Queens Domestic Violence and Sexual Assault

N.Y. Pen. Law §§ 130.00-130.91

Many people believe that a husband cannot be charged with sexually assaulting his wife. Others think that dating someone automatically means that that person consents to having sex with you. This is not the case. Domestic violence, also referred to as intimate partner violence, often involves sexual assault. In New York you would have committed sexual assault if you commit any of several crimes under the New York sex crimes statute. As any type of sexual assault is heinous often leaving the victim with both physical and emotion injuries, New York law enforcement is eager to arrest and convict those who have been charged with sex crimes. While rape is the most commonly known type of sexual assault New York Penal Law includes several other types of sexual assault such as forcible touching, sexual abuse, criminal sexual act, sexual misconduct, and facilitating a sexual offense with a controlled substance. If the sexual assault involves individuals who are in a domestic relationship the assault is also an act of domestic violence. Examples of domestic relationships include people who are married, dating, have a child together, or live together. Because of the seriousness of sexual assault, while there are a few misdemeanors most sex crimes are classified as felonies punishable by years and years in prison and registration as a sex offender. Because of the consequences of being charged or convicted of a sex crime as soon as you have been accused of domestic violence that involves any type of sexual assault it is critical that you contact an experienced Queens Domestic Violence and Sexual Assault Lawyer who will review the facts of your case and aggressively defend you against the charges.

An essential element of any sexual assault is the lack of consent. N.Y. Pen. Law § 130.05. Lack of consent means that your wife, for example, did not give you permission to have sex with her. This could mean that you used physical force to commit the sex act. It also could mean that the other person did not have the capacity to consent. For example, a person who suffers from a mental disability, suffers from a mental incapacity, or is physically helpless would not have the legal capacity to consent to sex. In addition, if the person you have sex with is a minor, you may have committed sexual assault because that person would not have the legal capacity to consent to a sexual act. This type of sexual assault is also referred to as statutory rape.

Most sexual assault crimes have several degrees of seriousness. The more serious the crime the more severe the punishment.

Types of Sexual Assault

Forcible touching, sexual misconduct and sexual abuse. 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 without that person's consent 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 involves subjecting a minor to sexual contact. For purposes of the sexual abuse in the third degree offense, a minor is someone who is less than 14 years old. N.Y. Pen. Law § 130.60. Because these offenses are misdemeanors, the maximum jail sentence that you will receive is 1 year. However, part of your sentence may include a probation term of 6 years.

Rape. Rape is the charge that you will face if you have sexual intercourse without the consent of the other person. It does not matter if the other person is your spouse, girlfriend, or roommate. If that person did not consent, you could face a rape charge. 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 without that person's consent. 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. 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. The penalty for rape in the first degree is up to 25 years in prison. It is a Class B felony.

Criminal sexual act. Criminal sexual act is similar to rape, but instead of sexual intercourse it 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 and the other person did not consent. 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 the other person was 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.

Sexual abuse. Sexual abuse in the first degree is Class D felony. If you forcibly have sexual contact with another person or have sexual contact with a physically helpless person you would have committed sexual abuse in the first degree. N.Y. Pen. Law § 130.65.

Aggravated sexual abuse. 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 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. 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. It is Class B felony. N.Y. Pen. Law § 130.70. The maximum sentence is 25 years in prison.

Facilitating a sex offense with a controlled substance. 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

Statutory Rape. One factor that can cause a sex act such as sexual intercourse, anal sex, or oral sex to be criminal sexual assault is where the sex act is with a minor. Such an act is commonly referred as statutory rape. Beware that if you engage in a sex act with someone you are dating, for example, and that person is less than 17, you may be charged with statutory rape.

Arrest and Arraignment

Being charged with a crime in New York can be scary and overwhelming. If the police suspect that you have sexually assaulted someone you will be arrested and taken to the local police precinct. At the local precinct your personal information will be taken and you will be fingerprinted. Then you will be taken to Central Booking where you will remain until your arraignment. Within approximately 24 hours of your arrest you will be arraigned. At your arraignment you will learn the exact charges against you. In some cases the charges will be different from what you expected. Based on a review of the evidence, the assistant district attorney assigned to your case may decide to raise or lower the charge, or to add additional charges. Other things that typically occur during an arraignment include:

  • You plead guilty or not guilty
  • The judge will make a decision on bail. The options are: set the amount of bail, hold you without bail, release you without bail
  • If you are released pending the resolution of your case, the conditions for your release will be established, such as abiding by an Order of Protection or not leaving the jurisdiction
  • Set the date for the next hearing.

At some point your case may be resolved through plea-bargaining. You and the prosecutor may arrive at a mutually satisfactory compromise that would require you to plead guilty to a lesser crime that would result in a lighter than if you were found guilty of sexual assault after a trial. Any agreement that you come to with the prosecutor is subject to the approval of the judge.

Sentence for Sex Crime Conviction

The sentence for a sex crime conviction varies based on the classification of the sex crime. 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. 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.

Order of Protection

If you are charged with sexual assault and the victim is in a domestic relationship with you, as part of the criminal process the judge will likely grant a Temporary Order of Protection in favor of the victim. An Order of Protection is a court order requiring you to stay away from another person or requiring you to stop harassing or threatening another person. Such orders are usually very specific about what you cannot do and what you must do. For example, an Order of Protection may state that you are not permitted to go near the victim, the victim's children or the victim's place of employment. If you live with the victim, the order may exclusionary, requiring you to move. If you have children with the victim, you may be ordered to pay child support. If you violate an Order of Protection, you could face additional criminal charges. Based on the outcome of the sexual assault charges against you, the Temporary Order of Protection may become a Permanent Order of Protection meaning that it may remain in place for a number of years. However, if you do not believe that an Order of Protection is warranted, then there are ways to fight such an order to get it vacated.

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. In addition, if the victim is also in a domestic relationship with you it is important that you are represented by someone who is familiar with handling domestic violence cases. 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, assault, stalking, statutory rape, 00as well as other offenses related to domestic violence. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of domestic violence and sexual assault in the following locations:

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