Queens Sexual Misconduct

Under New York Penal Law there are four acts that you can do that amount to the crime of sexual misconduct.

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

It is a Class A misdemeanor, making it on just a few sex crimes that is not a felony. If you are convicted of sexual misconduct the maximum sentence that you could face is up to a year in jail. N.Y. Pen. Law § 130.20. However, even though sexual misconduct is a misdemeanor, being convicted will have a lasting effect on both your personal and professional lives. If you are convicted you will have a criminal record and you will still be required to register as a sex offender. Because of the consequences of being convicted of sexual misconduct or any other sex crime, as soon as you have been charged it is important that you contact an experienced Queens Sexual Misconduct Lawyer who will aggressively defend you and support you through each stage of the criminal process.

Definition of Sexual Misconduct

Under New York law the sex acts that are elements to the sexual misconduct crime have very specific definitions. Sexual intercourse means a penis penetrating a vagina. Any amount of 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. N.Y. Pen. Law § 130.00(1). For example, in In re Sheifa R., 22 Misc.3d 1106(A) (2008), the 9-1/2 year old defendant committed acts that would have amounted to a charge of sexual misconduct had the defendant been an adult, including placing his penis in or near the anus of a 7 year old girl.

Lack of Consent

In order for you to be charged with sexual misconduct there must have been a lack of consent to sex act. N.Y. Pen. Law § 130.05. In basic terms, lack of consent means that the other person did not agree to have sexual intercourse, anal sex or oral sex with you. Lack of consent can be shown if you used forcible compulsion to compel the sex act. Forcible compulsion means that you used either physical force or an express or implied threat of death, physical injury, or kidnapping to compel the other person to engage in the sexual act. Physical trauma to the victim would be evidence of forcible compulsion. The threat of physical injury can be actual threats, or it can be a perceived threat. For example, in People v. Blond, 96 A.D.3d 1149 (2012), defendant Mark Blond was convicted of a sex crime based on the use of forcible compulsion. The victim had witnessed the defendant act violently toward others. When the defendant approached the victim for sex she felt that he would physically harm her if she resisted.

However, lack of consent means more than the other person saying no or forcible compulsion being involved. The law enumerates circumstances under which a person would not have the legal capacity to consent to sex. If the other person is a minor who is under the age of 17, he or she would not have the legal capacity to agree to sex. A person is mentally disabled such that he or she would be unable to consent to sex 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. In People v. Johnson, 99 A.D.3d 591 (2012), defendant Sharmelle Johnson plead guilty to a sex crime based on having sex with a person whom he knew to be mentally incapacitated from drinking. It does not matter if you caused the person to become intoxicated. In People v. Johnson, the defendant came upon the victim standing outside of a bar already intoxicated.

If you are charged with sexual misconduct or any other sex crime 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 person who was mentally disabled or mentally incapacitated at the time of the incidence would not be 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. For example, if you initiate sexual intercourse with someone who is sleep, then you could charged with a sex crime.

Defenses

There are several defenses to a charge of sexual misconduct. Since lack of consent is a critical element to any sex crime, if you can prove that the accuser consented to the sex act, than you have a valid defense. The defense of consent, however, will only work if the accuser had the legal capacity to consent. Other defenses include mistaken identity and statute of limitations. In some cases a challenge to the credibility of the accuser may prove a successful defense strategy. In People v. Suh, 27 Misc 3d 143(A) (2010), a sexual misconduct conviction was reversed and a new trial ordered because of the questionable credibility of a prosecution witness.

Sentence and Other Consequences

Because sexual misconduct is a Class A misdemeanor the possible sentence is confinement in jail for up to a year. In People v. Lawrence, 969 N.Y.S.2d 805 (2013), the defendant Javian Lawrence was sentenced to 6 months in jail after he plead guilty to 1 count of sexual misconduct. Probation or a short jail sentence are also possible sentences, especially if you do not have a prior criminal record. For example, in People v. Valle, 2011 NY Slip Op 52415(U) (2011), defendant Carlos Vallee was sentenced to only probation after pleading guilty to sexual misconduct. Regardless of whether you are sentenced to incarceration or if you are sentenced to probation there are always additional consequences of being convicted of sexual misconduct. 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 complicate many aspects of your life. Finding a job may be challenging. 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 life even more difficult is that sexual misconduct is a registrable offense under the New York Sex Offender Registration Act (SORA). This means that immediately after you are sentenced you will have to register as sex offender. You will have to follow the rules of the SORA for many years. Even if you move to another state, you will have to register wherever you go. The personal details of some sex offenders will be readily available online, and people often view them. Not only will employers be reluctant to hire you, landlords will be reluctant to lease apartments to you. Furthermore, you may even have a difficult going to your child's school. Many schools now perform background checks on anyone seeking to enter a school building, volunteer, or accompanying students on a field trip. If a background check shows that you are a sex offender, you may be denied access to the school building or school activities.

You may have even more to worry about if you are convicted of sexual misconduct or practically any other sex crime and you are not a U.S. citizen. Under federal law, if a non-citizen 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 a misdemeanor under federal law it is an "aggravated felony."

Being charged with any crime, particularly a crime as serious as sexual misconduct, is frightening. The idea of having to face the criminal justice system along is overwhelming. However, you should not attempt to face these charges without experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of misdemeanor and felony sex crimes, such as sexual misconduct, criminal sexual act, forcible touching, sexual abuse, sexual conduct against child, 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 serve those accused of sex crimes in the following locations:

CONTACT US FOR A FREE CONSULTATION
1-800-NY-NY-LAW (1-800-696-9529)