New York Sexual Misconduct

While sexual misconduct is a misdemeanor and not a felony, it is still a sex crime. If you are convicted you could end up in jail for up to a year and you will have a criminal record that includes a sex crime conviction. A sex crime conviction will have serious consequences, impacting your ability to get a job, go to school, and rent an apartment. Thus, it is important to take immediate steps to mount an aggressive defense against an accusation of having committed a sex crime. If you are in need of an experienced sex crime lawyer who will aggressively defend you against such charges, contact Stephen Bilkis & Associates. 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.

Definition of sexual misconduct

Under section 130.20 of the New York Penal Code you have committed sexual misconduct if you did any of the following:

  • Engaged in sexual intercourse with another person without that person's consent
  • Engaged in oral sex or anal sex with another person without that person's consent
  • Engaged in sexual conduct with an animal

The New York Penal Code has specific definitions for "sexual intercourse," "oral sexual conduct," and "anal sexual conduct." Sexual intercourse has its ordinary meaning-- a penis penetrating a vagina. It does not matter if the penetration was not complete. Any penetration is enough for there to be sexual intercourse for the purpose of a charge of sexual misconduct or any other sex offense that requires sexual intercourse. Oral sexual conduct refers to 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.

Lack of consent

In order for you to be charged with sexual misconduct there must have been a lack of consent to the sex act. Lack of consent means that the other person did not agree to the sex act. Even if the other person appeared to have consented if under the law that person did not have the capacity to consent, then there was no consent and you can be charged with sexual misconduct. For example, the other person would not have had the capacity to consent if he or she was under 17-years-old at the time of the sexual act. This was the case in People v. Mills , 28 Misc 3d 1236(A) (2011). The defendant was charged with sexual misconduct based on putting his penis in the vagina of a 15-year-old girl and also placing his mouth on her breasts and vagina.

In addition, under the statute a person cannot consent if he or she suffers from a mental disability, suffers from a mental incapacity, or is physically helpless. A person is mentally disabled if that person has a mental disease or defect that makes him or her unable to understand what it means to engage in the sexual act. Having a mental incapacity is different from having a mental disability. A person suffers from a mental incapacity if that person is intoxicated by a substance administered without his or her consent. However, under New York law if you are charged with sexual misconduct based on the other person suffering from either a mental disability or a mental incapacity, there must be corroborating evidence as the testimony of the mentally disabled or challenged person is not sufficient to support a sexual misconduct charge. N.Y. Pen. Law § 130.16. A person is physically helpless if he or she is not conscious or for any other reason is not able to express unwillingness to participate in the sexual act. N.Y. Pen. Law § 130.00

Defenses

There are several defenses to a charge of sexual misconduct. For example, in some cases the credibility of the person making the accusation or of a witness may come into question. In People v. Suh, 27 Misc 3d 143(A) (2010), a New York appellate court reversed a sexual misconduct conviction because of the questionable credibility of a prosecution witness.

Another defense may be that the victim did indeed consent to the sexual intercourse, anal sex, or oral sex. This would only be a valid defense if under the law the victim had the capacity to consent. Another defense could be based on the statute of limitations. The statue of limitations refers to the amount of time that a prosecutor can bring criminal charges against another person. Since sexual misconduct is a misdemeanor the statute of limitations is just two years. N.Y. Crim. Pro. Law § 30.10. This means that if you are not prosecuted for sexual misconduct within two years of when the incident reportedly occurred you cannot be prosecuted at all. However, if the person who accuses you of sexual misconduct was less than 18 years old at the time of the incident, the limitations period does not begin to run until the person turns 18 years old or until the incident is reported to law enforcement.

Sentence and other consequences

Jail. Because sexual misconduct is a Class A misdemeanor the possible sentence is confinement in jail for up to a year. However, probation or a short jail sentence are also possible, particularly if you have no prior criminal record. For example, the defendant in People v. Mills was sentenced to 6 months probation, while the defendant in People v. Valle, 2011 NY Slip Op 52415(U) (2011), was sentenced to 3 years probation. Regardless of whether you are sentenced to jail or not, the consequences of a sexual misconduct conviction go beyond your sentence. After you complete your sentence, not only will you have a criminal record, you will also be required to register as a sex offender for 20 years or more. N.Y. Cor. Law § 168

Having a criminal record will 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 feel that because you have a criminal history you are not trustworthy. If you already are employed at the time of your conviction, even if you are not sentenced to prison, should your employer discover your conviction you may lose your job. Making your post-conviction situation even worse is that under the New York Sex Offender Registration Act you will have to register as sex offender for many years. It does not matter if you move you will have to register wherever you go. Sex offender registries are readily available online, and people often view them. Not only will employers be reluctant to hire you, landlords will be reluctant to lease housing to you and residents may not want you to live in their neighborhood. Furthermore, many schools now perform background checks on anyone seeking to enter a school building and may deny you access if you are a registered sex offender.

If you are not a U.S. citizen and you are convicted of sexual misconduct, another consequence is that you could be deported. In People v. Mills the defendant decided to plead guilty to sexual misconduct. He was sentenced to 6 months probation. However, because the defendant was an alien and not a citizen, he also faced deportation. Under federal law, if an alien is convicted of an aggravated felony, he or she can be deported. 8 USC § 1227(a)(2)(A)(iii). Even though under New York law sexual misconduct is not a felony, but a class A misdemeanor, under federal law it is considered an "aggravated felony" where the victim is not capable of consenting because he or she is under 17-years old. Because it is a federal aggravated felony, a conviction can result in deportation.

Stephen Bilkis & Associates can help

The consequences of being charged or convicted of sexual misconduct are far reaching, affecting many aspects of not only your life, but of the lives of your family members. There may be many possible defenses to a sexual misconduct charge that only an experienced New York Sexual Misconduct Lawyer will understand and be able to effectively apply to your case. 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 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 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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