Using a Controlled Substance to Facilitate a Sexual Offense: New York Penal Code § 130.90

Under New York Penal Code § 130.90 using a controlled substance to facilitate a sexual offense is a felony Class D offense. It is giving another person an incapacitating drug that is a controlled substance or any mixture, preparation or compound that requires a prescription in order to have sex with that person.

Suppose that woman went to a nightclub and met a man who bought her an alcoholic beverage. The man secretly added ecstasy to the drink. The woman drank the beverage and began to feel lightheaded and disoriented. The man hired a taxi cab and told her that he would take her to her home, so the woman climbed into the taxi cab. The next day, the woman woke up in the man’s bedroom and was naked. She immediately realized that someone had sex with her, but she did not remember the events that took place after getting into the taxi cab with the man the night before. The man could be charged with using a controlled substance to facilitate sex, as well as other sex crimes such as second degree criminal sexual act and second degree rape.

Presence of consent. In the example above, there are two areas where consent is key:

1. Consent to taking the controlled substance; and
2. Consent to participating in the sex act.

If it can be shown that consent was given to ingesting the controlled substance as well as to the sex act, then a viable defensive argument can be made to challenge the charge of facilitating a sexual offense with a controlled substance.

Other lines of defense. Thoroughly understanding the details of a case and how they may be pieced together to help defend against a charge of using a controlled substance to facilitate a sexual offense is critical to winning a case or reducing the charge in a court of law. A highly skilled defense attorney will build a case to reduce or diffuse the charge of using a controlled substance to facilitate a sexual offense.

Imprisonment. A person convicted of using a controlled substance to facilitate a sexual offense may be sentenced up to seven years in jail, as a felony Class D offense. Because this offense also falls into the violent felony classification, the sentence must provide for a minimum of two years of imprisonment. The actual length of imprisonment handed down by the judge will depend on an assessment of prior criminal history.

Probation. If a prior criminal record exists, the judge will weigh the previous criminal convictions as aggravating factors, and include post-release supervision over a prescribed period.

Registration as sex offender. Using a controlled substance to facilitate a sexual offense is a registrable offense and must be in effect for at least twenty years. A registrable offense means that the convicted person must register with law enforcement as a sex offender. The registration information required includes name, address, work address, school, photograph, aliases, email address, internet handles, crimes, and victim attributes. Registration as a sex offender mandates regular updates. For example, every time a convicted person who must register as a sex offender moves to a new home, the new home address must be recorded in the system.

To reiterate, a person may be prosecuted for using a controlled substance to facilitate a sexual offense when:

1. A person knowingly and unlawfully takes possession of a controlled substance or any mixture, compound or preparation that must be prescribed to acquire or administer; and
2. Without consent of the victim, the person administers the controlled substance or any mixture, compound or preparation that must be prescribed to acquire or administer such substances; and
3. The person commits or has the intent of committing a sex act with the victim, constituting a felony as defined in New York Penal Code § 130.90.

To avoid personal and professional devastation, if you are charged with using a controlled substance to facilitate a sexual offense, it is imperative that you seek legal counsel from a knowledgeable and skilled attorney firm that is proven and successful in defending individuals charged with misdemeanor and felony sex crimes. Misdemeanor and felony sex crimes fall under a complicated set of laws.

Barry C. Weiss P.C. is a formidable attorney firm that has successfully defended clients accused of misdemeanor and felony sex crimes in the state of New York, defending against charges such as using a controlled substance to facilitate a sexual offense, forcible touching, engaging in a criminal sexual act, assaulting a person sexually, raping a person, molesting a child, 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. First degree criminal sexual act: § 130.50
2. Second degree criminal sexual act: § 130.45
3. First degree rape: § 130.35
4. Second degree rape: § 130.30