Second Degree Criminal Sexual Act: New York Penal Code § 130.45

According to New York Penal Code § 130.45, the legal definition of a second degree criminal sexual act is:

1. when one person has oral or anal sex with another person who was not capable of giving consent due to a mental disability as described below, or
2. when one person has oral or anal sex with another person who was not capable of giving consent due to a mental incapacity as described below, or
3. when one person has oral or anal sex with a person who is under 15 years of age by someone who is 18 years of age or older.

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.

Suppose 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.

Lack 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.

If 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.

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

1. The person engages in oral or anal sex with someone who is not capable of giving consent because they have a mental disability, or
2. The person engages in oral or anal sex with someone who is not capable of giving consent because they have a mental incapacity due to intoxication from alcohol or drugs, or
3. The person is 18 years of age or older and engages in oral or anal sex with someone who is less than 15 years of age.

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.

For additional information, refer to the following sections of the New York Penal Code:

1. Rape in the first degree: § 130.35
2. Rape in the second degree: § 130.30
3. Rape in the third degree: § 130.25
4. Sexual misconduct: § 130.20