Felony Motivated by Sex: New York Penal Code § 130.91

Under New York Penal Code § 130.91, felony motivated by sex is a violent felony offense. When the intent is to receive sexual gratification as a result of the commission of any of the twenty-nine felony crimes specifically listed, this code may be invoked. The twenty-nine felony crimes fall into the following categories:

• Assault crimes
• Murder and manslaughter crimes
• Kidnapping crimes
• Property crimes
• Arson crimes
• Theft crimes
• Prostitution and obscenity crimes

The sexual motivation that underlies the felony compounds the seriousness of the crime. In addition to committing the felony, the commission, attempted commission or intended commission of a sex crime elevates the penalty for the two crimes together when compared to the penalty for each separately. The combination of a felony crime with a sex crime will be treated more harshly than either by themselves.

Suppose that a man broke a window and entered a woman’s home in the middle of the night. He entered the woman’s bedroom and woke her up with his loud voice and explicit statements about his intentions to have sex with her. The woman screamed at the top of her lungs and frightened the man who escaped. The man could be charged with felony motivated by sex because not only did he break into the woman’s home, which is a felony, but even though he did not have sex with the woman, he explicitly threatened his sexual intentions.

Refute commission of felony. One tactic to defend against the charge of felony motivated by sex is to show evidence that the qualifying felony did not take place. If a case can be built that refutes commission of a qualifying felony, then the charges will need to be dropped or changed.

Presence of consent. The second component of a charge for felony motivated by sex is attempting, threatening or committing a sex act without the victim’s consent. If evidence can be produced that shows that the sex act was consensual and was agreed to by both parties, then the charge of felony motivated by sex will need to be dropped or changed.

For a charge of felony motivated by sex to hold up in court, evidence proving that all of the following elements are true must be produced:

1. The person charged committed one of the twenty-nine qualifying felony crimes; and
2. The person charged attempted, intended or committed a sex act without consent; and
3. The underlying felony was motivated by engaging in a sex act with the victim.

If evidence can be produced to disprove or cause doubt on any of the above elements, then the charge of felony motivated by sex may need to be changed or dropped.

Other lines of defense. Thoroughly understanding the details of a case and how they can fit together to defend against a charge of felony motivated by sex is critical to winning a case or reducing the charge in court. A highly trained and skilled defense attorney will build a case to reduce or discredit the charge of felony motivated by sex.

Imprisonment. A person convicted of felony motivated by sex essentially is guilty of two felonies that together are treated as a violent felony. The laws and related rules that apply to qualifying felonies and those that apply to sex crimes will both be invoked. A mandatory minimum prison sentence will be enacted.

Registration as sex offender. Felony motivated by sex is a registrable offense and must be in effect for at least twenty years and potentially for the rest of the convicted person’s life. A registrable offense means that the convicted person must register with a law enforcement agency in New York as a sex offender. The registration information required includes name, address, work address, school, photograph, aliases, email address, internet handles, crimes, and victim attributes. Registration as a sex offender dictates regular updates. For example, each time a convicted person who must register as a sex offender moves to a new home, the new home address must be recorded in the system.

To reiterate, a person may be prosecuted for felony motivated by sex when a person commits a qualifying offense with the goal of getting sexual gratification directly in whole or substantial part.

The specified qualifying offenses and their related code sections are:

1. Second degree assault: § 120.05
2. First degree assault: § 120.10
3. Second degree gang assault: § 120.06
4. First degree gang assault: § 120.07
5. First degree stalking: § 120.60
6. Second degree strangulation: § 121.12
7. First degree strangulation: § 121.13
8. Second degree manslaughter: § 125.15
9. First degree manslaughter: § 125.20
10. Second degree murder: § 125.25
11. Aggravated murder: § 125.26
12. First degree murder: § 125.27
13. Second degree kidnapping: § 135.20
14. First degree kidnapping: § 135.25
15. Third degree burglary: § 140.20
16. Second degree burglary: § 140.25
17. First degree burglary: § 140.30
18. Second degree arson: § 150.15
19. First degree arson: § 150.20
20. Third degree robbery: § 160.05
21. Second degree robbery: § 160.10
22. First degree robbery: § 160.15
23. Second degree promoting prostitution: § 230.30
24. First degree promoting prostitution: § 230.32
25. Compelling prostitution: § 230.33
26. First degree disseminating indecent material to minors: § 235.22
27. Using a child in a sexual performance: § 263.05
28. Promoting a child in an obscene sexual performance: § 263.10
29. Promoting a child in a sexual performance: § 263.15
30. Any felony conspiracy or attempt to commit any of the previously listed offenses

To avoid personal and professional devastation, if you are charged with felony motivated by sex, it is imperative that you seek legal counsel from a knowledgeable and skilled attorney firm that is proven and successful in defending individuals charged with misdemeanor and felony sex crimes. Misdemeanor and felony sex crimes fall under a complicated set of laws.

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 charges such as felony motivated by sex, forcible touching, engaging in a criminal sexual act, assaulting a person sexually, 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. First degree aggravated sexual abuse: § 130.70
2. First degree criminal sexual act: § 130.50
3. First degree rape: § 130.35