New York Criminal Sexual Act in the Third Degree

Under the New York Penal Code you have committed criminal sexual act in the third degree if you do any of the following:

  • Have oral sex or anal sex with someone who was incapable of consenting,
  • Are at least 21 years old and you have oral sex or anal sex with someone who is less than 17 years old, or
  • Have oral sex or anal sex with someone without that person's consent

Criminal sexual act in the third degree is a sex offense that is a class E felony. If convicted, you could be sentenced to up 4 years in prison. N.Y. Pen. Law § 130.40. Because society considers sex crimes to be particularly distasteful, a mere accusation of committing a criminal sexual act, or any sex crime can be damaging to both your personal life and your professional life. Because of the consequences of being charged with or convicted of criminal act in the third degree are life-altering, if you are charged with committing criminal sexual act in the third degree or any other sex crime you should immediately contact an experienced New York sex crimes lawyer at Stephen Bilkis & Associates who will aggressively defend you against the charges. The attorneys at 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.

Criminal sexual act in the third degree defined

The charge of criminal sexual act in the third degree is similar to the charge of rape in the third degree. The difference is that rape involves sexual intercourse with the penis penetrating the vagina, while criminal sexual act involves oral sexual conduct or anal sexual conduct. The New York Penal Code defines oral sexual conduct as sexual contact between the mouth of one person and penis of another person, the mouth and the anus, or the mouth and the vagina or vulva. Anal sexual conduct means contact between the penis and the anus. N.Y. Pen. Law § 130.00(1)

Lack of consent

Whether the sex charge involves sexual intercourse, oral sex, anal sex, or any other type of sexual act, the key element is that the victim did not consent to the sex act. Lack of consent means that the act was forced. Even if the other person appears to have consented or even initiated the sexual contact, if under the law that person does not have the capacity to consent, then there was no consent and you can be charged with criminal sexual act in the third degree. The victim lacks the capacity to consent if he or she is under 17 years old, suffers from a mental disability, suffers from a mental incapacity, is physically helpless, or is in the custody of the Department of Corrections and Community Service and the assailant is an employee. N.Y. Pen. Law § 130.05(3)

A person suffers from a mentally disability if that person has a mental disease or defect that makes him or her unable to assess the nature of the sexual act. A mental incapacity is not the same as a mental disability. For the purpose of the sex offense statutes, a person is mentally incapacitated if he or she is intoxicated by a substance administered without his or her consent. A person is physically helpless if that person is unconscious or for any other reason is unable to express opposition to participate in the sex act. N.Y. Pen. Law § 130.00. In order for a person to be charged with criminal sexual act in the third degree, rape in the third degree, or any other sex crime based on the allegation that the victim was mentally disabled or mentally incapacitated, there must be corroboration by a third party or by other evidence. N.Y. Pen. Law § 130.16. In other words, a criminal sexual act charge will not stick simply based on the word of someone who is mentally disabled or mentally incapacitated.

It is important to note that either a man or a woman may be charged, prosecuted and convicted of criminal sexual act. The statute does not specify that the perpetrator in a case of criminal sexual act in the third degree must be male and the victim female. In other words, a woman can be charged with criminal sexual act in the third degree. This would be the charge where the woman involved is over the age of the 21 while the male involved was under the age of 17.

In New York as in other jurisdictions, there have been problems with inappropriate sexual contact between prison inmates and prison employees. For this reason another basis for a person being unable to give consent to anal or oral sexual conduct is where the victim is in the custody of the New York State Department of Corrections and Community Service, or is in a hospital for the mentally ill, and the accused is an employee. For purposes of the criminal sexual act statute "employee" is defined as an employee of the New York State Department of Corrections and Community Service who works in a facility in which the victim is confined. Such an employee's responsibilities can include custody, medical or mental health services, counseling services, educational programs, vocational training, institutional parole services, direct supervision to inmates, or supervising those released on community supervision. An employee is also defined as a mental health employee who has duties at a state correctional facility or hospital. Volunteers are also considered employees for purposes of the sex offense statutes. N.Y. Pen. Law § 130.05.

Sentencing

Prison. The sentence for being convicted of criminal sexual act in the third degree is up to 4 years in prison. However, depending upon the circumstances of the incident it is very possible that you will face additional charges such as rape in the third degree, forcible touching, and endangering the welfare of a child. Even where some of the additional charges are misdemeanors, the more crimes that you are charged with and convicted of, the more chance that you will receive harsh sentence. For example, in People v. Tavares, 12 N.Y.3d 21 (2009), the defendant was charged with criminal sexual act in the third degree, multiple counts of forcible touching, multiple counts of sexual abuse in the third degree, and multiple counts of endangering the welfare of a child. After agreeing to a plea agreement, the defendant was sentenced to 4-12 years in prison.

Probation. If you do not have a prior criminal record, it is possible that you will not receive any jail or prison time for a criminal sexual act conviction. You may just be sentenced to probation. Probation is a more desirable sentence as it does not involve incarceration. However, there are several rules for those on probation that may make it difficult for some. If probation is part of your sentence, the conditions of probation may include some or all of the following:

  • That you will be subject to a warrantless search
  • That you will be subject to random drug testing
  • That you will be employed
  • That you will undergo drug treatment
  • That you will undergo psychological testing
  • That you will not associate with disreputable people
  • That you will not leave the New York without permission

Most importantly, if you are on probation, you cannot commit another crime. If you are convicted of another crime while you are on probation or if you fail to adhere to any of the other terms of your probation your probation officer will violate you. This is serious as the result of a violation could mean that you have to go to jail. If your probation officer violates you, you must return to court. The Probation Department will urge the judge to revoke your probation and send you to jail. The judge may find that there was no violation, may find that there was a violation and send you to jail, or may find that there was a violation and add new probation terms.

Criminal record and sex offender registration. There are serious consequences for a criminal sexual act conviction that go beyond a prison sentence or probation. Even if you are not sentenced to prison, if you are convicted you will have a criminal record. Even worse, you will also 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. For example, in the case of People v. Taylor, in 2010 former NFL player Lawrence Taylor was charged with criminal sexual act in the third degree and rape in the third degree. These charges were based on Taylor's having sexual intercourse and performing other sex acts with a 16 year old girl. However, Taylor reportedly agreed to a plea deal where he plead guilty to misdemeanor patronizing a prostitute in the third degree and misdemeanor sexual misconduct. As a result of this plea, while Taylor was not sentenced to jail, he was sentenced to 6 years of probation and is a registered offender.

In New York there are different levels of risk under the Sex Offender Registration Act (SORA). After you are sentenced, you will have a SORA hearing. An assessment will be made of your level or risk to the community based on factors such as your background and your criminal conduct. Based on that evaluation, the judge will determine your level of classification: Level 1, Level 2 or Level 3. A Level 1 classification is given to those who present the lowest level of risk while Level 3 is given to those who present the highest level of risk. Regardless of your sex offender classification, being required to register as a sex offender will impact almost every aspect of your life. It will make it more difficult for you to find a job or rent an apartment. In some cases your neighbors may learn of your status and harass you.

Defenses

There are various defenses to a charge of criminal sexual act in the third degree. For example, there may be issues related to consent. Since lack of consent is a necessary element for a charge of criminal sexual act in the third degree or any sex crime, it will be necessary for the prosecutor to prove that you did not have consent from the victim. If it can be shown that there was indeed consent, you cannot be convicted of criminal act in the third degree.

Another defense could be based on the statute of limitations. The statue of limitations refers to the amount of time that a prosecutor has to bring criminal charges against a person. The statute of limitations for criminal act in the third degree is five years. N.Y. Crim. Pro. Law § 30.10. This means that if you are not prosecuted for criminal sexual act in the third degree within five years of when the incident reportedly occurred, you cannot be prosecuted at all. However, 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 he or she turns 18 years old or until the incident is reported to law enforcement.

Stephen Bilkis & Associates can help

A charge of criminal sexual act in the third degree is very serious. Such a charge can lead to several other criminal charges and could ultimately result in you spending years in jail. Because of the potential consequences of such a charge, you should immediately contact an attorney who is familiar with defending people accused of or charged with criminal sexual act, rape and other sex offenses. The staff at Stephen Bilkis and Associates 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. 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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