New York Sexual Assault

There are many different types of assault. Generally speaking assault is defined as causing injury to another person. An assault can be accomplished by hitting, kicking or pushing another person. It can also be accomplished using a weapon such as a gun or knife or using a dangerous instrument such as a vehicle. One of the most heinous types of assault is sexual assault. While sexual assault can involve the use of physical force or a weapon, force or the use of a weapon is not necessary to sexually assault another person. If you have sexual contact with another person without that person's consent, you have committed sexual assault. While rape is the most commonly known type of sexual assault, under New York Penal Law there are several other types of sexual assault including forcible touching, sexual abuse, criminal sexual act, sexual misconduct, sexual conduct against child, and facilitating a sexual offense with a controlled substance. Because of the seriousness of sexual assault most such crimes are classified as felonies punishable by years and years in prison and registration as a sex offender. Because of the consequences of being convicted of sexual assault, as soon as you have been accused of any type of sex crime it is critical that you contact an experienced New York Sexual Assault Lawyer who will review the facts of your case and aggressively defend you against the charges.

The critical element of any sexual assault is the lack of consent. N.Y. Pen. Law § 130.05. Lack of consent means that the other person did not give you permission for the sexual act. The other person would not have consented if you used physical force to commit the sex act. The other person would also have failed to consent if that person did not have the capacity to consent. For example, a person who suffers from a mental disability, suffers from a mental incapacity, is physically helpless, or is a minor under a certain age would not have the legal capacity to consent to any type of sex act. Most sexual assault crimes have several degrees of seriousness; the more serious the crime, the more severe the punishment upon conviction.

Types of Sexual Assault

Forcible touching, sexual misconduct, sexual abuse in the third degree and sexual abuse in the second degree are misdemeanor sex crimes. You will be charged with forcible touching if you touch another person's intimate parts to receive sexual gratification. N.Y. Pen. Law § 130.52. Sexual misconduct occurs if you have sexual intercourse, anal or oral sex with another person without that person's consent. N.Y. Pen. Law § 130.20. Sexual abuse in the third degree is the charge you will face if you subject another person to sexual contact without that person's consent. N.Y. Pen. Law § 130.55. Sexual abuse in the second degree is the charge you will face if you subject another person to sexual contact and that person is incapable of consenting for any reason other than being less than 17 years old, or that person is less than 14 years old. N.Y. Pen. Law § 130.60

Rape is the charge that you will face if you have sexual intercourse without the consent of the other person. For sexual intercourse to occur there must be penetration, even if only slight. N.Y. Pen. Law § 130.00. Rape in the third degree is the least severe rape charge. This will be the charge you face if you engage in sexual intercourse with another person who cannot consent, of if you are at least 21 years old and the other person is less than 17 years old. N.Y. Pen. Law § 130.25. If convicted you could be sentenced to up to 4 years in prison. Rape in the second degree would be the charge if you engage in sexual intercourse with someone who is mentally disabled or suffers a mental incapacity. If you are 18 years old or older you would be charged with rape in the second degree if you have sexual intercourse with a person who is 15 years old or younger. Rape in the second degree rape is a class D felony that has a penalty of up to 7 years in prison. N.Y. Pen. Law § 130.30. You would have committed rape in the first degree if you forcibly have sexual intercourse with another person, have sexual intercourse with someone who is physically helpless, or have sexual intercourse with someone who is age 11 or younger. If you are at least 18 years old and have sexual intercourse with someone who is less than 13 years old, you can be charged with first degree rape. The penalty for rape in the first degree is up to 25 years in prison. It is a Class B felony.

Criminal sexual act involves having oral or anal sex without the consent of the other person. Oral sex is defined as contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina. Anal sex is defined as contact between the penis and the anus. Criminal sexual act in the third degree is the charge you will face if you have oral or anal sex if you are at least 21 years and the other person is under 17 years old, or the other person did not consent due to any other reason. It is a Class E felony. N.Y. Pen. Law § 130.40. You will face a charge of criminal sexual act in the second degree if you are at least 18 years old and you engage in oral or anal sex with a person who is less than 15 years old. Another reason that you could face a charge of criminal sexual act in the second degree is if the other person is incapable of consenting because he or she is mentally disabled or incapacitated. Criminal sexual act in the second degree is a class D felony that has a penalty of up to 7 years in prison. N.Y. Pen. Law § 130.45. Criminal sexual act in the first degree is a Class B felony. If convicted, you could end up in prison for up to 25 years. N.Y. Pen. Law § 130.50. This will be the charge if you have oral or anal sex by force, with someone not able to consent because he or she is physically helpless, or with someone who is less than 11 years old. This charge will also apply if you are at least 18 years old and the other person is less than 13 years old.

Sexual abuse in the first degree is Class D felony. If you forcibly have sexual contact with another person, have sexual contact with a physically helpless person, or with a person who is under 11 years old you would have committed sexual abuse in the first degree. If you are 21 years old or older, you will be charged with sexual abuse in the first degree if the other person is under 13 years old. N.Y. Pen. Law § 130.65.

Sexual assault can be committed using your finger or a foreign object. If you stick a foreign object into the vagina, urethra, penis, rectum or anus of someone without that person's consent, you would have committed aggravated sexual abuse in the fourth degree, a Class E felony. If you use your finger and also cause injury, the charge will be aggravated sexual abuse in the fourth degree. N.Y. Pen. Law § 130.65-a. Aggravated sexual abuse in the third degree will be the charge if the sexual abuse is by force and you use a foreign object. It will also be the charge if the other person is physically helpless, is less than 11 years old, is mentally incapacitated or is mentally disabled. It is a Class D felony. N.Y. Pen. Law § 130.66. Aggravated sexual abuse in the second degree is the charge if you physically injure someone by inserting your finger into the vagina, urethra, penis, rectum or anus of that person, and you do so by force, or if the other person is physically helpless or is less than 11 years old. N.Y. Pen. Law § 130.67. It is a Class C felony with a sentence of up to 15 years in prison. Aggravated sexual abuse in the first degree involves injuring someone by inserting a foreign object into the vagina, urethra, penis, rectum or anus of that person, by force or if the other person is physically helpless or less than 11 years old. It is Class B felony. N.Y. Pen. Law § 130.70. The maximum sentence is 25 years in prison.

Sexual assault against children is particularly outrageous. Under New York law those who commit such crimes are subject to severe penalties. You will be charged with course of sexual conduct against a child if you sexually assault a child who is less than 11 years old at least 2 times in a 3-month period. It is a Class D felony with a possible sentence of up to 7 years in prison. It will also be the charge if you are 18 years old or older and the child is under 13 years old. N.Y. Pen. Law § 130.80. Course of sexual conduct against a child in the first degree is a much more serious charge. It is a Class B felony. You will face this charge if the sexual assault involves sexual intercourse, oral sex, anal sex, or aggravated sexual conduct with a child. If convicted you could be sentenced to up to 25 years in prison. N.Y. Pen. Law § 130.75.

You can also commit sexual assault against someone if you give drugs to facilitate the sexual conduct. This crime is called facilitating a sex offense with a controlled substance. It is a Class D felony. N.Y. Pen. Law § 130.90. You will have committed the crime of sexually motivated felony if the motivation for committing a felony is sexual gratification. N.Y. Pen. Law § 130.91

Sentence for Sexual Assault Conviction

The sentence for a sexual assault conviction varies based on the classification of the offense. Misdemeanors have the least severe sentences while felonies have much more severe sentences. If you are have one or more prior felony convictions, your sentence will be more severe than if you are a first time offender. For purposes of sentencing you will be classified based on your prior criminal record.

  • Prior convictions: Prior convictions include felony convictions within the last 10 years.
  • Non-Violent Predicate: A non-violent felony conviction within the last 10 years.
  • Violent Predicate: A violent felony conviction within the last 10 years.
  • Persistent Felony Offender: At least 2 prior felony convictions.

Your criminal background is significant as it can mean the difference between being sentenced to prison or probation. For example, if you are convicted of a Class E felony and you have no prior convictions, the judge has the option of sentencing you to just probation. If you have a prior conviction, the judge will be required to sentence you to at least 1 1/2 years in prison. If you are a persistent felony offender, the minimum sentence is 15-25 years and the maximum sentence is life.

In addition, if you are convicted of sexual assault, 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. If you are deemed to present a high risk of re-offending, you will have to register as a sex offender for life.

Your sentence may also include the payment of a fine of up to $5,000 and as well as several fees. As part of your sentence you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's out-of-pocket expenses such as medical bills. If you do not pay a fine, fee or restitution, you may be charged with a misdemeanor and sent to prison for up to a year, your wages may be garnished or the state of New York may obtain a judgment against you.

Because of the challenges you will certainly encounter from merely being accused of sexual assault, you should immediately contact an experienced attorney who is familiar with defending people accused of or charged with sex crimes. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of sex crimes, as well as other serious felonies and misdemeanors such as assault, menacing, reckless endangerment, domestic violence, statutory rape, and stalking. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case.

Here are Additional Types of Assaults:

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