New York Aggravated Sexual Abuse in the Third Degree

Under the New York Penal Code you have committed aggravated sexual abuse in the third degree if you insert a foreign object into another person's the vagina, urethra, penis, rectum or anus of that person, and you do so:

  • By forcible compulsion,
  • When the other person is physically helpless, or
  • When the other person is less than 11 years old

You have also committed aggravated sexual abuse in the third degree if you physically injure another person by inserting a foreign object into the vagina, urethra, penis, rectum or anus of that person, and that person is unable to consent because he or she suffers from a mental disability or a mental incapacity.

Aggravated sexual abuse in the third degree is a Class D felony. If you are convicted, you could be sentenced to up to 7 years in prison. N.Y. Pen. Law § 130.66. In addition to possibly spending several years behind bars, restrictions will placed on your life that will remain even after you serve your sentence. Because your life may be significantly negatively impacted if you are accused of a sex offense, as soon as you are questioned about an incident that could lead to a charge of aggravated sexual abuse in the third degree or any other sex offense, you should immediately contact an experienced New York Aggravated Sexual Abuse in the Third Degree Lawyer who will review the facts of your case and defend and support you until the case is resolved.

In order for you to be charged with aggravated sexual abuse in the third degree, the prosecutor must be able to show that you inserted a foreign object into the vagina, urethra, penis, rectum or anus of someone else without that person's consent. The statute does not define "foreign object." It can be anything from a bottle, to a stick, to a knife. However, if it is a finger, then the charge would be either aggravated sexual abuse in the second degree or aggravated sexual abuse in the fourth degree. N.Y. Pen. Law §§ 130.66, 130.65-a

Lack of Consent

Depending on whether or not the victim was injured, lack of consent can be shown in 5 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 used force and the victim did not 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 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 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 the object into that person.

  • Age. The victim was less than 11 years old. If the victim is of a certain young age, 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.

  • Mental Disability. A person would not be able to consent you inserting a foreign object 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 third 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, than that person would then be mentally incapacitated. This means that if you insert a foreign object into that person, you could be charged with aggravated sexual abuse in the third degree. N.Y. Pen. Law § 130.00(6)

The Arrest and Arraignment

If you are arrested for aggravated sexual abuse in the third degree, you will end up in Central Booking where you will remain for several hours until your arraignment hearing. The arraignment is not the trial. It is the first time that you will appear before a judge, and it 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, 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 third degree to aggravated sexual abuse in the 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.

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 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 third 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 the person was not mentally disabled or incapacitated, that you did not use forcible compulsion, or that the other person was at least 11 years old.

If the prosecutor charges you with aggravated sexual abuse in the third degree based on the victim suffering from a mental disability or incapacity, then 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 third 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.

The statute of limitations may provide another defense to a charge of aggravated sexual abuse in the third 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 prosecutor has 5 years after the victim turns 18, or after the incident is reported to law enforcement.

Sentencing

The sentence for being convicted of aggravated sexual abuse in the third degree is up to 7 years in prison as it is a Class D felony. However, there is no mandatory minimum sentence. This means that if you have a clean prior criminal record, the judge has the discretion to sentence you to much less than 7 years in prison. In fact, you may be sentenced to probation. Because aggravated sexual assault in the third degree is a sex crime, 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 4 years in prison. N.Y. Pen. Law § 70.06.

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. N.Y. Pen. Law § 65.10. If you break any of the conditions of your probation a judge may send you to jail.

Like aggravated sexual abuse in the first degree, aggravated sexual abuse in the second degree, and most other sex crimes, aggravated sexual abuse in the third degree is a registrable offense under the New York Sex Offender Registration Act. This means that 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. This means that 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.

Because the consequences of being convicted of a charge of aggravated sexual assault in the third degree will impact the rest of your life, it is important to be represented by someone with experience. 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 Stephen Bilkis & Associates, PLLC 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.

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