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Nassau County Sexual Assault

Sexual assault is not just the crime of rape. In New York there are several different crimes in the sex crime statute that are considered sexual assaults including forcible touching, sexual abuse, criminal sexual act, sexual misconduct, sexual conduct against child, female genital mutilation, and facilitating a sexual offense with a controlled substance. The factor that is common to all sex crimes is that the sex act was nonconsensual. Because of the seriousness of sexual assault, while there are a few misdemeanors most sex crimes are classified as felonies punishable by years and years in prison and registration as a sex offender. Because of the consequences of being charged or convicted of a sex crime, as soon as you have been accused of any type of sex crime, it is critical that you, a family member or a close friend contact an experienced Nassau County Sexual Assault Lawyer who will review the facts of your case and aggressively defend you against the charges.

Lace of consent

The critical element of any sexual assault offense is the lack of consent. N.Y. Pen. Law § 130.05. If the prosecutor is unable to show lack of consent, or if you are able to show that there was consent, the prosecutor will have a difficult time convicting you of a sex crime. The use of force is not the only way to show lack of consent. If the other person does not have the legal or mental capacity to consent to sex, then there would have been no consent. For example, a person who suffers from a mental disability, suffers from a mental incapacity, is physically helpless, or is a minor would not have the capacity to consent to a sexual act.

Force. Lack of consent can be shown if you used forcible compulsion to compel the sex act. Forcible compulsion means that you used either physical force against the victim, or you threatened the victim with immediate death, physical injury, or kidnapping, or you threatened to kill, injure or kidnap another person such as the victim's friend or family member. The threat can be express or implied.

Age. The law enumerates circumstances under which a person would not have the legal capacity to consent to sex. If the other person is a minor who is under the age of 17, he or she would not have the legal capacity to agree to sex. The younger the victim, the more serious the offense.

Mental disability and mental incapacity. A person is mentally disabled such that he or she would be unable to consent to sex if that person has a mental disease or defect that makes him or her unable to understand what it means to engage in the sexual act.

Having a mental incapacity is different from having a mental disability. A person suffers from a mental incapacity if that person is intoxicated. In People v. Johnson, 99 A.D.3d 591 (2012), defendant Sharmelle Johnson plead guilty to a sex crime based on having sex with a person whom he knew to be mentally incapacitated from drinking. It does not matter if you caused the person to become intoxicated. In People v. Johnson, the defendant came upon the victim standing outside of a bar already intoxicated.

If you are charged with sexual misconduct or any other sex crime based on the other person suffering from either a mental disability or a mental incapacity, there must be corroborating evidence as the testimony of the person who was mentally disabled or mentally incapacitated at the time of the incidence would not be sufficient to support a sexual misconduct charge. N.Y. Pen. Law § 130.16.

Physically helpless. A person is physically helpless if he or she is not conscious or for any other reason is not able to express unwillingness to participate in the sexual act. N.Y. Pen. Law § 130.00. For example, if you initiate sexual intercourse with someone who is sleep, then you could be charged with a sex crime.

Types of sexual assault

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 someone else's intimate parts 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, or if you have sex with an animal or a dead person. 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 is the charge you will face if you subject another person to sexual contact and that person is incapable of consenting for any reason other than being less than 17 years old, or that person is less than 14 years old. N.Y. Pen. Law § 130.60

Rape is the charge that you will face if you have sexual intercourse without the consent of the other person. 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 who cannot consent, of if you are at least 21 years old, the other person is less than 17 years old. 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. If you are 18 years old or older you would be charged with rape in the second degree if you have sexual intercourse with a person who is 15 years old or younger. 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, or have sexual intercourse with someone who is age 11 or younger. If you are at least 18 years old and have sexual intercourse with someone who is less than 13 years old, you can charged with first degree rape. The penalty for rape in the first degree is up to 25 years in prison. It is a Class B felony.

Criminal sexual act 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 if you are at least 21 years and the other person is under 17 years old, or the other person did not consent due to any other reason. 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 you are at least 18 years old and you engage in oral or anal sex with a person who is less than 15 years old. Another reason that you could face a charge of criminal sexual act in the second degree is if the other person is 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, or with someone who is less than 11 years old. This charge will also apply if you are at least 18 years old and the other person is less than 13 years old.

Sexual abuse in the first degree is Class D felony. If you forcibly have sexual contact with another person, have sexual contact with a physically helpless person, or with a person who is under 11 years old you would have committed sexual abuse in the first degree. If you are 21 years old or older, you will be charged with sexual abuse in the first degree if the other person is under 13 years old. N.Y. Pen. Law § 130.65.

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 will also be the charge if the other person is physically helpless, is less than 11 years old, is mentally incapacitated or is mentally disabled. 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, or if the other person is physically helpless or is less than 11 years old. 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 or less than 11 years old. It is Class B felony. N.Y. Pen. Law § 130.70. The maximum sentence is 25 years in prison.

Sexual assault against children is particularly shocking, and under the New York Penal Code those who commit such crimes are subject to severe penalties. You will be charged with course of sexual conduct against a child if you sexually assault a child who is less than 11 years old at least 2 times in a 3-month period. It is a Class D felony with a possible sentence of up to 7 years in prison. It will also be the charge if you are 18 years old or older and the child is under 13 years old. N.Y. Pen. Law § 130.80. Course of sexual conduct against a child in the first degree is a much more serious charge. It is a Class B felony. You will face this charge if the sexual assault involves sexual intercourse, oral sex, anal sex, or aggravated sexual conduct with a child. If convicted you could be sentenced to up to 25 years in prison. N.Y. Pen. Law § 130.75.

Female genital mutilation is somewhat different from other types of sexual assault. It is typically not performed for sexual gratification, but as a cultural rite. However, it is still classified as a sex crime. It involves circumcising, excising, or infibulating any part of the labia or clitoris of a child who is less than 18 years old, unless it is done so for medical reasons and is performed by a licensed medical professional. It is a Class E felony with a possible sentence of up to 4 years in prison. N.Y. Pen. Law § 130.85. You can also commit sexual assault against someone if you give drugs to facilitate the sexual conduct. This crime is called facilitating a sex offense with a controlled substance. It is a Class D felony. N.Y. Pen. Law § 130.90. You will have committed the crime of sexually motivated felony if the motivation for committing a felony is sexual gratification. N.Y. Pen. Law § 130.91

Arrest and arraignment

If you are suspected of committing a sex crime you will be arrested and taken into custody at the local police precinct. There you will be fingerprinted and photographed. The next step is that you will be taken to a place called Central Booking where you will remain until your arraignment. While you are at Central Booking, someone from the Criminal Justice Agency (CJA) will interview you. The CJA will use the information elicited during the interview to make a recommendation to the judge regarding bail. The CJA will ask questions related to where you live, whether you work, whether you support your family, and your level of education. The goal of the interview is to determine whether or not you have strong ties to the community.

During your arraignment proceeding the prosecutor will present the criminal complaint against you which will detail the charges against you. You might be surprised to learn that the charges against you are different from what you expected. While you were in Central Booking waiting to be the arraigned, the prosecutor will have had the chance to review the facts of your case, your personal background as well as your criminal history. Based on this the prosecutor makes a decision as to what charges are appropriate. You may be charged with one sex crime, multiple ex crimes, or other types of crimes.

At the arraignment the judge will determine your bail status. The judge will consider the recommendation of the CJA as well as the seriousness of the charges against you. The prosecutor will argue for significant bail, while your defense will argue against bail. Ultimately the judge will make the bail decision based on how much of a flight risk you are. Based on that assessment the judge may set a low or high bail, decide that no bail is necessary and release you on your own recognizance (ROR), or decide that you present a significant flight risk and require that you be held without bail. If bail is set, you will have to post it before you will be released. If someone is able to attend your bail hearing and post bail for you immediately after, then you may be able to be released from custody soon after your arraignment.

After the arraignment there will be several other steps in the criminal process before a final resolution of your case, including several hearings and meetings with the prosecutor. If you are released on your own recognizance or after posting bail, it is critical that you return to court for each hearing. If you fail to do so, the judge will issue a warrant for your immediate arrest.

At some point you and your defense team may be able to negotiate a plea deal with the prosecutor that would require you to plead guilty to lesser charges in order to avoid a trial and possible conviction on the original, more serious charges. If you do agree to a plea, while your sentence may be less severe than if you were found guilty at trial, you will still have pleaded guilty to a crime and will have to face the consequences of that plea.

Consequences of a sexual assault conviction

The 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 are have one or more prior felony convictions, your sentence will be more severe than if you are a first time offender. In addition, if you are convicted of sexual assault, you will also 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.

Because of the challenges you will certainly encounter from merely being accused of sexual assault, you should immediately contact an experienced attorney who is familiar with defending people accused of or charged with 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, as well as other serious felonies and misdemeanors such as domestic violence, child pornography, statutory rape, and stalking. 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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