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Nassau County Sexual Battery

In the New York criminal code there is no crime that is called "sexual battery." It is a general term used by both the public and members of law enforcement to describe any of several sex crimes defined under New York law. Sexual battery is viewed as an especially heinous crime since the victims are often left with both physical and emotional injuries. Because of the number of sex crimes committed each year and the complicated issues involved with sex crime prosecutor, there specially trained law enforcement personnel that work exclusively on apprehending and prosecuting those accused of committing sexual battery. While rape is what most often comes to mind, there are several different types of sexual battery under New York law. Some like forcible touching and sexual misconduct are misdemeanors, while most like rape in the first degree and persistent sexual abuse are felonies. This means that if convicted of almost any type of sexual battery you will almost certainly end up in prison. In addition, you will have to register as a sex offender under the Sex Offender Registration Act. Because of the life-altering consequences of being convicted of sexual battery, as soon as you have been accused of any type of sex crime, it is critical that you or a member of your family immediately contact an experienced Nassau County Sexual Battery Lawyer who will review the facts of your case and aggressively defend you until your case is resolved.

What is meant by lack of consent?

If you engage in any type of sexual activity with another person, that other person must have consented. If not, then the sexual activity was not consensual and you may have committed sexual battery. N.Y. Pen. Law § 130.05. Lack of consent can be based on a number of things:

  • Force or forcible compulsion. If you compel the sex act by using physical force or a threat of physical force, death or kidnapping, there would not be consent to the sex act. The threat can be directed at the victim or at another person such as a friend or family member of the victim.
  • Mental disability. A person who suffers from a mental disability if that person is unable to appreciate the nature of a sex act suffers from a mental disability. Such a person would not have the capacity to consent to sexual activity.
  • Mental incapacity. If a person is incapacitated from drugs or alcohol, that person would not have the ability consent to sex. It is irrelevant that you did not cause the person to become mentally incapacitated.
  • Minor. With a few exceptions, minors lack the capacity to consent to sex. In New York, a minor is generally defined as a person who is less than 17 years old. If you are an adult and have sex with a minor, even if it appears as if the minor consented to sex, the law states that the minor was incapable of consenting to it.
  • Physically helpless. A person is mentally helpless if he or she is unconscious or for any reason is unable to communicate lack of consent.
What are the different types of sexual battery?

Forcible touching, sexual misconduct, sexual abuse in the third degree and sexual abuse in the second degree are all types of sexual battery that are classified as misdemeanors. You will be charged with forcible touching if you touch someone else's intimate parts in order to receive sexual gratification. N.Y. Pen. Law § 130.52. Sexual misconduct is having sexual intercourse, anal sex or oral sex with someone else 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 subjecting someone else to sexual contact without that person's consent. N.Y. Pen. Law § 130.55. Sexual abuse in the second degree is subjecting someone to sexual contact and that person is not capable of consenting for any reason other than being less than 17 years old, or that person is a minor who is less than 14 years old. N.Y. Pen. Law § 130.60

Rape is a term that is commonly used to describe sexual battery. However, it has a very specific meaning under the New York Penal code. 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, or if you are at least 21 years old and the other person is less than 17 years old. N.Y. Pen. Law § 130.25. Sexual intercourse refers to the penis penetrating the vagina, even if the penetration is very slight. N.Y. Pen. Law § 130.00. If convicted you could be sentenced to up to 4 years in prison. Rape in the second degree involves having sexual intercourse with someone who is mentally disabled or mental incapacitated. If you are at least 18 years old and you have sexual intercourse with a minor who is 15 years old or younger, you would also face a rape in the second degree charge. It 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 have sexual intercourse with another person using physical force, if you have sexual intercourse with someone who is physically helpless, if you have sexual intercourse with someone a minor who is age 11 or younger, or if you are at least 18 years old and have sexual intercourse with a minor who is less than 13 years old. The penalty for rape in the first degree is up to 25 years in prison. It is a Class B felony.

A criminal sexual act is different from rape in that criminal sexual act involves oral or anal sex while rape involves sexual intercourse. You will face a charge of criminal sexual act in the third degree if you have oral or anal sex with a minor who is under 17 years old and you are 21 years old or older, or the other person did not consent due to any other factor. It is a Class E felony. N.Y. Pen. Law § 130.40. The crime of criminal sexual act in the second degree involves having anal or oral sex with a minor who is less than 15 years old and you are at least 18 years old, or the other person is mentally disabled or mentally incapacitated. It is a Class D felony with a possible penalty of up to 7 years in prison. N.Y. Pen. Law § 130.45. You would have committed criminal sexual act in the first degree if you have oral or anal sex by force, with someone who is physically helpless, with a minor who is 11 years old, or if you are 18 years old or older and the other person is a minor who is less than 13 years old. N.Y. Pen. Law § 130.50. It is a Class B felony with a possible penalty of up to 25 years in prison.

Sexual abuse in the first degree is a sex crime involving using force to have sexual contact with someone, or having sexual contact with someone who is physically helpless, with someone who is a minor who is 11 years old, or if you are at least 21 years old, having sexual contact with someone who is a minor who is under 13 years old. It is a Class D felony. N.Y. Pen. Law § 130.65.

Another type of sexual battery involves inserting a finger or a foreign object into another person's vagina, urethra, penis, rectum or anus. If you insert a foreign object into someone without that person's consent, then you would have committed aggravated sexual abuse in the fourth degree, a Class E felony. If you insert your finger into someone and also cause injury, you will also face the charge of 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 you will face if you use force to insert a foreign object into another person, or if the person is physically helpless, mentally disabled, mentally incapacitated, or is a minor who is under 11 years old. 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 that person by force, or if the other person is physically helpless or is a minor who is less than 11 years old. N.Y. Pen. Law § 130.67. It is a Class C felony with a possible sentence of up to 15 years in prison. Aggravated sexual abuse in the first degree involves injuring someone by inserting a foreign object into that person, by force or if the other person is physically helpless or is a minor who is 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 battery against minors is particularly outrageous. Under the New York Penal Code those who commit such crimes are subject to harsh penalties. You will be charged with course of sexual conduct against a child if you commit sexually battery against child who is less than 11 years old at least twice within 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 at least 18 years old and the minor is under 13 years old. N.Y. Pen. Law § 130.80. Course of sexual conduct against a child in the first degree is a Class B felony. You will face this charge if the sex act 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 a type of sexual battery performed no for sexual gratification, but as a cultural ritual. It involves circumcising, excising, or infibulating any part of the labia or clitoris of a girl who is less than 18 years old. A defense is if such procedure is completed 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. Another type of sexual battery if giving someone drugs without that person's knowledge and then having sex with that person. This crime is called facilitating a sex offense with a controlled substance. It is a Class D felony. N.Y. Pen. Law § 130.90. If you commit another felony in order to commit sexual battery, you will have committed the crime of sexually motivated felony. N.Y. Pen. Law § 130.91

What happens during the arrest and arraignment process?

The criminal just system is scary and complicated. The first step is in the process is being arrested. You will be taken into custody at the local police precinct where initial processing will take place such as fingerprinting and photographing. You may have heard of something that is called a "Desk Appearance Ticket" or DAT. Some people who are arrest receive a DAT after being taken into custody. This allows them to go home instead of being transferred to Central Booking. However, because aggravated sexual assault in the second degree is a Class C felony, the arresting police officer will not issue a Desk Appearance Ticket. Instead, after you are processed in the local precinct you will be taken Central Booking. The location of the Central Booking facility where you will be taken depends on where you were arrested. In Nassau County, Central Booking is located at 99 Main Street in Hempstead. You will remain in Central Booking until you are called for your arraignment. While you are in 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 regarding where you live, whether you have a job, whether you support your family, and your level of education.

Several things may happen at 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. In some cases the prosecutor will add additional criminal charges such as facilitating a sexual offense with a controlled substance or course of sexual conduct against a child. In addition, you may also be charged with other offenses that are not sex crimes such as child endangerment or assault.

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 likely argue of 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. For example, if you are a resident of the area, have family in the area, have had a steady job for a while, and have a high school or college degree, the judge may view you as not be as much as a flight risk as someone who is not from the area and who does not have a steady job. Based on that assessment the judge may set bail, decide that no bail is necessary and release you, 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 your family is able to post bail at your arraignment, 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 bench warrant for your immediate arrest.

At some point you may strike 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 pled guilty to a crime and will have to face the consequences of that plea.

If I am convicted of sexual battery, what will my sentence be?

The sentence for a sexual battery conviction varies based on the classification of the sex crime. Misdemeanor convictions will result in a sentence of no more than a year in jail, while felony convictions will result in a sentence of up to life in prison. If you have one or more prior felony convictions, your sentence will be more severe than if you are a first time offender. A conviction for sexual battery will also mean that 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 offenders will have to register for life.

A sexual battery charge is extremely serious. Thus, if you are charged with any type of sexual battery, you should immediately contact an experienced attorney who is familiar with defending people charged with sexual battery. 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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