Queens Sexual Battery

Sexual battery is a general term that describes any of several sex crimes defined under New York law. Sexual battery is considered a particularly heinous crime, leaving victims both physically and emotionally scarred. New York law enforcement agencies have made it a priority to apprehend and aggressively prosecute those accused of any type of sex crime. While rape is what most often comes to mind, there are several different types of sexual battery under New York law. Some sex crimes such as forcible touching and sexual misconduct are misdemeanors, while most sex crimes such as rape in the first degree and persistent sexual abuse are felonies. This means that if convicted of almost any type of sexual battery you will almost certainly end up in prison for multiple years. In addition, you will have to register as a sex offender under the Sex Offender Registration Act for at least 20 years. Because of the consequences of being convicted of sexual battery as soon as you have been accused of any type of sex crime, it is critical that you contact an experienced Queens Sexual Battery Lawyer who will review the facts of your case and work with you to develop an aggressive defense to help you fight the charges.

Lack of Consent

The essential element of any sexual battery charge is that the other person did not consent to the sex act. N.Y. Pen. Law § 130.05. In other words, you did not receive permission to engage in the sex act. Lack of consent can be based on a number of things:

  • Force or forcible compulsion. If you made someone have sex with you by using physical force such as beating the person or restraining the person, or if you use the threat of death or kidnapping, there would not be consent to the sex act.

  • Mental disability. A person who has some sort of mental disease or defect such that he or she is unable to appreciate the nature of a sex act is legally incapable of consenting to sex.

  • Mental incapacity. Likewise, a person who is drunk or in some other way intoxicated does not have the ability to consent to sex.

  • Minor. Children do not have the legal capacity to consent to sex.

  • Physically helpless. A person is physically helpless if he or she is unconscious or for any reason is unable to communicate lack of consent.

Types of Sexual Battery

Misdemeanor sexual battery crimes include forcible touching, sexual misconduct, sexual abuse in the third degree and sexual abuse in the second degree. You will be charged with forcible touching if you touch another person's intimate parts in order to receive sexual gratification. N.Y. Pen. Law § 130.52. Sexual misconduct is having sexual intercourse, anal sex or oral sex with another person without that person's consent, or if you have sex with an animal or a dead person. N.Y. Pen. Law § 130.20. Sexual abuse in the third degree is subjecting another person to sexual contact without that person's consent. N.Y. Pen. Law § 130.55. Sexual abuse in the second degree is subjecting someone to sexual contact and that person is not capable of consenting for any reason other than being less than 17 years old, or that person is a child who is less than 14 years old. N.Y. Pen. Law § 130.60

Rape is a term that is commonly used to describe sexual battery or sexual assault. However, it has a very specific meaning under New York Penal Law. 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, or if you are at least 21 years old and the other person is a minor who is less than 17 years old. N.Y. Pen. Law § 130.25. Sexual intercourse refers to the penis penetrating the vagina. N.Y. Pen. Law § 130.00. If convicted you could be sentenced to up to 4 years in prison. Rape in the second degree involves having sexual intercourse with someone who is mentally disabled or mental incapacitated. If you are at least 18 years old and you have sexual intercourse with a child who is 15 years old or younger, you would also face a rape in the second degree charge. It 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 have sexual intercourse with another person using physical force, if you have sexual intercourse with someone who is physically helpless, if you have sexual intercourse with a child who is age 11 or younger, or if you are at least 18 years old and have sexual intercourse with a child who is less than 13 years old. The sentence for rape in the first degree is up to 25 years in prison. It is a Class B felony.

A criminal sexual act is different from rape in that criminal sexual act involves oral or anal sex while rape involves sexual intercourse involving the vagina and penis. You will face a charge of criminal sexual act in the third degree if you have oral or anal sex with a child who is under 17 years old and you are 21 years old or older, or the other person did not consent due to any other factor. It is a Class E felony. N.Y. Pen. Law § 130.40. The crime of criminal sexual act in the second degree involves having anal or oral sex with a child who is less than 15 years old and you are at least 18 years old, or the other person is mentally disabled or mentally incapacitated. It is a Class D felony with a possible sentence of up to 7 years in prison. N.Y. Pen. Law § 130.45. You would have committed criminal sexual act in the first degree if you have oral or anal sex by force, with someone who is physically helpless, with a child who is 11 years old, or if you are 18 years old or older and the other person is a child who is less than 13 years old. N.Y. Pen. Law § 130.50. It is a Class B felony with a maximum possible sentence of up to 25 years in prison.

You will be charged with sexual abuse in the first degree if you use force to have sexual contact with someone, or if you have sexual contact with someone who is physically helpless, with someone who is a child who is 11 years old, or if you are at least 21 years old, having sexual contact with someone who is a minor who is under 13 years old. It is a Class D felony. N.Y. Pen. Law § 130.65.

Another type of sexual battery involves inserting a finger or a foreign object into another person's vagina, urethra, penis, rectum or anus. The prosecutor will charge you with aggravated sexual abuse in the fourth degree if you insert a foreign object into someone without that person's consent. It is a Class E felony. If you also cause injury, you will also face the charge of 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 you will face if you use force to insert a foreign object into another person, or if the person is physically helpless, mentally disabled, mentally incapacitated, or is a child who is under 11 years old. It is a Class D felony. N.Y. Pen. Law § 130.66. You will face a charge of aggravated sexual abuse in the second degree if you physically injure someone by inserting your finger into that person by force, or if the other person is physically helpless or is a child who is less than 11 years old. N.Y. Pen. Law § 130.67. Because it is a Class C felony you could be sentenced to up to 15 years in prison. Aggravated sexual abuse in the first degree involves injuring someone by inserting a foreign object into that person, by force or if the other person is physically helpless or is a minor who is 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 battery against a child is particularly outrageous. Under New York criminal law those who commit such crimes are subject to harsh penalties. You will be charged with course of sexual conduct against a child if you commit sexually battery against a child who is less than 11 years old at least twice within a 3-month period. It is a Class D felony with a maximum possible sentence of 7 years in prison. It will also be the charge if you are at least 18 years old 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 Class B felony. You will face this charge if the sex act 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.

While female genital mutilation is a type of sexual assault, it is unlike other sex crimes in that is not performed for sexual gratification, but as a cultural ritual. It involves circumcising, excising, or infibulating any part of the labia or clitoris of a girl who is less than 18 years old. A defense is if such procedure is completed for medical reasons and is performed by a licensed medical professional. It is a Class E felony with a possible sentence of up to 4 years in prison. N.Y. Pen. Law § 130.85. Another type of sexual battery involves giving someone drugs without that person's knowledge and then having sex with that person. This crime is called facilitating a sex offense with a controlled substance. It is a Class D felony. N.Y. Pen. Law § 130.90. If you commit another felony in order to commit sexual battery, you will have committed the crime of sexually motivated felony. N.Y. Pen. Law § 130.91

Sentence for Sexual Battery Conviction

The judge will base your sentence for a sexual battery conviction on a variety of factors, the most important of which is the classification of the sex crime. Misdemeanor convictions will result in a sentence of no more than a year in jail, while felony convictions will result in a sentence of up to life in prison. If you have a criminal record with one or more prior felony convictions, your sentence will be more severe than if you are a first time offender. A conviction for sexual battery will also mean that you will be required to register as a sex offender. N.Y. Cor. Law § 168. Based on how much of risk you present for re-offending, the New York Sex Offender Registration Act requires that you follow sex offender registration requirements for 20 years or for life.

A sexual battery charge is extremely serious and could result in you being sentenced to years and year in prison. Therefore, if you are charged with any type of sexual battery or sexual assault, you should immediately contact an experienced attorney who is familiar with defending people 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 domestic violence, child pornography, 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. We serve those accused of sex crimes in the following locations:

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