The crime of stalking is not typically thought of as a violent crime, but of a crime that is more of an annoyance than anything else. This is far from reality. While stalking can be simply following another person or calling or emailing that person, in many cases stalking is coupled with violence such as sexual assault. When stalking is coupled with sexual assault, not only will you face the most serious stalking charge- stalking in the first degree, you will also be charged with a sex crime. Sexual assault can be rape. However, there are several other sex crimes in the New York criminal code that are also types of sexual assault such as sexual misconduct, criminal sexual act, forcible touching, sexual abuse, sexual conduct against child, female genital mutilation, and facilitating a sexual offense with a controlled substance. Most sex crimes are felonies punishable my multiple years in prison, probation, a criminal record, and registration as a sex offender. If you are convicted of these both stalking and sexual assault you will face several years in prison, steep fines, restitution, fees, sex offender registration, and a permanent criminal record. Thus, if you have been charged with stalking in the first degree based on a sexual assault you should immediately contact an experienced Nassau County Stalking and Sexual Assault Lawyer who will carefully review the facts of your case and who will aggressively defend you from the beginning of the case until it is resolved.
Under New York Penal Law there are four criminal offenses related to stalking, including stalking in the first degree. Stalking in the first degree is the most serious stalking charge with the most serious consequences. While the statute defines 4 factors that could raise the level of seriousness of a stalking charge to stalking in the first degree, one of those factors is committing a sex crime against the person you are stalking. According to the stalking statute, the underlying sex crime can be sexual misconduct, forcible touching, sexual abuse in the second degree, rape in the third degree, criminal sexual act in the third degree, female genital mutilation, rape in the second degree, and criminal sexual act in the second degree. Stalking in the first degree is a Class D felony. N.Y. Pen. Law § 120.60
Underlying Sex CrimesForcible touching. The crime of forcible touching is when 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.
Sexual misconduct. Sexual misconduct occurs if you have sexual intercourse, anal sex or oral sex with another person without that person's consent, or if you have sex with an animal or a dead person. N.Y. Pen. Law § 130.20.
Rape in the third degree. Rape is the criminal charge that will be applied if you have sexual intercourse without the consent of the other person. For sexual intercourse to occur there must be penetration. 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. Third degree rape is the least severe rape charge. Third degree rape occurs when a person engages in sexual intercourse with another person 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.
Rape in the second degree. Second degree rape is when a person engages in sexual intercourse with someone who is mentally disabled or incapacitated. A person who is 18 years old or older can also be charged with third degree rape if that person has sexual intercourse with a person who is 15 years old or younger. 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.
Criminal sexual act in the third degree. You will be charged with criminal sexual act if you have oral or anal sex without the consent of the other person. 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. Criminal sexual act in the third degree involves oral or anal sex if you are at least 21 years and the other person is under 17 years old, or the other person did not consent due to any other reason. It is a Class E felony. N.Y. Pen. Law § 130.40
Criminal sexual act in the second degree. Criminal sexual act in the second degree will be the charge if you are at least 18 years old and you engage in oral or anal sex with a person who is less than 15 years old. It will also be the charge if the person is incapable of consent because he or she is mentally disabled or incapacitated. Criminal sexual act in the second degree rape is a class D felony that has a penalty of up to 7 years in prison. N.Y. Pen. Law § 130.45
Sexual abuse in the second degree. Sexual contact is the touching of another person's intimate parts for the purpose of sexual gratification. If the victim is incapable of consent because he or she 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 is a Class A misdemeanor. N.Y. Pen. Law § 130.60
Female genital mutilation is somewhat different from other types of sexual assault. It is typically not performed for sexual gratification, but as part of a cultural rite. However, it is still classified as a sex crime. Female genital mutilation involves circumcising, excising, or infibulating any part of the labia or clitoris of a child who is less than 18 years old, unless it is done so for medical reasons and is performed by a licensed medical professional. It is a Class E felony with a possible sentence of up to 4 years in prison. N.Y. Pen. Law § 130.85
Being Arrested for Stalking and Sexual AssaultIf you are suspected of stalking and sexually assault after you are taken to the local precinct you will be transferred to Central Booking where you will remain until your arraignment. At the arraignment you will be given a Complaint that will list the charges against you. You will be charged with stalking, sexual assault, and perhaps additional crimes. The prosecutor will make a recommendation to the judge about bail. The judge will decide if bail is required, if you should be released on your own recognizance, or held without bail. Lastly, you will learn the next time you will be required to appear in court. If you are charged with a felony, your case will be heard by the Grand Jury.
Before going to trial you may be able to reach an agreement with the prosecutor that allows you to plead guilty to a less serious crime that will result in you being given a lighter sentence than if you are convicted at trial. You have the option of accepting the deal or standing trial. If you agree to a plea agreement, the result is still that you have been convicted of a crime and you will have a criminal record.
Defenses to a Stalking in the First Degree ChargeAn important way to challenge a charge of stalking in the first degree based on sexual assault is to show that no sexual assault occurred. Since lack of consent is a necessary element for a charge of rape in the second degree or any sex crime, it will be necessary for the prosecutor to prove that you did not have consent to have sexual intercourse with the other person. If it can be shown that there was indeed consent, you cannot be convicted of sexual assault.
If the prosecutor cannot sustain a sexual assault charge against you, that means that the prosecutor also cannot support a stalking in the first degree charge that was based on sexual assault.
Consequences of a Stalking in the First Degree ConvictionAn important issue that you must keep in mind is that if you are charged with stalking in the first degree based on sexual assault you will face at least one other serious criminal charge. That charge will be one of 8 sex crimes that range from Class A misdemeanors to Class D felonies. This means that if convicted of both crimes the amount of time that you will have to spend in prison may significantly more than if you were only convicted of stalking in the first degree. Furthermore, if you are convicted of almost any sex crime you will have to register as a sex offender for at least 20 years.
Prison and finesBecause stalking in the first degree based on sexual assault is a Class D felony, if you are convicted the maximum sentence is 7 years in state prison and a fine of up to $5,000. It is also classified as a violent felony offense, meaning that even if you have no prior felony convictions within the prior 10 years the judge will still be required to sentence you to at least 2 years in prison. If you have a prior non-violent felony conviction within the past 10 years the minimum prison sentence that you will receive is 3 years, while if you have a prior violent felony conviction the minimum prison sentence you will receive is 5 years. If you have 2 prior felony convictions within the prior 10 years, you will be classified as a persistent felony offender and you will receive a minimum sentence of 12-25 years and a maximum sentence of life in prison.
RestitutionAs part of your sentence the judge may order you pay restitution. Restitution is paid to the victim to cover out-of-pocket expenses that result from your crime. For example, if your injure victim the court may order you to pay the victim's medical expenses. Generally, the maximum amount of restitution is $15,000. However, the law allows a judge to order you to pay a greater amount of restitution if, for example, the victim's medical expenses exceed the general statutory limit.
FeesIn New York if you are convicted of a stalking in the first degree you will be required to pay certain statutory fees. One fee is a $300 "mandatory surcharge." You may also be required to pay a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If you are placed on probation, you will have pay probation supervision fees of $30 per month. If along with stalking in the first degree you are also convicted of a sex crime, you will be required to pay a sex offender registration fee as well as other fees associated with a sex crime conviction.
ProbationPart of your sentence for a stalking in the first degree conviction may be probation. The term of probation will be 5 years. If your sentence includes both prison and probation, your sentence of probation will run concurrently with your prison sentence. In other words, while you are in prison you will also be on probation. If you are released from prison before you have completed all 5 years of your probation sentence you will serve the rest of your probation term after your release.
While living in the community while on probation is preferable to being locked up in prison you should know that serving probation is not without challenges. For the entire time that you are on probation you will be required to follow strict rules that are designed to help prevent you from committing another crime. If you break any of these rules there are severe consequences. The court will design a set of rules specifically for you. Typical rules include:
If you are convicted of a sex crime you will 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 20 years, or in some case for 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 as potential employers who may be willing to overlook a criminal history, may be unwilling to overlook a criminal history that involves a sex crime. Many landlords are unwilling to rent apartments to people who are on the sex offender registry. In some cases names on the sex offender registry are made public and easily accessible on the internet. If other residents of your neighborhood learn that you are a sex offender you may be harassed.
Other Long-Term ConsequencesIf you are convicted of stalking in the first degree the sentence given by the judge and the fees you will have to pay are only part of the consequences that you will face for this crime. You will also have a permanent criminal record that will affect several aspects of your life. Most employment applications require that you disclose your criminal background. Some colleges perform criminal background checks on prospective students. With a criminal background you will have a difficult time being approved for a license to be teacher, lawyer, doctor, security guard or cab driver. If you are not a U.S. citizen you could be deported under federal law. You may lose eligibility for certain governmental benefits such as federally funded housing.
Being charged with stalking in the first degree is extremely serious. However, just because you are charged does not necessarily mean that you will be convicted. The best way to fight charges of stalking in the first degree and sexual assault is to have experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with stalking in the first degree as well as sexual assault, rape, criminal sexual act, harassment, menacing, and reckless endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of stalking in the following locations: