New York Sexual Abuse in the Second Degree
Under the New York Penal Code you have committed sexual abuse in the first degree if you subject another person to sexual contact, and you do so:
- By forcible compulsion,
- When the other person is physically helpless,
- When the other person is less than 11 years old, or
- And you are at least 21 years old and the other person is less than 13 years old
Sexual abuse in the first degree is a Class D felony. If you are convicted, you could be sentenced to up to 7 years in prison. N.Y. Pen. Law § 130.65. In addition, if convicted restrictions will be placed on your life that will remain in place years after you serve your sentence. Because your life and your family's life will likely substantially change if you are convicted of sexual abuse in the first degree or any sex offense, as soon as you are questioned about an incident that could lead to a sex crime charge, you should immediately contact an experienced New York sex crimes lawyer who understands New York criminal law related to sex crimes and who will aggressively defend you against the charges. 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 at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case.Sexual contact
In order for you to be charged with sexual abuse in the first degree, you must have subjected the other person to "sexual contact." The New York Penal Code defines sexual contact as touching of the sexual or intimate parts for sexual gratification. N.Y. Pen. Law § 130.00(3). Sexual or intimate parts are not specifically defined, but likely mean at minimum the vagina, penis, anus, rectum, buttocks, breasts, lips and mouth. For example, in People v. Brown, 2014 N.Y. Slip Op. 01213 (2014), the defendant was convicted of sexual abuse in the first degree after forcing a 6 year old girl to stroke his penis in one incident and in the other incident touching her vagina and buttocks. Under the statute, it does not matter who does the touching. In other words, if you touch another person's buttocks without consent, or if you force someone to touch your buttocks, in either case you can be charged with sexual abuse in the first degree. It also does not matter if the touching is done through the clothes or under the clothes.Lack of consent
In order for you to be charged with sexual abuse in the first degree, the prosecutor must be able to show that the sexual contact was without consent. Lack of consent can be shown in 3 different ways.
- Force. If you physically force the sexual contact upon the other person, physically force the other person to touch you in an intimate area, or threaten the use of force then you used forcible compulsion. The threats can be directed toward the victim, or toward another person. N.Y. Pen. Law § 130.00(8)
- Physically helpless. If a person is physically help because that person is unconscious, or for some other reason does not have the ability to object, and you subject that person to sexual contact, then you would have committed sexual abuse in the first degree. N.Y. Pen. Law § 130.00(7).
- Age. If the victim is of a certain young age, the law states that that person does not have the capacity to consent to sexual activity. In the case of sexual abuse in the second degree the age is under 11, or under 13 if the defendant is at least 21 years old.
Another element of sexual abuse in the first degree is that the contact must have occurred for the purpose of sexual gratification. While the statute does not provide guidance as to what would serve as evidence as sexual gratification, courts have concluded that the mere fact that you touched another person's intimate parts is indicative that you were seeking sexual gratification.Arrest and arraignment
If you are arrested for sexual abuse in the first degree, you will end up in Central Booking where you will remain for several hours until your arraignment hearing. The arraignment is not the trial where your guilt or lack of guilt will be determined by a judge or jury. It is the first of many appearances that you will likely have to make in court prior to your actual trial. At the arraignment you will be formally charged. During the arraignment you might be surprised to learn that the charges against you are different from what you expected. For example, based on the evidence and allegations of the case, the prosecutor may decide to charge you with rape, sexual abuse, facilitating a sexual offense with a controlled substance, endangering the welfare of a child or sexually motivated felony. At the arraignment you will also learn whether you will have to post bail. Whether or not the judge will require bail and the amount of bail will be based on how much of a flight risk the court determines you to be. Finally, you will learn the date and time you must return to court. At some point you may strike a plea deal with the prosecutor in which you agree to plead guilty to the original charges or to lesser charges. If no plea deal is agreed upon, then you will ultimately go to trial before a judge or before a jury.Defenses
There are be a number of possible defenses to the charge of sexual abuse in the first degree. Since one of the key elements to the charge is that the other person was forced or did not have the capacity to consent, if you can show that the other person did in fact consent to the act, then you have a valid defense. You would have to show that the contact was not forced or that the other person was not was not physically helpless.
The statute of limitations may provide another defense to a charge of sexual abuse in the first degree. Because it is a felony, the statute of limitation for bringing a charge of aggravated sexual abuse in the second degree is 5 years. N.Y. Crim. Pro. Law § 30.10. If you are not prosecuted within 5 years of when the incident was reported to have occurred, then you can never be prosecuted. If the victim was less than 18 years old at the time of the incident, then statute of limitations will not start to run until he or she is 18, or until the incident is reported to law enforcement.Sentencing and other consequences Prison
The sentence for being convicted of sexual abuse in the first degree is up to 4 years in prison as it is a Class E felony. However, since it is not classified as a violent felony offense, there is no mandatory minimum sentence. This means that if this is your first felony offense, the judge has the discretion to sentence you to much less than 4 years in prison. The judge may even opt to sentence you to probation. If you are sentenced to just probation, it will be for 10 years because sexual abuse in the first degree is both a felony and a sex crime. On the other hand, if you do have a prior felony offense, you will face a mandatory minimum sentence of at least 3 years in prison. N.Y. Pen. Law § 70.06.Probation
If you are sentenced to probation, or if you receive a sentence that includes concurrent terms of prison and probation, you will learn that probation may be challenging. There are many rules that you will be required to follow. For example, some of the rules may includes: you must not commit a crime, you must have a job, you must support your family, you must submit to random drug testing, you must refrain from associating with disreputable people and going to disreputable places, you must refrain from possessing firearms, you cannot leave New York State without permission, you will be subject to a curfew, you must pay restitution, and you must regularly check in with your probation officer. N.Y. Pen. Law § 65.10. If you break any of the conditions of your probation your probation officer my violate you. You will have to appear before a judge who will decide if you did indeed violate the terms of your probation. If so, the judge will determine whether to send you to jail or change the terms of your probation.Sex offender registration
Like most other sex crimes, sexual abuse in the first degree is a registrable offense under the New York Sex Offender Registration Act. This means that you will be required to follow the rules for registered sex offenders. N.Y. Cor. Law § 168. You will remain on the sex offender registry for at least 20 years and perhaps for the rest of your life. You will have to verify your address with the Division of Criminal Justice Services (DCJS) either every 90 days or once a year. You must inform the DCJS of your new addresses within 10 days of moving. If you move out of state, you must register as a sex offender under the rules of your new jurisdiction.Request a free confidential consultation
Because if you are convicted of a charge of sexual abuse in the first degree you could end up in prison and away from your family for several years, it is important to be represented by someone with experience. Defending any sex offense charge is always complicated, involving an understanding of not only criminal law, but also the nuances of New York criminal procedure. 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 1-800-NY-NY-LAW (1-800-696-9529) 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.