Aggravated Sexual Abuse in the First Degree: New York Penal Code § 130.70

First degree aggravated sexual abuse is a felony Class B offense and, according to New York Penal Code § 130.70, it is when a person inserts a foreign object or finger into the rectum, anus, vagina, urethra, or penis of a victim without consent, causing physical injury, and when one or more of the following is present at the time of the incident:

1. The victim is compelled to act because forcible compulsion is used; or
2. The victim is not able to take care of themselves physically; or
3. The victim is a child who is younger than eleven years of age.

The phrase “foreign object” is not defined in the New York statutes, but precedence leads us to believe that many objects may be considered “foreign objects,” including knives, bottles, sticks, and other things, inanimate or animate.

The phrase “forcible compulsion” may be defined as causing involuntary behavior by using threats or physical force. The intimidating threats or physical force cause a person to become fearful of (i) imminent or future death, (ii) imminent or future physical injury to the person or someone else, and/or (iii) imminent or future kidnapping of the person or someone else.

Suppose that during an intense and violent argument with his wife, a man forcibly inserted a knife into her vagina, viciously cutting her vagina and thighs multiple times. The man could be prosecuted for first degree aggravated sexual abuse because he used force and not only threatened but caused injury with a knife. The fact that the couple was still legally married, at the time, does not give the man carte blanche immunity from the charge of first degree sexual abuse. Other charges besides first degree sexual abuse may be levied, as well, in this incident.

Presence of consent. The absence of consent must exist for the charge of first degree aggravated sexual abuse to become a prosecutable offense. If the court can be convinced that force was not used and consent was given, the charges may have a chance of being dismissed.

Absence of medical necessity. Another defensive tactic might be to convince the court that the victim was not physically injured and was not in need of medical attention; producing evidence or an expert witness such as another physician who will testify to that effect might form the foundation for a viable defense.

Also, if the husband was himself a medical doctor who was performing a medically necessary procedure on his wife, there may be a chance that this defensive posturing will hold up in the court of law to defend against the charge of first degree sexual abuse. New York Penal Code section 130.70(3) protects medical professionals from prosecution when, out of medical necessity, they insert medical instruments into patients.

Other lines of defense. Understanding the minutiae of an incident and how they could be tied together to create a strong defense can leverage the evidence in favor of the accused person. A highly trained defense lawyer with a skilled mind and who knows what to look for in the details of a case will be a formidable advocate for defendants facing a charge of first degree aggravated sexual abuse.

Imprisonment. A person convicted of first degree aggravated sexual abuse may be sentenced from five years to as many as twenty-five years behind bars, as the crime is categorized as a felony Class B and a violent felony offense.

Probation. In addition to the prison sentence, the judge may add ten years of probation that will be imposed after the convicted person has fulfilled their jail sentence.

Registration as a sex offender. Section 168 of the Sex Offender Registration Act of the New York Correction Law mandates that a person convicted of first degree aggravated sexual abuse register as a sex offender for twenty years and, possibly, the rest of their lives. If the convicted person is considered to be a higher risk of re-offending, then they will be registered as a sex offender for the rest of their lives.

To reiterate, a person may be prosecuted for first degree aggravated sexual abuse if, without consent, a finger or foreign object is placed into the rectum, anus, vagina, urethra, or penis of a victim, causing physical injury, and one or more of the following are present in the incident:

1. The victim is intimidated with forcible compulsion to comply to the act; or
2. The victim is physically incapable of helping themselves; or
3. The victim is a child who is younger than eleven years of age.

Insertion of foreign objects for valid medical reasons are not in violation of this section of the law.

Defending against a sex offense must be handled astutely and with superior legal capabilities. It can be the most complicated area of the law that you may face. A person who is convicted of first degree aggravated sexual abuse must be registered as a sex offender which carries with it negative consequences, socially and economically speaking. Because of these repercussions, it is critical that an individual charged with first degree aggravated sexual abuse hire a highly effective defense attorney who is successful in this arena.

If you are charged with the commission of first degree aggravated sexual abuse, it is very important that you seek legal counsel from a knowledgeable and skilled attorney firm that is consistently successful in defending persons accused of misdemeanor and felony sex crimes.

Barry C. Weiss P.C. is a formidable attorney firm that has successfully defended clients accused of misdemeanor and felony sex crimes in the state of New York, defending against such charges as first degree aggravated sexual abuse, forcible touching, engaging in a criminal sexual act, assaulting a person sexually, using a controlled substance to facilitate a sex crime, raping a person, molesting a child, and committing other sex crimes.

We can be reached at (212) 785-1300 or newyorkcriminallawyer24-7.com to schedule a no-obligation, free legal consultative meeting to evaluate your case.

For additional information, refer to the following sections of the New York Penal Code:

1. Aggravated sexual abuse in the fourth degree: § 130.65a
2. Aggravated sexual abuse in the third degree: § 130.66
3. Aggravated sexual abuse in the second degree: § 130.67
4. Criminal sexual act in the first degree: § 130.50