Being convicted of any crime in New York will affect the rest of your life. You may be incarcerated so that not only will you lose your freedom, you will also lose precious time with your family and friends. You will end up with a criminal record that may make some aspects of your life more challenging. However, if you are convicted of a sex crime, there are even more severe consequences, including the requirement of being listed on the sex offender registry. Nonetheless, just because you are accused of a sex crime does not mean that you will be convicted. There are several defenses to a sex crime accusation that may result in the charges being dismissed, the charges being reduced or you being acquitted. As soon as you know that you are being investigated for a sex crime, you should contact an experienced New York sex crimes lawyer who will review the facts of your case and aggressively defend you against the charges. The earlier you get experienced representation involved in your case, the more likely your case will be resolved in the most favorable manner possible. The attorneys at the Law Offices of Stephen Bilkis & Associates have decades of experience representing clients who have been charged with sex crimes and other serious crimes such as assault, domestic violence and kidnapping. Find out what we can do for you by contacting us to schedule a free, no obligation consultation regarding your case.
Lack of consentThe linchpin element to every sex offense is that the victim did not consent to the sex act. Lack of consent can be based on several different conditions such as age, physical force, mental disability, mental incapacity, physical helplessness, incarceration, or the catchall "any other factor." If you can show that the other person did indeed consent to the sex act because there was no physical force or threat, because the person was not physically helpless, because the person was not under a mental disability, or because the person was not under a mental incapacity, you have a defense to the charge.
Lack of intentThe hallmark for most crimes in general is that you had the intent to complete the prohibited act. Thus, if you did not have the intent, then you may have a defense to the charge. For example, if you are accused of forcible touching based on contact that occurred in a crowded area such as a subway train or at party, if you did touch the other person, but can prove that it was an accident, then you may have a defense of lack of intent.
Another reason that you may have not formed the requisite intent to commit a sex offense is if you were so intoxicated at the time of the incident that you were incapable of forming the intent necessary for a charge of criminal sexual act. In People v. Velcher, 2014 NY Slip Op 02464 (2014), the defendant was charged with and convicted of criminal sexual act in the first degree as a result of having oral or anal sex with a 17-year-old girl. On the appeal, the court acknowledged that because the defendant was intoxicated at the time of the incident, he may not have been able to form the requisite intent.
Licensed medical professionalFor charges of aggravated sexual abuse in the fourth degree,third degree, second degree, and first degree, as well as female genital mutilation a defense is that the conduct which is otherwise prohibited had a legitimate medical purpose and was performed by a licensed medical practitioner, or in the case of female genital mutilation a midwife or someone who is training to become a midwife.
Mistaken identityIn some cases because of the circumstances of the incident, the victim may have mistakenly identified you as the perpetrator. For example, in cases where the incident occurred in the dark, where the perpetrator was behind you, or where there was some other reason that it was difficult to identify the perpetrator, you may be able to use mistaken identity as a defense.
MarriageWhile a person can be convicted of committing certain sex offenses against his or her spouse, there are certain cases in which marriage is a defense to a sex crime charge. For example, where an element of an offense is that there was lack of consent only because of the age of the victim, if it is shown that the purported victim and the defendant were married, then the defendant has a defense to the charge. However, in order for marriage to be a valid offense, the marriage itself must be recognized as valid in the State of New York. In People v. Ezeonu, 155 Misc.2d 344 (1992) the defendant was charged with rape in the first degree and rape in the second degree based on having sexual intercourse with a 13-year-old girl. The defendant's defense was that he was married to the girl. However, the court rejected this defense because the defendant was also married to another woman. While polygamous marriages are recognized in Nigeria where the defendant and the victim were from, they are not recognized in the United States.
Lack of injuryFor some offenses, an element of the crime is that the prohibited conduct must have caused injury. If there was no injury, then you did not commit that particular offense. For example, If the prosecutor charges you with aggravated sexual abuse in the fourth degree based on an allegation that you inserted your finger into the vagina, urethra, penis, rectum or anus of the other person, to meet all of the elements of the offense, the victim must have been injured. If not, then you have a defense to a charge of aggravated sexual abuse in the fourth degree. The injury must be physical, not psychological.
Lack of corroborationIn cases where the charge is based on the victim being either mentally disabled or mentally incapacitated there must be corroboration by a third party or by other evidence that connects the accused person with the incident. N.Y. Pen. Law § 130.16. In other words, a sex offense charge will not stick simply based on the word of someone who was mentally disabled or mentally incapacitated at the time of the incident.
Statute of limitationslf the victim delays reporting the incident or if the prosecutor cannot immediately press charges for an incident, the statute of limitations may become a factor. The statue of limitations refers to the amount of time that a prosecutor has to bring criminal charges against another person. If you are not within the limitations period, you can never be charged with a crime related to that incident. If the offense is a misdemeanor such as forcible touching, sexual abuse in the second degree or sexual abuse in the third degree, the limitations period is just two years. N.Y. Crim. Pro. Law § 30.10. If like the majority of sex offenses, the offense is a felony, then the limitations period is 5 years. There is an exception to this general rule. If the victim was less than 18-years-old at the time of the incident, the limitations period does not begin to run until the victim turns 18-years-old or until the incident is reported to law enforcement.
Consequences of convictionIf you are convicted of a sex offense that is a misdemeanor you will be sentenced to up to 1 year in jail for a Class A misdemeanor or up to 3 months in jail for a Class B misdemeanor. Only 3 sex offenses are misdemeanors. All others are felonies. If you are convicted of a felony, your may face up to life in prison. For Class E felonies the maximum sentence is 4 years; for Class D felonies the maximum sentence is 7 years; for Class C felonies the maximum sentence is 15 years; for Class B felonies the maximum sentence is 25 years; and for Class A-II felonies the maximum sentence is life in prison.
If you have a prior felony conviction, or if the sex offense of which you are convicted is classified as a violent felony offense, your sentence will include a mandatory prison term. If your sentence includes a term of probation, the probation term will be double the normal probation time. For a misdemeanor sex crime conviction, the probation term will be 6 years. For a felony sex crime conviction, the probation term will be 10 years. There will be several conditions on your probation. If you violate any of the conditions, you could be sent to jail.
Conviction of every sex offense except for female genital mutilation and sexually motivated felony will result in you being added to the sex offender registry as required by the New York Sex Offender Registration Act. You will have to register for at least 20 years. If you are determined to pose a substantial risk for re-offending, you will have to register for the rest of your life. N.Y. Cor. Law § 168. As a registered sex offender several restrictions will be placed on you. You will not be able to move out of New York state without informing the New York Department of Criminal Justice Services (DCJS). If you do move, you must let the local law enforcement agency that you have moved to that jurisdiction, and you must follow that jurisdiction's sex offender registration rules. Even if you do not leave the state, you will have to keep the DCJS informed of your address. Some sex offenders will have to verify their addresses to the police every 90 days. You will also have to report to the local police and have your photograph taken every three years. You may have to let the police know the name and address of your employer, and the name of the school you are attending. If you do not follow these rules, you can be arrested and charged with a Class D felony that could result in incarceration. Not only is it difficult for registered sex offenders to find employment, it is also difficult for them to rent an apartment. In some cases registered sex offenders are not allowed to enter school property.
Schedule a consultationThe consequences of being convicted of any other sex crime are devastating and will impact both your life and the lives of your loved ones. However, there are many possible defenses to any sex crime charge. Thus, it is critical to seek experienced representation to help you fight such charges. 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 rape, sexual misconduct, criminal sexual act, forcible touching, sexual abuse, sexual conduct against child, and facilitating a sexual offense with a controlled substance. In addition, we also have experience defending clients who have been charged with drug possession and other drug crimes. Contact us at 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.