New York Criminal Sexual Act Lawyer
There are 3 Criminal Sexual Act charges in New York, which are all classified as a felony: Criminal Sexual Act in the First, Second and Third Degrees.
Allegations of Criminal Sexual Act involve 2 types of allegations, an alleged specific type of sexual conduct and an alleged lack of consent. A conviction of any of the 3 degrees of Criminal Sexual Act or an attempt to commit any of the 3 degrees requires registration as a Sex Offender.
In New York, Criminal Sexual Act charges are different than Rape charges. On the other hand, Criminal Sex Act charges bear some similarities to Sexual Abuse charges and Aggravated Sexual Abuse charges. Criminal Sexual Act, like other sexual assault charges, fall under the Child Victims Act in New York.
Degrees of Criminal Sexual Act Charges in NYC
- Criminal Sexual Act in the First Degree
- Criminal Sexual Act in the Second Degree
- Criminal Sexual Act in the Third Degree
Explanation of New York Criminal Sexual Charges
Criminal Sexual Act charges involve allegations of 2 types of sexual contact:
- Oral Sexual Conduct
- Anal Sexual Conduct
Both Oral Sexual Conduct and Anal Sexual Conduct are defined in New York Law. Under Penal Law Section 135.00(2)(a), Oral Sexual Conduct “means conduct between persons consisting
of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.” Under Penal Law Section 135.00(2)(b), Anal Sexual Conduct “means conduct between persons consisting of contact between the penis and anus.”
In addition, Criminal Sexual Act charges involve an allegation of either an incapacity of consent or forcible compulsion. The incapacity of a person to consent to Oral Sexual Conduct or Anal Sexual Conduct is defined in New York in Penal Law Section 135.05(3).
The most common way a person does not have the capacity to consent to Sexual Conduct in New York is by being less than 17 years old. In other words, the age of consent to in New York is 17 years old. There are 3 ways a person can be deemed in incapable of consenting to a Sexual Conduct, if a person is:
- Physically Helpless (such as unconscious or for any other reason is physically unable to communicate unwillingness to engage in Sexual Conduct);
- Mentally Incapacitated (temporarily unable of appraising or controlling Sexual Conduct due to the influence of a narcotic or intoxicating substance administered to the person without consent, or to any other Sexual Conduct committed without their consent); or
- Mentally Disabled (suffering from a mental disease or defect rendering a person incapable of appraising the nature of Sexual Conduct
In addition, a person may be deemed incapable to consent if they are under certain types of supervision or treatment. In 2018, New York added an inability to consent to Sexual Conduct when a person is detained or in the custody of a police officer, peace officer or other law enforcement official. There are 4 other circumstances when a person is incapable of consenting, if the person is:
- Committed to a local prison or jail and the actor is an employee, a person who performs certain professional services or is a volunteer;
- Committed to a state prison, jail or hospital and the actor is an employee, a person who performs certain professional services or is a volunteer;
- Committed to a residence by the state Office of Children and Family Services and the actor is an employee, a person who performs certain professional services or provides direct supervision; or
- A client or patient and the actor is a health care provider or mental health care provider and the alleged act occurs during a treatment session, consultation, interview or examination, or the person is a resident or inpatient of a residential facility operated, licensed or certified by certain state offices and the actor is an employee, a volunteer, a person who performs certain professional services or provides direct supervision
Forcible Compulsion has 2 definitions in New York law. Penal Law Section 135.00(8) states:
“Forcible Compulsion” means to compel by either: (a) use of physical force; or (b) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.”
Whether or not a person is alleged to have used Forcible Compulsion by physical force or threat is a question of the specific allegations. Every case is different and has unique set of facts.
Criminal Sexual Act Charges and Other Sex Crimes Charges in New York
The 4 categories of felony Sex Crimes charges in New York are Criminal Sexual Act, Rape, Sexual Abuse and Aggravated Sexual Abuse.
There are differences and similarities among the charges. As explained, Criminal Sexual Act is specific to only 2 acts of Sexual Conduct where a lack of consent by either forcible compulsion or an incapacity to consent is alleged: Oral Sexual Conduct or Anal Sexual Conduct.
In New York, Rape charges are specific. Rape charges involve an allegation that a person engaged in Sexual Intercourse with another person who lacks the capacity to consent or by Forcible Compulsion. In New York, under Penal Law Section 135.00(1) Sexual Intercourse “as its ordinary meaning and occurs upon any penetration, however slight.”
According to Merriam-Webster, the ordinary meaning of Sexual Intercourse is “heterosexual intercourse involving penetration of the vagina by the penis.” All 3 degrees of Rape charges, Rape in the Third Degree, Rape in the Second Degree and Rape in the First Degree include an allegation of Sexual Intercourse.
In contrast, a Sexual Abuse charge or Aggravated Sexual Abuse charge overlap with Criminal Sexual Act charges. Sexual Abuse charges involve an allegation of Sexual Contact without consent, either by an incapacity to consent of by Forcible Compulsion.
In New York, Sexual Contact is defined under Penal Law Section 130.00(3) as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.”
The term “sexual or other intimate parts” is extremely broad and includes Anal Sexual Conduct. It also includes Oral Sexual Conduct if the person accused is alleged to have used their own sexual part to make contact with the mouth of the complaining witness.
In New York, Aggravated Sexual Abuse charges involve allegations of inserting a foreign object into certain sexual parts of another person by Forcible Compulsion or where there is an incapacity to consent.
There are four degrees of Aggravated Sexual Abuse charges in New York: Aggravated Sexual Abuse in the Fourth Degree, Aggravated Sexual Abuse in the Third Degree, Aggravated Sexual Abuse in the Second Degree and Aggravated Sexual Abuse in the First Degree. The term Foreign Object is defined in Penal Law Section 155.00(8) as “any instrument or article which, when inserted in the vagina, urethra, penis, rectum or anus, is capable of causing physical injury.”
Sex Offender Registry in New York
In New York, a conviction of any of the 3 degrees of Criminal Sexual Act charges, or a conviction of an attempt to commit any of the 3 degrees, requires a person to reregister as a Sex Offender. There are 3 levels of Sex Offenders in New York, the degree represents a person’s likelihood to commit another Sex Crime as determined by a Judge.
Level 3 is the highest risk of repeat Sex Crime. A person designated as a Level 3 offender is deemed a threat to public safety. Level 2 is considered a moderate risk of a repeat Sex Crime. Level 1 is the lowest risk to commit another Sex Crime.
The requirements of the Sex Offender Registry are strict for the Level 2 and Level 3 and registration is for life, although a person who is designated a Level 2 may petition a Court after 30 years if they do not have an additional classification status such as a sexual predator.
The level of a person’s Sex Offender level is determined following a Risk Assessment where a defense lawyer and prosecutor both make arguments usually by written motion. A Judge makes the determination of the Sex Offender risk level following the arguments.
Hiring a New York City Criminal Sexual Act Attorney
The criminal justice system is complex and can be intimidating and confusing, especially in New York. Hiring the right New York Criminal Sexual Act defense attorney is crucial in achieving the best possible outcome when one is charged with a sex crime in NYC.
The best New York City Criminal Sexual Act lawyer is experienced, aggressive and knowledgeable. As a former prosecutor in Manhattan, I have the experience and knowledge from both prosecuting Criminal Sexual Act charges, and aggressively defending people against felony sex crimes in New York.
Speak With a NYC Criminal Sexual Act Attorney Today
If you or a loved one is charged with committing a Criminal Sexual Act in New York City, we’re here to help.
Contact The Law Firm of Andrew M. Stengel
Contact us via the live chat below, through our contact form here, or call us at (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.
Our offices are located at 11 Broadway, Suite 715, New York, NY 10004, and we handle cases throughout New York City, Nassau, Westchester and the surrounding counties.
