Sexual abuse is a crime that is viewed by society as particularly repugnant. Being charged with sexual abuse can damage your personal relationships and professional reputation. Sexual abuse is the crime of subjecting someone to sexual contact without that person's consent. There are three different degrees of seriousness of sexual abuse. If you are convicted of any sexual abuse offense, you will likely be sentenced to jail or prison. Even worse, a conviction will result in you being added to the list of registered sex offenders. Because of the grave consequences of being accused of a sex crime, if you are accused of sexual abuse or any other sex crime, it is critical that you contact an experienced Queens Sexual Abuse Lawyer who will review the facts of your case and aggressively defend you against the charges.
There are three different sexual abuse offenses: sexual abuse in the third degree, sexual abuse in the second degree and sexual abuse in the first degree. Each sexual abuse offense has two fundamental components: sexual contact and lack of consent. Under the New York sex crime statute sexual abuse is not the same as sexual intercourse. Sexual intercourse means penetration of the vagina with the penis. N.Y. Pen. Law § 130.00(1). Sexual abuse means subjecting another person to "sexual contact." Sexual contact involves the touching of the sexual or intimate parts of another person for sexual gratification. N.Y. Pen. Law § 130.00(3). Sexual or intimate parts are not specifically defined, but include the penis, anus, vagina, rectum, breasts, buttocks, lips and mouth. Included in sexual contact is ejaculation onto another person. However, sexual contact does not necessarily involve ejaculation.
Lack of consent means that the other person was not a willing participant in the sexual contact. Even if the victim verbally agreed to the sexual contact or initiated it there are a number of circumstances under which a person would be deemed to not have consented to sexual contact. For instance, if the victim was physically helpless, suffers from a mental disability, suffers from a mental incapacity, or is a minor, then he or she would not have the legal ability to consent to sexual contact. In addition, if you use physical force, then there was no consent to the sexual contact.
Types of Sexual AbuseSexual abuse in the third degree is the least severe sexual abuse offense. You will be charged with sexual abuse in the third degree if you subject another to sexual contact without that person's consent. It is a Class B misdemeanor. N.Y. Pen. Law § 130.55. For example, in People v. Guaman, 022514 NYCOA, 2014-01264 (February 25, 2014) defendant Luis Guaman was convicted of sexual abuse in the third degree based on rubbing his exposed penis and groin area against the victims buttocks without the victim's consent.
Sexual abuse in the second degree is the charge you will face if you are 17 and subject a minor who is less than 14 to sexual contact. It is a Class A misdemeanor. N.Y. Pen. Law § 130.60. In order to be convicted of sexual abuse, neither penetration nor ejaculation is required. People v. Streeter, 061314 NYAPP4, 2014-04304 (June 13, 2014).
Sexual abuse in the first degree is the most serious of the 3 sexual abuse charges. It will be the charge you will face if you subject another person to sexual contact by forcible compulsion. You will also face this charge if the other person is physically helpless, is less than eleven years old, or if you are at least 21 years old and the other person is less than 11 years old. It is a Class D felony. N.Y. Pen. Law § 130.65. In People v. Milford, 061214 NYAPP3, 2014-04278 (June 12, 2014), the defendant was convicted of sexual abuse in the first degree based on the inappropriate touching of the 8 and 10 year old children of the defendant's ex-girlfriend.
Being Arrested for Sexual AbuseIf you are suspected of sexual abuse in the third degree or the second degree, because these offenses are misdemeanors the arresting officer has the option of having you processed though Central Booking or issuing a Desk Appearance Ticket (DAT). If you are issued a DAT the ticket will list the offense as well as the date and time of your arraignment hearing. You will not be detained in Central Booking to await arraignment. On the other hand, if you are not issued a DAT after you are processed at the local police 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 may be charged with sexual abuse as well as other 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 Sexual Abuse ChargeDepending on the facts of your case, there are several possible defenses to a sexual abuse charge. Since lack of consent is an essential element to any sex crime including sexual abuse, if you can prove that there was consent then you may be acquitted of the sexual abuse charge, or the prosecutor may drop the charges. However, showing that there was consent may mean that you must do more than merely show that the victim assented by saying yes, failing to say no, or initiating the sexual abuse. This means that you would have to show that there was no force, that the other person did not suffer from a mental disability or a mental incapacity, or that the other person was not physically helpless.
The statute of limitations may provide another defense to a charge of sexual abuse. Because sexual abuse in the first degree is a felony, the statute of limitations is 5 years. N.Y. Crim. Pro. Law § 30.10. For sexual abuse in the third degree and second degree, the statute of limitations is 2 years as they are misdemeanors. If you are not prosecuted within the limitations period, then the prosecutor is legally barred from prosecuting you. An exception to this rule is where the victim was less than 18 years old at the time of the incident. In such a case the statute of limitations starts when the victim turns 18, or when the incident is reported to law enforcement.
For purposes of sexual abuse in the third degree, if you are less than 5 years older than the victim who is between 14 and 17 years old, you have a defense against a charge of sexual abuse. N.Y. Pen. Law § 130.55.
Sentence for a Sexual Abuse ConvictionThe law requires different penalties based on the specific sexual abuse charge of which you are convicted.
Sexual abuse in the third degree. Because it is a Class B misdemeanor, if convicted the possible sentence is up to 3 months in jail.
Sexual abuse in the second degree. Because it is Class A misdemeanor, if convicted the possible sentence is up to 1 year in jail.
Sexual abuse in the first degree. Because it is a Class D felony, if convicted the possible sentence is incarceration for up to 7 years.
In addition to incarceration you may also be sentenced to probation. For a misdemeanor sex crime conviction the required term of probation is 6 years. For a felony sex crime conviction the mandatory term of probation sentence is 10 years. With probation comes a set of rules that restrict certain aspects of your life. For instance, you may be required to stick to a curfew. You may be required to stay away from other convicted felons as well as disreputable places. You will be required to have a job and to support your family. You will have a probation officer to whom you must regularly report. If you do not follow these rules, the court my revoke your probation and resentence you to prison.
As a result of being convicted of sexual abuse, even if the conviction is for misdemeanor sexual abuse, you will have a criminal record and you will have to register as a sex offender. N.Y. Cor. Law § 168. Having a criminal record with a sex crime conviction and being a registered sex offender will make life for you more challenging. As a sex offender you will be required to follow registration and verification rules. If you move you will have to let law enforcement in your new jurisdiction know that you are a sex offender. Under certain circumstances your status as a sex offender may be publicized on the internet such that anyone can find information about you including your name and address. You may have a difficult time finding a job.
If you are facing a sex abuse charge or any other sex crime you should immediately consult an experienced Queens Sex Abuse Lawyer. The laws related to sex crimes are complicated as is New York criminal procedure. However, there are defenses and strategies that may be available to you that may help your case. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of sexual abuse as well as other sex crimes such as rape, forcible touching, and criminal sexual act. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case.