NY Penal Law § 130.40: Criminal Sexual Act in the third degree

Criminal sexual act in the third degree is defined in New York Penal Code § 130.40 as

1. having oral sex or anal sex with someone who was incapable of consenting,
2. having oral or anal sex with someone without that person's consent, or
3. Having oral sex or anal sex with someone who is under 17 years old and you are at least 21 years old

The New York Penal Code § 130.00(2) 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.

A man is a 25 year old high school teacher. One of his students who is a 16 year old junior develops a crush on the teacher. She constantly flirts with him. She even asks him out on a date. He does not flirt back and he does not go out on a date with her. One day the student spontaneously kisses the teacher. Ultimately the two engage in oral sex. The teacher could be prosecuted for criminal sexual act in the third degree because the student was less than 16 years old. Even though the student initiated the sexual contact, the teacher committed a crime.

1. Rape in the third degree: New York Penal Code § 130.25
2. Sexual misconduct: New York Penal Code § 130.20
3. Aggravated sexual abuse in the fourth degree: New York Penal Code § 130.65a

Because lack of consent is an essential element to any sex crime the prosecutor will have to show that there was no consent. If you have evidence to show that there was indeed consent then the prosecutor will have a difficult time convicting you or even going forward with the prosecution. Another defense could be based on the statute of limitations. The statue of limitations is the amount of time that a prosecutor has to bring criminal charges against a person. Because it is a felony the statute of limitations for criminal act in the third degree is five years. This means that if for some reason the prosecutor is not able to bring a case against you within five years of when the incident reportedly occurred, under the law you cannot be prosecuted at all.

As a class E felony, a conviction for criminal sexual act in the third degree is a prison sentence of up to 4 years. Despite the maximum possible sentence of 4 years you will likely not receive this sentence if you do not have a prior criminal record. In fact, your sentence may include just probation. Regardless of whether your sentence includes prison or probation, you will be required to register as a sex offender under the New York correction law § 168, known as the Sex Offender Registration Act (SORA). SORA requires that a sex offender register for at least 20 years. Some sex offenders will have to register for the rest of their lives.

A person is guilty of criminal sexual act in the third degree when:

1. He or she engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old;

2. Being twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old; or

3. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent.

Although criminal act in the third degree is not the most serious criminal sexual act offense, it is still quite serious. Such a charge can lead to several other criminal charges and could ultimately result in you spending years in jail. A conviction could mean that you will have a difficult time finding a job and supporting your family. Because of the potential consequences of such a charge, you should immediately contact an attorney who is familiar with defending people accused of sex crimes. 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 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.