Manhattan Domestic Violence and Sexual Assault

N.Y. Pen. Law §§ 130.00-130.91

While you might believe that a sexual assault cannot occur between a married couple, it can. Almost any crime in the New York sex crimes statute can occur between a husband and wife or between a boyfriend and girlfriend. When rape, sexual misconduct, criminal sexual act, or any other sex crime involves people who have an intimate or domestic relationship, the crime is also classified as a type of domestic violence. While domestic violence, also referred to as intimate partner violence or family violence, also can involve other types of crimes such as stalking, assault, and harassment, domestic violence frequently involves sexual assault. Because of the seriousness of sexual assault most sex crimes are classified as felonies punishable by years and years in prison, the payment of significant fines, and registration as a sex offender. Because of the consequences of being convicted of a sex crime, as soon as you have been accused of domestic violence that involves any type of sexual assault it is critical that you contact an experienced Manhattan Domestic Violence and Sexual Assault Lawyer who understands the complicated natures of intimate relationships and who will aggressively defend you against the charges.

An essential element of any sexual assault is the lack of consent. N.Y. Pen. Law § 130.05. Lack of consent means that your wife, for example, did not give you permission to have sex with her. This could mean that you used physical force to commit the sex act. It also could mean that the other person did not have the capacity to consent. For example, a person who suffers from a mental disability, suffers from a mental incapacity, or is physically helpless would not have the legal capacity to consent to sex. In addition, if the person you have sex with is a minor, you may have committed sexual assault because that person would not have the legal capacity to consent to a sexual act. This type of sexual assault is also referred to as statutory rape.

Most sexual assault crimes have several degrees of seriousness. The more serious the crime, the more severe the punishment.

Types of Sexual Assault

Forcible touching, sexual misconduct and sexual abuse. 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 another person's intimate parts without that person's consent 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. 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 involves subjecting a minor to sexual contact. For purposes of the sexual abuse in the third degree offense, a minor is someone who is less than 14 years old. N.Y. Pen. Law § 130.60. Because these offenses are misdemeanors, the maximum jail sentence that you will receive is 1 year. However, part of your sentence may include a probation term of 6 years.

Rape. Rape is the charge that you will face if you have sexual intercourse without the consent of the other person. It does not matter if the other person is your spouse, girlfriend, or roommate. If that person did not consent, you could face a rape charge. 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 without that person's consent. 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. 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. The penalty for rape in the first degree is up to 25 years in prison. It is a Class B felony.

Criminal sexual act. Criminal sexual act is similar to rape, but instead of sexual intercourse it 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 and the other person did not consent. 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 the other person was 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.

Sexual abuse. Sexual abuse in the first degree is Class D felony. If you forcibly have sexual contact with another person or have sexual contact with a physically helpless person you would have committed sexual abuse in the first degree. N.Y. Pen. Law § 130.65.

Aggravated sexual abuse. 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 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. 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. It is Class B felony. N.Y. Pen. Law § 130.70. The maximum sentence is 25 years in prison.

Facilitating a sex offense with a controlled substance. 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

Order of Protection

If you are charged with sexually assaulting someone with whom you have a domestic relationship, the prosecutor is likely to request that the judge issue an Order of Protection in favor of the victim. It is also possible that the person accusing you of sexual assault will go to Family Court and petition that the Family Court judge issue an Order of Protection.

The Order of Protection may be a full order or a limited order. If the Order of Protection is a full Order, it will require you to stay away from the victim. This means that you are not permitted to go to the person's home or job, that you are not permitted to communicate with that person in any way including via mail, email, text, phone, or fax, that you are not permitted to communicate with that person through a third party, and that you are not permitted to send that person gifts.

If there is a limited Order of Protection then you are prohibited from doing specified acts such as harassing, intimidating, or threatening the victim. While a Criminal Court Order of Protection that is issued at the beginning of a criminal case is generally temporary, depending on the outcome of the case, a temporary Order of Protection may become final-- meaning that it will remain in effect for up to 8 years. It the court concludes that there is no basis for the Order of Protection, it will be dismissed. If you believe that there is no basis for the order, you can fight it.

However, if you violate an Order of Protection even if you feel that it is unnecessary there will be serious consequences. For example, with a Criminal Court Order, if you are out on bail and you violate the Order of Protection, your bail may be revoked and you may be sent to jail. If you are on probation, violating an Order of Protection will be a violation of the terms of your probation. You will likely be sent to prison.

Arrest and Arraignment

The first step in the long and confusing New York criminal process is that the arresting officer will take you to the local police precinct where your personal information will be taken and you will be fingerprinted. Then you will be taken to Central Booking where you will remain until your arraignment.

Within approximately 24 hours of your arrest you will be arraigned. At your arraignment you will learn the exact charges against you as well as whether or not bail will be required. While waiting to be arraigned, you will be interviewed by a representative from the Criminal Justice Agency (CJA). The judge uses the report from the CJA to help decide what to do about bail. The judge can set a dollar amount for bail. The judge can choose to remand you, meaning that you will have to remain in jail while you await trial. Or the judge can release you on your own recognizance, meaning that you will not be required to post bail.

At some point your case may be resolved through plea-bargaining. You and the prosecutor may arrive at a mutually satisfactory compromise that would require you to plead guilty to a lesser crime that would result in a lighter than if you were found guilty of the original assault charge after a trial.

Sentence for Sex Crime 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 have one or more prior felony convictions your sentence will be more severe than if you are a first time offender.

You will likely be sentenced to prison. For the most serious sex crimes you could spend more than a decade behind bars. You will also be required to pay a significant fine, fees, and restitution to your victim.

In addition, if you are convicted of sexual assault 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. If you are deemed to present a high risk of re-offending, you will have to register as a sex offender for life.

Furthermore, there will be other long-term consequences to being convicted of a sex crime.

  • Criminal record
  • Difficulty finding a job as most employers perform criminal background checks
  • Barred from certain careers and professional licensing such as teaching, practicing law, and operating a child day care business
  • Barred from owning a gun
  • Barred from serving on a jury
  • Ineligible for certain government benefits such as welfare or federally funded housing
  • Deportation, if you are not U.S. citizen- even if you are in the U.S. legally

Because of the seriousness and complexity of a sexual assault charge, it is imperative that you are represented by someone with experience handling not only sexual assault cases, but also domestic violence cases. 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, assault, stalking, statutory rape, as well as other offenses related to domestic violence. We understand how to interpret evidence and apply the law in order to ensure that your case has the best possible outcome give the circumstances. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of domestic violence and sexual assault in the following locations:

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