First Degree Criminal Sexual Act: New York Penal Code § 130.50

There are three levels of sexual act offenses defined in the Penal Code of New York: first degree, second degree and third degree. First degree criminal sexual act is the most serious and is a felony, Class B.

According to New York Penal Code § 130.50, the legal definition of a first degree criminal sexual act is:

1. when a person has oral or anal sex with another person who is physically helpless and cannot legally give consent, or
2. when a person has oral or anal sex with another person who is less than eleven years of age, or
3. when a person who is 18 years of age or older has oral or anal sex with a person who is under thirteen years of age, or
4. when a person has oral or anal sex with another person and uses physical force or expresses or implies a threat that causes a person to be fearful of immediate or future death, kidnapping or bodily injury to themselves or another person.

Oral sex is the sexual contact between the vulva and vagina of one person and the mouth of another person, the penis of one person and the mouth of another person, or the anus of one person and the mouth of another person.

Anal sex is the sexual contact between the anus of one person and the penis of another person.

Suppose a 30-year old man hosted a party. At the party, the man served alcoholic beverages and marijuana. One of the man’s adult female guests became drunk and disoriented on the alcoholic beverages and marijuana and passed out during the evening. For all intents and purposes, the female guest was incapacitated and physically helpless to respond or give consent to engaging in sex. The male host engaged in oral sex and anal sex with the woman while she was passed out. The 30-year old man could be charged with first degree criminal sexual conduct as he had oral and anal sex while the woman was passed out and, therefore, physically helpless.

Presence of Consent. If the man can build a case that supports the notion that the woman was capable of giving consent to engaging in sex and did so, then the prosecuting attorney must build a case in opposition. The presence of consent to sex on the part of the woman is the key element that will dissuade the court from prosecuting the man. Conversely, the absence of consent is a key element of the prosecuting attorney’s case to win a decision of conviction for first degree criminal sexual act.

Absence of intent. Another defensive tactic might be to demonstrate that the man did not intend to commit first degree criminal sexual act -- that he was incapable of willfully committing the crime. One scenario where this might be a viable line of defense is if the man were extremely intoxicated at the time of the event and was not able to form the intent that is requisite for the commission of first degree criminal sexual act. With intent missing from the equation, there is a chance that the man might not be convicted for first degree criminal sexual act.

Imprisonment. If a conviction for first degree criminal sexual act is the decision at the end of the trial proceedings, the judge may sentence a person for up to twenty-five years in jail as it is a felony - Class B. Moreover, as the crime of first degree criminal sexual act is a violent felony offense, the mandatory minimum sentence is five years of incarceration.

Probation. The judge may also include probation as part of the sentence. First degree criminal sexual act is a sex crime as well as a felony, so a mandatory ten years of probation may be levied against the convicted to take effect after the prison term.

Registration as a sex offender. A conviction of first degree criminal sexual act requires that the convicted person must register as a sex offender for 20 years or more under section 168 or the Sex Offender Registration Act of the New York Correction Law. It is possible for some individuals who are convicted for first degree criminal sexual act to be registered as sex offenders for the remainder of their lives.

To reiterate, a person may be charged with first degree criminal sexual act when:

1. a person engages in oral or anal sex with someone who is not capable of giving consent because they are physically helpless, or
2. a person engages in oral or anal sex with someone who is less than eleven years of age, or
3. a person who is 18 years of age or older engages in oral or anal sex with someone who is less than thirteen years of age, or
4. a person has oral or anal sex with another person and imposes physical force or expressly threatens or implies immediate or future death, kidnapping or bodily injury on that person or someone else.

An offense of first degree criminal sexual conduct is the most serious sex crime. A conviction for first degree criminal sexual act can result in severe life-changing consequences as it can lead to difficulty in becoming gainfully employed or in securing backing to start any type of business. The potential of negative psycho-social effects is high because of the stigma associated with being convicted for a first degree criminal sexual offense. Lowered self-esteem, rejection and isolation are experiences often associated with conviction as a sex offender.

If you are accused of committing a first degree criminal sexual act, it is critical that you immediately contact a reputable law firm that has a record of success in defending individuals accused sex crimes. A successful defense against an accusation of first degree criminal sexual act requires a keen understanding of criminal law, procedures, and defensive strategies.

Barry C. Weiss P.C. is a formidable attorney firm that has successfully defended clients accused of sex crimes in the state of New York, including accusations of using a controlled substance to facilitate a sex crime, assaulting a person sexually, engaging in a criminal sexual act, committing sexual abuse, raping a person, molesting a child, touching a person forcibly, 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 first degree: § 130.70
2. Rape in the third degree: § 130.25
3. Rape in the second degree: § 130.30
4. Rape in the first degree: § 130.35