Nassau County Sex Crimes Defenses

The consequences of being convicted a sex crime is serious. Even if the crime is a misdemeanor if you are convicted you may be incarcerated for at least a few months. If you are convicted of a felony sex crime, you could end up in prison for years or even decades. Furthermore, in addition to incarceration, there are several other consequences to being convicted of a sex crime. For example, you will end up with a permanent criminal record that will make many aspects of your life difficult such as finding a job. You will also have to register as a sex offender. Plus you may be ordered to pay fees, fines and restitution. However, just because you are accused of a sex crime does not mean that you will be convicted as there are several defenses to sex crimes that may make it difficult for the prosecutor to successfully prosecute you. Because the mere accusation that you committed a sex crime can have a detrimental effect on both your personal relationships as we as your professional life, as soon as you know that you are being investigated for a sex crime you should contact an experienced Nassau County Sex Crimes Defenses Lawyer who understands the elements of each sex crime and will be able to mount an aggressive defense to the charges against you.

Lack of Consent

The key element to every sex crime is that the victim did not consent to the sex act. Lack of consent can be based on the victim saying no or physically rebuffing your advances. However, there are also attributes of the victim that would make that victim legally incapable of consenting to a sex act. These attributes related to the age of the victim, the victim's mental disability or incapacity, and whether the victim is physically helplessness.

If you can show that the victim did indeed give consent, then the prosecutor would have a difficult time convicting you, or even going forward with the prosecution. For such a defense to be effective you would have show, for example, that the victim did not suffer from a mental disability or mental incapacity, or was not physically helpless at the time of the incident.

Lack of Intent

In general, in order to be criminally liable, you must have had the intent to complete the prohibited act. Under some circumstances if you can show that you did not intend to commit the sex act, the court may conclude that you should not be found guilty of that crime. For instance, you are riding in a crowded subway train and accidently touch the buttocks of another passenger. That passenger may conclude that you did so purposefully, resulting in your arrest for forcible touching. If you can show that the touching was purely accidental, then the prosecutor may decline to prosecute you.

In addition, if you commit a sex crime while you are extremely intoxicated, a court may conclude that you did not have the ability to form the intent necessary for a sex crime charge. For example, in People v. Velcher, 2014 NY Slip Op 02464 (2014), the defendant was convicted of criminal sexual act in the first degree. On the appeal the court acknowledged that because the defendant was intoxicated at the time of the incident, he may not have been able to form the requisite intent.

Licensed Medical Professional

There are certain acts would be considered sex acts, but when performed by a medical professional for a valid medical reason are not sex acts at all. Thus, if you face a charge of aggravated sexual abuse in the fourth degree, third degree, second degree, and first degree, or female genital mutilation, but you are medical professional performing a legitimate medical examination or procedure, then you a defense to the sex crime charge.

Mistaken Identity

It is not uncommon for victims and other witnesses to misidentify a perpetrator. For example, if the incident occurred in a dark or poorly lit environment, then a misidentification is possible. Similarly, if the assault was brief and the area was crowded, then a misidentification is possible. An identification problem could also occur if the victim was assaulted from behind.

Marriage

While marriage is not a defense to all sex crimes, it is a defense in some. For instance, if you are charged with statutory rape, but are married to the other person, then you have a valid defense. However, this defense would only be valid if the marriage itself is valid in the State of New York. In People v. Ezeonu, 155 Misc.2d 344 (1992) the defendant was charged with rape based on having sex with a 13 year old girl. The defendant's defense was that he was married to the girl. The court rejected this defense because the defendant was also married to another woman, and polygamous marriages are not recognized in New York.

Lack of Injury

For some sex offenses a necessary element of the crime is that the victim must have been injured. If there was no injury, then you did not commit that particular offense. For example, to face a charge of aggravated sexual abuse in the fourth degree, not only must you have inserted your finger into the vagina, urethra, penis, rectum or anus of another person without that person's consent, the victim also must have been physically injured.

Lack of Corroboration

If you are charged with a sex crime based on sexual conduct with a person who at the time of the incident was either mentally disabled or mentally incapacitated there must be corroboration by a third party or by other evidence that connects you with the incident. N.Y. Pen. Law § 130.16. In other words, a prosecutor cannot go through with a case based solely on the word of someone who was mentally disabled or mentally incapacitated at the time of the incident.

Statute of Limitations

The statute of limitations is the time period within which a prosecutor must bring a case against a defendant. If the prosecutor brings charges against you after the statute of limitations period has passed, then the case will be dismissed. If the offense is a misdemeanor such as forcible touching, sexual misconduct, sexual abuse in the second degree or sexual abuse in the third degree, the limitations period is just two years. N.Y. Crim. Pro. Law § 30.10. If like the majority of sex offenses the offense is a felony, then the limitations period is 5 years. There is an exception to this general rule. If the victim was less than 18 years old at the time of the incident, the limitations period does not begin to run until the incident is reported to law enforcement or until the victim turns 18.

Consequences of Conviction

It is important to explore all possible defenses to a sex crime charge, as the consequences of a conviction can be quite serious.

Incarceration. If you are convicted of a misdemeanor sex offense you will be sentenced to up to 1 year in jail it the offense is a Class A misdemeanor or up to 3 months in jail for a Class B misdemeanor. Only 4 sex offenses are misdemeanors. All others are felonies. If you are convicted of a felony there is a strong possibility that you will be sentenced to some time in state prison. For the most serious sex crimes, if you are convicted you could be handed a life sentence.

Probation. If you are convicted of a sex crime, probation will likely be part of your sentence. Even if you are convicted of a misdemeanor sex crime and are not sentenced to jail, there is a very good change that the judge will at least sentence you to probation. While you are on probation you will be monitored and your actions will be restricted in order to ensure that you do not commit another crime. The rules associated with your probation will include:

  • you must not commit a crime
  • you must have a job
  • you must support your family
  • you must refrain from drinking excessive alcohol
  • you must refrain from using controlled substances
  • you must refrain from associating with other felons
  • you must refrain from patronizing disreputable places
  • you must report to your probation officer on a regular basis
  • you cannot leave the jurisdiction without permission.

If you fail to follow the conditions of your probation you will have to appear in court before the judge who originally sentenced you. The Probation Department will urge the judge to revoke your probation and send you to jail. If the judge finds that you did violate the terms of your probation, the judge may send you to jail, or may add new probation terms.

Fines, Fees and Restitution. There are several financial consequences to committing a sex crime. The judge may order you to pay a fine of up to $500 for a Class B misdemeanor, up to $1,000 for a Class A misdemeanor conviction or up to $5,000 for a felony conviction.

You will also be required to pay certain fees including a "mandatory surcharge" of $300 for felonies and $175 for misdemeanors as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay fees related to probation and post-release supervision of $30 per month as well as fees associated with sex offender registration.

Another financial consequence is that you may be ordered to pay restitution to the victim. Generally, the maximum amount of restitution is $15,000 for felonies and $10,000 for misdemeanors. However, the restitution may be considerably more as medical expenses for knife wounds can be significant and the court may require you to pay those expenses.

If you do not pay a fine, fee or restitution, you may be charged with an additional crime. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Sex offender registration. If you are convicted of almost any sex crime you will be required to register as a sex offender under the New York Sex Offender Registration Act. You will have to register for at least 20 years, or for the rest of your life. N.Y. Cor. Law § 168. As a registered sex offender several restrictions will be placed on you. You will have to regularly verify personal information with law enforcement and allow law enforcement to maintain updated photographs of you. If you do not follow these rules, you can be arrested and charged with a Class D felony that could result in incarceration. If you move to a different state, you will be required to follow the sex offender registration rules of that jurisdiction.

The immediate emotions following being arrested for a sex crime are fear and confusion. While the consequences of being convicted of a sex crime are devastating it is important to keep in mind that there may be defenses to a sex crime charge that may lead to the charges being dismissed, reduced, or you being acquitted at trial. In order to fight these charges it is important to have experienced representation. 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, such as rape, sexual misconduct, criminal sexual act, forcible touching, sexual abuse, sexual conduct against child, and facilitating a sexual offense with a controlled substance. In addition, we also have experience defending clients who have been charged with drug possession and other drug crimes. If you are charged with a sex crime it is critical that you have experienced representation as early in your case as possible. 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 sex crimes in the following locations:

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