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Nassau County Criminal Sexual Act in the Third Degree

N.Y. Pen. Law § 130.40

Criminal sexual act in the third degree is one of the three criminal sexual act offenses defined in the New York Penal Code. Criminal sexual act in the third degree is defined as having oral sex or anal sex with someone who was incapable of consenting, or having oral or anal sex with someone without that persons consent. A third basis for this crime is if you are at least 21 years old and you have oral sex or anal sex with someone who is under 17 years old. It is a Class E felony. If you are convicted the judge could send you to prison for up to 4 years N.Y. Pen. Law § 130.40. Because society considers sex crimes to be particularly heinous, if you are accused of committing criminal sexual act or any sex crime both your personal and professional lives could be permanently damaged. Because of the consequences of being convicted of criminal sexual act in the third degree are significant, impacting the rest of your life, if you are charged with committing criminal sexual act in the third degree you should immediately contact an experienced Nassau County Criminal Sexual Act in the Third Degree Lawyer who will explain to you your legal options and who will aggressively defend you against the charges.

Meaning of Criminal Sexual Act

The charge of criminal sexual act in the third degree is similar to the charge of rape in the third degree. The difference is that rape involves sexual intercourse while criminal sexual act involves oral sexual conduct or anal sexual conduct. The New York Penal Code defines oral sexual conduct as sexual contact between the mouth of one person and penis of another person, the mouth and the anus, or the mouth and the vagina or vulva. Anal sexual conduct means contact between the penis and the anus. N.Y. Pen. Law § 130.00(1). On the other hand sexual intercourse is defined as the penis penetrating the vagina.

The Issue of Consent

For any sex offense the key element is that the victim did not consent to the sex act. While lack of consent can mean that the victim clearly said no, lack of consent can be shown in other ways. For example, a child is legally incapable of consenting to sex. Thus, even if a person who is under 17 years old initiates the sex act or appears to agree to it, under the law if you have oral or anal sex with someone who is under 17 you would have committed the crime of criminal sexual act in the third degree. Similarly, a person who has a mental disability, a mental incapacity, or is physically helpless cannot consent to sex. N.Y. Pen. Law § 130.05(3)

A person suffers from a mentally disability if he or she has a mental disease or defect that makes that person unable to evaluate the nature of the sex act. A mental incapacity is different from a mental disability. For the purpose of the sex crime laws a person is mentally incapacitated if he or she is intoxicated.

A person is physically helpless if that person is not able to decline to participate in the sex act because he or she is sleep, unconscious or suffering some other similar physical difficulty. N.Y. Pen. Law § 130.00. If you are charged with criminal sexual act in the third degree, rape in the third degree, or any other sex crime based on lack of consent due to the victim being mentally disabled or mentally incapacitated at the time of the incident, the allegations must be corroborated by third party evidence. N.Y. Pen. Law § 130.16. In other words, the prosecutor will not be able to successfully prosecute you based solely on the word of the person who was mentally disabled or mentally incapacitated at the time of the incident.

While people commonly believe that only a man can be convicted of a sex crime, it is important to understand that either a man or a woman can be charged and convicted of the crime of criminal sexual act. The statute does not specify that the defendant in a case of criminal sexual act in the third degree must be male and the victim female. For example, if you are a woman who is over the age of 21 and you have oral or anal sex with a male who is under the age of 17, you could be charged with criminal sexual act in the third degree.

A problem that the sex crime statute is meant to curb is the problem of inappropriate sexual contact between prison inmates and prison employees. The statute provides that a person who is in the custody of the New York Department of Corrections and Community Service or is in a hospital for the mentally ill cannot consent to having sex with an employee. "Employee" is defined as someone who works for the New York State Department of Corrections and Community Service in a facility in which the victim is confined. Such an employee's responsibilities can include custody, medical or mental health services, counseling services, educational programs, vocational training, institutional parole services, direct supervision to inmates, or supervising those released on community supervision. An employee is also defined as a mental health professional who has duties at a state correctional facility or hospital. Volunteers are also considered employees for purposes of the sex offense statutes. N.Y. Pen. Law § 130.05.

Sentence for Criminal Sexual Act in the Third Degree Conviction

If you are convicted of criminal sexual act in the third degree you could end up in prison for up to 4 years. If you are also charged with additional crimes such as rape in the third degree, forcible touching, or endangering the welfare of a child, the sentence you face could be significantly longer. For example, in People v. Tavares, 12 N.Y.3d 21 (2009), in addition to being charged with criminal sexual act in the third degree the defendant was also charged with multiple counts of sexual abuse in the third degree, multiple counts of forcible touching, and multiple counts of endangering the welfare of a child. After agreeing to a plea agreement the defendant was sentenced to 4-12 years in prison.

Despite the maximum possible sentence of 4 years you will likely not receive this sentence if you do not have a prior criminal record. In fact, it is possible that you will not receive any jail or prison time for a criminal sexual act conviction. Your sentence may include just probation. While probation is a much more desirable sentence than incarceration there are challenges associated with probation. If probation is part of your sentence you must agree to abide by the rules associated with your probation. Such rules may include: that you agree to warrantless searches; that you will be employed; that you will support your family; that you will not associate with disreputable people, such as others with felony convictions; that you will not go to disreputable places; that you will not drink excessive alcohol; that you will not use controlled substances; and that you will not leave the State of New York without permission. Most importantly, if you are on probation you must not commit another crime. If you are convicted of another crime while you are on probation or if you fail to adhere to any of the other conditions of your probation your probation officer will violate you. You will then have to go back before the judge that originally sentenced to you. If the judge agrees with your probation officer that you violated your probation, the judge may revoke your probation and resentence you to prison. Or the judge may not revoke your probation, but change the terms of your probation, making the rules even more strict.

Once you have served your jail or prison term and once you have served your probation term, you will still have to live with additional consequences that result from being convicted of criminal sexual act in the third degree. You will have a criminal record and 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. Some sex offenders will have to register for the rest of their lives.

In New York there are different levels of risk under the Sex Offender Registration Act (SORA). After you are sentenced you will have a SORA hearing. The court will make a determination of your level or risk to the community based on several different factors such as your background, your criminal conduct, and the number and ages of your victims. Based on that evaluation, the judge will determine your classification: Level 1, Level 2 or Level 3. A Level 1 classification applies to sex offenders who present the lowest level of risk while Level 3 is given to those who present the highest level of risk of re-offending. Regardless of your sex offender classification, being required to register as a sex offender will impact almost every aspect of your life. It will make it more difficult for you to find a job or rent an apartment.

Defenses to a Charge of Criminal Sexual Act in the Third Degree

While being charged with criminal sexual act in the third degree is scary, there may be a number of defenses that will help your case. The defenses that might be available to you depend on the specifics of your case. For example, because lack of consent is an essential element to any sex crime the prosecutor will have to show that there was no consent. If you have evidence to show that there was indeed consent then the prosecutor will have a difficult time convicting your or even going forward with the prosecution.

Another defense could be based on the statute of limitations. The statue of limitations is the amount of time that a prosecutor has to bring criminal charges against a person. Because it is a felony the statute of limitations for criminal act in the third degree is five years. N.Y. Crim. Pro. Law § 30.10. This means that if for some reason the prosecutor is not able to bring a case against you within five years of when the incident reportedly occurred, under the law you cannot be prosecuted at all. However, there is an exception to this rule. If the victim was less than 18 years old at the time of the incident, the limitations period does not begin to run until the he or she turns 18 years old or until the incident is reported to law enforcement.

Although criminal act in the third degree is not the most serious criminal sexual act offense, it is still quite serious. Such a charge can lead to several other criminal charges and could ultimately result in you spending years in jail. A conviction could mean that you will have a difficult time finding a job and supporting your family. Because of the potential consequences of such a charge, you should immediately contact an attorney who is familiar with defending people accused of sex crimes. 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 criminal sexual act, rape, sexual assault, sexual abuse, child molestation, 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. We serve those accused of sex crimes in the following locations:

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