Sexual abuse in the second degree is one of three sexual abuse offenses defined in the New York State Law. Even though sexual abuse in the second degree is a sex crime, it is a Class A misdemeanor not a felony. You will face this charge if you engage in sexual contact with another person without that person's consent and that lack of consent is based on a factor other than that the victim is under 17 years old, or if the victim is a child who is less than 14 years old. N.Y. Pen. Law § 130.60. Even though sexual abuse in the second degree is a misdemeanor it is still a crime. If you are convicted you could end up in jail. In addition, you will have a criminal record and you will have to register as a sex offender. These consequences of being convicted of a sex crime will have a substantial negative impact on your life as well as the lives of your family members. If you are charged with sexual abuse in the second degree, it is a good idea to immediately contact an experienced Queens Sexual Abuse in the Second Degree Lawyer who will review the facts of your case and aggressively defend you until the case is resolved.
In order for you to be charged with sexual abuse in the second degree, you must have subjected the other person to "sexual contact." Unlike sexual intercourse sexual contact does not require penetration. It is defined as touching of the sexual or intimate parts of another person for sexual gratification. N.Y. Pen. Law § 130.00(3). Sexual or intimate parts include the genital area, vagina, penis, anus, rectum, buttocks, breasts, lips and mouth. For example, in People v. Haynes, 953 N.Y.S.2d 552 (2012), the defendant Allen Haynes was charged with sexual abuse in the second degree when the child victim reported that Haynes touched her vagina. In People v. Williams, 890 N.Y.S.2d 370 (2009), the defendant touched the breast of a child.
Under the statute, it does not matter who does the touching. In other words, if you touch another person's buttocks without consent, or if you force someone to touch your buttocks, in either case you can be charged with sexual abuse in the first degree. It also does not matter if the touching is done through the clothes or under the clothes. In People v. Freeman, 950 N.Y.S.2d 493 (2012), the defendant was charged with sexual abuse in the second degree based on a photograph that showed both the defendant and the defendant's daughter kissing the breasts of a woman.
Sexual GratificationYou cannot be convicted for sexual abuse in the first degree unless the purpose of the touching was for sexual gratification. Courts will consider the circumstances surrounding the incident to determine whether or not the touching was for sexual gratification. If there is no other reasonable explanation for the touching then the court is likely to conclude that the touching was for sexual gratification. In People v. Fuller, 854 N.Y.S.2d 594 (2008) the court inferred that when the defendant grabbed the vagina and touched the buttocks of a 16 year old girl, the only conclusion that was reasonable was that he did so for sexual gratification.
The Arrest and ArraignmentThe New York criminal justice system is complex, involving many different people and several steps. If you are arrested because you are suspected of sexual abuse in the second degree, you will first be processed at the local police precinct. This is where the arresting officer will record your biographical information such as your name, address, and social security number. You will also be fingerprinted and your photograph will be taken. You will then be given a Desk Appearance Ticket that tells you the date, time and place of your arraignment, or you will be transferred to Central Booking where you will remain until your arraignment.
Once your criminal history is reviewed by the prosecutor, your case has been docketed, and the criminal complaint has been prepared, you will then be arraigned. At your arraignment you will learn of the charges against you. You may be charged with sexual abuse in the second degree. However, it is also possible that after reviewing your case and your criminal history the prosecutor will decide that additional or different charges are warranted. For example, you could also be charged with forcible touching or rape. At your arraignment you will learn whether or not bail will be required. The prosecutor may offer you a plea agreement that would require you to plead guilty to a lesser offense such as sexual abuse in the third degree.
Because sexual abuse in the second degree is a misdemeanor you will be allowed to plead guilty or not guilty at the arraignment hearing. If you are released on bail, you must return to court for each of your court dates. Otherwise the judge may issue a warrant for your arrest.
If you are unable to reach a plea deal with the prosecutor, your case will eventually go to trial. However, it is not common for misdemeanor cases to reach the trial stage of the criminal justice process. If a plea deal is reached you will not go to trial, but you will still be required to plead guilty to a crime. For example, if you agree to plead guilty to sexual abuse in the third degree, then you will have plead guilty to a Class B misdemeanor. You will have a criminal record and you will be a registered sex offender.
SentencingBecause sexual abuse in the second degree is a Class A misdemeanor if you are convicted the maximum possible sentence that you will receive is 1 year in jail. Your sentence could also include a probation term of 6 years. In determining your sentence the judge will consider the crime committed, the details of the crime, your personal background, and your criminal history. If you are a first time offender your sentence will be less severe than if you have a criminal history.
If your sentence includes probation the term will be six years since sexual abuse in the second degree is a misdemeanor sex crime. You will be required to follow several rules referred to as your conditions of probation. They will vary from person to person depending on what the court deems necessary to ensure that you do not get into trouble while on probation. N.Y. Pen. Law § 65.10. The conditions may include that you must:
In addition, you will be required to regularly report to your probation officer, seek permission before leaving the jurisdiction, and notify the probation department if you move or change jobs.
Like most other sex crimes, sexual abuse in the second degree is a registrable offense under the New York Sex Offender Registration Act (SORA). This means that you will be required to follow the rules for registered sex offenders. N.Y. Cor. Law § 168. At the time you are sentenced, using a specified form you must register certain personal information which the court will send to a designated law enforcement agency which will keep the information in a database. A hearing will be held to determine your sex offender risk level. This hearing is critical because it will determine if you will have to register for 20 years or for the rest of your life. It will also determine whether or not your personal information will be available to the public through the internet.
Because of the complexity of the New York criminal justice system defending a charge of sexual abuse in the second degree or any sex crime is complicated, requiring a knowledge of the criminal justice system as well as the law related to sex crimes. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with sex crimes such as sexual abuse, forcible touching, sexual misconduct, criminal sexual act, forcible 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.