Lack of consent (NYPL 130.05)

Sexual activity requires consent, which is defined as voluntary, positive agreement between the participants to engage in specific sexual activity.

Public awareness and concern regarding sex offenses have grown, resulting in the implementation of new rules of evidence and procedure, new approaches to the investigation, new police techniques, and new prosecution of sex offenses.

In New York there are different levels of risk under the Sex Offender Registration Act (SORA). After a person is sentenced, he/she will have a SORA hearing. An assessment will be made of his/her level or risk to the community based on factors such as his/her background and criminal conduct. Based on that evaluation, the judge will determine his/her level of classification: Level 1 (lowest level of risk), Level 2, or Level 3 (highest level of risk).

N.Y. Pen. Law § 130.05. Sex offenses; lack of consent.

  1. Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.
  1. Lack of consent results from:

(a) Forcible compulsion; or

(b) Incapacity to consent; or

(c) Where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct; or

(d) Where the offense charged is rape in the third degree as defined in subdivision 3 of section 130.25, or criminal sexual act in the third degree as defined in subdivision 3 of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he/she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.

 

  1. A person is deemed incapable of consent when he/she is:

(a) less than 17 years old; or

(b) mentally disabled; or

(c) mentally incapacitated; or

(d) physically helpless; or

(e) committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital, as such term is defined in subdivision 2 of section 400 of the correction law, and the actor is an employee who knows or reasonably should know that such person is committed to the care and custody or supervision of such department or hospital.

For purposes of this paragraph, “employee” means (i) an employee of the state department of corrections and community supervision who, as part of his/her employment, performs duties:

(A) in a state correctional facility in which the victim is confined at the time of the offense consisting of providing custody, medical or mental health services, counseling services, educational programs, vocational training, institutional parole services or direct supervision to inmates; or

(B) of supervising  persons  released on community supervision and supervises the victim at the time of the offense or has supervised the victim and the victim is still under community supervision at the time of the offense; or

(ii) an employee of the office of mental health who, as part of his/her employment, performs duties in a state correctional facility or hospital, as such  term is defined in subdivision 2 of section 400 of the correction law in which the inmate is confined at the time of the offense, consisting of providing custody, medical or mental health services, or direct supervision to such inmates; or

(iii) a person, including a volunteer, providing direct services to inmates in a state correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the state department of corrections and community supervision or, in the case of a volunteer, a written agreement with such department, provided that the person received written notice concerning the provisions of this paragraph; or

(f) committed to the care and custody of a local correctional facility, as such term is defined in subdivision 2 of section 40 of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know  that such person is committed to the care and custody of such facility.

For purposes of this paragraph, “employee” means an employee of the local correctional facility  where the person is committed who performs professional duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for inmates.

For purposes of this paragraph, “employee” shall  also mean  a person,  including  a  volunteer or a government employee of the state department of corrections and community supervision or a  local  health, education or probation agency, providing direct services to inmates in the local correctional facility in which the victim is confined  at the time of the offense pursuant to a contractual arrangement with the local correctional  department or, in the case of such a  volunteer or government employee, a written agreement with such department,  provided that such person received written notice concerning the provisions of this paragraph; or

(g) committed to or placed with the office of children and family services and in  residential care, and the actor is an employee, not married to such person, who knows or reasonably should  know that such person is committed to or placed with such office of children and family services and in residential care.

For  purposes of this paragraph, “employee” means an employee of the office of children and family services or of a residential facility in which such person is committed to or placed at the time of the offense who, as part of  his/her employment, performs duties consisting of providing custody, medical or mental health services, counseling services, educational services, vocational training, or direct supervision to persons committed to or placed in a residential facility operated by the office of children and family services; or

(h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination; or

(i) a resident or inpatient of a residential facility operated, licensed or certified  by (i) the office of mental health; (ii) the office for people with developmental disabilities; or (iii) the office of alcoholism and substance abuse services, and the actor is an employee of the facility not married to such resident or inpatient. For purposes of this paragraph, “employee” means either: an employee of  the agency operating the residential facility, who knows or reasonably should know that such person is a resident or inpatient of such facility and who provides direct care services, case management services, medical or other clinical services, habilitative services or direct supervision of the residents in the facility in which the resident resides; or an officer or other employee, consultant, contractor or volunteer of the residential facility, who knows or reasonably should know that the person is a resident of such facility and who is in direct contact with residents or inpatients; provided, however, that the provisions of this paragraph shall only apply to a consultant, contractor or volunteer providing services pursuant to a contractual arrangement with the agency operating the residential facility or, in the case of a volunteer, a written agreement with such facility, provided that the person received written notice concerning the provisions of this paragraph; provided further, however, “employee” shall not include a person with a developmental disability who is or was receiving services and is also an employee of a service provider and who has sexual contact with another service recipient who is a consenting adult who has consented to such contact.

N.Y. Pen. Law § 130.10 Sex offenses; limitation; defenses.

  1. In any prosecution under this article in which the victim’s lack of consent is based solely upon his/her incapacity to consent because he/she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he/she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent.
  1. Conduct performed for a valid medical or mental health care purpose shall not constitute a violation of any section of this article in which incapacity to consent is based on the circumstances set forth in paragraph (h) of subdivision 3 of section 130.05 of this article.
  1. In any prosecution for the crime of:

in which incapacity to consent is based on the circumstances set forth in paragraph (h) of subdivision 3 of section 130.05 of this article, it shall be an affirmative defense that the client or patient consented to such conduct charged after having been expressly advised by the health care or mental health care provider that such conduct was not performed for a valid medical purpose.

  1. In any prosecution under this article in which the victim’s lack of consent is based solely on his/her incapacity to consent because he/she was less than 17 years old, mentally disabled, a client or patient and the actor is a health care provider, or committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital and the actor is an employee, it shall be a defense that the defendant was married to the victim as defined in subdivision four of section 130.00 of this article.

If you have been accused of committing a sex crime, then you are potentially facing a serious felony conviction on your record, a long prison sentence, and the stigma of being forced to register in a public directory as a sex offender. As soon as you are arrested or even questioned about incidents that could lead to a charge of persistent sexual abuse, you should immediately contact an experienced criminal defense lawyer who will review the facts of your case and defend you until the case is resolved. False accusations sexual abuse are quite common, particularly in domestic disputes and custody battles.