It might surprise you to know that sexual assault is one of the most common types of domestic violence. While you might believe that a spouse, boyfriend, or girlfriend cannot be charged with rape or any other sex crime, that is not the case. Almost any crime in the New York sex crimes statute can occur between a husband and wife or between a boyfriend and girlfriend. For example, if you force your wife to have sexual intercourse with you, then you would have committed the crime of rape. Rape, criminal sexual act, and sexual abuse are examples of sex crimes that are punishable with lengthy prison sentences. When those involved are married, dating, family members or have some other type of intimate relationship, the sexual assault is also categorized as domestic violence. However, an accusation is not the same as a conviction. There may be a number of defenses to a charge of sexual assault that may apply to your case. When comes to a situation as serious as being charged with sexual assault, it is critical that you immediately contact an experienced Westchester County Domestic Violence and Sexual Assault Lawyer who understands the complicated nature of intimate relationships and who will aggressively defend you against the charges.
An essential element of any sexual assault is the lack of consent. N.Y. Pen. Law § 130.05. Lack of consent means that your wife, for example, did not give you permission to have sex with her. This could mean that you used physical force to commit the sex act. It also could mean that the other person did not have the capacity to consent. For example, a person who is physically helpless would not have the legal capacity to consent to sex. In addition, if the person you have sex with is a minor, even if that person is your girlfriend or boyfriend, you may have committed sexual assault because that person would not have the legal capacity to consent to a sexual act. This type of sexual assault is also referred to as statutory rape.
Types of Sexual AssaultForcible touching, sexual misconduct and sexual abuse. Forcible touching, sexual misconduct, sexual abuse in the third degree and sexual abuse in the second degree are misdemeanor sex crimes. You will be charged with forcible touching if you touch another person's intimate parts without that person's consent to receive sexual gratification. N.Y. Pen. Law § 130.52. Sexual misconduct occurs if you have sexual intercourse, anal or oral sex with another person without that person's consent. N.Y. Pen. Law § 130.20. Sexual abuse in the third degree is the charge you will face if you subject another person to sexual contact without that person's consent. N.Y. Pen. Law § 130.55. Sexual abuse in the second degree involves subjecting a minor to sexual contact. For purposes of the sexual abuse in the third degree offense, a minor is someone who is less than 14 years old. N.Y. Pen. Law § 130.60. Because these offenses are misdemeanors, the maximum jail sentence that you will receive is 1 year. However, part of your sentence may include a probation term of 6 years.
Rape. Rape is the charge that you will face if you have sexual intercourse without the consent of the other person. It does not matter if the other person is your spouse, girlfriend, or roommate. If that person did not consent, you could face a rape charge. For sexual intercourse to occur there must be penetration, even if only slight. N.Y. Pen. Law § 130.00. Rape in the third degree is the least severe rape charge. This will be the charge you face if you engage in sexual intercourse with another person without that person's consent. N.Y. Pen. Law § 130.25. If convicted you could be sentenced to up to 4 years in prison. Rape in the second degree would be the charge if you engage in sexual intercourse with someone who is mentally disabled or suffers a mental incapacity. Rape 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 § 130.30. You would have committed rape in the first degree if you forcibly have sexual intercourse with another person, have sexual intercourse with someone who is physically helpless. The penalty for rape in the first degree is up to 25 years in prison. It is a Class B felony.
Criminal sexual act. Criminal sexual act is similar to rape, but instead of sexual intercourse it involves having oral or anal sex without the consent of the other person. Oral sex is defined as contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina. Anal sex is defined as contact between the penis and the anus. Criminal sexual act in the third degree is the charge you will face if you have oral or anal sex and the other person did not consent. It is a Class E felony. N.Y. Pen. Law § 130.40. You will face a charge of criminal sexual act in the second degree if the other person was incapable of consenting because he or she is mentally disabled or incapacitated. Criminal sexual act in the second degree is a class D felony that has a penalty of up to 7 years in prison. N.Y. Pen. Law § 130.45. Criminal sexual act in the first degree is a Class B felony. If convicted, you could end up in prison for up to 25 years. N.Y. Pen. Law § 130.50. This will be the charge if you have oral or anal sex by force with someone not able to consent because he or she is physically helpless.
Sexual abuse. Sexual abuse in the first degree is Class D felony. If you forcibly have sexual contact with another person or have sexual contact with a physically helpless person you would have committed sexual abuse in the first degree. N.Y. Pen. Law § 130.65.
Aggravated sexual abuse. Sexual assault can be committed using your finger or a foreign object. If you stick a foreign object into the vagina, urethra, penis, rectum or anus of someone without that person's consent, you would have committed aggravated sexual abuse in the fourth degree, a Class E felony. If you use your finger and also cause injury, the charge will be aggravated sexual abuse in the fourth degree. N.Y. Pen. Law § 130.65-a. Aggravated sexual abuse in the third degree will be the charge if the sexual abuse is by force and you use a foreign object. It is a Class D felony. N.Y. Pen. Law § 130.66. Aggravated sexual abuse in the second degree is the charge if you physically injure someone by inserting your finger into the vagina, urethra, penis, rectum or anus of that person, and you do so by force. N.Y. Pen. Law § 130.67. It is a Class C felony with a sentence of up to 15 years in prison. Aggravated sexual abuse in the first degree involves injuring someone by inserting a foreign object into the vagina, urethra, penis, rectum or anus of that person, by force or if the other person is physically helpless. It is Class B felony. N.Y. Pen. Law § 130.70. The maximum sentence is 25 years in prison.
Arrest and ArraignmentBeing charged with a crime in New York can be scary and overwhelming. If the police suspect that you have stalked someone you will be arrested and taken to the local police precinct. At the local precinct your personal information will be taken and you will be fingerprinted. Then you will be taken to Central Booking where you will remain until your arraignment. Within approximately 24 hours of your arrest you will be arraigned.
At your arraignment you will learn the exact charges against you. Beware that if you are arrested for stalking you may face additional criminal charges. Charges which commonly accompany stalking charges include assault, sexual assault, and reckless endangerment.
At your arraignment you will also learn whether or not bail will be required. Based on the arguments presented by both you and the prosecutor the judge will determine the level of flight risk you pose and whether or not bail should be ordered. The judge can choose to remand you, meaning that you will have to remain in jail while your case is being resolved. Or the judge can release you on your own recognizance (ROR), meaning that you will not be required to post bail to be released. However, if you are released it is imperative that you show up at court for every hearing and for each day of your trial. If you do not the judge may issue a warrant for your arrest.
At some point your case may be resolved through plea-bargaining. You and the prosecutor may arrive at a mutually satisfactory compromise that would require you to plead guilty to a lesser crime that would result in a lighter than if you were found guilty of stalking after a trial. Any agreement that you come to with the prosecutor is subject to the approval of the judge.
Order of ProtectionIf you are arrested for sexual assault the prosecutor will likely request that the judge issue an Order of Protection against you placing restrictions on your interactions with the victim. An Order of Protection, commonly referred to as a restraining order, is a legally enforceable court order that is designed to protect someone against the violent or threatening acts of another person.
An Order of Protection can be full, limited or combination of both. A full Order of Protection will require you to stay away from the victim. The judge will be very specific as to what you can and cannot do. For example, the Order of Protection may require that you stay away from the home, school, business or place of employment of the victims. N.Y. Crim. Proc. Law § 530.13(1)(a). A full order of Protection is also called a "stay away" Order. A limited Order of Protection requires you to stop certain types of behavior including harassing, intimidating, threatening, or otherwise interfering behavior directed toward the victim or family members of the victim. It may also direct you to refrain from injuring or killing a pet of the victim. N.Y. Crim. Proc. Law § 530.13(1)(b). This type of Order is also called a "refrain from" Order.
Sentence for Sex Crime ConvictionThe sentence for a sex crime conviction varies based on the classification of the sex crime. Misdemeanors have the least severe sentences while felonies have much more severe sentences. If you have one or more prior felony convictions your sentence will be more severe than if you are a first time offender.
You will likely be sentenced to prison. For the most serious sex crimes you could spend more than a decade behind bars. You will also be required to pay a significant fine, fees, and restitution to your victim.
In addition, if you are convicted of sexual assault 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 at least 20 years. If you are deemed to present a high risk of re-offending, you will have to register as a sex offender for life.
Furthermore, there will be other long-term consequences to being convicted of a sex crime.
Because of the seriousness and complexity of a sexual assault charge, it is imperative that you are represented by someone with experience handling not only sexual assault cases, but also domestic violence cases. 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, assault, stalking, statutory rape, as well as other offenses related to domestic violence. We understand how to interpret evidence and apply the law in order to ensure that your case has the best possible outcome give the circumstances. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of domestic violence and sexual assault in the following locations: