According to New York Penal Law, you would have committed criminal sexual misconduct if you have sexual intercourse, anal sex or oral sex with another person without that person’s consent. N.Y. Pen. Law § 130.20. It is a Class A misdemeanor. The law includes very specific definitions for these sex acts. 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. 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)
Lack of Consent
In order for you to be charged with criminal sexual misconduct there must have been a lack of consent to the sex act. N.Y. Pen. Law § 130.05. In basic terms, lack of consent means that the other person did not agree to have sex with you. The most obvious basis for lack of consent is where you used physical force or threats in order to complete the sex act. In addition, a person who is under the age of 17 does not have the legal capacity to consent to sex, nor does someone who suffers from a mental incapacity, a mental disability, or who is unconscious or otherwise physically helpless.
Defense to sexual misconduct charge
The key 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, forcible compulsion, mental disability, mental incapacity, or physical helplessness. 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, under a mental disability, or under a mental incapacity, or the person was not a minor you have a defense to the charge of sexual misconduct.
Punishment for sexual misconduct
Because criminal sexual misconduct is a Class A misdemeanor the maximum possible sentence of incarceration is 1 year in the county jail. However, your sentence may also include just probation, especially if you do not have a prior criminal record. Regardless of whether you are sentenced to jail or 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 many years. N.Y. Cor. Law § 168
If you have been charged with sexual misconduct or any other sex crime you should immediately contact an attorney who understands New York’s laws related to sex crimes. There are defenses to a charge of sexual misconduct that only an experienced attorney will understand that may result in the charge being dropped, reduced, or in you being acquitted after trial.