New York Aggravated Sexual Abuse in the Fourth Degree

Under the New York Penal Code you have committed aggravated sexual abuse in the fourth degree if you:

  • Insert a foreign object into another person's the vagina, urethra, penis, rectum or anus and that person is incapable of consenting; or
  • Physically injure another person by inserting a finger into that person's vagina, urethra, penis, rectum or anus of that person, and that person is incapable of consenting.

Aggravated sexual abuse in the fourth degree is a class E felony. If you are convicted you could be sentenced to up to 4 years in prison. N.Y. Pen. Law § 130.65-a. In addition, if convicted restrictions will be placed on your life that will remain in place years after you serve your sentence. Because your life and your family's life will likely substantially change if you are accused of a sex crime, as soon as you are questioned about an incident that could lead to a charge of aggravated sexual abuse in the fourth degree or any other sex offense, you should immediately contact an experienced New York sex crimes lawyer at the Law Office of Stephen Bilkis & Associates. The attorneys at the Law Office of Stephen Bilkis & Associates have decades of experience representing clients who have been charged with sex crimes and other serious crimes such as domestic violence and drug crimes. We will review the facts of your case and come up with a defense designed to produce the best results for your case. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case.

Foreign object requirement

In order for you to be charged with aggravated sexual abuse in the fourth degree, the prosecutor must be able to show that you inserted a finger or some other object into the vagina, urethra, penis, rectum or anus of someone else without that person's consent because that person was incapable of consent. The statute does not define "foreign object." It can be anything from a bottle, to a stick, to a knife.

Lack of the capacity to consent

Lack of the capacity to consent can be shown in several different ways.

  • Forcible compulsion. If you exerted physical force in order to insert an object into the vagina, urethra, penis, rectum or anus of the other person, then you took away the capacity of the other person to consent. You used force. In addition to physical force, there would have been no consent if you threatened the victim with physical injury or death either verbally or with a weapon. Forcible compulsion also exists if you threaten to kidnap the victim or someone else such as a friend of the victim or family member of the victim. N.Y. Pen. Law § 130.00(8)
  • Physically helpless. If you insert your finger or an object into someone else's vagina, urethra, penis, rectum or anus while that person is unable to object because he or she is unconscious or is in some other way physically helpless, then that person would not have the capacity to consent. N.Y. Pen. Law § 130.00(7). It is not necessary that you personally cause the person to be physically helpless. It is enough that you found the person in a physically helpless state and then inserted your finger or an object into that person.
  • Mental disability. A person would not have the capacity to consent to you inserting something into his or her vagina, urethra, penis, rectum or anus if that person suffers from some sort of mental disease or defect such that he or she does not have the ability to understand the nature of the conduct. If a person suffers from a mental disability, even if that person appears to agree to engage in the sex act or even if the person initiates it, there would be no consent and you could be charged with aggravated sexual abuse in the fourth degree. N.Y. Pen. Law § 130.00(5)
  • Mental incapacity. Under the New York Penal Code if you cause someone to become intoxicated by giving that person an intoxicating substance without his or her permission, then that person would then be mentally incapacitated. This means that if your finger or a foreign object into that person, you could be charged with aggravated sexual abuse in the fourth degree. N.Y. Pen. Law § 130.00(6)
Arrest and arraignment

In some cases if you are suspected of committing a crime the police officer will issue you a Desk Appearance Ticket (DAT) instead of immediately hauling you off to jail. With a DAT you are required to show up at a specified place and time for your arraignment. However, that is not likely to happen if you are arrested for aggravated sexual abuse in the fourth degree as it is a class E felony. Usually DATs are only given for misdemeanors. Therefore, if you are arrested for aggravated sexual abuse in the fourth degree you will end up in Central Booking where you will remain for several hours until your arraignment hearing. During the arraignment you may find that the prosecutor decided to charge you with different or additional crimes. For example, based on the allegations of the case, the prosecutor may also charge you with rape, sexual abuse, facilitating a sexual offense with a controlled substance, or sexually motivated felony. Or the prosecutor may decide to increase the charge from aggravated sexual abuse in the fourth degree to aggravated sexual abuse in the third, second or first degree.

At the arraignment you will also learn whether you will be held without bail, released on your own recognizance, or released after paying bail. Whether or not the judge will require bail and the amount of bail will be based on how much of a flight risk the court determines you to be. Finally, you will learn when you must appear in court next. Eventually you will have a trial, unless you reach a plea agreement with the prosecutor in which you agree to plead guilty to the original charges or to lesser charges. If no plea deal is agreed upon, then you will ultimately go to trial before a judge or before a jury.

Defenses

There are be a number of possible defenses to the charge of aggravated sexual abuse in the fourth degree. Since one of the key elements to the charge is that the victim was incapable of consent, if you can show that the person was not physically helpless, that the person was not suffering a mentally disability or incapacity, or that you did not use forcible compulsion, then you may have a strong defense to the charge.

If the prosecutor charges you with aggravated sexual abuse in the fourth degree based on an allegation that you inserted you finger into the vagina, urethra, penis, rectum or anus of the other person, to meet all of the elements of the offense, the victim must have been injured. If not, then you have a defense to the charge.

A statutory defense to aggravated sexual abuse in the fourth degree or any aggravated sexual abuse offense is that you inserted the foreign object into the vagina, urethra, penis, rectum or anus of the victim for valid medical reasons. N.Y. Pen. Law § 130.70(2). For example, if you are a licensed medical practitioner performing a vaginal or rectal examination with the person's consent or because of a medical emergency, you may have a strong defense to a charge of aggravated sexual abuse in the fourth degree, third degree, second degree or first degree.

The statute of limitations may provide another defense to a charge of aggravated sexual abuse in the fourth degree. Because it is a felony, the statute of limitation for bringing a charge of aggravated sexual abuse in the second degree is 5 years. N.Y. Crim. Pro. Law § 30.10. If you are not prosecuted within 5 years of when the incident purportedly occurred, then you can never be prosecuted. If the victim was less than 18 years old at the time of the incident, then the statute of limitations is a little different. The prosecutor has 5 years after the victim turns 18, or after the incident is reported to law enforcement.

Sentencing

Prison. The sentence for being convicted of aggravated sexual abuse in the fourth degree is up to 4 years in prison as it is a class E felony. In addition, there is no mandatory minimum sentence. This means that if this is your first offense, the judge has the discretion to sentence you to much less than 4 years in prison. In fact, you may be sentenced to probation. Even though aggravated sexual assault in the fourth degree is a class E felony that carries a relatively mild sentence compared to many other sex crimes, it is still a sex crime. As such, if you are sentenced to probation, it will be for 10 years. If you do have a prior felony offense, you will face a mandatory minimum sentence of at least 3 years in prison. N.Y. Pen. Law § 70.06.

Probation. While probation is more appealing than prison, it may present challenges for you as you will be subjected to several restrictions. With probation comes a set of rules that you are required to follow. Depending on the nature of the crime you were convicted of and your personal background, these rules may include: you must not commit a crime, you must have a job, you must support your family, you must submit to random drug testing, you must refrain from associating with disreputable people and going to disreputable places, you must refrain from possessing firearms, you cannot leave New York State without permission, you will be subject to a curfew, you must pay restitution, and you must regularly check in with your probation officer. In some cases you may even be required to wear an electronic monitor. N.Y. Pen. Law § 65.10. If you break any of the conditions of your probation a judge may send you to jail.

Sex offender registration. Like aggravated sexual abuse in the first, second and third degrees, aggravated sexual abuse in the fourth degree is a registrable offense under the New York Sex Offender Registration Act. This means that if convicted you will be required to follow the rules for registered sex offenders. N.Y. Cor. Law § 168 You will remain on the sex offender registry for at least 20 years. If you are Level 2 or Level 3 offender, meaning that you pose a substantial risk of re-offending, you will remain on the list for the rest of your life, and your name will be made public. Anyone will be able to go online and find out that you are on the sex offender registry. All registered sex offenders must verify their addresses with the Division of Criminal Justice Services (DCJS) each year, and must inform the DCJS of a new addresses within 10 days of moving. If you move out of state, you must register as a sex offender under the rules of your new jurisdiction.

Contact the Law Office of Stephen Bilkis & Associates

Because the consequences of being convicted of a charge of aggravated sexual assault in the fourth degree may mean incarceration, it is important to be represented by someone with experience representing those who have been charged with sex offenses. The staff at Stephen Bilkis and Associates has years of experience successfully defending clients in New York criminal courts who have been charged with sex crimes such as aggravated sexual abuse, criminal sexual act in the first degree as well as other sex crimes such as sexual misconduct, criminal sexual act, forcible touching, sexual abuse, sexual conduct against child, and facilitating a sexual offense with a controlled substance. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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