Sex crimes are considered by the public and law enforcement as some of the most serious and heinous crimes. In fact, the New York police department has a special unit with specially trained detectives devoted to investigating sex crimes. Moreover, prosecutors vigorously prosecute those who have been charged with sex crimes. Rape is the most commonly used term to describe sex crimes. However, there are 23 different sex crimes in the New York criminal code with the crime of rape having a very specific definition. Other types of sex crimes including sexual misconduct, criminal sexual act, forcible touching, sexual abuse, course of sexual conduct against a child, female genital mutilation, and facilitating a sexual offense with a controlled substance. While there are a few misdemeanor sex crimes, 19 of the 23 sex crimes are felonies. If you are convicted of a felony sex crime you may end up spending years and possibly decades in prison. Furthermore, you will be required to follow the strict rules of sex offender registration for at least 20 years. Because the consequences of being charged with or convicted of a sex crime are so devastating it is critical that you be proactive and immediately contact an experienced Nassau County Sex Crimes Lawyer as soon as you know that you are being investigated for any type of sex crime, even a misdemeanor.
The basis of any sex crime is that the victim did not consent to the sex act. N.Y. Pen. Law § 130.05. Lack of consent means that the sex act was not consensual. However, while saying no is one way to show lack of consent, it is not the only way. In fact, under New York law there are circumstances where a victim can agree to sex and even initiate it and there still would have been lack of consent. For example, if the victim is a child who is under the age of 17, then the law states that that person does not have the legal capacity to consent to sex. A victim who suffers from a mental disability or incapacity or is physically helpless also does not have the legal capacity to consent to sex regardless of whether he or she appears to consent. If you work for the Department of Corrections and you have sex with someone in custody, you will have committed a sex crime as a person in custody is deemed to be unable to consent to sex under those circumstances. N.Y. Pen. Law § 130.05(3). Most sex crimes have multiple degrees of seriousness. The offense will be deemed more serious the younger the victim and where a greater degree of force is used. Forcible compulsion means the use of physical force or the use of a threat to compel the victim to have sex.
Types of Sex CrimesWhile most sex crimes are felonies, forcible touching and sexual misconduct are both sex crimes that are misdemeanors.
Misdemeanor sex crimesYou will have committed the crime of forcible touching if you touch another person's intimate parts either for no reason at all, or in order to receive sexual gratification. It is a Class A misdemeanor. N.Y. Pen. Law § 130.52. Intimate parts include the vagina, penis, anus, breasts, buttocks, and lips. Sexual misconduct occurs if you have sexual intercourse, anal sex or oral sex with another person without consent, or if you have sex with an animal or a dead person. N.Y. Pen. Law § 130.20. It is also a Class A misdemeanor.
RapeRape is defined as having sexual intercourse without the consent of the other person. Sexual intercourse is defined as the penis penetrating the vagina. Even if the penetration was slight, that would be enough for a charge of rape if there was a lack of consent. N.Y. Pen. Law § 130.00. Rape in the third degree rape is the least severe rape charge. Rape in the third degree occurs when a person engages in sexual intercourse with someone who cannot consent or is less than 17 years old. N.Y. Pen. Law § 130.25. If you are convicted of third degree rape you can be sentenced to up to 4 years in prison. You will be arrested and charged with second degree rape if you engage in sexual intercourse with someone who is mentally disabled or incapacitated. If you are at least 18 years old and have sex with a child who is 15 years old or younger, then you will be charged with rape in the second degree. Second degree rape is a class D felony that has a penalty of up to 7 years in prison. N.Y. Pen. Law § 130.30. First degree rape is the most serious rape charge and carries a penalty of up to 25 years in prison. You will be charged with rape in the first degree if you forcibly have sexual intercourse with another person or have sexual intercourse with a child who is age 11 or younger. If you are 18 years old or older and have sexual intercourse with a child who is less than 13 years old, you will be charged with rape in the first degree.
Criminal sexual actThe charge of criminal sexual act is similar to rape. However, criminal sexual act does not involve sexual intercourse, but oral or anal sex. Oral sex means contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina, while anal sex means contact between the penis and the anus. If you are at least 21 years old and have oral or anal sex with a child who is under 17 years old, a prosecutor would charge you with criminal sexual act in the third degree, a Class E felony. N.Y. Pen. Law § 130.40. Criminal sexual act in the second degree will be the charge you will face if you are at least 18 and have oral or anal sex with a child who is under 15. Another basis for this charge is if you have oral or anal sex with someone who is incapable of consent because he or she is mentally disabled or incapacitated. Second degree criminal sexual act is a class D felony that carries a maximum possible sentence of 7 years in prison. N.Y. Pen. Law § 130.45. The most serious criminal sexual act charge is criminal sexual act in the first degree. Because it is a Class B felony if you are convicted of this charge the judge may sentence you to up to 25 years in prison. N.Y. Pen. Law § 130.50. The prosecutor will charge you with criminal sexual act in the first degree if you have oral or anal sex with someone by physical force or with someone who is physically helpless. Another basis for this charge is having oral or anal sex with a child who is under 13 years old and you are at least 18 years old.
Sexual abuseSexual abuse in the third degree is one of the few sex crimes that is a misdemeanor. You will face this charge if you have nonconsensual sexual contact with someone. It is a Class B misdemeanor. N.Y. Pen. Law § 130.55. Sexual contact is the touching of another person's penis, vagina, buttocks, breasts or other intimate parts for the purpose of sexual gratification and without that person's consent. If the victim is incapable of consent because he or she is a child who is less than 14 years old, or is incapable of consent for some other reason the charge will be sexual abuse in the second degree, a Class A misdemeanor. N.Y. Pen. Law § 130.60. Sexual abuse in the first degree is Class D felony, and refers to forced sexual contact, sexual contact with a person who is physically helpless, sexual contact with a child who is less than 11 years old. If you are at least 21 years old, you will be charged with sexual abuse in the first degree if the victim is a child who is less than 12 years old. N.Y. Pen. Law § 130.65.
Aggravated sexual abuseYou can also commit a sex crime without the use of your genitals or intimate parts. Aggravated sexual abuse is a sex crime that involves inserting a foreign object into someone's vagina, urethra, penis, rectum or anus without that person's consent. Aggravated sexual abuse in the fourth degree will be the charge if the victim is incapable of consent by reason to some other factor other than being under 17 years old. It is a Class E felony. N.Y. Pen. Law § 130.65-a. Aggravated sexual abuse in the third degree will be the charge if the abuse is by force and is with a foreign object rather than a finger. It will also be the charge if the other person is physically helpless, is mentally disabled, is mentally incapacitated, or is a child who is less than 11 years old. It is a Class D felony. N.Y. Pen. Law § 130.66.
Course of sexual conduct against a childA very serious sex crime involves repeated sexually assaulting a child. Course of sexual conduct against a child in the second degree is a Class D felony with a possible sentence of up to 7 years in prison. You will face this charge if over a 3 month period you repeated sexually assault a child who is less than 11 years old. If you are 18 years old in order to face this charge the child must be less than 13 years old. N.Y. Pen. Law § 130.80. Course of sexual conduct against a child in the first degree is a Class B felony with a possible sentence of up to 25 years in prison. This will be the charge you will face if the course of sexual conduct involves sexual intercourse, oral sex, anal sex, or aggravated sexual conduct. N.Y. Pen. Law § 130.75.
Female genital mutilationFemale genital mutilation is another type of sex crime under New York law. N.Y. Pen. Law § 130.85. However, it does not involve the defendant attempting to have sexual intercourse, anal sex, oral sex, or any other type of sex act for sexual gratification. It involves circumcising, excising, or infibulating a female child's genitals generally as part of a cultural rite. Unless such procedure is performed for medical reasons and by a licensed medical professional, such an act is a Class E felony.
Facilitating a sex offense with a controlled substanceIf you give someone drugs without consent in order to commit a sex crime, than you would have committed the crime of facilitating a sex offense with a controlled substance. This is a Class D felony. N.Y. Pen. Law § 130.90. The prosecutor will charge you with sexually motivated felony if the motivation for committing a felony is sexual gratification. N.Y. Pen. Law § 130.91
Predatory sexual assaultThe charge for the commission of several sex crimes including 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 will be raised to the crime of predatory sexual assault if you cause serious physical injury to the victim or if you use the threat of physical injury in the course of committing that sex crime. N.Y. Pen. Law § 130.95. This will also be the charge if you have previously been convicted of one of these sex crimes. Predatory sexual assault is considered one of the most serious sex crimes and as such is classified as a Class A-II felony. The minimum sentence you will face is 10 years in prison and the maximum sentence is 25 years in prison. N.Y. Pen. Law § 70.00(3). A similar crime is predatory sexual assault against a child. The difference is that in order to be charged you must be at least 18 years old and the victim must be a child who is under 13 years old. N.Y. Pen. Law § 130.96. This crime is also a Class A-II felony.
Defenses to Sex Crime ChargesDepending on the circumstances of your case there may be a number of possible defenses that could result in an acquittal, the charges being dropped, or the charges being lowered. For example, because lack of consent is a key element to any sex offense, the presence of consent would be a crucial defense. Another defense could be lack of intent. If, for example, you are accused of forcible touching based on contact that occurred in a crowded area such as a subway train or at party, and you can show that the touching was a mere accident because the space so crowded, then you may have a valid defense.
If you are charged with a sex crime based on the age of the other person and you were married to that person at the time of the sex act you have a statutory defense, as long as the marriage is valid in New York State. N.Y. Pen. Law § 130.10. While a person can be convicted of committing certain sex offenses against his or her spouse, if the sole basis for the charge is age the prosecutor will not be able to convict you.
Certain activities that would otherwise be considered a sex crime would not be a sex crime performed for a medical purpose. For example, it is legally permissible to insert a finger or foreign object into a person for medical reasons such as a vaginal or rectal examination. If a medical professional does this for legitimate medical reasons, that medical professional would have a defense to a charge of aggravated sexual abuse in the fourth degree, third degree, second degree, and first degree. Similarly, a medical professional would escape a charge of female genital mutilation if he or she performed a legitimate medical procedure that would otherwise be prohibited under the statute.
The statute of limitations requires that a prosecutor bring charges within a specified period of time. Otherwise, the prosecutor is legally from ever bringing the charges. lf the victim delays reporting the incident to law enforcement, or if for some other reason the prosecutor cannot immediately press charges for an incident, the statute of limitations may become a factor. If the offense is a misdemeanor such as forcible touching, sexual abuse in the second degree or sexual abuse in the third degree, the limitations period is just two years. N.Y. Crim. Pro. Law § 30.10. If like the majority of sex offenses, the offense is a felony, then the limitations period is 5 years. There is an exception to this general rule. If the victim was a child who was less than 18 years old at the time of the incident, the limitations period does not begin to run until that child turns 18 years old or until the incident is reported to law enforcement.
Sentence for a Sex Crime ConvictionIf you are convicted of a sex crime the sentence that the judge will give you will depend on a number of factors. The most important factor is the classification of the crime.
IncarcerationIf you are convicted of a misdemeanor sex offense you will be sentenced to up to 1 year in jail it the offense is a Class A misdemeanor or up to 3 months in jail for a Class B misdemeanor. Only 4 sex offenses are misdemeanors. All others are felonies. If you are convicted of a felony there is a strong possibility that you will be sentenced to some time in state prison. The maximum sentence is life in prison for a conviction of predatory sexual assault or predatory sexual assault against a child.
ProbationIf you are convicted of a sex crime, probation will likely be part of your sentence. Even if you are convicted of a misdemeanor sex crime and are not sentenced to jail, there is a very good change that the judge will at least sentence you to probation. While you are on probation you will be monitored and your actions will be restricted in order to ensure that you do not commit another crime. There will be several rules that you must follow while you are on probation including that you must not commit a crime, you must have a job, you must support your family, you must refrain from drinking excessive alcohol, you must refrain from using controlled substances, you must refrain from associating with other felons, you must report to your probation officer on a regular basis, and you cannot leave the jurisdiction without permission.
If you fail to follow the conditions of your probation you will have to appear in court before the judge who originally sentenced you. The Probation Department will urge the judge to revoke your probation and send you to jail. If the judge finds that you did violate the terms of your probation, the judge may send you to jail, or may add new probation terms.
Fines, Fees and RestitutionThere are several financial consequences to committing a sex crime. The judge may order you to pay a fine of up to $500 for a Class B misdemeanor, up to $1,000 for a Class A misdemeanor conviction or up to $5,000 for a felony conviction.
You will also be required to pay certain fees including a "mandatory surcharge" of $300 for felonies and $175 for misdemeanors as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay fees related to probation and post-release supervision of $30 per month as well as fees associated with sex offender registration.
Another financial consequence is that you may be ordered to pay restitution to the victim. Generally, the maximum amount of restitution is $15,000 for felonies and $10,000 for misdemeanors. However, the restitution may be considerably more as medical expenses for knife wounds can be significant and the court may require you to pay those expenses.
If you do not pay a fine, fee or restitution, you may be charged with an additional crime.
Sex offender registrationIn addition to spending time in jail, prison or being placed on probation, the other consequences of a sex crime conviction is that you will end up with a criminal record and may be required to register as a sex offender. N.Y. Cor. Law § 168. The New York Sex Offender Registration Act requires that a sex offender register for at least 20 years. If you are assessed to present a substantial risk to the public, then you will have to register for the rest of your life. Having a criminal record and being required to register as a sex offender will impact almost every aspect of your life following prison. You will have a hard time getting a job and even renting an apartment.
Being charged with a sex crime is quite serious. Even if you are never prosecuted or convicted the mere accusation may cause irreparable damage to your family as well as to your professional reputation. Thus, if you learn that you are being accused of a sex crime, immediately contact an attorney who is familiar with defending people accused of or charged with sex crimes. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of sex crimes, as well as other serious felonies and misdemeanors such as domestic violence, child pornography, statutory rape, and stalking. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of sex crimes in the following locations: