Aggravated Sexual Abuse in the Fourth Degree: New York Penal Code § 130.65-a

Fourth degree aggravated sexual abuse, according to New York Penal Code § 130.65-a, is the insertion of a foreign object into the rectum, anus, vagina, urethra, or penis of a victim who is incapable of giving consent. Another type of fourth degree aggravated sexual abuse is the insertion of a finger into the rectum, anus, vagina, urethra, or penis of a victim who is incapable of giving consent. The New York statutes do not define “foreign object.” Case history show that courts have considered a variety of objects to be “foreign objects” including knives, sticks and bottles.

Suppose an adult man was in the company of a woman who was intoxicated and unconscious; she was unable to give consent to any type of activity. The man pulled the unconscious woman’s panties off and pushed a beer bottle into her rectum. As a result of the bottle’s insertion, the woman experienced a tear in the tissue separating her vagina and her rectum. It is possible for the man to be prosecuted for aggravated sexual abuse because the intoxicated and unconscious woman was unable to give consent.

Presence of consent. If the presence of consent to the sexual contact can be proven, then the charge for fourth degree aggravated sexual abuse cannot be advanced.

Absence of physical helplessness. Another defensive tactic might be to show that the victim was not physically helpless and was not mentally disabled or incapacitated at the time of the incident. A complementary line of defense, might be to demonstrate that no forcible compulsion was used at the time of the incident, and the accuser was a willing participant. The objective, then, is to construct a compelling defensive case to shift the balance in favor of the defendant.

Other lines of defense. Other possible lines of defense might include calling forth the statute of limitations or questioning the necessity of medical attention. If no physical injury was suffered by the accuser, then doubt is cast on the charge of fourth degree aggravated sexual abuse. Understanding the details of a situation and how they may be used to create a viable defense is advantageous in any case. An experienced defense attorney with a trained eye is a strong advocate for defendants charged with fourth degree aggravated sexual abuse.

Imprisonment. The presiding judge could sentence the individual convicted of fourth degree aggravated sexual abuse for up to four years in prison. However, there is no mandatory minimum sentence by law. The presiding judge will consider the details of the case, the person’s character and background, and criminal history, if present, in determining the proper punishment to fit the crime. With the judge’s discretion, a first time offender may be penalized with a more lenient sentence.

Probation. If the court decides to convict a person for fourth degree aggravated sexual abuse, and it is a first offense, the judge may determine that in lieu of imprisonment, ten years of probation is a suitable sentence. However, if a prior felony offense has been committed, the judge must impose a minimum sentence of three years in jail.

Registration as a sex offender. A person convicted of fourth degree aggravated sexual abuse must register as a sex offender under section 168 of the Sex Offender Registration Act of the New York Correction Law. Sex offender registration must be with the assigned agency of law enforcement. A convicted sex offender must follow the registration rules handed down by the court. The assigned agency of law enforcement is responsible for checking on the sex offender and for keeping the convicted person’s information updated in the sex offenders database.

To reiterate, an individual may be charged with fourth degree aggravated sexual abuse if that individual:

1. Inserts a foreign object in the rectum, anus, vagina, urethra, or penis of another person who is incapable of giving consent other than the fact that they are less than seventeen years of age at the time of the incident and causing physical injury to the latter person; or
2. Inserts a finger in the rectum, anus, vagina, urethra, or penis of another person who is incapable of giving consent other than the fact that they are less than seventeen years of age at the time of the incident and causing physical injury to the latter person.

Performing in a manner for valid medical purposes does not affect the provisions of § 130:65-a.

Conviction of fourth degree aggravated sexual abuse may lead to the stigma of sex offender which has long-standing socio-economic repercussions. Therefore, it is imperative that an individual charged with fourth degree aggravated sexual abuse engage legal representation to assure that every available option is evaluated to fortify the defense.

If you are charged with committing fourth degree aggravated sexual abuse, it is critical that you seek the aid of a highly competent and reputable law firm that has a record of success in defending individuals accused of felony and misdemeanor sex crimes.

Barry C. Weiss P.C. is a formidable attorney firm that has successfully defended clients accused of felony and misdemeanor sex crimes in the state of New York, including accusations of fourth degree aggravated sexual abuse, assaulting a person sexually, using a controlled substance to facilitate a sex crime, forcible touching, molesting a child, engaging in a criminal sexual act, raping a person, 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. Persistent sexual abuse: § 130.53
2. Criminal sexual act in the third degree: § 130.40
3. Rape in the third degree: § 130.25