In New York, sex crimes come with very serious consequences. All too often, misunderstandings about the law can result in very serious criminal charges. The New York Penal Code has an extensive section on sex crimes. Below are just a few of the important laws on the books relating to sex crimes. If you are facing charges based on allegations of a sex crime, be advised that while this is a starting point for understanding the law, there is no substitute for an experienced lawyer reviewing the facts and circumstances of your individual case.
Types and Consequences of Sex Offenses
The punishment for those convicted of sex offenses in New York varies based on the specific criminal charges. Below are the most common types of sex offenses, and the consequences of these charges. These are not the only sexual offenses that can be charged in New York. If you are facing sex charges of any kind, you need an experienced criminal defense attorney to defend you. Remember: not every criminal defense attorney knows how to handle sex crimes.
Sexual misconduct is a Class A misdemeanor, punishable by up to a year in jail or three years of probation.
In New York, rape charges range from first to third degree. Some rape charges are based on the age of the actor and the age of the alleged victim. The rape charges are based on a person being incapable of consenting (because of their age, or being intoxicated by drugs or alcohol), a person not consenting, or a person being forced to comply.
Criminal Sexual Acts
Similar to rape charges, charges involving criminal sexual acts are based on the age of the alleged victim, the lack of the victim's ability to consent (because of their age, or being intoxicated by drugs or alcohol), or a person who does not consent to the acts. Charges involving allegations of criminal sexual acts are different than rape charges in that the conduct alleged involves oral sexual conduct or anal sexual conduct.
Predatory Sexual Assault
A person is guilty of Predatory Sexual Assault when they commit a Class B felony sex crime (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) and threaten the use of a weapon, or cause serious injury, or have been previously convicted of certain sex crimes.
Sexual Abuse – Sexual Contact
Sexual abuse crimes involve sexual contact. Under the law in New York State, criminal sexual contact refers to touching sexual or intimate parts for the purpose of gratifying sexual desire. It includes the actor touching the victim and the victim touching the actor. This can occur directly on the skin or through clothing. Just as with rape and criminal sexual acts, there is a range of consequences based on certain factors specific to the incident. The range of charges varies from Class B misdemeanors, punishable by up to three months incarceration, to Class A misdemeanors, punishable by up to a year in jail, to Class D felonies, punishable by up to seven years in prison.
Consequences of Sexual Abuse, Rape, Criminal Sexual Acts, and Predatory Sexual Assault
The consequences of rape and criminal sexual acts vary based on severity. Third-degree charges are Class E felonies, punishable by up to four years in prison. Second-degree charges are Class D felonies, punishable by up to seven years in prison. First degree charges are Class B felonies, which can be sentenced to up to 25 years in prison. Predatory Sexual Assault is a Class A-II felony, and someone convicted of this can receive a sentence up to life in prison.
But there is another important consequence for being convicted of a sex crime: registration under the Sex Offender Registration Act (SORA) as a sex offender. If you are receiving only a probation sentence, the sentencing judge will determine your sex offender level at, or near, the date you are sentenced. If you are receiving a jail or prison sentence, the judge will determine your sex offender level shortly before you are released from custody. Level One sex offenders (the lowest level) must register as a sex offender for 20 years; Level Two sex offenders must register for life, but can request to be relieved from registering after 20 years; Level Three sex offenders must register for life. The public may have access to the offender's name, address, picture, and crime of conviction, depending on the level the judge assigns.
While defending sex offenses are difficult, all is not lost. There are defenses, such as misidentification (the alleged victim has accused the wrong person) and consent (the alleged victim is lying).
With this defense, you are claiming that the alleged victim has identified the wrong person. This usually involves DNA analysis, and typically requires an expert witness to defend. Often times, prosecutors claim they have a DNA "match," but what they really have is a DNA sample that could include the person accused, but also includes thousands, or even hundreds of thousands, of other people too.
Consent and Lack of Consent Under New York Law
A lack of consent is an element of sex crimes in New York. In other words, if a person consents to a sex act, it is not a crime. However, because there are certain people not capable of giving consent under the law, a simple “yes” is not enough.
Persons Who May Not Consent
A person is legally not capable of consent in the following situations:
- Under the age of 17;
- Mentally disabled;
- Mentally incapacitated;
- Physically helpless;
- Residents of a state correctional facility or a hospital, where the actor is an employee; or
- Certain other cases where a person is being supervised on probation, for mental health purposes, or in some other situations, where the actor is a volunteer or employee.
In any of these situations, even if the person clearly says, “Yes, I want to have sex with you,” the word “yes” cannot legally constitute consent.
Persons Who Don't Consent
Obviously, if a person says, "I don't want to have sex with you,” this shows someone who is not consenting to sex. However, the situation is not always so clear. There are other situations where a lack of consent can be established, including:
- When someone is forced to comply due to physical violence, or threat of violence to themselves or another;
- When someone is incapable of consent, such as if a person is extremely intoxicated or otherwise physically helpless, mentally disabled, or mentally incapacitated;
- Where the victim does not expressly or impliedly acquiesce; or
- In certain cases as prescribes by law, where a reasonable person would have known by the other person's words or actions they were not consenting to a specific sexual act.
In certain cases, one might have a legal defense to the allegation of lack of consent. For example, where a person is incapacitated, due to mental disability or incapacitation, or when one is physically helpless, it is an affirmative defense that the defendant was unaware of the facts or conditions responsible for the incapacity.
If You Have Been Charged with a Sex Crime
If you have been charged with a sex crime, or if law enforcement has indicated they would like to talk to you about a sex crime, you need an experienced criminal defense attorney, well versed in representing people charged with sex crimes. Remember: sometimes the best time to call a criminal defense attorney is before you have been charged with a crime. Contact the Law Office of Frost & Kavanaugh. We have nearly 50 years of experience representing people facing criminal charges and litigating cases in court. Unlike some attorneys, we are not afraid to go to trial if necessary to protect you.
We recognize every case is different. At Frost & Kavanaugh, we believe individual attention to each client is one of the keys to our success. We take the time to get to know our clients and their circumstances. We believe this is the only way to truly determine what is the best course of action for a client in a given case. We look forward to talking to you about your situation today.