New York Criminal Sexual Act in the Second Degree

Under the New York Penal Code you have committed criminal sexual act in the second degree if you:

• Are at least 18 years old and have anal or oral sex with someone who is less than 15 years old, or
• Have anal or oral sex with someone who is incapable of consent due to a mental disability or incapacity.

Criminal sexual act in the second degree is a class D felony. N.Y. Pen. Law § 130.45. If convicted you will face a minimum sentence of 3 years in prison and a maximum of 7 years. In addition, being charged with criminal sexual act in the second degree, or any other sex crime can have lasting, damaging effects on your life, even if you are never prosecuted or convicted. Because of the consequences of being charged with any type of sex crime, as soon as you have been accused it is critical that you contact an experienced New York sex crimes lawyer at the Law Offices of Stephen Bilkis & Associates who will aggressively defend you against the charges. 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 800.696.9529 to schedule a free, no obligation consultation regarding your case.

Under the statute, there would have been no consent if one of the following conditions was present:

• Mental Disability. A person would not be able to consent to anal or oral sex if that person suffers from some sort of mental disease or defect such that he or she does not have the ability to understand the nature of the conduct. If a person suffers from a mental disability, even if that person appears to agree to engage in the sexual contact or even if the person initiates it, there would be no consent and you could be charged with criminal sexual act in the second degree. N.Y. Pen. Law § 130.00(5)
• Mental Incapacity. Under the New York Penal Code if you cause someone to become intoxicated by giving that person an intoxicating substance without his or her permission, then that person would then be mentally incapacitated. This means that if you then have anal or oral sex with that person you could be charged with criminal sexual act in the second degree. N.Y. Pen. Law § 130.00(6)
• Age. You were at least 18 years old and the victim was less than 15 years old. If the victim is of a certain young age, then the law says that that person is too young to consent to oral or anal sex.

If you are accused of criminal sexual act in the second degree or any other sex crime, you will be arrested and taken into custody. You will initially go to Central Booking, where you will remain for about 18-36 hours until you are arraigned. An arraignment is a hearing before a judge at which you are formally charged. While at the time of your arrest you may be under the impression that you are being charged with criminal sexual act in the second degree, by the time you are arraigned the prosecutor would have had time to review your case as well as your criminal background. As a result the prosecutor may decide that you should be charged with a more serious crime such as criminal sexual act in the first degree. Or the prosecutor may decide to add one or more additional charges. At your arraignment you will also find out the amount of your bail, if you will be held without bail, or if you will be permitted to be released on your own recognizance. Finally, you will be told the date of your next hearing. After the arraignment there may be several hearings and meetings prior to your trial. During this time the prosecutor may offer you a plea agreement. A plea agreement usually entails the defendant agreeing to plead guilty to a lesser charge. If you are unable to agree on a plea agreement with the prosecutor, you will ultimately have a trial.

There are various defenses to a charge of criminal sexual act in the second degree. There may be various issues related to whether or not there was a lack of consent. If lack of consent is based on the other person being mentally disabled or mentally incapacitated, there must be corroboration by a third party or there must be other evidence of the criminal sexual act. N.Y. Pen. Law § 130.16. In other words, a criminal sexual act charge in the second degree will not stick simply based on the word of someone who is mentally disabled or mentally incapacitated. If there is no witness testimony or evidence to corroborate the accusation of the victim who was mentally disabled or mentally incapacitated at the time of the incident, then you have a defense. Furthermore, it is also a defense if you did not have knowledge of the person's mental disability or incapacity. N.Y. Pen. Law § 130.10

If lack of consent is based on the fact that you were over 18 years old and the other person was under age 15 at the time of the incident, a defense is that the two of you are married. N.Y. Pen. Law § 130.10. However, the marriage must be one that is valid in the United States. 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 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.

Another age-based defense is where the defendant was less than 4 years older than the victim at the time of the incident. For example, if you were 18.5 years old and the victim was 15, you have a defense to a charge of criminal sexual act in the second degree if the charge is based on lack of consent due to age.

A defense to criminal sexual act in the second degree is lack of intent. If you can show that you were unable to form intent to commit the crime of criminal sexual act in the second degree because, for example, you were intoxicated, you may avoid being convicted.

Another defense could be based on the statute of limitations. The statue of limitations refers to the amount of time that a prosecutor has to bring criminal charges against another person. The statute of limitations for criminal sexual act in the third degree is five years. N.Y. Crim. Pro. Law § 30.10. This means that if you are not prosecuted for criminal sexual act in the third degree within five years of when the incident reportedly occurred, you cannot be prosecuted at all. However, if the person who accuses you of criminal sexual act in the third degree was less than 18 years old at the time of the incident, the limitations period does not begin to run until he or she turns 18 years old or until the incident is reported to law enforcement.

Because criminal sexual act in the second degree is a class D felony, if convicted you will be sentenced to up to 7 years in prison. Most class D felonies do not carry a minimum sentence, giving a judge leeway to hand down a very light sentence, including probation if the situation warrants it. However, criminal sexual act in the second degree is classified as a violent felony offense. As such it carries a determinate sentence of a minimum of at least 3 years in prison up to a maximum of 7 years in prison.

If your sentence includes concurrent prison and probation terms, upon release from prison you will serve the balance of your probation. While you are on probation you will be monitored and your actions will be restricted. There will be several rules that you will be required to follow, including allowing law enforcement to conduct warrantless searches, having a job, agreeing to drug testing, undergoing drug treatment, if necessary, undergoing psychological testing or counseling, refraining from associating with disreputable people, refraining from possessing firearms, following a curfew, and not leaving New York without permission. Most importantly, if you are on probation, you cannot commit another crime. In other words, you must stay out of trouble. If you fail to follow the conditions of your probation your probation officer will violate you. This is serious as the result of a probation violation could mean that you have to go to jail. You will have to appear in court before a judge. The judge may find that there was no violation, may find that there was a violation and send you to jail, or may find that there was a violation and add new probation terms.

There are additional consequences of a criminal sexual act conviction that go beyond a prison sentence. If you are convicted you will have a criminal record. Even worse, you will also be a registered sex offender. N.Y. Cor. Law § 168. Being a registered sex offender impacts many aspects of your life. The New York Sex Offender Registration Act requires that a sex offender register for at least 20 years, and in some cases for the rest of your life. You will have a hard time getting a job as potential employers who may be willing to overlook a criminal history, may be unwilling to overlook a criminal history that involves a sex crime. You will not be able to hold certain jobs such as a teacher. In fact, some areas will not allow you on school premises if you are a registered sex offender. In addition, many landlords are unwilling to rent apartments to people who are on the sex offender registry. If you are a considered a sex offender who presents a substantial risk of re-offending, your name will be made public and easily accessible on the internet. If other residents in your neighborhood learn that you are a sex offender you may be harassed.

Whether the charge is criminal sexual act in the second degree, criminal sexual act in the third degree, or criminal sexual act in the first degree, defending a criminal sexual act charge is very complicated, requiring the understanding of complex issues pertaining to proof as well as being capable of interpreting and applying the nuances of New York criminal law. The staff at the Law Offices Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts accused of criminal sexual act in the second degree as well as other 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 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.