New York Felony Sex Crimes Attorney
Being charged with any crime can be frightening and confusing. That fear and uncertainty may be magnified for a defendant facing a felony sex crime charge. In addition to the serious penalties associated with any felony conviction, a sex crime or sexual assault conviction can result in complicated terms of probation and registration requirements that may impact every area of your life for many years.
Sex Crimes and Lack of Consent
Consent is usually the crucial issue in sexual assault cases. Under New York law, lack of consent is defined by Penal Law Section 130.05, and includes by forcible compulsion or an incapacity to consent. Whether or not forcible compulsion was used or there was an incapacity to consent by the complaining witness is the crucial issue in New York Sex Crimes charges.
Forcible compulsion is defined as:
- The use of physical force, which may be minimal; or
- A threat that places a person in fear of immediate physical injury, death or kidnapping to themselves or another person
Incapacity to consent is due to a person being:
- Less than seventeen years old;
- Mentally disabled;
- Mentally incapacitated, temporarily incapable because of the influence of a narcotic or intoxicating substance given without a person’s consent;
- Physically helpless, either unconscious or unable to communicate an unwillingness; or
- In certain institutional settings, like an inmate in state or location prison
Evidence Used in Prosecution of Felony Sex Crimes
Evidence in Sex Crimes Cases Involving Strangers
In addition to the testimony of a complaining witness, there are several other types of evidence that prosecutors typically use to corroborate the alleged sexual assault during an investigation or at trial. If the defendant and the complaining witness are strangers, a prosecutor will seek an identification of the defendant and DNA evidence. If the defendant and complaining witness are not strangers, prosecutors may also rely on statements made by the complaining witness to medical professionals, 911 calls and photographs.
Evidence in Acquaintance Sex Crimes Cases
If the complaining witness and defendant know each other, the type of evidence that prosecutors seek may differ slightly. In such sexual assualt cases, consent (or lack of consent) is often the key issue. In addition to statements made by the complaining witness to medical professionals, 911 calls and photographs, prosecutors look for statements made to others in the immediate aftermath of the alleged acts. These statements may include in-person or phone conversations, text messages, emails or even social media posts.
New York Sex Crimes Statutes of Limitations
Like most crimes, New York Sex Crimes charges have a Statute of Limitations beyond which charges cannot be brought. There are a few exceptions to New York sexual assault charges Statute of Limitations where there are either longer periods or no Statute of Limitations at all. Under the New York Child Victims Act, survivors of childhood sexual abuse can file a civil lawsuit under the person turns 55 years old.
Generally speaking, the New York Statute of Limitations for crimes is 2 years for a misdemeanor charge and 5 years for a felony charge. That means that charges cannot be brought after those dates. But New York Sex Crimes charges have extended Statute of Limitations when a complaining witness is less than 18 at the time of the alleged offense, such as Rape, Sexual Abuse, Criminal Sexual Act and Aggravated Sexual Abuse. As noted, for the highest degrees of New York sexual assualt charges there may be no Statute of Limitations at all.Before February 2019 and since 1996, the Statute of Laminations for New York Sex Crimes charges began to run when the complaining witness turned 18 years old. But there was and is a major exception to this so-called tolling period as explained below. The logic for a tolling period was explained in a memorandum from then-Governor George Pataki:
“In sex crime cases committed against children less than 18 years old, the five-year statute of limitations applicable to sex offenses begins to run on the date the crime is committed. Of course, however, child-victims of sex offenses cannot fully appreciate the crimes committed against them until they reach maturity; many child-victims are victimized by parents or other persons with whom they have a close relationship, and cannot reasonably be expected to report these crimes while they remain under the sway of their abusers … would therefore allow for the prosecution of sex offenders who prey on victims under the age of 18 to be commenced as late as the victim’s 23rd birthday if the offense went unreported before the victim’s 18th birthday.”
Here’s the one major exception, the Statute of Laminations is tolled until an alleged complaining witness was 18 years UNLESS the alleged Sex Crime was reported “to a law enforcement agency or statewide central register of child abuse and maltreatment.” If there was a report to law enforcement or in the statewide central register of child abuse and maltreatment, then the Statute of Limitations for the Sex Crime began to run on that date. Before February 2019 the law read that the Statute of Limitations for the alleged New York Sex Crime charge “shall not begin to run until the child has reached the age of 18 or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier.” That means that the 18-year-old tolling period does not apply if the alleged Sex Crime charge was reported to police or Child Protective Services made a report to the state registry. In that event, the Statute of Limitations would begin to run on the date of a report.
In February 2019, New York enacted the Child Victims Act, which raised the tolling age from 18 to 23 years old. That means that, if an alleged New York Sex Crime charge is not reported, then a person can be charged until the complaining witness turns 25 for a misdemeanor Sex Crime charge or 28 for a felony Sex Crime charge. The reporting exception still applies. So, if the Sex Crime is reported before an alleged complaining witness turns 23 years old, then the Statute of Limitation begins to run on that date.
In New York, there are a few exceptions to the New York Sex Crime Statute of Limitations. That means that there is either a longer Statute of Limitation or no Statute of Limitations applies and the charges can be brought at any time. For the longer Statute of Limitations, if the alleged complaining witness was less than 18 years old at the time of the alleged Sex Crime, then the tolling period above would apply (unless there was a report made before the person turned 18, then the Statute of Limitations period would begin to run from that date).
The following New York Sex Crimes have no Statute of Limitations and may be brought at any time under Criminal Procedure Law Section 30.10(2)(a):
- Rape in the First Degree, Penal Law Section 130.35;
- Aggravated Sexual Abuse in the First Degree, Penal Law Section 130.70:
- Predatory Sexual Assault, Penal Law Section 130.95:
- Course of Sexual Conduct Against a Child in the First Degree, Penal Law Section 130.75: and
- Incest in the First Degree, Penal Law Section 255.27
In New York, under Criminal Procedure Law Section 30.10(2)(a-2), the following 2 Sex Crimes charges have a 10-year Statute of Limitations:
- Rape in the Third Degree, Penal Law Section 130.25(3) (sexual intercourse with a person who is not capable of consent for a reason other than being less than 17 years old); and
- Criminal Sexual Act in the Third Degree, Penal Law Section 130.40(3) (oral sexual conduct or anal sexual conduct without consent where lack of consent is for a reason of other than incapacity to consent)
In New York, under Criminal Procedure Law Section 30.10(2)(a-1), the following 3 Sex Crimes charges have a 20-year Statute of Limitations or 10 years from the date the alleged complaining witness made a report to law enforcement, whichever is earlier:
- Rape in the Second Degree, Penal Law Section 130.30(2) (sexual intercourse with a person who is not capable of consent by reason of being mentally disabled or mentally incapacitated);
- Criminal Sexual Act in the Second Degree, Penal Law Section 130.45(2) (oral sexual conduct or anal sexual conduct with a person who is not capable of consent by reason of being mentally disabled or mentally incapacitated); and
- Incest in the Second Degree, Penal Law Section 255.26 (where the alleged crime is Rape in the Second Degree, Penal Law Section 130.30(2) or Criminal Sexual Act in the Second Degree, Penal Law Section 130.45(2))
The New York Sex Offender Registry
Sex offender registration is mandatory for those convicted of dozens of New York sex crimes and sexual assaults, including several misdemeanor crimes. Registration is for 20 years or life, depending on the risk level assigned to the offender, 1, 2 or 3. Level 3 offenders are high risk and Level 2 offenders are moderate risk. Both must register for life. Level 1 offenders are deemed low risk, and must register for 20 years unless they are designated a sexual predator, sexually violent offender or predicate sex offender.
Failure to comply with registration requirements is a crime itself, carrying increasingly serious penalties with subsequent offenses. In addition, conditions of probation or parole associated with a sex crime may be very strict, including limitations on where the probationer or parolee is allowed to live.
Rape Laws in NYC
There are three felony rape charges in New York, ranging from a class B violent felony to a class E felony. Learn more about Rape Laws in New York City.
Rape in the First Degree
Rape in the First Degree is a class B violent felony, meaning that a person convicted of this crime may face up to 25 years in prison.
Rape in the Second Degree
The second-degree crime, Penal Law Section 130.30, is a class D violent felony. You can learn more about Rape in the Second Degree here.
Rape in the Third Degree
Rape in the Third Degree, Penal Law Section 130.25, is a class E felony, carrying a potential sentence of 4 years in prison. Click here to learn more about Rape in the Third Degree.
Sexual Abuse
There are three degrees of Sexual Abuse and four degrees of Aggravated Sexual Abuse in New York. Sexual Abuse in the Third Degree and Sexual Abuse in the Second Degree are both misdemeanors.
Sexual Abuse in the First Degree
Sexual Abuse in the First Degree, Penal Law Section 130.65, is a class D violent felony, carrying a maximum prison sentence of 7 years. Unlike the three degrees of Rape, which involve sexual intercourse, Sexual Abuse concerns sexual contact.
Sexual contact is defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party . . . whether directly or through clothing.” Sexual contact also includes “the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.”
A person commits the first-degree crime when he or she subjects another person to sexual contact:
- By force;
- When the other person lacks the capacity to consent because he or she is physically helpless;
- When the other person is under the age of 11; or
- When the person is at least 21 years old and the complaining witness is under the age of 13
Sentencing for Sexual Abuse in the First Degree
Sexual Abuse in the First Degree is a class D violent felony. Prison, however, is not mandatory and there are several sentencing options.
For a first felony conviction, a judge may impose:
- A prison sentence of 2 years and maximum of 7 years;
- A definite sentence of 1 year in prison;
- A split sentence of 6 months jail and 10 years of probation or a 3-year conditional discharge; or
- A 3-year conditional discharge or a straight unconditional discharge.
If the sentencing judge opts against incarceration, he or she must find that given the nature and circumstances of the crime and the history and character of the defendant, a long prison sentence would be unduly harsh, that confinement is not necessary for the protection of the public or that the public interest or justice would not be served by incarceration. A person convicted of Rape in the Second Degree will also be required to register as sex offender under the Sex Offender Registration Act (SORA). Confidential testing for HIV may be required under certain factual circumstances.
Aggravated Sexual Abuse
All degrees of Aggravated Sexual Abuse involve the insertion of a finger or a foreign object into the victim’s vagina, urethra, penis, rectum, or anus. The statute specifically excepts actions performed for valid medical purposes.
Aggravated Sexual Abuse in the First Degree
The first-degree crime, Penal Law Section 130.70, is a class B violent felony, and may carry a sentence of up to 25 years in prison.
A person commits the crime of Aggravated Sexual Abuse in the First Degree when that person inserts a foreign object into one of the above-listed orifices, causing physical injury to the victim, and:
- Uses forcible compulsion;
- The other person is incapable of consent because he or she is physically helpless; or
- The other person is under the age of 11
Sentencing for Aggravated Sexual Abuse in the First Degree
Aggravated Sexual Abuse in the First Degree is a class B felony and a violent felony offense. The first-degree crime carries a mandatory minimum prison sentence of 5 years and maximum of 25 years for a first felony conviction, and a fine of up to $5,000.
A mandatory period of post-release supervision is also required, ranging from 5 to 20 years. Sex offender registration is mandatory. Under certain circumstances, confidential testing for HIV may be required at the request of the complaining witness.
Aggravated Sexual Abuse in the Second Degree
Aggravated Sexual Abuse in the Second Degree, Penal Law Section 130.67, is a class C violent felony, and carries a potential sentence of 15 years of prison.
The second-degree crime occurs when a person inserts a finger into one of the above-listed orifices causing a physical injury and:
- Uses forcible compulsion;
- The other person lacks the capacity to consent because he or she is physically helpless; or
- The other person is under the age of 11
Aggravated Sexual Abuse in the Second Degree is a class C violent felony. On a first felony conviction, a judge is required to impose a sentence of between 3.5 and 15, along with a period of post-release supervision of 5 to 15 years. Sex offender registration is also required. Under certain circumstances confidential testing for HIV may be required at the request of the complaining witness.
Aggravated Sexual Abuse in the Third Degree
Aggravated Sexual Abuse in the Third Degree, Penal Law Section 130.66, is a class D violent felony, carrying a potential sentence of 7 years in prison.
A person commits the crime of Aggravated Sexual Abuse in the Third Degree when he or she inserts a foreign object into one of the above-listed orifices, and:
- Accomplishes the act by forcible compulsion;
- The other person is incapable of consent because he or she is physically helpless;
- The other person is under the age of 11; or
- The other person lacks the capacity to consent because he or she is mentally disabled or incapacitated, and the act causes physical injury
Sentencing for Aggravated Sexual Abuse in the Third Degree
Aggravated Sexual Abuse in the Third Degree is a class D violent felony. However, prison is not mandatory, and the court has several sentencing options. For a first felony conviction, a judge may impose:
- A prison sentence of 2 to 7 years;
- A definite sentence of 1 year in prison;
- A split sentence of 6 months jail and 10 years of probation or a 3-year conditional discharge;
- A 3-year conditional discharge; or
- A straight unconditional discharge
If the court does not impose a prison sentence, the sentencing judge must enter a finding that:
- Given the nature and circumstances of the crime and the history and character of the defendant, a long prison sentence would be unduly harsh;
- Confinement is not necessary for the protection of the public; or
- That the public interest or justice would not be served by incarceration.
A person convicted of Aggravated Sexual Abuse in the Third Degree will also be required to register as sex offender under SORA, and is subject to confidential testing for HIV.
Aggravated Sexual Abuse in the Fourth Degree
The fourth-degree crime, Penal Law Section 130.65-a, is a class E violent felony, meaning a potential sentence of 4 years in prison.
A person is guilty of Aggravated Sexual Abuse in the Fourth Degree if he or she inserts a foreign object or a finger into one of the above-listed orifices, and that person is incapable of consent for some reason other than being less than 17 years old.
Sentencing for Aggravated Sexual Abuse in the Fourth Degree
Aggravated Sexual Abuse in the Fourth Degree is a class E violent felony. A first-time felony offender may be sentenced to 1.5 to 4 years in prison.
However, the court may deviate from this sentence upon a finding that:
Given the nature and circumstances of the crime and the history and character of the defendant, confinement is not necessary for the protection of the public or that the public interest or justice would not be served by incarceration. A person convicted of Rape in the Second Degree will also be required to register under SORA, and confidential testing for HIV is required.
may also sentence a person to a 1-year sentence or 10 years probation
Criminal Sexual Act Charges in New York
Criminal Sexual Act may be charged in the first, second, or third degree. Classification ranges from class E felony to class B felony, depending on the degree.
Criminal Sexual Act in the First Degree
Criminal Sexual Act in the First Degree, Penal Law Section 130.50, is a class B violent felony, carrying a possible sentence of up to 25 years in prison.
Criminal Sexual Act in the Second Degree
The Criminal Sexual Act in the Second Degree, Penal Law Section 130.45, is a class D violent felony, meaning a possible sentence of up to 7 years in prison.
Criminal Sexual Act in the Third Degree
Criminal Sexual Act in the Third Degree, Penal Law Section 130.40, is a class E felony, which carries a possible prison sentence of up to 4 years.
Persistent Sexual Abuse
Persistent Sexual Abuse, Penal Law Section 130.53, is charged when a person with two prior convictions for sex offenses, is accused of:
- Forcible Touching,
- Sexual Abuse in the Third Degree, or
- Sexual Abuse in the Second Degree
Sentencing for Persistent Sexual Abuse
Persistent Sexual Abuse is a class E violent felony. A first-time felony offender may be sentenced to 1.5 to 4 years in prison. However, prison is not mandatory. For a first felony conviction, a judge may impose:
- A definite sentence of 1 year in prison;
- A split sentence of 6 months jail and 10 years on probation or a 3-year conditional discharge;
- A 3-year conditional discharge; or
- A straight unconditional discharge
To avoid incarceration for a conviction of Persistent Sexual Abuse, depending on the sentence, a Judge is required to find that:
- Given the nature and circumstances of the crime and the history and character of the defendant, a long prison sentence would be unduly harsh;
- Confinement is not necessary for the protection of the public; or
- That the public interest or justice would not be served by incarceration
Predatory Sexual Assault
Predatory Sexual Assault is a class A-II felony, carrying a maximum prison sentence of 25 years to life in prison.
A person commits the crime of Predatory Sexual Assault, Penal Law Section 130.95, when he or she:
- Commits one of the following crimes:
- 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, Penal Law Section 130.75
- And, in the commission of the crime or immediate flight therefrom:
- Causes serious physical injury to the victim;
- Uses or threatens to use a dangerous instrument;
- Has engaged in the commission of one of the above listed crimes against one or more additional people; or
- Has previously been convicted of:
- Any felony sex crime under Article 130 of the New York Penal Law;
- Incest, Penal Law Section 255.25; or
- Use of a Child in a Sexual Performance, Penal Law Section 263.05
Sentencing for Predatory Sexual Assault
The sentencing for Predatory Sexual Assault carries a maximum sentence of life in prison. The minimum sentence varies between 10 and 25 years. Therefore, the maximum sentence is 25 years to life in prison and the minimum sentence is 10 years to life. A person convicted of Predatory Sexual Assault may also be required to register as sex offender under the SORA, and to undergo confidential testing for HIV.
Predatory Sexual Assault Against a Child
Predatory Sexual Assault against a Child, Penal Law Section 130.96, is a class A-II felony, carrying a potential prison sentence of up to 25 years to life in prison.
A person 18 years of age or older commits Predatory Sexual Assault against a Child when he or she commits one of the following crimes, and the victim is under the age of 13:
- 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
Sentencing for Predatory Sexual Assault against a Child
The sentencing for Predatory Sexual Assault against a Child requires a maximum sentence of life in prison. The minimum sentence varies between 10 and 25 years. Therefore, the maximum sentence is 25 years to life in prison and the minimum sentence is 10 years to life. A person convicted of Predatory Sexual Assault may also be required to register as sex offender under the SORA, and to undergo confidential testing for HIV.
An Experienced Criminal Defense Attorney Can Help
Sexual assault charges carry serious consequences, ranging from prison sentences and burdensome terms of probation to a lifelong obligation to register as a sex offender. However, being charged with a sexual assault doesn’t necessarily mean being convicted of a sex crime.
A veteran criminal defense attorney may be able to:
- Negotiate with the ADA for a plea to a lesser offense, perhaps avoiding sex offender status
- Persuade the ADA that the evidence against you is insufficient, resulting in dismissal of the charges
- Succeed in having the charges dismissed prior to trial
- Establish reasonable doubt at trial, resulting in a not guilty verdict
