What is a Criminal Sexual Act in the Third Degree in NYC?
In New York, Criminal Sexual Act in the Third Degree, Penal Law Section 130.40 is a class E felony, and has a potential maximum sentence of 4 years in prison, if a person does not have a prior criminal conviction following by a period of post-release supervision.
If you or a loved one is charged with committing a Criminal Sexual Act in NYC, retaining an experienced sex crimes attorney in New York is crucial in obtaining a favorable outcome.
Criminal Sexual Act charges involve 3 different kinds of allegations. In New York, a person is guilty of Criminal Sexual Act in the Third degree when:
- He or she engages in Oral Sexual Conduct or Anal Sexual Conduct with a person who is incapable of consent by reason of some factor other than being less than 17 years old;
- Being 21 years old or more, he or she engages in Oral Sexual Conduct or Anal Sexual Conduct with a person less than 17 years old; or
- He or she engages in Oral Sexual Conduct or Anal Sexual Conduct with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.
The first provision of Criminal Sexual Act in the Third Degree charges Oral Sexual Conduct or Anal Sexual Conduct is charged in any of the many circumstances a person is incapable of consent, other than being less than 17 years old.
Some of the reasons for allegedly being incapable of consent are listed under higher degrees of Criminal Sexual Act charges. For example, Criminal Sexual Act in the Second Degree is for alleged Oral Sexual Conduct or Anal Sexual Conduct with another person who is incapable of consent by being Mentally Disabled or Mentally Incapacitated.
And Criminal Sexual Act in the First Degree is for alleged Oral Sexual Conduct or Anal Sexual Conduct with another person who is incapable of consent by being Physically Helpless.
The second provision of Criminal Sexual Act in the Third Degree charges is purely related to age, when the person charged is at least 21 years old and the complaining witness is under the age of consent, 17 years old.
The knowledge that a person is less than 17 years old is not required to prove the charge. In other words, it is not a defense if a person who is over 21 years old allegedly has Oral Sexual Conduct or Anal Sexual Conduct with a person who is less than 17 years old and he or she believed that the person was older than 17.
The third provision of Criminal Sexual Act in the Third Degree charges appears to apply to Forcible Compulsion. However, Oral Sexual Conduct or Anal Sexual Conduct is 1 of the 4 circumstances of Criminal Sexual Act in the First Degree charges.
This provision is meant to apply to when a person is capable of consenting to Sexual Conduct, he or she does not fall into one of the dozen categories, but the person expresses that he or she allegedly does not consent.
New York requires that a person clearly express that he or she did not consent to Oral Sexual Conduct or Anal Sexual Conduct and that a reasonable person in the situation of the person charged would have understood the words and acts as an expression of lack of consent under all the circumstances.
This is an objective reasonable person test. In other words, the expression of a lack of consent cannot merely be a subjective understanding. This is an important limiting principle in the law.
Even if a complaining witness claims that he or she expresses a lack of consent, the expression must be so that a reasonable person would know and understand.
New York Legal Defenses to Criminal Sexual Act in The Third Degree
There are several crucial defenses to Criminal Sexual Act in The Third Degree. When the person is charged under the first provision, the question of incapacity to consent is fact specific especially when the charges are not based on age.
The prosecutor is required to prove beyond a reasonable doubt the theory of the reason for incapacity to consent, which is a high bar. For example, whether a person is detained and in the custody of a person in law enforcement is a question of fact.
The third provision of a Criminal Sexual Act in The Third Degree charge has a hugely important defense built in.
The provision is charged when a person engages in Oral Sexual Conduct or Anal Sexual Conduct with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent. This may seem to mean by Forcible Compulsion, but that one type of a Criminal Sexual Act in The Third Degree charge.
The provision is meant to address when a complaining witness expresses a lack of consent through words or acts. If a person is accused of this type of Criminal Sexual Act in The Third Degree the charges must pass an important reasonable person test.
In other words, the mere claim that a complaining witness expressed a lack of consent through words or acts, even if true, must be objectively analyzed to see if the claim of the complaining witness is true.
Here are the jury instructions read to a jury for Criminal Sexual Act in The Third Degree charge for lack of consent other than incapacity to consent:
A person engages in Oral or Anal Sexual Conduct with another person without such person’s consent when there is a lack of consent to the act. Lack of consent results from circumstances under which, at the time of the act of Oral or Anal Sexual Conduct, the complainant clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood the complainant’s words and acts as an expression of lack of consent to such act under all the circumstances.
If a reasonable person in the actor’s situation would have so understood, it does not matter whether the actor thought otherwise.
An experienced and aggressive Criminal Sexual Act lawyer may be able to show that a claim of an expression of lack of consent through words or acts does not meet a reasonable person’s standard. In that event, a person would be found not guilty of a Criminal Sexual Act in The Third Degree charge.
Sentencing for Criminal Sexual Act in The Third Degree in New York
In New York, Criminal Sexual Act in The Third Degree is a categorized as class E felony. No matter the sentence imposed, a person convicted of a Criminal Sexual Act in The Third Degree charge, or an attempt to commit the same, will be required to register as a Sex Offender.
A conviction is punished by a prison term of between 1 1/2 and 4 years for a first felony conviction.
In addition, there is a period of post-release supervision of between 3 and 10 years.
A Judge may also impose a sentence of up to 1 year in jail if there is finding that a longer sentence is unduly harsh in light of the nature and circumstances of the crime and the history and character of the person charged.
Up to 10 years probation is another sentencing option if a Judge finds that jail is not necessary to protect the public, the person charged is need of guidance or training that can be supervised by the Department of Probation and that a term of probation is not inconsistent with the ends of justice.
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.
