NY Penal Law § 130.45: Criminal Sexual Act in the Second Degree

Criminal sexual act in the second degree is one of three criminal sexual act crimes in New York. According to New York Penal Code § 130.45 you would 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 if you have anal or oral sex with someone who is incapable of consent due to a mental disability or mental incapacity.

According to New York Penal Code § 130.00(5) a person suffers from a mental disability if that person does not have the ability to understand the nature of the sexual act, then you would have committed criminal sexual act in the second degree. On the other hand, a mental incapacity is defined in New York Penal Code § 130.00(6) a person suffers a mental incapacity if that person is intoxicated by drugs or alcohol.

A woman is a caretaker for a man who suffers from a disorder such that his mental ability is that of a child. The woman encourages the man to have oral sex with her. The woman could be prosecuted for criminal sexual act in the second degree because the man did not have the mental capacity to consent to oral sex. It is not relevant that the man appeared to have consented.

1. Rape in the second degree: New York Penal Code § 13
2. Sexual abuse in the first degree: New York Penal Code § 130.65
3. Aggravated sexual abuse in the third degree: New York Penal Code § 130.66
4. Course of sexual conduct against a child in the second degree: New York Penal Code § 130.80
5. Facilitating a sex offense with a controlled substance: New York Penal Code § 130.90

Depending on the facts of your case, there are several possible defenses including:

1. Lack of corroboration. If the case against you is based on the victim having been mentally disabled or mentally incapacitated at the time of the incident, according to New York Penal Code § 130.16 in addition to the victim's testimony there must be corroborating evidence.

2. Statute of limitations. If you are not prosecuted within 5 years of the date of the incident, under New York Criminal Procedure Law § 30.10 the prosecutor would be legally barred from ever prosecuting you.

If you are convicted of criminal sexual act in the second degree, because it is a class D felony the maximum prison sentence that you would receive is 7 years in prison. Your sentence may also include a probation term of 10 years. Regardless of your sentence you will also be required to register as a sex offender under New York Correction Law § 168, also known as the Sex Offender Registration Act. You will have to follow the registration rules for at least 20 years and perhaps for the rest of your life.

A person is guilty of criminal sexual act in the second degree when:

1. being eighteen years old or more, he or she engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old; or

2. he or she engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

It shall be an affirmative defense to the crime of criminal sexual act in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.

Whether the charge is criminal sexual act in the second degree or any other criminal sexual act charge, defending you will be complicated requiring an understanding of complex issues pertaining to evidence as well as interpreting the criminal statute and applying defenses. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with sex crimes such as aggravated sexual abuse, criminal sexual act in the first 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.