Forcible touching, also referred to as criminal fondling, is the touching of the private parts of another person for sexual gratification without that person's consent. N.Y. Pen. Law § 130.52. The touching or fondling encompasses a variety of different acts including squeezing, grabbing or pinching. While criminal fondling is a sex crime, it is classified as a Class A misdemeanor and not as a felony. However, a misdemeanor is still a crime. If you are convicted the punishment could be jail and years of probation. In addition, you will have a criminal record indicating that you were convicted of a sex crime. Being convicted of criminal fondling may also negatively impact both your personal and professional relationships. If you are charged with criminal fondling, forcible touching, or any other sex crime it is important to immediately contact an experienced Queens Criminal Fondling Lawyer who is familiar with the New York criminal system and the law related to sex crimes, and who will aggressively defend you against the charges.
An important element to a charge of forcible touching or criminal fondling is lack of consent. Lack of consent can be shown in several different ways. If you used force, if the victim did not have the capacity to consent, or if the victim did not expressly or impliedly consent, then there was no consent. N.Y. Pen. Law § 130.05.
Criminal Fondling ExplainedCriminal fondling can happen anywhere. It commonly occurs in crowded public places, such as at parties, on public busses, subway platforms and subway trains where passengers often stand close together. In these types of environments it is easy for someone to take advantage of the crowded space to grope or fondle another person without that person's consent. In People v. Soto, 192 Misc.2d 161, 167 (Crim. Ct., NY County 2002), while riding on a subway train the defendant touched a woman's vagina through her clothing. In People v. Parbhu, 191 Misc.2d 473 (2002), while standing on a subway platform defendant Outram Parbhu rubbed his exposed penis against a woman's buttocks. On the other hand, in People v. Powell, 19 Misc.3d 364, 365 (Crim Ct, Kings County 2008), the touching occurred in a private residence.
Criminal fondling is not the same as sexual misconduct or rape in that penetration is not required for someone to be charged with criminal fondling. It is only necessary that you intentionally touch another person's intimate parts without that person's consent for sexual gratification and for no legitimate reason. Oftentimes there is no skin-to-skin touching. Instead the touching is done through clothing. Intentionally means that the touching was not accidental, but done consciously or purposely.
While there is no specific definition of "intimate parts" in the sex crime statute, defendants have been convicted of forcible touching based on touching another person's vagina, penis, breasts, buttocks or thighs. While the statute describes touching as "squeezing, grabbing, or pinching," it does not define these terms. Courts have interpreted the wording in the statute as merely being examples of conduct that the forcible touching statute was created to address.
Arrest and ArraignmentWhen you are accused of a crime there is a good chance that the police officer will issue a Desk Appearance Ticket (DAT) if the charge is a misdemeanor. You should take a DAT very seriously. It will name the crime with which you have been charged, along with the day, time and place of your court hearing. If you fail to appear at the specified date, time and place the judge will issue a bench warrant for your immediate arrest. At your hearing the prosecutor will let you know the exact crimes with which you are being charged. Depending on the facts of your case you may be charged with just forcible touching as indicated on the DAT, or you may be charged with additional crimes such a sexual abuse, rape, or criminal sexual act. Bail, if any, will be set.
If the police officer decides not to issue you a DAT, you will end up in Central Booking where you will remain until your arraignment.
DefensesLack of consent is a critical element for a charge of forcible touching as well as other sex crime charges. If you can show that the other person consented to the fondling, then you have a valid defense to a forcible touching charge.
Another defense may be lack of intent. Intent is a necessary element for a forcible touching charge. If you and the accuser were on a crowded train, for example, the moving train may cause passengers to accidentally bump into each other. While the victim may feel that your touching was purposeful in reality it was unintentional.
If the victim decides to press charges after a significant amount of time has passed since the incident, the statute of limitations may provide a defense. The limitations period for forcible touching is just two years. N.Y. Crim. Pro. Law § 30.10. If the prosecutor fails to bring charges against you in a timely fashion, then he or she is forever barred from prosecuting you. An exception to the two year rule is where the accuser was under 18 years old at the time of the incident. If this is the case the statute of limitations period will not begin to run until the accuser turns 18 years old or until the incident is reported to law enforcement.
Mistaken identity is another possible defense. If the incident occurred at a party, in a bar, on a subway platform or on a train, the victim may have misidentified you as the perpetrator.
Sentences and Other ConsequencesForcible touching is a Class A misdemeanor, carrying a maximum possible sentence of one year in jail. If you are a first time offender, the judge will not be required to give you any particular minimum sentence. This means that the judge could choose to sentence you to a few months in jail, or to 6 years of probation. However, if you have been convicted of forcible touching in the past the prosecutor may find that this time it is appropriate to charge you with persistent sexual abuse, which is a Class E felony. N.Y. Pen. Law § 130.53. If convicted of persistent sexual abuse you could be sentenced to up to 4 years in prison. Of course you will have the option of negotiating a plea agreement with the prosecutor. A plea agreement would likely result in you pleading guilty to a lesser offense, resulting in a lighter sentence.
Even though forcible touching is not a felony, it is still a sex crime. As a result of a forcible touching conviction you will have a criminal record and will have the designation as a registered sex offender. If you are a registered sex offender under the Sex Offender Registration Act, you will have registration and verification obligations that you must follow for at least 20 years.
While forcible touching is a misdemeanor, if you are convicted of this crime in addition to possibly spending time in jail you will end you with a criminal record which will likely negatively impact your personal and professional lives. For this reason it is critically important to have experienced representation to help you fight this charge. 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 such as forcible touching, sexual misconduct, criminal sexual act, sexual abuse, aggravated sexual abuse, 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: