The New York sex crimes statute describes forcible touching as intentionally touching the sexual or intimate parts of someone else for no reason or in order to receive sexual gratification. Touching can mean squeezing, grabbing, or pinching. N.Y. Pen. Law § 130.52. Forcible touching is a sex crime. While it is serious, it is not a felony like most other sex crimes. It is a Class A misdemeanor. If you are convicted the maximum possible sentence is 1 year in jail. Even though the maximum possible sentence is short period in jail, if convicted of forcible touching you will also end up with a criminal record and you will be required to register as a sex offender. Even if you are not convicted of forcible touching the mere accusation is not only embarrassing but can affect your personal relationships and professional reputation. If you are arrested and charged with forcible touching, even though it is a misdemeanor you should still immediately contact an experienced Queens Forcible Touching Lawyer who is familiar with New York criminal courts and who will work hard to aggressively defend you against the charges.
The term forcible touching may be unfamiliar as the term commonly used to refer to forcible touching is groping. It often occurs in crowded, public places such as on a subway platform, in a subway car, at a party, or in a bar. For example, in People v. Soto, 192 Misc.2d 161, 167 (Crim. Ct., NY County 2002), the defendant was charged with forcible touching after he placed his fingers on a woman's vagina through her clothing while they were riding the subway. However, forcible touching does not always occur in a public, crowded place. It also commonly occurs in private places such as a home. In both People v. Smiley, 2010 N.Y. Slip Op. 5154 (2010) and People v. Powell, 19 Misc.3d 364, 365 (2008), the groping occurred at a private home and the defendants were relatives of the child victims.
Unlike other sex crimes such as sexual misconduct or rape, the crime of forcible touching does not necessarily involve penetration such as occurs with sexual intercourse, anal sexual conduct or oral sexual conduct. It is only necessary that you intentionally in some way touch another person's intimate parts without that person's consent and for no legitimate reason. If penetration does occur you will be charged with another sex crime such as aggravated sexual abuse.
Intentionally means that the touching was not accidental, but that you consciously or purposely touched the other person's intimate parts. For example, on a crowded subway train when the car is swaying, it is possible for you to accidentally touch someone's intimate body part. Furthermore, skin to skin touching is not required. In People v. Taylor, 23 Misc.3d 361 (2009), the defendant was accused of using his penis to touch a 14-year old girl's vaginal area through her pulled up pants.
A person's intimate parts can include the vagina, penis, breasts, or buttocks. In People v. Smiley the charge was based on the defendant touching a 13-year old girl's vagina, breasts, and buttocks. In order to be charged with forcible touching it is enough that the touching occurs through the other person's clothing. In fact, in most cases of forcible touching the touching occurred while the victim was clothed. While the statute uses the terms "squeezing, grabbing, or pinching," those are but examples of type of touching that can amount to forcible touching.
Lack of ConsentLike with all other sex crimes lack of consent is the most important element of the charge of forcible touching. Lack of consent can be shown by forcible compulsion, incapacity to consent, or lack of express or implied consent by the victim. N.Y. Pen. Law § 130.05. That forcible touching can be shown by lack of express or implied consent of the victim is significant. To be charged with and convicted of forcible touching the prosecutor does not need to show that you exerted physical force or that you threatened the victim. If you touch a stranger's intimate parts, all the prosecutor will have to show is that the victim did not give you express or implied consent. It is also not necessary for the prosecutor to show that you used physical force to compel the touching or that the victim suffered from an incapacity such that he or she did not have the ability to consent. It is sufficient that the victim testify that he or she did not in any way consent to the touching.
Arrest and ArraignmentIf you are accused of forcible touching, you may issued you a Desk Appearance Ticket (DAT). Generally, a police officer will issue a DAT if you do not have a criminal history and if the charge is not a felony. Forcible touching is Class A misdemeanor, making a DAT likely as long as you do not have a criminal history. The police officer will let you know when you will need to appear in court for your arraignment, and the DAT will also have this information. If you fail to appear for your arraignment the judge will issue a bench warrant for your immediate arrest. If you are not given a DAT, after you are processed at the local precinct you will remain in custody at Central Booking until you are called for your arraignment.
At your arraignment hearing you will be formally charged. The prosecutor may charge you with the crime that is listed on your DAT, or the prosecutor may decide to charge you will one or more additional charges. For example, in addition to forcible touching you may also be charged with additional sex crimes such as sexual abuse in the third degree. N.Y. Pen. Law § 130.52. You will then be given a date for your next court appearance. There may be several hearings prior to your trial. At some point the prosecutor may offer you a plea agreement that would require you to plead guilty to a lesser crime. If you do so you will not have to face a trial.
DefensesAs with any sex crime, there may be defenses that could help your case. In fact, there may be a defense that if proven, may result in the charges being dropped, or you being acquitted. If for example, you can show that the touching was accidental, then you have a valid defense. Or, if you can show that the person you touched consented to the touching, then you have a valid defense. These are just two possible defenses. Depending on the specific facts of your case, there may be other defenses such as mistaken identity or statute of limitations.
Sentences and Other ConsequencesBecause forcible touching is a Class A misdemeanor the possible sentence is up to one year in jail. If you are a first time offender it is possible that your sentence will not include any jail time, but just probation. If you are sentenced to probation, since forcible touching is both a misdemeanor and a sex crime, the probation term will be 6 years. If you agree to a plea agreement it is also possible that the prosecutor charge you with a lesser offense such as harassment in the second degree or disorderly conduct, neither of which is a felony or a misdemeanor, but a violation. N.Y. Pen. Law § 240.26. On the other hand, if you have already been convicted of forcible touching in the past you may be labeled a repeat offender and the charge may be increased to 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. With each additional misdemeanor or felony charge comes the possibility of a stiffer sentence if you are convicted.
If you are convicted of forcible touching, persistent sexual abuse, sexual abuse in the third degree or any other sex crime whether it is a misdemeanor or a felony, you will end up with a criminal record. This will be a hardship on both you and your family as it may make it difficult for you to find a job. Some employers may will be reluctant to hire you as they may not be comfortable hiring someone with a criminal record, particularly if your record includes a sex crime conviction. If you already are employed at the time of your conviction, even if you are not sentenced to jail or prison, should your employer discover your conviction you may be fired. In addition, if you are convicted of almost any sex crime you will be placed on the sex offender registry as required under the New York Sex Offender Registration Act. This means that you will have to register with law enforcement your name, address and other personal information. You will have to regularly verify this information. You will have to comply with the sex offender registration and verification for at least 20 years and possible for the rest of your life
While a charge of forcible touching may not seem serious since it is a misdemeanor, a charge of forcible touching may lead to additional charges. In addition, a conviction of forcible touching will lead to you being labeled a registered sex offender. For this reason it is important to immediately contact experienced representation as soon as you are accused of forcible touching, persistent sexual abuse or any sex crime. 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, criminal sexual act, sexual abuse, aggravated sexual abuse, course of 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.