Aggravated Sexual Abuse in the Third Degree: New York Penal Code § 130.66

Third degree aggravated sexual abuse, a felony Class D, according to New York Penal Code § 130.66, is the insertion of a foreign object into the rectum, anus, vagina, urethra, or penis of a victim and if:

1. The act is committed by forcible compulsion; or
2. The victim is helpless physically; or
3. The victim is mentally incapacitated; or
4. The victim is mentally disabled; or
5. The victim is a child who is less than eleven years of age.

The New York statutes do not define “foreign object.” Case history shows that courts have considered a variety of objects to be “foreign objects” including knives, sticks, bottles, and other items.

The legal definition of forcible compulsion is compelling by using threats or physical force. The compelling threats or physical force place a person in fear of (i) death immediately or in the future, (ii) physical injury to the person or someone else immediately or in the future, and/or (iii) kidnapping to the person or someone else immediately or in the future.

Suppose an adult woman had been drinking beer and wine with her adult male date. As the evening wore on and the woman continued drinking, she became unconscious with her intoxication and helpless physically. The adult man removed the panties of the unconscious woman and pushed an empty beer bottle into her vagina. The adult man could be prosecuted for third degree sexual abuse because the woman was not conscious, helpless physically and could not give consent to the act.

Presence of consent. If the presence of consent to the act can be proven, then the charge for third degree aggravated sexual abuse may not hold up in court.

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 build a strong defensive case that will shift the balance in favor of the defendant.

Other lines of defense. 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 mind is a strong advocate for defendants charged with third degree aggravated sexual abuse.

Imprisonment. The judge presiding in the case could sentence the convicted individual of third degree aggravated sexual abuse for up to seven years in jail. To determine the appropriate sentence, the judge will consider the case details, the offender’s background and character, and prior criminal history. If the convicted individual was convicted of a prior felony, the mandatory minimum sentence is four years in jail.

Probation. With the judge’s discretion, a first time offender may face a lenient sentence, and possibly only a probation term of ten years.

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 third degree aggravated sexual abuse register as a sex offender. A convicted sex offender must follow the registration rules as directed by the court. The assigned law enforcement agency is responsible for monitoring the sex offender and for updating the information regarding the sex offender’s whereabouts and status in the sex offenders’ database.

To reiterate, a person may be prosecuted for third degree aggravated sexual abuse if one or more of the following is present in the incident:

1. The plaintiff was threatened or forced to behave a certain way by forcible compulsion;
2. The victim was not able to help themselves physically;
3. The victim was not in possession of their mental faculties;
4. The victim was mentally impaired or disabled; or
5. The victim was a child who was younger than eleven years of age.

A person who is convicted of third degree aggravated sexual abuse will face the stigma of being a sex offender; this label has serious socio-economic consequences. Knowing this, it is important an individual charged with such an offense vet every line of defense possible with strong advocacy from an experienced defense attorney.

If you are charged with committing third degree aggravated sexual abuse, it is critical that you seek the aid of a highly respected and capable attorney firm that is successful in defending persons 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 third degree aggravated sexual abuse, assaulting a person sexually, using a controlled substance to facilitate a sex crime, raping a person, forcible touching, molesting a child, engaging in a criminal sexual act, 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. Sexual abuse in the first degree: § 130.65
2. Criminal sexual act in the second degree: § 130.45
3. Rape in the second degree: § 130.30