
  2. Commits or attempts to commit such conduct  constituting  a  felony defined in this article.
Facilitating a sex offense with a controlled substance is a class D felony.

Sexually motivated felony (S 130.91)
  1. A person commits a sexually motivated felony when he or she commits  a  specified  offense  for the purpose, in whole or substantial part, of his or her own direct sexual gratification.
  2. A "specified offense" is a felony offense defined  by  any  of  the following  provisions  of  this chapter: assault in the second degree as defined in section 120.05, assault in the first  degree  as  defined  in section  120.10, gang assault in the second degree as defined in section 120.06, gang assault in the first degree as defined in  section  120.07, stalking in the first degree as defined in section 120.60, strangulation in  the second degree as defined in section 121.12, strangulation in the first degree as defined in section 121.13, manslaughter  in  the  second degree  as defined in subdivision one of section 125.15, manslaughter in the first degree as defined in section  125.20,  murder  in  the  second degree  as  defined  in  section 125.25, aggravated murder as defined in section 125.26, murder in the first degree as defined in section 125.27, kidnapping in the second degree as defined in section 135.20, kidnapping in the first degree as defined in section 135.25, burglary in the  third  degree  as  defined  in section 140.20, burglary in the second degree as defined in section 140.25, burglary in the first degree  as  defined  in section 140.30, arson in the second degree as defined in section 150.15, arson  in  the first degree as defined in section 150.20, robbery in the third degree as defined in section 160.05, robbery in the second  degree as  defined in section 160.10, robbery in the first degree as defined in section 160.15, promoting prostitution in the second degree  as  defined in section 230.30, promoting prostitution in the first degree as defined in section 230.32, compelling prostitution as defined in section 230.33, disseminating indecent material to minors in the first degree as defined in  section 235.22, use of a child in a sexual performance as defined in section 263.05, promoting an obscene sexual performance by  a  child  as defined  in section 263.10, promoting a sexual performance by a child as defined in section 263.15, or any felony attempt or conspiracy to commit  any of the foregoing offenses.

Predatory sexual assault. (S 130.95)
A person is guilty of predatory sexual assault when he or she commits the crime of rape in the first degree, criminal sexual act in the  first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and when:
  1. In  the  course  of  the  commission of the crime or the immediate flight therefrom, he or she: (a) Causes serious physical injury to the victim of such crime; or (b) Uses or threatens the immediate use of a dangerous instrument; or
  2. He or she has engaged in conduct constituting the crime of rape  in the  first  degree,  criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against  a child  in  the  first degree, as defined in this article, against one or more additional persons; or
  3. He or she has previously been  subjected  to  a  conviction  for  a felony  defined  in this article, incest as defined in section 255.25 of this chapter or use of a child in a sexual  performance  as  defined  in section 263.05 of this chapter.
Predatory sexual assault is a class A-II felony.

Predatory sexual assault against a child (S 130.96)
A  person  is guilty of predatory sexual assault against a child when, being eighteen years old or more, he or she commits the crime of rape in the first degree, criminal sexual act in the  first  degree,  aggravated sexual  abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and the victim is less than thirteen years old.

Predatory sexual assault against a child is a class A-II felony.