Sexual Abuse in the Third Degree: New York Penal Code § 130.55

According to New York Penal Code § 130.55, third degree sexual abuse may be charged if a person has imposed sexual contact on another person without that person’s consent. Third degree sexual abuse is less severe than second degree sexual abuse and first degree sexual abuse. These are the three types of sexual abuse offenses in the state of New York.

To be charged with third degree sexual abuse, the accused person must have caused another person to have a sexual contact without that other person’s consent. This type of sexual abuse does not require the penis to penetrate the vagina which is requisite to sexual intercourse. Also, this type of sexual abuse does not involve oral or anal sex. Third degree sexual abuse is when a person touches the sexual or private body parts of another person for personal sexual gratification and without that other person’s permission or consent. Even though, sexual, intimate, or private body parts are not defined specifically in the statutes, convictions for third degree sexual abuse have been adjudicated for touching another person’s mouth, lips, breasts, buttocks, rectum, anus, penis, and vagina. Moreover, ejaculating onto someone else is considered a type of sexual contact.

Suppose an adult man had positioned himself behind a woman aboard a train so that his groin area was even with her buttocks, and he began thrusting his pelvis. To continue the movement, he rocked with the motion of the train to rub his penis against the woman’s posterior. The man was found to have an erection and had ejaculated so that the groin area of his pants was moist with his semen, as was the clothing of the woman where he had touched her and aroused himself. The man could be charged with third degree sexual abuse for this act, as well as forcible touching under section 130.52 of the NY Penal Code.

Presence of consent. If evidence can be produced demonstrating that consent to the act was present, then the misdemeanor third degree sexual abuse case may not stand up in court. If no consent was given to the act, then a case for third degree sexual abuse may be the charge brought to bear by the prosecuting attorney. The absence of consent is critical to a case of third degree sexual abuse and strengthens the prosecuting attorney’s case against the defendant. Diffusing the case by evidencing that consent was present is one defensive approach that may be used.

Absence of intent. Another line of defense may be to show the court that the act was accidental or unintentional. If the incident can be shown to have no sexual intent or was accidental, then the prosecuting attorney may have a more difficult time swaying the court toward a conviction of third degree sexual abuse.

Other lines of defense. Other factors discovered by a seasoned attorney may expose other tactics of defense. Mistaken identity may present defensive opportunities; however, for the most part, the defensive strategies described above are common lines of defense.

Imprisonment. If a conviction for third degree sexual abuse is the decision of the court, as a misdemeanor Class B, the judge could dole out a sentence of up to three months of incarceration.

Probation. Also, if a conviction for third degree sexual abuse is the decision of the court, the judge may issue a probation term of six years.

Registration as a sex offender. A conviction of third degree sexual abuse is a registrable offense under section 168 of the Sex Offender Registration Act of the New York Correction Law. Registration must take place with an assigned agency of law enforcement that will keep the convicted person’s information in the database of sex offenders. A hearing to determine the level of risk of the convicted person will be scheduled. The convicted person’s sexual abuse risk score of 1, 2 or 3 will be given. A sex offender risk level of 1 means that registration for 20 years as a sex offender is required. Sex offender risk levels of 2 or 3 mean that the convicted must register as a sex offender for the rest of their life.

To reiterate, a person may be charged with third degree sexual abuse if a person causes another person to be the victim of sexual contact without the latter person’s consent. The sexual contact does not require penetration of the vagina by the penis, or direct contact with the vagina, anus, or mouth.

Other sections of the law may apply when:

1. The lack of consent was due solely to the incapacity to consent because of being younger than seventeen years of age; or
2. The lack of consent was from a person who was older than fourteen years of age, and the accused was not more than five years older than the other person.

An offense of third degree sexual abuse may lead to the stigma of being labeled as a sex offender, and it has lasting consequences. Therefore, it is critical that an individual seek legal counsel to make sure that every available option is evaluated to defend against the charge of third degree sexual abuse.

If you are accused of committing the misdemeanor of third degree sexual abuse, it is imperative that you seek the assistance of a reputable law firm that has a record of success in defending individuals accused of felony and misdemeanor sex crimes. A successful defense against an accusation of third degree sexual abuse necessitates a keen understanding of the law, legal procedure and legal strategies.

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 third degree sexual abuse, forcible touching, molesting a child, assaulting a person sexually, using a controlled substance to facilitate a sex crime, engaging in a criminal sexual act, raping a person, 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. Forcible touching: § 130.52
2. Sexual misconduct: § 130.20