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What Is Required to Charge Forcible Touching in New York?

 In Forcible Touching, Lack of Consent, Sex Crimes, Sexual or Intimate Parts

Forcible Touching, Penal Law § 130.52, is prosecuted aggressively in New York even though it is one of only a few sex crimes that are punished by a misdemeanor, as opposed to a felony. That is, unless of course, the accused has a prior convictions for the crime or a related crime within 10 years.

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New York’s Forcible Touching statute reads:

A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose:

  1. 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; or
  1. subjects another person to sexual contact for the purpose of gratifying the actor’s sexual desire and with intent to degrade or abuse such other person while such other person is a passenger on a bus, train, or subway car operated by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions.

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

    Forcible touching is a class A misdemeanor.

What are sexual or other intimate parts of the body?

Some parts of the body that are considered “intimate parts” are obvious like a one’s penis, vagina and breasts. Other body parts are not obviously sexual or other intimate parts.

For example, a person’s buttocks is considered to be a sexual or intimate part. Although a slightly different context, the decision in People v. Darryl draws that conclusion. The case also held that an erect penis that is covered, i.e., under one’s clothing, is also a sexual or intimate part.

In addition, a person’s leg and thigh could be considered a sexual or other intimate part. In People v. Morebelli, the court ruled that a person’s leg and upper thigh was within the definition.

Finally, even a person’s mouth, in the context of an unwanted kiss, is considered to be an intimate body part. That’s the fact pattern that the decision of People v. Rondon is based upon.

What is considered degrading or abusing a victim or gratifying one’s sexual desire?

Another required element of the crime of forcible touching in New York includes contact for the purpose of degrading or abusing a person, or for the purpose of gratifying the actor’s sexual desire. But short of the accused own verbal declaration, how would police or a prosecutor know an actor’s purpose?

The answer is that the purpose element can be inferred by the alleged acts—it does not have to be stated explicitly. For example in People v. Powell, the court held: “Lying down next to the female complainant, and the male defendant’s placing of his head on her buttocks and his hand upon her vagina, albeit over her clothing, at 2:00 A.M., and without her consent, may reasonably lead a trier of fact to the conclusion that those acts were done without any legitimate purpose and in order to gratify the actor’s sexual desire.”

What is considered forcibly in “forcibly touches?”

Next, the Forcible touching statute includes the element “forcibly touches,” in other words, contact with force. But, forcibly does not require more force than a touch. As stated in the statute, touching includes “squeezing, grabbing or pinching.”  On the other hand, a forcible touch requires more than a brush.

New York’s highest court has held that “any bodily contact involving the application of some level of pressure” satisfies the element. In People v. Guaman, the Court held that when a man rubbed his exposed penis against another’s buttocks, touch was forcible. Similarly, in People v. Hatton, the Court held that smacking another’s buttocks also meets the requisite force to satisfy the element of a forcible touch.

Is lack of consent required to charge Forcible Touching?

Under the article that contains sex crimes in the Penal Law, lack of consent is an element of every offense. As stated in Penal Law § 130.05(1): “Whether or not specifically stated,  it is an element of every offense defined in this  article that the sexual act was  committed without consent of the victim.”  However, the next subdivision of the section of law states that lack of consent may occur when “the victim does not expressly or impliedly acquiesce in the actor’s conduct.” In other words, lack of consent for Forcible Touching may be implied by the facts. On the other hand, if there the facts of a case alleged that a person committed an act that involves forcible compulsion or an inability to consent, then a person would likely be charged with a felony sex crimes rather than Forcible Touching.

In People v. Soto, the court held that lack of consent may be established by circumstantial evidence. In addition, as noted above, Penal Law § 130.05(2)(c) expressly states that lack of consent may be demonstrated implicitly.

If you or somebody you know has been charged with Forcible Touching or another sex crime in New York, get advice from a knowledgeable and experienced criminal defense attorney who knows all the aspects of the law.

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