New York Aggravated Sexual Abuse in the Second Degree

Aggravated sexual abuse is a felony, sex crime under New York state law. There are 4 types of aggravated sexual abuse: first degree, second degree, third degree and fourth degree. You would have committed aggravated sexual abuse in the second degree if you physically injure someone by forcibly inserting your finger into the vagina, urethra, penis, rectum or anus of that person. You would also have committed this crime if the other person was physically helpless at the time of the sex act or if the other person was less than 11 years old. Aggravated sexual abuse in the second degree is a class C felony. If you are convicted, you could be sentenced to up to 15 years in prison. N.Y. Pen. Law § 130.67. In addition to possibly spending over a decade in prison there are other significant consequences to an aggravated sexual abuse in the second degree conviction. As soon as you are arrested or even questioned about an incident that could lead to a charge of aggravated sexual abuse in the second degree or any other sex offense, you should immediately contact an experienced New York sex crimes lawyer. The attorneys at the Law Offices 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 to discuss the case.

Aggravated sexual abuse in the second degree defined

Aggravated sexual abuse is distinguishable from rape in that while rape involves sexual intercourse, sexual abuse involves the use of a foreign object. For second degree aggravated sexual abuse the prosecutor must show that you inserted your finger into the vagina, urethra, penis, rectum or anus of someone else without that person's consent. The more serious charge, aggravated sexual abuse in the first degree, requires that the thing that is inserted is a foreign object such as a bottle, stick or pencil. In either case, the act was without consent.

Lack of consent

Under the statute lack of consent can be demonstrated in three different ways:

  • Force. If you exerted physical force in order to insert your finger into the other person, then there was no consent. 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 such as a knife or gun. 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 into someone else's vagina, urethra, penis, rectum or anus while that person is unable to consent or object because he or she is unconscious or is in some other way physically helpless, then you would not have that person's 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 into that person. For example, if a person passes out after drinking too much alcohol and you then sexually abuse that person, you would have committed a crime.
  • Age. If the victim is less than 11 years old, even if he or she appeared to have consented the law says that that person is too young to consent to this type of sexual activity.
Arrest and arraignment

If you are arrested for aggravated sexual abuse in the second degree you will immediately be taken into custody at the local precinct. Because it is a Class C felony, the police officer will not issue a Desk Appearance Ticket. This crime is too serious. You will be taken into custody and eventually taken to Central Booking where you will remain for several hours until your arraignment hearing.

The arraignment is the hearing at which you will be formally charged. During the arraignment you might be surprised to learn that the charges against you are different from what you expected. While you were in Central Booking waiting to be the arraigned, the prosecutor will have had the chance to review the facts of your case as well as your criminal history. Based on this, the prosecutor may decide to change the charge or add additional charges. For example, based on the allegations of the case, the prosecutor may also charge you with rape in the second degree, sexual abuse in the second degree, facilitating a sexual offense with a controlled substance, or course of sexual conduct against a child. Or the prosecutor may decide to increase the charge from aggravated sexual abuse in the second degree to aggravated sexual abuse in the first degree. In addition, you may also be charged with other offenses that are not sex crimes.

At the arraignment the judge will determine your bail status. 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. The judge may set bail, decide that no bail is necessary and release you, or decide that you present a significant flight risk and require that you be held without bail. If bail is set, you will have to post it before you will be released.

After the arraignment, more hearings will occur. At some point you may strike a plea deal 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 eventually go to trial.

Defenses

During your trial there may be a number of defenses to the charge of aggravated sexual abuse in the second degree. Since one of the key elements to the charge is that there was no consent, if you can show that the other person did in fact consent to the act, then you have a valid defense. For example, you may be able to show that the other person was not physically helpless, that you did not use forcible compulsion, or that the other person was at least 11 years old.

A statutory defense to aggravated sexual abuse in the second degree is that you inserted you finger 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 examination with the person's consent or in a medical emergency, then you may have a valid defense.

The statute of limitations may provide another defense to a charge of aggravated sexual abuse in the second degree. 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. This means that if you are not prosecuted within five years of when the incident reportedly occurred, the prosecutor is forever time-barred from prosecuting you for that crime. An exception to this rule is where the victim was less than 18 years old at the time of the incident. In such a case the 5 year limitations period does not start until the victim turns 18 years old or until the incident is reported to the police or prosecutor.

Sentencing

Prison. The sentence for being convicted of aggravated sexual abuse in the second degree is up to 15 years in prison as it is a Class C felony. Like aggravated sexual abuse in the first degree and many other sex offenses, aggravated sexual abuse in the second degree is also classified as a violent felony offense. As such if you are convicted you will face a mandatory minimum sentence of 3.5 years in prison and a maximum sentence of 15 years. You must serve at least 6/7 of your prison sentence before you will be eligible to be released on parole.

The court will also look at your criminal history in determining your sentence. If this conviction is your second violent felony conviction, the minimum prison sentence that you will be given is 7 years with a maximum of 15 years. N.Y. Pen. Law § 70.04. On the other hand, if you are a first time offender and are convicted of aggravated sexual abuse in the second degree you will still be sentenced to at least 3.5 years in prison. However, with a plea deal you may get the charge reduced to a less serious crime that would not require a prison sentence. Instead, you may be sentenced to just probation. For a felony offense that is a sex crime, a sentence of probation would be 10 years.

Probation. While probation is more appealing than prison, when you are on probation you are still subject 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 may be required to submit to random drug testing, you must refrain from associating with disreputable people, you must refrain from possessing firearms, you cannot leave New York State without permission, you will be subject to a curfew, and you must regularly check in with your probation officer. If you break any of the conditions of your probation a judge may send you to jail.

Sex offender registration. Aggravated sexual abuse in the second degree is a registrable offense under the New York Sex Offender Registration Act. Once you are released from prison, or if you are sentenced to probation, immediately after conviction, you will be required to follow the rules for registered sex offenders. N.Y. Cor. Law § 168. Depending on the level of risk you are determined to pose to the public, you will be labeled as a Level 1, 2 or 3 sex offender. Level 1 offenders present a low risk of re-offending; level 2 offenders present a medium risk of re-offending; and level 3 offenders present a high risk of re-offending. Level 1 offenders will remain on the registry for at least 20 years. Level 2 and 3 offenders will remain on the registry for life. Level 2 and 3 offenders' names are listed in the public sex offender directory so that anyone can go online and find that you are a registered sex offender. 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.

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Defending any sex offense charge is always complicated involving an understanding of not only criminal law, but also the nuances of New York criminal procedure. The staff at the Law Offices of Stephen Bilkis & 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, female genital mutilation, 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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