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Sexual Assault and Sex Crime Charges in NY

thumbprintSexual assault, rape and sex crimes are extremely serious offenses.

You can expect a conviction to alter every aspect of life permanently. Due to the seriousness of sex-related charges, you will want to hire the best criminal defense attorney you can afford, to represent you from the very start.

Our attorneys are very experienced with defending clients on charges that are both serious and sensitive in nature. We work tirelessly because we understand the severity of the case and its potential long-term impact on our client.

Felony Charge Comparison Chart

NY State Felony Charge and Conviction reference chart

Sexual Assault Charges in NY State
NY Penal Code

  • Aggravated sexual abuse in the first degree. Class B FELONY 130.70
  • Aggravated sexual abuse in the second degree. Class C FELONY 130.67
  • Aggravated sexual abuse in the third degree. Class D FELONY 130.66
  • Aggravated sexual abuse in the fourth degree. Class E FELONY 130.65-a
  • Course of sexual conduct against a child in the first degree. Class B FELONY 130.75
  • Course of sexual conduct against a child in the second degree. Class D FELONY 130.80
  • Criminal Sexual Act in the first degree. Class B FELONY 130.50
  • Criminal Sexual Act in the second degree. Class D FELONY 130.45
  • Criminal Sexual Act in the third degree. Class E FELONY 130.40
  • Facilitating a sex offense with a controlled substance. Class D FELONY 130.90
  • Female genital mutilation. Class E FELONY 130.85
  • Forcible touching. Class A MISDEMEANOR 130.52
  • Persistent sexual abuse. Class E FELONY 130.53
  • Predatory sexual assault against a child. Class A-II FELONY 130.96
  • Predatory sexual assault. Class A-II FELONY 130.95
  • Rape in the first degree. Class B FELONY 130.35
  • Rape in the second degree. Class D FELONY 130.30
  • Rape in the third degree. Class E FELONY 130.25
  • Sexual abuse in the first degree. Class D FELONY 130.6
  • Sexual abuse in the second degree. Class A MISDEMEANOR 130.60
  • Sexual abuse in the third degree. Class B MISDEMEANOR 130.55
  • Sexual misconduct. Class A MISDEMEANOR 130.20
  • Sexually motivated felony 130.91

Definition of Sexual Assault Charges

Aggravated Sexual Abuse in the First Degree

In New York State, a person is guilty of aggravated sexual abuse in the first degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person:

(a) By forcible compulsion; or

(b) When the other person is incapable of consent by reason of being physically helpless; or

(c) When the other person is less than eleven years old.

Conduct performed for a valid medical purpose does not violate the provisions of this area of the law.

Aggravated Sexual Abuse in the Second Degree

A person is guilty of aggravated sexual abuse in the second degree when he or she inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person:

(a) By forcible compulsion; or

(b) When the other person is incapable of consent by reason of being physically helpless; or

(c) When the other person is less than eleven years old.

Conduct performed for a valid medical purpose does not violate the provisions of this area of the law.

Aggravated Sexual Abuse in the Third Degree

In New York State, a person is guilty of aggravated sexual abuse in the third degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person:

(a) By forcible compulsion; or

(b) When the other person is incapable of consent by reason of being physically helpless; or

(c) When the other person is less than eleven years old.

In New York State, a person is guilty of aggravated sexual abuse in the third degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person and such person is incapable of consent by reason of being mentally disabled or mentally incapacitated.

Conduct performed for a valid medical purpose does not violate the provisions of this area of the law.

Aggravated Sexual Abuse in the Fourth Degree

In New York State, a person is guilty of aggravated sexual abuse in the fourth degree when:

(a) He or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person and the other person is incapable of consent by reason of some factor other than being less than seventeen years old; or

(b) He or she inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person and such person is incapable of consent by reason of some factor other than being less than seventeen years old.

Conduct performed for a valid medical purpose does not violate the provisions of this area of the law.

Course of Sexual Conduct Against a Child in the First Degree

In New York State, a person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration:

(a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than eleven years old; or

(b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than thirteen years old.

A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this area of NY Penal Code.

Course of Sexual Conduct Against a Child in the Second Degree

In New York State, a person is guilty of course of sexual conduct against a child in the second degree when, over a period of time not less than three months in duration:

(a) he or she engages in two or more acts of sexual conduct with a child less than eleven years old; or

(b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct with a child less than thirteen years old.

A defendant may not be prosecuted for any other sexual offense involving the same victim at a later date unless the charged offense occurred outside the time period charged under this area of the NY Penal Code.

Course of Sexual Conduct Against a Child in the Second Degree

A person is guilty of criminal sexual act in the second degree when:

(a) Being eighteen years old or more, he or she engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old; or

(b) He or she engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

An affirmative defense applies to crimes of criminal sexual acts in the second degree as defined in subdivision one of the NY Penal Code, when the defendant was less than four years older than the victim at the time of the act.

Criminal Sexual Act in the First Degree

In New York State, a person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person:

(a) By forcible compulsion; or

(b) Who is incapable of consent by reason of being physically helpless; or

(c) Who is less than eleven years old; or

(d) Who is less than thirteen years old and the actor is eighteen years old or more.

When charged with multiple sexual assault charges, accompanied by other misdemeanor or felony charges, experienced legal representation is valuable.

Criminal Sexual Act in the Second Degree

In New York State, a person is guilty of criminal sexual act in the second degree when:

(a) being eighteen years old or more, he or she engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old; or

(b) he or she engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

An affirmative defense to the crime of criminal sexual act in the second degree applies as defined in subdivision one of the NY Penal Code, when the defendant was less than four years older than the victim at the time of the act.

Criminal Sexual Act in the Third Degree 

In New York State, a person is guilty of criminal sexual act in the third degree when:

(a) He or she engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old;

(b) Being twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old; or

(c) He or she engages in oral sexual conduct or anal sexual conduct with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.

Facilitating a Sexual Offense Using a Controlled Substance

In New York State, a person is guilty of facilitating a sex offense with a controlled substance when he or she:

(a) knowingly and unlawfully possesses a controlled substance or and preparation, compound, mixture or substance that requires a prescription to obtain and administers such substance or preparation, compound, mixture or substance that requires a prescription to obtain to another person without such person’s consent and with intent to commit against such person conduct constituting a felony defined in this article; and

(b) commits or attempts to commit such conduct constituting a felony defined in the NY State Penal Code.

Female Genital Mutilation

In New York State, a person is guilty of female genital mutilation when:

(a) a person knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not reached eighteen years of age; or

(b) being a parent, guardian or other person legally responsible and charged with the care or custody of a child less than eighteen years old, he or she knowingly consents to the circumcision, excision or infibulation of whole or part of such child`s labia majora or labia minora or clitoris.

Such circumcision, excision, or infibulation is not a violation of New York Penal Law if such act is:

(a) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or

(b) performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.

For the purposes of this section of NY Penal Law, no account shall be taken of the effect on the person on whom such procedure is to be performed of any belief on the part of that or any other person that such procedure is required as a matter of custom or ritual.

Forcible Touching

In New York State, a person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the person taking the action’s sexual desire.

In NY Penal Law forcible touching includes squeezing, grabbing or pinching.

Persistent Sexual Abuse

In New York State, a person is guilty of persistent sexual abuse when he or she commits the crime of forcible touching, sexual abuse in the third degree, sexual abuse in the second degree, and, within the previous ten years has been convicted two or more times, in separate criminal charges for which sentence was imposed on separate occasions, of forcible touching, sexual abuse in the third degree, sexual abuse in the second degree, or any offense defined in this article of NY Law, of which the commission or attempted commission thereof is a felony.

Predatory Sexual Assault

In New York State, a person is guilty of predatory sexual assault when he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and when:

1. In the course of the commission of the crime or the immediate flight therefrom, he or she:

(a) Causes serious physical injury to the victim of such crime; or

(b) Uses or threatens the immediate use of a dangerous instrument; or

2. He or she has engaged in conduct constituting the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, against one or more additional persons; or

3. He or she has previously been subjected to a conviction for a felony defined in this article, incest as defined in Penal Code 255.25. or use of a child in a sexual performance as defined in section 263.05.

Predatory Sexual Assault Against a Child

In New York State, a person is guilty of predatory sexual assault against a child when, being eighteen years old or more, he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in New York Penal Code, and the victim is less than thirteen years old.

Rape in the First Degree

In New York State, a person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person:

(a) By forcible compulsion; or

(b) Who is incapable of consent by reason of being physically helpless; or

(c) Who is less than eleven years old; or

(d) Who is less than thirteen years old and the actor is eighteen years old or more.

Rape in the Second Degree

In New York State, a person is guilty of rape in the second degree when:

(a) being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or

(b) he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

An affirmative defense to the crime of rape in the second degree as defined in this section of New York Penal Code applies when the defendant was less than four years older than the victim at the time of the act.

Rape in the Third Degree

In New York State, a person is guilty of rape in the third degree when:

(a) He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old;

(b) Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or

(c) He or she engages in sexual intercourse with another person without such person`s consent where such lack of consent is by reason of some factor other than incapacity to consent.

Sentencing for Sexual Assault Crimes in New York State

1. In New York State, when a person is convicted of a sexually motivated felony, and the specified felony is a violent felony offense, the sexually motivated felony shall be deemed a violent felony offense, the sexually motivated felony shall be deemed a violent felony offense.

2. When a person is convicted of a sexually motivated offense, the sexually motivated felony shall be deemed to be the same offense level as the specified offense the defendant committed.

3. A person convicted of a sexually motivated felony, must be sentenced in accordance with provisions provided under New York Penal Law.

Sexual Offenses: Corroboration

In New York State, a person shall not be convicted of any offense defined in this article of which lack of consent is an element but results solely from incapacity to consent because of the victim’s mental defect, or mental incapacity, or an attempt to commit the same, solely on the testimony of the victim, unsupported by other evidence tending to:

(a) Establish that an attempt was made to engage the victim in sexual intercourse, oral sexual conduct, anal sexual conduct, or sexual contact, as the case may be, at the time of the occurrence; and

(b) Connect the defendant with the commission of the offense or attempted offense.

Sexual Offenses: Definitions

In New York State, the following definitions are applicable to this article of NY Penal Law:

1. “Sexual intercourse” has its ordinary meaning and occurs upon any penetration, however slight.

2. (a) “Oral sexual conduct” means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.

(b) “Anal sexual conduct” means conduct between persons consisting of contact between the penis and anus.

3. “Sexual contact” means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.

4. For the purposes of this article “married” means the existence of the relationship between the actor and the victim as spouses which is recognized by law at the time the actor commits an offense proscribed by this article against the victim.

5. “Mentally disabled” represents a person who suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct.

6. “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him or her without his or her consent.

7. “Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

8. “Forcible compulsion” means to compel by either:

(a) use of physical force; or

(b) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.

9. “Foreign object” means any instrument or article which, when inserted in the vagina, urethra, penis, rectum or anus, is capable of causing physical injury.

10. “Sexual conduct” means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact.

11. “Aggravated sexual contact” means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis, rectum or anus of a child, thereby causing physical injury to such child.

12. “Health care provider” means any person who is, or is required to be, licensed or registered or holds himself or herself out to be licensed or registered, or provides services as if he or she were licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry under any of the following: article 131, 132, one 133, or 141 of New York State education law.

13. “Mental health care provider” shall mean a licensed physician, psychologist, registered professional nurse (RPN), licensed clinical social worker, or licensed master social worker, under the supervision of a licensed physician, psychologist or clinical social worker.

Sex Offenses: Lack of Consent

In New York State, every offense defined in NY Penal Code that the sexual act was committed without consent of the victim, regardless of whether it is specifically stated, or not.

1. Lack of consent results from:

(a) Forcible compulsion; or

(b) Incapacity to consent; or

(c) Where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct; or

(d) Where the offense charged is rape in the third degree, or criminal sexual act in the third degree, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.

2. A person is deemed incapable of consent when he or she is:

(a) less than seventeen years old; or

(b) mentally disabled; or

(c) mentally incapacitated; or

(d) physically helpless; or

(e) committed to the care and custody or supervision of New York State department of corrections and community supervision or a hospital, as such term is defined in correction law, and the actor is an employee who knows or reasonably should know that such person is committed to the care and custody or supervision of such department or hospital.

For these purposes, “employee” represents an employee of the New York State department of corrections and community supervision who, as part of his or her employment, performs duties:

(a) in a state correctional facility in which the victim is confined at the time of the offense consisting of providing custody, medical or mental health services, counseling services, educational programs, vocational training, institutional parole services or direct supervision to inmates; or

(b) of supervising persons released on community supervision and supervises the victim at the time of the offense or has supervised the victim and the victim is still under community supervision at the time of the offense; or

(c) an employee of the office of mental health who, as part of his or her employment, performs duties in a state correctional facility or hospital, as such term is defined in correction law in which the inmate is confined at the time of the offense, consisting of providing custody, medical or mental health services, or direct supervision to such inmates; or

(d) a person, including a volunteer, providing direct services to inmates in a state correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the state department of corrections and community supervision or, in the case of a volunteer, a written agreement with such department, provided that the person received written notice concerning the provisions of this paragraph; or

(e) committed to the care and custody of a local correctional facility, as defined in correction law, and the actor is an employee (as described below), not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility.

“Employee” means an employee of the local correctional facility where the person is committed who performs professional duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for inmates.

“Employee” shall also mean a person, including a volunteer or a government employee of New York State department of corrections and community supervision or a local health, education or probation agency, providing direct services to inmates in the local correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the local correctional department or, in the case of such a volunteer or government employee, a written agreement with such department, provided that person received written notice concerning the provisions of this paragraph; or

(f) committed to or placed with the office of children and family services and in residential care, and the actor is an employee (as described below), not married to such person, who knows or reasonably should know that such person is committed to or placed with such office of children and family services and in residential care.

“Employee” means an employee of the office of children and family services or of a residential facility in which such person is committed to or placed at the time of the offense who, as part of his or her employment, performs duties consisting of providing custody, medical or mental health services, counseling services, educational services, vocational training, or direct supervision to persons committed to or placed in a residential facility operated by the office of children and family services; or

(g) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree, criminal sexual act in the third degree, aggravated sexual abuse in the fourth degree, or sexual abuse in the third degree, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination; or

(h) a resident or inpatient of a residential facility operated, licensed or certified by (i) the office of mental health; (ii) the office for people with developmental disabilities; or (iii) the office of alcoholism and substance abuse services, and the actor is an employee (as described below) of the facility not married to such resident or inpatient.

“Employee” means either: an employee of the agency operating the residential facility, who knows or reasonably should know that such person is a resident or inpatient of such facility and who provides direct care services, case management services, medical or other clinical services, rehabilitative services or direct supervision of the residents in the facility in which the resident resides; or an officer or other employee, consultant, contractor or volunteer of the residential facility, who knows or reasonably should know that the person is a resident of such facility and who is in direct contact with residents or inpatients; provided, however, that the provisions of this paragraph shall only apply to a consultant, contractor or volunteer providing services pursuant to a contractual arrangement with the agency operating the residential facility or, in the case of a volunteer, a written agreement with such facility, provided that the person received written notice concerning these provisions.

“Employee” shall not include a person with a developmental disability who is or was receiving services and is also an employee of a service provider and who has sexual contact with another service recipient who is a consenting adult who has consented to such contact.

Sexual Offenses – Limitation – Defenses

In New York State, any prosecution under this article in which the victim’s lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent.

Conduct performed for a valid medical or mental health care purpose shall not constitute a violation of any section of this article in which incapacity to consent is based on the circumstances set forth in Sexual Offenses; Lack of Consent (above).

1. In New York State, any prosecution for the crime of rape in the third degree, criminal sexual act in the third degree, aggravated sexual abuse in the fourth degree, or sexual abuse in the third in which incapacity to consent is based on the circumstances set forth in Sexual Offenses; Lack of Consent, it shall be an affirmative defense that the client or patient consented to such conduct charged after having been expressly advised by the health care or mental health care provider that such conduct was not performed for a valid medical purpose.

2. Any prosecution under this article in which the victim’s lack of consent is based solely on his or her incapacity to consent because he or she was less than seventeen years old, mentally disabled, a client or patient and the actor is a health care provider, or committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital and the actor is an employee, it shall be a defense that the defendant was married to the victim as defined in Sexual Offenses: Definition of Terms (above).

Sexual Abuse in the First Degree

In New York State, a person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact:

(a) By forcible compulsion; or

(b) When the other person is incapable of consent by reason of being physically helpless; or

(c) When the other person is less than eleven years old; or

(d) When the other person is less than thirteen years old and the actor is twenty-one years old or older.

Sexual Abuse in the Second Degree

In New York State, a person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is:

(a) Incapable of consent by reason of some factor other than being less than seventeen years old; or

(b) Less than fourteen years old.

Sexual Abuse in the Third Degree

In New York State, a person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter`s consent; except that in any prosecution under this section, it is an affirmative defense that;

(a) such other person`s lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and

(b) such other person was more than fourteen years old, and

(c) the defendant was less than five years older than such other person.

Sexual Misconduct

In New York State, a person is guilty of sexual misconduct when:

(a) He or she engages in sexual intercourse with another person without such person’s consent; or

(b) He or she engages in oral sexual conduct or anal sexual conduct with another person without such person’s consent; or

(c) He or she engages in sexual conduct with an animal or a dead human body.

Sexually Motivated Felony 

1. A person commits a sexually motivated felony when he or she commits a specified offense for the purpose, in whole or substantial part, of his or her own direct sexual gratification.

2. A “specified offense” is a felony offense defined by any of the following provisions of New York State Penal Code: assault in the second degree, assault in the first degree, gang assault in the second degree, gang assault in the first degree, stalking in the first degree, strangulation in the second degree, strangulation in the first degree, manslaughter in the second degree, manslaughter in the first degree, murder in the second degree, aggravated murder, murder in the first degree, kidnapping in the second degree, kidnapping in the first degree, burglary in the third degree, burglary in the second degree, burglary in the first degree, arson in the second degree, arson in the first degree, robbery in the third degree, robbery in the second degree, robbery in the first degree, promoting prostitution in the second degree, promoting prostitution in the first degree, compelling prostitution, disseminating indecent material to minors in the first degree, use of a child in a sexual performance, promoting an obscene sexual performance by a child, promoting a sexual performance by a child, or any felony attempt or conspiracy to commit any of the above offenses.

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