Sexual Misconduct: New York Penal Code § 130.20

To restate New York Penal Code § 130.20, sexual misconduct is indicated if any of the following events takes place:

1. A person has sexual intercourse with another person without having consent from that person; or
2. A person has anal sex or has oral sex with another person without having consent from that person; or
3. A person has sexual contact with a corpse or an animal.

According to the New York Penal Code, “sexual intercourse” occurs when a person’s penis penetrates another person’s vagina. The penetration does not need to be complete in order for “sexual intercourse” to take place. Any degree of penetration constitutes sexual intercourse in the eyes of the law for the charge of sexual misconduct or any other sexual offense.

As defined in the New York Penal Code, “oral sexual conduct” occurs when there is contact between the penis of one person and the mouth of another person, the anus of one person and the mouth of another person, or the vulva or vagina of one person and the mouth of another person.

In the New York Penal Code, “anal sexual conduct” is having sexual contact between the anus of one person and the the penis of another person.

Suppose a 25-year old male is with a girl who is only 15 years old. He kisses her vagina and her breasts with his mouth. The girl is not considered legally old enough to give consent to the oral sexual conduct; therefore consent to the sexual engagement is absent. Because consent was absent between the adult male and the teenage female for the oral sex, the male could be accused of sexual misconduct and prosecuted for it.

If the sexual encounter took place more than two years before a person was charged with sexual misconduct, then the statute of limitations may be imposed to stop further proceedings. If the sexual encounter occurred more than two years before the charge was levied, the window of opportunity is no longer open, and the courts will not hear the case.

The two-year statute of limitations rule does not take effect if the accuser or plaintiff was not even 18 years of age when the encounter took place. In this case, the two-year statute of limitations starts when the plaintiff is 18 years old or when the event is brought to the attention of a member of a law enforcement agency.

However, if the defendant can convince the court that the accuser or plaintiff gave consent for the sexual conduct and had the capacity to give consent for the sexual encounter, or that it is reasonable to believe that consent was given for the sexual act, then the defendant may be able to successfully argue against the charge of sexual misconduct.

Imprisonment. Sexual misconduct is a Class A misdemeanor. For a Class A misdemeanor, imprisonment for up to a year is the maximum sentence possible.

Probation. If the accused does not have a prior criminal record, six years on probation may be imposed instead of a prison sentence.

Registration as a Sex Offender. In either case, whether the sentence for sexual misconduct is imprisonment or probation, under the Sex Offender Registration Act of New York, the sentence must also include the mandatory sex offender registration for at least 20 years and possibly more.

To reiterate, according to Penal Code § 130.20, sexual misconduct is indicated when one of the following events takes place:

1. A person has sexual intercourse with another person and consent has not been given; or
2. A person has anal sex or has oral sex with another person and consent has not been given; or
3. A person has sexual contact with a dead human body or an animal.

Defending a person accused of sexual misconduct may be complicated and confusing. Also, since the consequences of being accused and convicted of sexual misconduct are deleterious to your future, you should seek the services of a lawyer who is widely experienced in defending people charged with sexual misconduct. Many possible defenses may be applied to a sexual misconduct case that only a thoughtfully experienced New York sexual misconduct attorney will understand well enough to apply effectively to a sexual misconduct case. Barry C. Weiss P.C. attorneys are vastly experienced in defending people who have been accused of committing a criminal sexual offense, including sexual misconduct, sexual abuse, rape, sexual acts with under-aged children, forcible touching, and sexual crimes facilitated by a controlled substance.

Immediately contact our office by calling (212) 785-1300 or filling an online form at newyorkcriminallawyer24-7.com for a no-obligation, free legal consultative meeting to discuss your case.

For related offenses, read the following sections:

• Third degree criminal sexual act: New York Penal Code § 130.40
• Second degree criminal sexual act: New York Penal Code § 130.45
• First degree criminal sexual act: New York Penal Code § 130.50