As evidenced by the many recent highly publicized cases involving celebrities, politicians, and the like, sex offenses are aggressively prosecuted in New York. Article 130 of the New York Penal Law punishes a variety of sex crimes, ranging from the class of felonies for first-degree rape, criminal sexual act, and aggravated sexual abuse, down to third-degree sexual abuse misdemeanors. Long Island criminal defense lawyer Michael A. Arbeit, P.C. defends individuals throughout Nassau, Suffolk, Queens, Brooklyn, Manhattan, and the Bronx, who have been accused of committing sex crimes.
Lack of consent
One of the hallmarks of every offense defined in Article 130 is that the sexual act was committed without the victim’s consent. Lack of consent may result from:
- Forcible compulsion
- Incapacity to consent
- Any other circumstances in which the victim does not expressly or impliedly acquiesce in the actor’s conduct (for a charge of sexual abuse or forcible touching)
- Circumstances under which the victim clearly expressed a lack of consent to engage in the sex act, that a reasonable person is the actor’s situation would have understood meant a lack of consent (for a charge of third-degree rape or third-degree criminal sexual act)
Rape and criminal sexual acts in the first degree
“Forcible compulsion” includes the use of physical force or threats that place the victim in fear of immediate death, physical injury, or kidnapping. An encounter that may start out as consensual may evolve into a forcible compulsion case depending on the circumstances. In any prosecution for first-degree rape or first-degree criminal sexual act founded upon a theory of forcible compulsion, it must be proven beyond a reasonable doubt that the defendant intended to forcibly compel another person to engage in sexual intercourse or oral or anal sexual conduct. Evidence of bruising or other injuries may support a finding that physical force was used.
Incapacity to consent involves victims who are less than 11 years of age, or less than 13 years of age if the actor is an adult, as well as those who are physically helpless. “Physically helpless” is defined in the Penal Law as being unconscious or for any other reason physically unable to communicate unwillingness to act. This includes victims who are asleep, or unconscious because of alcohol or drugs, whether or not consumed voluntarily. A person who engages in sexual intercourse or oral or anal sexual conduct with a physically helpless person may also be guilty of first-degree rape and/or first-degree criminal sexual act. Both are class B felonies.
Rape and criminal sexual acts in the second and third degrees
A defendant is guilty of rape in the second degree, a class D felony, when he or she is 18 years old and engages in sexual intercourse with someone less than 15 years old. A defendant is guilty of a criminal sexual act in the second degree, also a class D felony, when, being at least 18 years of age, he or she engages in either oral sexual conduct or anal sexual conduct with someone less than 15 years old.
A person is guilty of rape in the third degree, a class E felony, when he or she engages in sexual intercourse and:
- (1) the victim is incapable of consent by reason of some factor other than being less than 17 years old;
- (2) the defendant is at least 21 years old and the victim is under the age of 17; or
- (3) the intercourse is without the victim’s consent and the lack of consent is by reason of some factor other than incapacity to consent.
A person is guilty of a criminal sexual act in the third degree, also a class E felony, when he or she engages in oral sexual conduct or anal sexual conduct with another person under any one of the same three conditions above that apply to third-degree rape.
A person is guilty of sexual misconduct, a class A misdemeanor, when he or she engages in either sexual intercourse or oral and anal sexual conduct with another person without that person’s consent, or engages in sexual conduct with an animal or a dead human body. This charge requires only lack of consent; there need not be a forcible compulsion or inability to consent. Sexual misconduct cannot be committed by deceit or fraud. Sexual misconduct charges are commonly tacked on to more serious rape charges, as a plea bargaining tool.
Defending against Sex Crime Charges
The defense of consent is commonly raised in sex crime trials. In some instances, an honest defense of a mistake may be raised, meaning that the defendant had a good faith belief that the victim was consenting. In such cases, it can be argued that the defendant lacked the intent necessary for a conviction. By working with the right criminal defense attorney, you may be able to lessen your criminal liability and have the charges reduced or perhaps even dropped altogether.
Sex crime convictions carry severe penalties, including possible life sentences for the most egregious offenses. A conviction is likely to go on your permanent record and will thereby negatively impact your employment prospects. The stigma of being labeled a sex offender can also be long-lasting. If you have been accused, charged, or are being investigated for a sex crime, choose Michael A. Arbeit, P.C., Long Island’s leading criminal defense firm, to fight for your rights. Contact us right away to discuss your case.