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Nassau County Aggravated Sexual Abuse in the Fourth Degree

N.Y. Pen. Law § 130.65-a

Of the four aggravated sexual abuse crimes enumerated in New York's criminal code, aggravated sexual abuse in the fourth degree is the least serious. This crime involves inserting a foreign object or a finger into another person's vagina, urethra, penis, rectum or anus without that person's is consent. It is a Class E felony. If you are convicted, the judge could sentence you to up to 4 years in prison. N.Y. Pen. Law § 130.65-a. In addition, if you are convicted restrictions will be placed on your life that will remain in place years after you serve your sentence. Because your life as well as the lives of your family members will be negatively impacted if you are accused of a sex offense, as soon as you know that you are being accused of sex crime you should immediately contact an experienced Nassau County Aggravated Sexual Abuse in the Fourth Degree Lawyer who will explain the criminal process to you and aggressively defend you against this charge and any other criminal charges.

What is a foreign object?

One of the two bases for an aggravated sexual abuse in the fourth degree is the use of a foreign object. Under New York's criminal code a foreign object is defined as anything that could cause injury when inserted into someone's vagina, urethra, penis, rectum or anus. N.Y. Pen. Law § 130.00 (9). The statute does not give specific examples. However, defendants have been convicted of aggravated sexual abuse based on using sticks, bottles, knives, rubber gloves as well as other objects. For example, in People v. Critzer, 97 A.D.2d 878 (1983) the defendant was convicted of aggravated sexual abuse based on an accomplice inserting a glass bottle in the victim's vagina, while in People v. Morrow, 758 N.Y.S.2d 215 (2003) the defendant was convicted of aggravated sexual abuse based on inserting a bottle in the victim's rectum. In People v. Lackey, 827 N.Y.S.2d 331 (2007) the defendant was convicted of aggravated sexual abuse based on placing a stick into the victim's vagina.

How can I show that the other person did consent?

The strongest defense to a charge of aggravated sexual abuse is that the other person did indeed consent. Lack of the capacity to consent can be shown in several different ways.

  • Forcible Compulsion. Forcible compulsion involves compelling the sex act by using physical force or a threat of physical harm such as a threat of death or kidnapping. For forcible compulsion to exist, the threat of harm may be directed toward the victim or toward another person. If you exerted physical force in order to insert an object into the vagina, urethra, penis, rectum or anus of the other person, then you took away the capacity of the other person to consent. N.Y. Pen. Law § 130.00(8)
  • Physically Helpless. If you sexually abuse someone with your finger or with an object while that person is unable to object because he or she is unconscious or is in some other way physically helpless, then that person would not have the capacity to consent. N.Y. Pen. Law § 130.00 (7). If the victim is in some way impaired, but does have the ability to communicate, then the prosecutor would not be able to sustain a charge of aggravated sexual assault in the fourth degree based on physical helplessness. This is what happened in the case of People v. Chapman, 862 N.Y.S.2d 660 (2008). The defendant was initially convicted for fourth degree aggravated sexual assault based on inserting a vibrator into the victim while she was physically helpless from intoxication. However, on appeal on the conviction was overturned because the victim testified that she told the defendant to stop. Thus, the victim was conscious and was able to communicate. The statute does not require that you personally cause the person to be physically helpless. It is enough that you found the person in a physically helpless state and then sexually abused that person using your finger or a foreign object.
  • Inmate. If you are a correction officer or other employee of the Department of Corrections and the other person is an inmate, then it is illegal to have sexual contact with that person. In other words, an inmate cannot legal consent to have sex with a corrections officer. In Patterson v. State, 2014 NY Slip Op 51382(U) (2014) of New York, the basis of the plaintiff's civil lawsuit was that while she was an inmate at the Bayview Correctional Facility a correction officer raped and sexually abused her. The correction officer was arrested and charged with aggravated sexual abuse in the fourth degree.
  • Mental Disability. Another reason that you could be arrested and prosecuted for aggravated sexual abuse in the fourth degree is if you sexually abused someone who suffers from some sort of mental disease or defect such that he or she does not have the ability to understand the nature of the conduct. If a person suffers from a mental disability, even if he or she appears to agree to the sex act or even if the person initiates it, legally there would be no consent. As a result you could be charged with aggravated sexual abuse in the fourth degree. N.Y. Pen. Law § 130.00(5)
  • Mental Incapacity. If you cause someone to become intoxicated by giving that person a controlled substance, a prescription drug or some other type of intoxicating substance without his or her permission, then that person would then be mentally incapacitated and you could be charged with aggravated sexual abuse in the fourth degree. N.Y. Pen. Law § 130.00(6)

If you are able to show that none of these factors existed and that the other person did indeed consent, you may have a strong defense.

In addition, another defense to a charge of aggravated sexual abuse in the fourth degree is medical necessity. N.Y. Pen. Law § 130.00(6). This means that if you are performing a valid medical examination or procedure such as a vaginal or rectal exam using either your fingers or a medical instrument, you would not face a charge of aggravated sexual abuse.

What will happen if I am arrested?

In some cases if you are suspected of committed and are arrested the police officer will issue you a Desk Appearance Ticket (DAT). With a DAT you are required to show up at a specified place and time for your arraignment. However, you will not be detained in Central Booking while awaiting your arraignment. Because aggravated sexual abuse in the fourth degree is a Class E felony, you will not receive a DAT. Usually DATs are only given for misdemeanors. Therefore, if you are arrested for aggravated sexual abuse in the fourth degree, you will end up in Central Booking where you will remain for several hours until your arraignment hearing. During the arraignment you may find that the prosecutor decided to charge you with additional crimes, or raise the degree of the crime. For example, based on the allegations of the case, the prosecutor may decide to charge you with aggravated sexual abuse in the first degree instead of aggravated sexual abuse in the fourth degree. Or, the prosecutor may feel that additional charges are warranted such as rape or facilitating a sexual offense with a controlled substance.

At the arraignment you will also learn whether you will be held without bail, released on your own recognizance, or released after paying bail. Whether or not the judge will require bail and the amount of bail will be based on how much of a flight risk the court determines you to be.

Following your arraignment, and before your trial, there will be a number or hearings and meetings. The prosecutor may offer you a deal that would require you to plead guilty to lesser charges. If you agree then you will receive a sentence based on the lesser charge and you will avoid a trial. If no plea deal is agreed upon, then you will ultimately go to trial.

If I am convicted what sentence will I face?

If you are convicted of aggravated sexual abuse in the fourth degree the maximum prison sentence that a judge could give you is 4 years. There is no statutory mandatory minimum sentence. If this is your first offense it is possible that the judge will sentence you to significantly less than 4 years in prison, maybe even to just probation. If you do have a prior felony offense, you will face a mandatory minimum sentence of at least 3 years in prison.

If your sentence includes probation, you will be required to agree to Conditions of Probation. These conditions may include:

  • You must not commit a crime
  • You must have a job, diligently look for a job, or be enrolled in school
  • You must support your family
  • You must refrain from associating with disreputable people and going to disreputable places
  • You must complete a drug or alcohol abuse program
  • You must seek any ordered medical or mental health treatment
  • you cannot leave New York State without permission

You will also be required to regularly check in with your probation officer. In some cases you may even be required to wear an electronic monitor. N.Y. Pen. Law § 65.10. If you break any of the conditions of your probation a judge may send you to jail.

Like aggravated sexual abuse in the first, second and third degrees, aggravated sexual abuse in the fourth degree is a registrable offense under the New York Sex Offender Registration Act. This means that immediately upon sentencing you will be required to complete a form that will be used to register you as a sex offender. You will have to provide your name, aliases, address, work address, school address, email addresses, your photograph and other personal information, as well as details about your crimes. You will have to regularly update your photo and verify your registered information. You will remain on the sex offender registry for at least 20 years. If you are Level 2 or Level 3 offender, meaning that you pose a substantial risk of re-offending, you will remain on the list for the rest of your life, and your name will be made public. If you move out of state, you must register as a sex offender under the rules of your new jurisdiction.

The idea of having to defend yourself against charges that you sexually abused someone may seem daunting. This is why it is important to have experienced representation on your side. 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 aggravated sexual abuse, criminal sexual act, sexual misconduct, forcible touching, sexual abuse, 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.

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