According to New York Penal Code § 130.45, the legal definition of a second degree criminal sexual act is:
Engaging in the sex act with a person who has a mental disability and does not understand the nature of the sex act, according to NY Penal Code § 130.00(5), is a second degree criminal sexual act. Moreover, NY Penal Code § 130.00(6) stipulates that a person has a mental incapacity if they are intoxicated by drugs or alcohol.
Hypothetical CaseSuppose a 30-year old woman worked as a caregiver in an adult care facility. One of the persons under the woman’s care was a 30-year old man who had the mental ability of a 10-year old child. The caregiver seduced the mentally disabled man and encouraged him to engage in oral sex with her. It is possible that the caregiver could be prosecuted for second degree criminal sexual conduct because the man did not have the mental ability to legally give consent to the sex act. Even if the man appeared to have given consent, because he had the mind and reasoning capacity of a 10-year old child, he did not have the capacity to give consent to the sex act in the eyes of the law. The appearance of having given consent is not relevant.
Possible DefensesLack of corroborating evidence. In addition to the mentally disabled man’s testimony, there must be corroborating evidence to show that the man was indeed mentally disabled. In the case where a person is mentally incapacitated because of drug or alcohol intoxication, corroborating evidence must also be produced. If corroborating evidence is lacking in either scenario, then there is a chance that the criminal sexual conduct case may be dismissed.
Invoke the statute of limitations. Another line of defense might be invoking the statute of limitations. If second degree criminal sexual act is not prosecuted within five years of the purported criminal sexual act, then according to NY Criminal Procedure Law § 30.10, the prosecuting attorney cannot bring charges and the caregiver cannot be tried or prosecuted.
Possible SentenceIf a conviction is received for second degree criminal sexual conduct, a sentence of up to seven years of imprisonment is possible, as it is a felony - Class D. On top of the time in jail, the sentence may include ten years of probation. Further, a conviction requires that, under § 168, also known as the Sex Offender Registration
Act of the New York Correction Law, the convicted person must register as a sex offender for 20 years or more. Some convicted persons will be registered as sex offenders for the duration of their lives.
NY Penal Code § 130.45: Second degree criminal sexual actTo reiterate, a person may be charged with second degree criminal sexual act when:
Even though an offense of second degree criminal sexual conduct is, in and of itself, not the most serious sex crime, far-reaching consequences can follow. The charge could be exacerbated by other criminal charges that, when combined, call for a sentence of several years in prison. A conviction of second degree criminal sexual conduct could lead to difficulty in landing a job or operating a business to support oneself and one’s dependents, not to mention the psycho-social repercussions of rejection, isolation and damage to one’s self-esteem.
With the potential of profound degradation to your quality of life, if you are accused of second degree criminal sexual conduct, it is imperative that you immediately contact a law firm that is respected for its expertise in defending persons who are accused of sex crimes.
The team at Barry C. Weiss P.C. are a highly-regarded attorney firm that has wide-ranging experience in successfully defending clients accused of sex crimes in the state of New York, including criminal sexual act, rape, sexual assault, child molestation, sexual abuse, the use of a controlled substance to facilitate a sexual crime, and 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.
Related OffensesFor additional information, refer to the following sections of the New York Penal Code: