N.Y. Pen. Law § 130.20
While sexual misconduct is a misdemeanor, it is still a sex crime. If you are convicted of sexual misconduct, you will face serious consequences. You will be charged with sexual misconduct if you do one of the following:
It is a Class A misdemeanor, making it on just a few sex crimes that is not a felony. If you are convicted of sexual misconduct the maximum sentence of incarceration that you could face is up to a year in jail. N.Y. Pen. Law § 130.20. However, even though sexual misconduct is a misdemeanor, being convicted will have a lasting effect on both your personal and professional lives as you will end up with a permanent criminal record and you will still be required to register as a sex offender for at least 20 years. Because of the consequences of being convicted of sexual misconduct or any other sex crime, as soon as you have been charged it is important that you contact an experienced Nassau County Sexual Misconduct Lawyer who will aggressively defend you and support you from the time of your arrest and arraignment, until your case is resolved.
Under New York law the sex acts that are elements to the sexual misconduct crime have very specific definitions.
Sexual intercourse. Sexual intercourse means a penis penetrating a vagina. Any amount of penetration is enough for there to be sexual intercourse for the purpose of a charge of sexual misconduct or any other sex offense that requires sexual intercourse.
Oral sexual conduct. Oral sexual conduct refers to sexual contact between the mouth of one person and penis of another person, the mouth and the anus, or the mouth and the vagina or vulva.
Anal sexual conduct. Anal sexual conduct means contact between the penis and the anus. N.Y. Pen. Law § 130.00(1)
Lack of ConsentIn order to be convicted of sexual misconduct or almost any sex crime, the victim must have not consented to the sex act. N.Y. Pen. Law § 130.05. If there was no consent, then the victim did not agree to have sex with you. Of course saying no is clear evidence of lack of consent. However, lack of consent can also be demonstrated by other evidence.
Use of force. Lack of consent can be shown if you used forcible compulsion to compel the sex act. Forcible compulsion means that you used either physical force against the victim. Forcible compulsion also means that you threatened the victim with immediate death, physical injury, or kidnapping, or you threatened to kill, injure or kidnap another person such as the victim's friend or family member. The threat can be express or implied. A threat can also be a perceived threat. For example, in People v. Blond, 96 A.D.3d 1149 (2012), defendant Mark Blond was convicted of a sex crime based on the use of forcible compulsion. The victim had witnessed the defendant act violently toward others. When the defendant approached the victim for sex she felt that he would physically harm her if she resisted.
Age. The law enumerates circumstances under which a person would not have the legal capacity to consent to sex. If the other person is a minor who is under the age of 17, he or she would not have the legal capacity to agree to sex.
Mental disability and mental incapacity. A person is mentally disabled such that he or she would be unable to consent to sex if that person has a mental disease or defect that makes him or her unable to understand what it means to engage in the sexual act.
Having a mental incapacity is different from having a mental disability. A person suffers from a mental incapacity if that person is intoxicated. In People v. Johnson, 99 A.D.3d 591 (2012), defendant Sharmelle Johnson plead guilty to a sex crime based on having sex with a person whom he knew to be mentally incapacitated from drinking. It does not matter if you caused the person to become intoxicated. In People v. Johnson, the defendant came upon the victim standing outside of a bar already intoxicated.
If you are charged with sexual misconduct or any other sex crime based on the other person suffering from either a mental disability or a mental incapacity, there must be corroborating evidence as the testimony of the person who was mentally disabled or mentally incapacitated at the time of the incidence would not be sufficient to support a sexual misconduct charge. N.Y. Pen. Law § 130.16.
Physically helpless. A person is physically helpless if he or she is not conscious or for any other reason is not able to express unwillingness to participate in the sexual act. N.Y. Pen. Law § 130.00. For example, if you initiate sexual intercourse with someone who is sleep, then you could charged with a sex crime.
DefensesThere are several defenses to a charge of sexual misconduct. Since lack of consent is a critical element to any sex crime, if you can prove that the accuser consented to the sex act, than the prosecutor will have a difficult time convicting of sexual misconduct. The defense of consent, however, will only work if the accuser had the legal capacity to consent. Other defenses include mistaken identity and statute of limitations. In some cases a challenge to the credibility of the accuser may prove a successful defense strategy. In People v. Suh, 27 Misc 3d 143(A) (2010), a sexual misconduct conviction was reversed and a new trial ordered because of the questionable credibility of a prosecution witness.
Sentence and other consequencesJail. Because sexual misconduct is a Class A misdemeanor the possible sentence is confinement in jail for up to a year. In People v. Lawrence, 969 N.Y.S.2d 805 (2013), the defendant Javian Lawrence was sentenced to 6 months in jail after he plead guilty to 1 count of sexual misconduct.
Probation. Probation is a possible sentence, especially if you are a first time offender. For example, in People v. Valle, 2011 NY Slip Op 52415(U) (2011), defendant Carlos Vallee was sentenced to only probation after pleading guilty to sexual misconduct. Because sexual misconduct is both a misdemeanor and a sex crime, the mandatory probation term would be 6 years. There will be several rules that you must follow while you are on probation. N.Y. Pen. Law § 65.10. The rules associated with probation vary from person to person generally include that:
If you violate any of the terms of your probation, a judge could revoke your probation and resentence you to jail.
Fines, Fees and Restitution. Your sentence may also include the payment of a fine of up to $1,000. If you are convicted of a crime in New York, you will be required to pay certain fees. For a misdemeanor conviction, you will have to pay a mandatory surcharge of $25-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay a probation supervision fees of $30 per week. As part of your sentence you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses.
If you do not pay a fine, fee or restitution, your probation may be revoked and you could be charged with a crime.
Orders of Protection. As part of the criminal process, the prosecutor may request and the judge may grant a Temporary Order of Protection against you in favor of the victim. An Order of Protection is designed to keep the victim safe by limiting your actions. The victim, also referred to as the complaining witness, will have told the prosecutor his or her side of story, giving details as to why a Order of Protection is necessary. Based on this information, the prosecutor will request that the judge issue a Temporary Order of Protection with specific requirements. For example, the Order of Protection may be a "full" order meaning that you will be required to stay away from the victim, the victim's home, the victim's place of employment, and the victim's children. If you share a home with the victim, the order may also require you to move. A limited order will require you to refrain from harassing, threatening or abusing the victim. If warranted, the order may require you to attend a substance abuse program.
If you violate an Order of Protection, you could face additional criminal charges that could result in you going to prison. However, if you do not believe that an Order of Protection is warranted, then there are ways to fight such an order to get it dismissed.
Criminal record. Having a criminal record will complicate many aspects of your life. Finding a job may be challenging. Most employers will perform a criminal background check before hiring you. Many will be reluctant to hire you as they may feel that because you have a criminal history you are not trustworthy. If you already are employed at the time of your conviction, even if you are not sentenced to prison, should your employer discover your conviction you may lose your job.
Sex offender registration. Making your post-conviction life even more difficult is that sexual misconduct is a registrable offense under the New York Sex Offender Registration Act (SORA). This means that immediately after you are sentenced you will have to register as sex offender. You will have to follow the rules of the SORA for at least 20 years. Even if you move to another state, you will have to register wherever you go. The personal details of some sex offenders will be readily available online, and people often view them. Not only will employers be reluctant to hire you, landlords will be reluctant to lease apartments to you. Furthermore, you may even have a difficult going to your child's school. Many schools now perform background checks on anyone seeking to enter a school building, volunteer, or accompanying students on a field trip. If a background check shows that you are a sex offender, you may be denied access to the school building or school activities.
Other consequences. You may have even more to worry about if you are convicted of sexual misconduct or practically any other sex crime and you are not a U.S. citizen. Under federal law, if a non-citizen is convicted of an aggravated felony, he or she can be deported. 8 USC § 1227(a)(2)(A)(iii). Even though under New York law sexual misconduct is a misdemeanor under federal law it is an "aggravated felony."
Being charged with any crime, particularly a crime as serious as sexual misconduct, is frightening. The idea of having to face the criminal justice system along is overwhelming. However, you should not attempt to face these charges without experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of misdemeanor and felony sex crimes, such as sexual misconduct, criminal sexual act, forcible touching, sexual abuse, sexual conduct against child, and facilitating a sexual offense with a controlled substance. 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: