Sexual Abuse in the First Degree: New York Penal Code § 130.65

First degree sexual abuse is one of three levels of sexual abuse crimes in the state of New York. The other types of sexual abuse crimes are third degree sexual abuse and second degree sexual abuse.

According to New York Penal Code § 130.65, first degree sexual abuse, a felony Class D crime, may be charged if an individual has engaged in sexual contact with another individual without the latter’s consent. In addition, the grounds for first degree sexual abuse are present when:

1. The perpetrator is at least twenty-one years old and the victim is less than thirteen years of age;
2. The perpetrator is any age and the victim is less than eleven years of age;
3. The perpetrator uses force;
4. The victim is physically helpless.

First degree sexual abuse is not sexual intercourse and does not require penetration of the vagina with the penis. Also, this type of sexual abuse excludes oral or anal sex. Rather, first degree sexual abuse involves the touching of the another person’s private, sexual, intimate areas for one’s own sexual gratification without the victim’s consent or permission. Even though private, sexual or intimate body part areas of another person are not defined explicitly in the statutes, first degree sexual abuse has resulted in convictions from touching an individual’s breasts, buttocks, mouth, lips, anus, rectum, genitals, vagina, and penis. Further, ejaculating on another person is a kind of sexual contact.

Suppose an adult man undressed his eight year old niece while he was babysitting her and proceeded to kiss and provocatively touch her genitals for an extended time. In a separate incident, suppose an adult woman touched her six year old nephew’s penis in a sexual manner. In both cases, the adults could be charged and prosecuted for first degree sexual abuse as they had sexual contact with children who were less than eleven years of age. The sexual overtones and motives in both cases support the assertion that the contacts were for sexual gratification and not caregiving purposes.

Presence of consent. If the presence of consent to the sexual contact can be proven, then the charge for first degree sexual abuse cannot be upheld; however, in the hypothetical situations described above, both victims were children under the age of eleven. By definition children under the age of eleven are not legally capable of giving consent. Also, the adults described in the scenarios above may also face charges of child abuse and child endangerment.

Absence of intent. Another defensive measure might be to attempt convincing the court that the incidents were unintended or accidental and without sexual motivations. If it can be proven that the incidents were free of sexual intent and accidental in nature, then it may help undercut the prosecuting attorney’s case for the charge of first degree sexual abuse.

Other lines of defense. Uncovering and understanding the situational minutiae of an incident may bring to light opportunities for building a defensive case. A defensive attorney with a trained eye for possible approaches is a strong advocate for individuals charged with first degree sexual abuse.

Imprisonment. If conviction for first degree sexual abuse is the decision of the court, the judge could sentence the individual for up to seven years in jail, as a felony Class D crime. The presiding judge will consider the details of the crime committed, the person’s background, and criminal history, if present, in formulating the appropriate sentence. First time offenders may receive a lesser sentence with the judge’s discretion.

Probation. Also, if a conviction for first degree sexual abuse is garnered, the judge may only levy a probation term of ten years, since first degree sexual abuse is both a felony and a sex crime.

Registration as a sex offender. A conviction for first degree sexual abuse is a registrable sexual offense under section 168 of the Sex Offender Registration Act of the New York Correction Law. Sex offender registration must take place with the law enforcement agency that is assigned. The agency will continually update the convicted person’s information in the sex offenders database. A convicted sex offender must follow the registration rules pursuant to the court’s judgement.

To reiterate, an individual may be charged with first degree sexual abuse if that individual causes another person to be the victim of sexual contact:

1. While the victim is less than eleven years of age; or
2. While the victim is less than thirteen years of age and the accused is twenty-years of age or more; or
3. While the victim is not capable of giving consent because they are physically helpless; or
4. By explicit or implicit threat or force to cause harm, endangerment or loss of life to the victim or someone else.

The sexual contact does not necessitate penetration of a person’s vagina by the offender’s penis, or direct contact with the genitals, anus, or mouth.

Conviction of the felony of first degree sexual abuse may lead to the stigma of sex offender along with its socio-economic consequences. Therefore, it is imperative that an individual charged with first degree sexual abuse seek legal counsel to assure that every available option is considered to forge a viable defense.

If you are accused of committing the felony of first degree sexual abuse, it is critical that you seek the aid of a highly competent and reputable law firm that has a record of success in advocating for individuals 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 first degree sexual abuse, assaulting a person sexually, forcible touching, molesting a child, engaging in a criminal sexual act, raping a person, using a controlled substance to facilitate a sex crime, 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 misconduct: § 130.20
2. Forcible touching: § 130.52
3. Endangering the welfare of a child: § 260.10