Sex Crime Lawyer

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Sex crimes carry a huge stigma. Being accused will make you feel isolated and alone.

If you've been charged with forcible touching, sexual abuse, or rape in New York City, you need an experienced sex crime lawyer to boldly defend you.

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What's a Sex Crime?

Sex crimes involve non-consensual sexual contact.

There are three basic defenses available to a person accused of a sex crime:

  1. No sexual contact occurred.
  2. The accuser consented to sexual contact.
  3. Someone other than the accused committed the crime.

DNA is sometimes an important type of evidence that may be used to prove whether or not the accused committed the crime and, sometimes, whether sexual contact occurred as described by the accuser.

Many sex crimes are "violent felony offenses" that carry lengthy prison terms. They're distinguished by punishments unique to sex crime convictions:

  • Sex offender registration; and
  • Civil commitment

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Sexual Contact

In many sex crime cases, sexual contact is hotly disputed.

"Sexual contact" is defined by New York law as:

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.

The portion of this legal definition regarding "the purpose of gratifying sexual desire of either party" applies only to certain sex crimes. 

However, every sex crime requires "touching of the sexual or other intimate parts of a person" of some kind.

Consent

Sharp disagreement often occurs about whether consent occurred in relation to specific incidents of sexual contact.

There has been much debate about what consent is, or what consent should be. Compelling ideas are raised in such discussions. However, when a person is accused of a sex crime, the only definitions of consent that matter are the ones contained in the Penal Law.

Interestingly, the Penal Law doesn't actually define "consent". It defines "lack of consent" – what consent isn't. 

To determine whether sexual contact was consensual, criminal courts evaluate evidence of the circumstances in which sexual contact occurred.

"Lack of consent" results from:

(a) "Forcible compulsion" (use of physical force; or 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); or

(b) Incapacity to consent (where one party is less than seventeen years old; mentally disabled; mentally incapacitated; physically helpless; or on the weaker end of a specific power imbalance, for example a prisoner in relation to a correction officer).

(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 (focused on the accuser's state of mind); or

(d) Where the offense charged is rape in the third degree as defined in subdivision three of section 130.25, or criminal sexual act in the third degree as defined in subdivision three of section 130.40, 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 (focused on the accused's state of mind).

What emerges from the definition of "lack consent" is that consensual sexual contact means an agreement between two people to have sexual contact, minus all situations where the law has determined that agreement doesn't matter.

For example, where a person is 16 years old, or "mentally disabled" ("suffer[ing] from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct"), or "mentally incapacitated" ("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 without his consent") agrees to have sexual contact with an adult, consent hasn't occurred.

Age of Consent in NY Is 17

The "age of consent" in New York is 17.

This means that a person under the age of 17 is incapable of consenting to sexual intercourse or any other form of sexual contact.

A person over the age of 17 is "strictly liable" for having sexual contact with a person under the age of 17.

So, for example, you'd be guilty of rape in the third degree (often called "statutory rape") if you were to have what might have seemed to be "consensual" sexual intercourse with a person under the age of 17, even if you were under the mistaken belief that the other person was 17 or older – and even if that person lied about her age.

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Sex Crime Definitions

Article 130 of the Penal Law defines most sex crimes outlawed in New York.

Definitions of the most commonly charged sex crimes are set out in full here. The full definition of each sex crime can be found by clicking the relevant link.

A person is guilty of "sexual misconduct" (punishable by a maximum of 1 year in jail) when:

1. He or she engages in sexual intercourse with another person without such person's consent; or

2. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent; or

3. He or she engages in sexual conduct with an animal or a dead human body.

A person is guilty of "rape in the third degree" (punishable by a maximum of 4 years in prison) when:

1. 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;

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

3. 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.

A person is guilty of "rape in the second degree" when:

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

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

It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.

A person is guilty of "rape in the first degree" (punishable by a maximum of 25 years in prison) when he or she engages in sexual intercourse with another person:

1. By forcible compulsion; or

2. Who is incapable of consent by reason of being physically helpless; or

3. Who is less than eleven years old; or

4. Who is less than thirteen years old and the actor is eighteen years old or more.

A person is guilty of "criminal sexual act in the third degree" (punishable by a maximum of 4 years in prison) when:

1. 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;

2. 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

3. 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.

A person is guilty of "criminal sexual act in the second degree" (punishable by a maximum of 7 years in prison) when:

1. 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

2. 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.

It shall be an affirmative defense to the crime of criminal sexual act in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.

A person is guilty of "criminal sexual act in the first degree" (punishable by a maximum of 25 years in prison) when he or she engages in oral sexual conduct or anal sexual conduct with another person:

1. By forcible compulsion; or

2. Who is incapable of consent by reason of being physically helpless; or

3. Who is less than eleven years old; or

4. Who is less than thirteen years old and the actor is eighteen years old or more.

A person is guilty of "forcible touching" (punishable by a maximum of 1 year in jail) when such person intentionally, and for no legitimate purpose:

1. 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 actor's sexual desire; or

2. subjects another person to sexual contact for the purpose of gratifying the actor's sexual desire and with intent to degrade or abuse such other person while such other person is a passenger on a bus, train, or subway car operated by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions.

For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.

"Persistent sexual abuse" (punishable by a maximum of 4 years in prison).

A person is guilty of "sexual abuse in the third degree" (punishable by a maximum of 90 days in jail) 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.

A person is guilty of "sexual abuse in the second degree" (punishable by a maximum of 1 year in jail) when he or she subjects another person to sexual contact and when such other person is:

1. Incapable of consent by reason of some factor other than being less than seventeen years old; or

2. Less than fourteen years old.

A person is guilty of "sexual abuse in the first degree" (punishable by a maximum of 7 years in prison) when he or she subjects another person to sexual contact:

1. By forcible compulsion; or

2. When the other person is incapable of consent by reason of being physically helpless; or

3. When the other person is less than eleven years old; or

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

"Aggravated sexual abuse in the fourth degree" (punishable by a maximum of 4 years in prison).

"Aggravated sexual abuse in the third degree" (punishable by a maximum of 7 years in prison).

"Aggravated sexual abuse in the second degree" (punishable by a maximum of 15 years in prison).

"Aggravated sexual abuse in the first degree" (punishable by a maximum of 25 years in prison).

A person is guilty of "course of sexual conduct against a child in the first degree" (punishable by a maximum of 25 years in prison) 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 is guilty of course of "sexual conduct against a child in the second degree" (punishable by a maximum of 7 years in prison) 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.

"Female genital mutilation" (punishable by a maximum of 4 years in prison).

"Facilitating a sex offense with a controlled substance" (punishable by a maximum of 7 years in prison).

"Sexually motivated felony".

"Predatory sexual assault" (punishable by a maximum of life in prison).

"Predatory sexual assault against a child" (punishable by a maximum of life in prison).

Accused of a Sex Crime? Your Freedom's at Stake

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False Accusations

Not all sex-crime allegations are true. Many are false.

I’ve defended many clients against false claims, such as:

  • A cab driver falsely accused by a mentally ill passenger.
  • A hospital worker falsely accused by a patient who craved attention.
  • A father whose child was angry at being disciplined.
  • A stepfather whose stepdaughter who wanted him out of the house.

Many sex crime charges involve no physical evidence, depending solely on the word of the alleged victim.

Proving an accuser's motive to make false allegations is often crucial to gaining an acquittal at trial, or even dismissal in some cases.

Registration of Sex Offenders

New York's "Sex Offender Registration Act" ("SORA"), requires offenders convicted of certain sex crimes to register as sex offenders upon being released from jail or prison.

Registration is required even in connection with certain misdemeanor convictions.

Following conviction, a judge must determine the risk of re-offending posed by a person person convicted of a designated sex offense. The judge classifies that person as a "Level 1" (low risk of re-offense), "Level 2" (medium risk), or "Level 3" (high risk) sex offender.

Level 1 offenders must register for a minimum of 20 years. Level 2 and 3 offenders must register for life.

By law, New York maintains a public, online directory listing, by county and zip code, the following information regarding each Level 2 and Level 3 offender:

  • Name
  • Photograph
  • Exact address
  • Address of place of employment
  • Physical description
  • Age
  • Distinctive markings
  • Crimes of conviction that require registration
  • Mode of operation
  • Type of victim targeted
  • Name and address of any institution of higher education at which the offender is enrolled, attends, is employed or resides
  • A description of special conditions imposed.

Failure of an offender "to register" or "verify" pursuant to SORA is a crime punishable by a maximum of 4 year in prison for the first offense, and by 7 years for each subsequent offense.

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Civil Commitment

Some convicted sex offenders are involuntarily committed to a "secure treatment facility" upon release from prison where a judge determines, following a civil trial, that the offender is a "dangerous sex offender requiring confinement":

a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.

A "secure treatment facility" is:

a facility located on the grounds of a correctional facility, that is staffed with personnel from the office of mental health or the office for people with developmental disabilities for the purposes of providing care and treatment to persons confined under [Article 10 of the Mental Hygiene Law, etc.] .... Personnel from these same agencies may provide security services, provided that such staff are adequately trained in security methods and so equipped as to minimize the risk or danger of escape.

While committed to a secure treatment facility, a person may be released under the constant supervision of one or more escorts only for the following purposes:

  • To receive medical or dental care or treatment not available at the facility.
  • To visit a family member who is seriously ill.
  • To attend the funeral of a family member.

A person committed to a secure treatment facility may petition for discharge each year. The person shall be released from the facility only if, at the conclusion of an evidentiary hearing, the court does not find by clear and convincing evidence that the respondent is currently a dangerous sex offender requiring confinement.

Before pleading guilty to any sex crime, you must assess the likelihood that you will be committed to a secure treatment facility upon completion of your jail or prison sentence.

Even upon completing a relatively modest prison sentence, classification as a "dangerous sex offender requiring confinement" could result in what ends up being a life sentence.

Free Consultation

For a free consultation about your case, call New York City sex crime lawyer Bruce Yerman at 212-390-0036, or complete this short form:

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