New York Forcible Touching

Under the New York Penal Code you have committed forcible touching if you intentionally touch the sexual or intimate parts of another person for no legitimate reason or in order to receive sexual gratification. Touching can mean squeezing, grabbing, or pinching. N.Y. Pen. Law § 130.52. Forcible touching is considered a sex crime. Unlike other sex crimes such as rape or criminal sexual abuse, forcible touching is not a felony, but it is a class A misdemeanor. If you are convicted of forcible touching you could be sentenced to up to a year in jail. Even though the maximum possible sentence is a relatively short period in jail such a conviction will still have lasting, damaging consequences for your future as you will have a criminal record and will be placed on the sex offender registry. In addition, because forcible touching is a sex crime, even if you are not convicted the mere accusation is not only embarrassing, but can affect your professional and personal relationships. If you are arrested and charged with forcible touching, it is important to 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.

Explanation of Forcible Touching

Forcible touching, sometimes referred to as groping, often occurs in crowded, public places such as in bars, on the subway, or on buses. The actions of the defendant in People v. Soto, 192 Misc.2d 161, 167 (Crim. Ct., NY County 2002), typify actions that can occur in a crowded, public place that may lead to a charge of forcible touching. In People v. Soto the defendant was charged with forcible touching after he placed his fingers on a woman's vagina through her clothing while they were riding the subway. Similarly, in People v. Parbhu, 191 Misc.2d 473 (2002), while standing on a subway platform the defendant rubbed his exposed penis against the buttock and thigh area of a woman. However, forcible touching can occur anywhere and often occurs in a private home. In such cases the person accused of forcible touching is often a relative of the victim or a friend of the victim's family. In People v. Smiley, 2010 N.Y. Slip Op. 5154 (2010) the person accused of forcible touching was the father of the victim, while in People v. Powell, 19 Misc.3d 364, 365 (Crim Ct, Kings County 2008), the accused was the victim's cousin. In both cases the incidents occurred in a private home.

Unlike other sex crimes such as sexual misconduct or rape, the crime of forcible touching does not necessarily involve penetration such as occurs with sexual intercourse, anal sexual conduct or oral sexual conduct. It is only necessary that you intentionally in some way touch another person's intimate parts without that person's consent and for no legitimate reason. Intentionally means that the touching was not accidental, but that you consciously or purposely touched the other person's intimate parts. Furthermore, skin to skin touching is not required. In People v. Taylor 2009 NY Slip Op 29000 (2009), the defendant was accused of using his penis to touch a 14-year old girl's vaginal area through her pulled up pants. Similarly, both in People v. Soto and in People v. Powell the defendants were charged with forcible touching after each touched his victim's vagina through her clothing.

A person's intimate parts can include the vagina, penis, breasts, or buttocks. In People v. Smiley the court held that a charge of forcible touching could be sustained based on an accusation of touching a 13-year-old girl's vagina, as well as grabbing her breasts, and squeezing her buttocks. In order to be charged with forcible touching it is sufficient if the touching occurs while the other person is clothed. In fact, in most cases of forcible touching the touching occurred while the victim was clothed. While the statute describes touching as "squeezing, grabbing, or pinching," courts have interpreted this language as merely being examples of conduct that the forcible touching charge was designed to address.

Lack of consent

Like other sex crimes lack of consent is an element of the charge of forcible touching. Lack of consent can be shown by forcible compulsion, incapacity to consent, or lack of express or implied consent by the victim. N.Y. Pen. Law § 130.05. That forcible touching can be shown by lack of express or implied consent of the victim is significant. To be charged with and convicted of forcible touching the prosecutor does not need to show that you exerted physical force or that you threatened the victim. It is also not necessary for the prosecutor to show that the victim suffered from an incapacity such that he or she did not have the ability to consent. It is sufficient that the victim testify that he or she did not in any way consent to the touching.

Arrest and arraignment

If you are accused of forcible touching, you may not be immediately taken into custody. Instead the police officer may issue you a Desk Appearance Ticket (DAT). Generally, a police officer will issue a DAT if you do not have a criminal history and if the charge is not classified as severe. Forcible touching is Class A misdemeanor, making a DAT likely as long as you do not have a criminal history. The DAT will state the crime with which you have been charged along with the day, time and place of your court date. You are required to appear in court on that date and time. If you fail to appear the judge will issue a bench warrant for your immediate arrest. At your arraignment hearing you will be formally charged. The charge may be the same as was written on your DAT, or it may include different or additional charges. The prosecutor will have had a chance to review the facts of your case and based on that information may decide that different or additional charges are warranted. For example, in addition to forcible touching you may also be charged with additional sex crimes such as sexual abuse in the third degree. N.Y. Pen. Law § 130.52. You will then be given a date for your next court appearance. If the police officer decides not to issue you a DAT, you will be arrested and immediately taken into custody. You will be taken to Central Booking and later arraigned.

Defenses

For forcible touching and other sex related crimes there are various defenses that can be used depending on the circumstances of the incident. For example, there may be issues related to consent. Since lack of consent is critical to a charge of forcible touching or any sex crime, it will be necessary for the prosecutor to prove that you did not have consent to touch the other person. If it can be shown that there was indeed consent, you will not be convicted of forcible touching. Intent must also be shown. If you touched the other person by accident, then you did not have the requisite intent and a charge of forcible touching will not be supported. 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 another person. The statute of limitations for forcible touching is just two years. N.Y. Crim. Pro. Law § 30.10. This means that if you are not prosecuted for forcible touching within two years of when the incident reportedly occurred, you cannot be prosecuted at all. However, if the person who accuses you of forcible touching was less than 18 years old at the time of the incident, the limitations period does not begin to run until the child turns 18 years old or until the incident is reported to law enforcement. If the incident occurred in a crowded space it is possible for the victim to erroneously identify you as the perpetrator, when in reality it was not you at all.

Sentencing and other consequences

Jail. Because forcible touching is a Class A misdemeanor the possible sentence is up to one year in jail. If you are a first time offender, however, you may be sentenced to probation or to jail for less than a year. It is also possible that the prosecutor will agree to charge you with a lesser offense such as harassment in the second degree or disorderly conduct, neither of which is a felony or a misdemeanor, but a violation. N.Y. Pen. Law § 240.26. On the other hand, if you have been convicted of forcible touching in the past you may be labeled a repeat offender and the charge may be increased to persistent sexual abuse, which is a class E felony. N.Y. Pen. Law § 130.53. If convicted of persistent sexual abuse you could be sentenced to up to 4 years in prison. With each additional misdemeanor or felony charge comes the possibility of a stiffer sentence if you are convicted.

If you are convicted of forcible touching, persistent sexual abuse, sexual abuse in the third degree or any other sex crime whether it is a misdemeanor or a felony, you will end up with a criminal record. This will be a hardship on both you and your family as it may make it difficult for you to find a job. Most employers will perform a criminal background check before hiring you. Many will be reluctant to hire you as they may not be comfortable hiring someone with a criminal record, particularly if your record includes a sex crime conviction. If you already are employed at the time of your conviction, even if you are not sentenced to jail or prison, should your employer discover your conviction you may be fired. In addition, if you are convicted of almost any sex crime you will be placed on the sex offender registry as required under the New York Sex Offender Registration Act. Landlords often will not rent an apartment or house to someone who is a registered sex offender. Residents may not want you to live in their neighborhood and may even harass you if they discover that you are a registered sex offender.

Stephen Bilkis & Associates can help

The consequences of being charged or convicted of forcible touching, persistent sexual abuse or any sex crime are significant, affecting your future and the futures of your family members. For this reason it is important to immediately contact experienced representation as soon as you are accused of forcible touching or any sex crime. 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 forcible touching, sexual misconduct, criminal sexual act, sexual abuse, aggravated sexual abuse, course of 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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