Title

Penal Law, Article 130 - Sex Offenses

Text

Article 130

SEX OFFENSES

§130.00. Sex offenses; definitions of terms.

§130.05. Sex offenses; lack of consent.

§130.10. Sex offenses; limitation; defenses.

§130.16. Sex offenses; corroboration.

§130.20. Sexual misconduct.

§130.25. Rape in the third degree.

§130.30. Rape in the second degree.

§130.35. Rape in the first degree.

§130.38. (Repealed.)

§130.40. Criminal sexual act in the third degree.

§130.45. Criminal sexual act in the second degree.

§130.50. Criminal sexual act in the first degree.

§130.52. Forcible touching.

§130.53. Persistent sexual abuse.

§130.55. Sexual abuse in the third degree.

§130.60. Sexual abuse in the second degree.

§130.65. Sexual abuse in the first degree.

§130.65-a. Aggravated sexual abuse in the fourth degree.

§130.66. Aggravated sexual abuse in the third degree.

§130.67. Aggravated sexual abuse in the second degree.

§130.70. Aggravated sexual abuse in the first degree.

§130.75. Course of sexual conduct against a child in

the first degree.

§130.80. Course of sexual conduct against a child in

the second degree.

§130.85. Female genital mutilation.

§130.90. Facilitating a sex offense with a controlled

substance.

Article 130

SEX OFFENSES

§130.00. Sex offenses; definitions of terms.

The following definitions are applicable to this article:

1. "Sexual intercourse" has its ordinary meaning and occurs

upon any penetration, however slight.

L93 2. (a) "Oral sexual conduct" means conduct between persons

consisting of contact between the mouth and the penis, the mouth and

the anus, or the mouth and the vulva or vagina.

(b) "Anal sexual conduct" means conduct between persons

consisting of contact between the penis and anus.

L93 (2003, chgd. by chap. 264, eff. 11/1/2003.)

3. "Sexual contact" means any touching of the sexual or other

intimate parts of a person not married to the actor for the purpose of

gratifying sexual desire of either party. It includes the touching of

the actor by the victim, as well as the touching of the victim by the

actor, whether directly or through clothing.

L93 4. For the purposes of this article "married" means the

existence of the relationship between the actor and the victim as

spouses which is recognized by law at the time the actor commits an

offense proscribed by this article against the victim. L93 (2003,

chgd. by chap. 264, eff. 11/1/2003.)

L00 5. "Mentally disabled" means that a person suffers from a

mental disease or defect which renders him or her incapable of

appraising the nature of his or her conduct. L00 (2000, chgd. by

chap. 1, eff. 2/1/2001.)

6. "Mentally incapacitated" means that a person is rendered

temporarily incapable of appraising or controlling his conduct owing

to the influence of a narcotic or intoxicating substance administered

to him without his consent, or to any other act committed upon him

without his consent.

7. "Physically helpless" means that a person is unconscious or

for any other reason is physically unable to communicate unwillingness

to an act.

8. "Forcible compulsion" means to compel by either:

a. use of physical force; or

b. a threat, express or implied, which places a person in fear

of immediate death or physical injury to himself, herself or another

person, or in fear that he, she or another person will immediately be

kidnapped.

9. "Foreign object" means any instrument or article which,

when inserted in the vagina, urethra, penis or rectum, is capable of

causing physical injury.

L93 10. "Sexual conduct" means sexual intercourse, oral sexual

conduct, anal sexual conduct, aggravated sexual contact, or sexual

contact. L93 (1996, added by chap. 122; 2003, chgd. by chap. 264,

eff. 11/1/2003.)

L96 11. "Aggravated sexual contact" means inserting, other

than for a valid medical purpose, a foreign object in the vagina,

urethra, penis or rectum of a child, thereby causing physical injury

to such child. L96 (1996, added by chap. 122, eff. 8/1/96.)

L00 12. "Health care provider" means any person who is, or is

required to be, licensed or registered or holds himself or herself out

to be licensed or registered, or provides services as if he or she

were licensed or registered in the profession of medicine,

chiropractic, dentistry or podiatry under any of the following:

article one hundred thirty-one, one hundred thirty-two, one hundred

thirty-three, or one hundred forty-one of the education law.

L00 13. "Mental health care provider" means any person who is,

or is required to be, licensed or registered, or holds himself or

herself out to be licensed or registered, or provides mental health

services as if he or she were licensed or registered in the profession

of medicine, psychology or social work under any of the following:

article one hundred thirty-one, one hundred fifty-three, or one

hundred fifty-four of the education law.

L00 (2000, added by chap. 1, eff. 2/1/2001.)

§130.05. Sex offenses; lack of consent.

L93 1. Whether or not specifically stated, it is an element of

every offense defined in this article that the sexual act was

committed without consent of the victim. L93 (2003, chgd. by chap.

264, eff. 11/1/2003.)

L00 2. Lack of consent results from:

(a) Forcible compulsion; or

(b) Incapacity to consent; or

L93 (c) Where the offense charged is sexual abuse or forcible

touching, any circumstances, in addition to forcible compulsion or

incapacity to consent, in which the victim does not expressly or

impliedly acquiesce in the actor's conduct; or

L93 (d) Where the offense charged is rape in the third degree

as defined in subdivision three of section 130.25, or criminal sexual

act in the third degree as defined in subdivision three of section

130.40, in addition to forcible compulsion, circumstances under which,

at the time of the act of intercourse or deviate sexual intercourse,

the victim clearly expressed that he or she did not consent to engage

in such act, and a reasonable person in the actor's situation would

have understood such person's words and acts as an expression of lack

of consent to such act under all the circumstances.

L93 (2003, chgd. by chap. 264, eff. 11/1/2003.)

L00 (2000, chgd. by chap. 1, eff. 2/1/2001.)

L00 3. A person is deemed incapable of consent when he or she

is:

(a) less than seventeen years old; or

(b) mentally disabled; or

(d) physically helpless; or

(e) committed to the care and custody of the state department

of correctional services or a hospital, as such term is defined in

subdivision two of section four hundred of the correction law, and the

actor is an employee, not married to such person, who knows or

reasonably should know that such person is committed to the care and

custody of such department or hospital. For purposes of this

paragraph, "employee" means (i) an employee of the state department of

correctional services who performs professional duties in a state

correctional facility consisting of providing custody, medical or

mental health services, counseling services, educational programs, or

vocational training for inmates;

(ii) an employee of the division of parole who performs

professional duties in a state correctional facility and who provides

institutional parole services pursuant to section two hundred

fifty-nine-e of the executive law; or

(iii) an employee of the office of mental health who performs

professional duties in a state correctional facility or hospital, as

such term is defined in subdivision two of section four hundred of the

correction law, consisting of providing custody, or medical or mental

health services for such inmates; or

(f) committed to the care and custody of a local correctional

facility, as such term is defined in subdivision two of section forty

of the correction law, and the actor is an employee, not married to

such person, who knows or reasonably should know that such person is

committed to the care and custody of such facility. For purposes of

this paragraph, "employee" means an employee of the local correctional

facility where the person is committed who performs professional

duties consisting of providing custody, medical or mental health

services, counseling services, educational services, or vocational

training for inmates; or

(g) committed to or placed with the office of children and

family services and in residential care, and the actor is an employee,

not married to such person, who knows or reasonably should know that

such person is committed to or placed with such office of children and

family services and in residential care. For purposes of this

paragraph, "employee" means an employee of the office of children and

family services or of a residential facility who performs duties

consisting of providing custody, medical or mental health services,

counseling services, educational services, or vocational training for

persons committed to or placed with the office of children and family

services and in residential care; or

L93 (h) a client or patient and the actor is a health care

provider or mental health care provider charged with rape in the third

degree as defined in section 130.25, criminal sexual act in the third

degree as defined in section 130.40, aggravated sexual abuse in the

fourth degree as defined in section 130.65-a, or sexual abuse in the

third degree as defined in section 130.55, and the act of sexual

conduct occurs during a treatment session, consultation, interview, or

examination. L93 (2003, chgd. by chap. 264, eff. 11/1/2003.)

L00 (1996, chgd. by chap. 266; 2000, chgd. by chap. 1, eff.

2/1/2001.)

L00 §130.10. Sex offenses; limitation; defenses.

1. In any prosecution under this article in which the victim's

lack of consent is based solely upon his or her incapacity to consent

because he or she was mentally disabled, mentally incapacitated or

physically helpless, it is an affirmative defense that the defendant,

at the time he or she engaged in the conduct constituting the offense,

did not know of the facts or conditions responsible for such

incapacity to consent.

2. Conduct performed for a valid medical or mental health care

purpose shall not constitute a violation of any section of this

article in which incapacity to consent is based on the circumstances

set forth in paragraph (h) of subdivision three of section 130.05 of

this article.

L93 3. In any prosecution for the crime of rape in the third

degree as defined in section 130.25, criminal sexual act in the third

degree as defined in section 130.40, aggravated sexual abuse in the

fourth degree as defined in section 130.65-a, or sexual abuse in the

third degree as defined in section 130.55 in which incapacity to

consent is based on the circumstances set forth in paragraph (h) of

subdivision three of section 130.05 of this article it shall be an

affirmative defense that the client or patient consented to such

conduct charged after having been expressly advised by the health care

or mental health care provider that such conduct was not performed for

a valid medical purpose. L93 (2003, chgd. by chap. 264, eff.

11/1/2003.)

L93 4. In any prosecution under this article in which the

victim's lack of consent is based solely on his or her incapacity to

consent because he or she was less than seventeen years old, mentally

disabled, or a client or patient and the actor is a health care

provider, it shall be a defense that the defendant was married to the

victim as defined in subdivision four of section 130.00 of this

article. L93 (2003, added by chap. 264, eff. 11/1/2003.)

L00 (2000, chgd. by chap. 1, eff. 2/1/2001.)

§130.16. Sex offenses; corroboration.

L93 A person shall not be convicted of any offense defined in

this article of which lack of consent is an element but results solely

from incapacity to consent because of the victim's mental defect, or

mental incapacity, or an attempt to commit the same, solely on the

testimony of the victim, unsupported by other evidence tending to:

L93 (a) Establish that an attempt was made to engage the

victim in sexual intercourse, oral sexual conduct, anal sexual

conduct, or sexual contact, as the case may be, at the time of the

occurrence; and

L93 (2003, chgd. by chap. 264, eff. 11/1/2003.)

(b) Connect the defendant with the commission of the offense

or attempted offense.

L00 §130.20. Sexual misconduct.

A person is guilty of sexual misconduct when:

1. He or she engages in sexual intercourse with another person

without such person's consent; or

L93 2. He or she engages in oral sexual conduct or anal sexual

conduct with another person without such person's consent; or L93

(2003, chgd. by chap. 264, eff. 11/1/2003.)

3. He or she engages in sexual conduct with an animal or a

dead human body.

Sexual misconduct is a class A misdemeanor.

L00 (2000, chgd. by chap. 1, eff. 2/1/2001.)

L00 §130.25. Rape in the third degree.

A person is guilty of rape in the third degree when:

1. He or she engages in sexual intercourse with another person

who is incapable of consent by reason of some factor other than being

less than seventeen years old;

2. Being twenty-one years old or more, he or she engages in

sexual intercourse with another person less than seventeen years old;

3. He or she engages in sexual intercourse with another person

without such person's consent where such lack of consent is by reason

of some factor other than incapacity to consent.

Rape in the third degree is a class E felony.

L00 (2000, chgd. by chap. 1, eff. 2/1/2001.)

L00 §130.30. Rape in the second degree.

A person is guilty of rape in the second degree when:

1. being eighteen years old or more, he or she engages in

sexual intercourse with another person less than fifteen years old; or

2. he or she engages in sexual intercourse with another person

who is incapable of consent by reason of being mentally disabled or

mentally incapacitated.

It shall be an affirmative defense to the crime of rape in the

second degree as defined in subdivision one of this section that the

defendant was less than four years older than the victim at the time

of the act.

Rape in the second degree is a class D felony.

L00 (2000, chgd. by chap. 1, eff. 2/1/2001.)

L00 §130.35. Rape in the first degree.

A person is guilty of rape in the first degree when he or she

engages in sexual intercourse with another person:

1. By forcible compulsion; or

2. Who is incapable of consent by reason of being physically

helpless; or

3. Who is less than eleven years old; or

4. Who is less than thirteen years old and the actor is

eighteen years old or more.

Rape in the first degree is a class B felony.

L00 (2000, chgd. by chap. 1, eff. 2/1/2001.)

A person is guilty of criminal sexual act in the third degree

when:

1. He or she engages in oral sexual conduct or anal sexual

conduct with a person who is incapable of consent by reason of some

factor other than being less than seventeen years old;

2. Being twenty-one years old or more, he or she engages in

oral sexual conduct or anal sexual conduct with a person less than

seventeen years old; or

3. He or she engages in oral sexual conduct or anal sexual

conduct with another person without such person's consent where such

lack of consent is by reason of some factor other than incapacity to

consent.

Criminal sexual act in the third degree is a class E felony.

L93 (2000, chgd. by chap. 1; 2003, chgd. by chap. 264, eff.

11/1/2003.)

L93 §130.45. Criminal sexual act in the second degree.

A person is guilty of criminal sexual act in the second degree

when:

1. being eighteen years old or more, he or she engages in oral

sexual conduct or anal sexual conduct with another person less than

fifteen years old; or

2. he or she engages in oral sexual conduct or anal sexual

conduct with another person who is incapable of consent by reason of

being mentally disabled or mentally incapacitated.

It shall be an affirmative defense to the crime of criminal

sexual act in the second degree as defined in subdivision one of this

section that the defendant was less than four years older than the

victim at the time of the act.

Criminal sexual act in the second degree is a class D felony.

L93 (2000, chgd. by chap. 1; 2003, chgd. by chap. 264, eff.

11/1/2003.)

L93 §130.50. Criminal sexual act in the first degree.

A person is guilty of criminal sexual act in the first degree

when he or she engages in oral sexual conduct or anal sexual conduct

with another person:

1. By forcible compulsion; or

2. Who is incapable of consent by reason of being physically

helpless; or

3. Who is less than eleven years old; or

4. Who is less than thirteen years old and the actor is

eighteen years old or more.

Criminal sexual act in the first degree is a class B felony.

L93 (2000, chgd. by chap. 1; 2003, chgd. by chap. 264, eff.

11/1/2003.)

L93 §130.52. Forcible touching.

A person is guilty of forcible touching when such person

intentionally, and for no legitimate purpose, forcibly touches the

sexual or other intimate parts of another person for the purpose of

degrading or abusing such person; or for the purpose of gratifying the

actor's sexual desire.

For the purposes of this section, forcible touching includes

squeezing, grabbing or pinching.

Forcible touching is a class A misdemeanor.

L93 (2000, added by chap. 1; 2003, chgd. by chap. 264, eff.

11/1/2003.)

L93 §130.53. Persistent sexual abuse.

A person is guilty of persistent sexual abuse when he or she

commits the crime of forcible touching, as defined in section 130.52

of this article, sexual abuse in the third degree, as defined in

section 130.55 of this article, or sexual abuse in the second degree,

as defined in section 130.60 of this article, and, within the previous

ten year period, has been convicted two or more times, in separate

criminal transactions for which sentence was imposed on separate

occasions, of forcible touching, as defined in section 130.52 of this

article, sexual abuse in the third degree as defined in section 130.55

of this article, sexual abuse in the second degree, as defined in

section 130.60 of this article, or any offense defined in this

article, of which the commission or attempted commission thereof is a

felony.

Persistent sexual abuse is a class E felony.

L93 (2000, added by chap. 1; 2003, chgd. by chap. 264, eff.

11/1/2003.)

L00 §130.55. Sexual abuse in the third degree.

A person is guilty of sexual abuse in the third degree when he

or she subjects another person to sexual contact without the latter's

consent; except that in any prosecution under this section, it is an

affirmative defense that (a) such other person's lack of consent was

due solely to incapacity to consent by reason of being less than

seventeen years old, and (b) such other person was more than fourteen

years old, and (c) the defendant was less than five years older than

such other person.

Sexual abuse in the third degree is a class B misdemeanor.

L00 (2000, chgd. by chap. 1, eff. 2/1/2001.)

L00 §130.60. Sexual abuse in the second degree.

A person is guilty of sexual abuse in the second degree when

he or she subjects another person to sexual contact and when such

other person is:

1. Incapable of consent by reason of some factor other than

being less than seventeen years old; or

2. Less than fourteen years old.

Sexual abuse in the second degree is a class A misdemeanor.

L00 (2000, chgd. by chap. 1, eff. 2/1/2001.)

L00 §130.65. Sexual abuse in the first degree.

A person is guilty of sexual abuse in the first degree when he

or she subjects another person to sexual contact:

1. By forcible compulsion; or

2. When the other person is incapable of consent by reason of

being physically helpless; or

3. When the other person is less than eleven years old.

Sexual abuse in the first degree is a class D felony.

L00 (2000, chgd. by chap. 1, eff. 2/1/2001.)

L00 §130.65-a. Aggravated sexual abuse in the fourth degree.

1. A person is guilty of aggravated sexual abuse in the fourth

degree when:

(a) He or she inserts a foreign object in the vagina, urethra,

penis or rectum of another person and the other person is incapable of

consent by reason of some factor other than being less than seventeen

years old; or

(b) He or she inserts a finger in the vagina, urethra, penis

or rectum of another person causing physical injury to such person and

such person is incapable of consent by reason of some factor other

than being less than seventeen years old.

2. Conduct performed for a valid medical purpose does not

violate the provisions of this section.

Aggravated sexual abuse in the fourth degree is a class E

felony.

L00 (2000, added by chap. 1, eff. 2/1/2001.)

L96 §130.66. Aggravated sexual abuse in the third degree.

1. A person is guilty of aggravated sexual abuse in the third

degree when he inserts a foreign object in the vagina, urethra, penis

or rectum of another person:

(a) By forcible compulsion; or

(b) When the other person is incapable of consent by reason of

being physically helpless; or

L00 2. A person is guilty of aggravated sexual abuse in the

third degree when he or she inserts a foreign object in the vagina,

urethra, penis or rectum of another person causing physical injury to

such person and such person is incapable of consent by reason of being

mentally disabled or mentally incapacitated. L00 (2000, added by

chap. 1, eff. 2/1/2001. Former subd. 2 renumbered to 3 by L.2000,

chap. 1, eff. 2/1/2001.)

L00 3. Conduct performed for a valid medical purpose does not

violate the provisions of this section. L00 (2000, renumbered by

chap. 1, eff. 2/1/2001.)

Aggravated sexual abuse in the third degree is a class D

felony.

L96 (1996, added by chap. 181, eff. 11/1/96.)

§130.67. Aggravated sexual abuse in the second degree.

1. A person is guilty of aggravated sexual abuse in the second

degree when he inserts a finger in the vagina, urethra, penis, or

rectum of another person causing physical injury to such person:

(a) By forcible compulsion; or

(b) When the other person is incapable of consent by reason of

being physically helpless; or

2. Conduct performed for a valid medical purpose does not

violate the provisions of this section.

Aggravated sexual abuse in the second degree is a class C

felony.

§130.70. Aggravated sexual abuse in the first degree.

1. A person is guilty of aggravated sexual abuse in the first

degree when he inserts a foreign object in the vagina, urethra, penis

or rectum of another person causing physical injury to such person:

(a) By forcible compulsion; or

(b) When the other person is incapable of consent by reason of

being physically helpless; or

2. Conduct performed for a valid medical purpose does not

violate the provisions of this section.

Aggravated sexual abuse in the first degree is a class B

felony.

L00 §130.75. Course of sexual conduct against a child in the

first degree.

1. A person is guilty of course of sexual conduct against a

child in the first degree when, over a period of time not less than

three months in duration:

L93 (a) he or she engages in two or more acts of sexual

conduct, which includes at least one act of sexual intercourse, oral

sexual conduct, anal sexual conduct or aggravated sexual contact, with

a child less than eleven years old; or

L93 (b) he or she, being eighteen years old or more, engages

in two or more acts of sexual conduct, which include at least one act

of sexual intercourse, oral sexual conduct, anal sexual conduct or

aggravated sexual contact, with a child less than thirteen years old.

L93 (2003, chgd. by chap. 264, eff. 11/1/2003.)

2. A person may not be subsequently prosecuted for any other

sexual offense involving the same victim unless the other charged

offense occurred outside the time period charged under this section.

Course of sexual conduct against a child in the first degree

is a class B felony.

L00 (1996, added by chap. 122; 2000, chgd. by chap. 1, eff.

2/1/2001.)

L00 §130.80. Course of sexual conduct against a child in the

second degree.

1. A person is guilty of course of sexual conduct against a

child in the second degree when, over a period of time not less than

three months in duration:

(a) he or she engages in two or more acts of sexual conduct

with a child less than eleven years old; or

(b) he or she, being eighteen years old or more, engages in

two or more acts of sexual conduct with a child less than thirteen

years old.

2. A person may not be subsequently prosecuted for any other

sexual offense involving the same victim unless the other charged

offense occurred outside the time period charged under this section.

Course of sexual conduct against a child in the second degree

is a class D felony.

L00 (1996, added by chap. 122; 2000, chgd. by chap. 1, eff.

2/1/2001.)

L97 §130.85. Female genital mutilation.

1. A person is guilty of female genital mutilation when:

(a) a person knowingly circumcises, excises, or infibulates

the whole or any part of the labia majora or labia minora or clitoris

of another person who has not reached eighteen years of age; or

(b) being a parent, guardian or other person legally

responsible and charged with the care or custody of a child less than

eighteen years old, he or she knowingly consents to the circumcision,

excision or infibulation of whole or part of such child's labia majora

or labia minora or clitoris.

2. Such circumcision, excision, or infibulation is not a

violation of this section if such act is:

(a) necessary to the health of the person on whom it is

performed, and is performed by a person licensed in the place of its

performance as a medical practitioner; or

(b) performed on a person in labor or who has just given birth

and is performed for medical purposes connected with that labor or

birth by a person licensed in the place it is performed as a medical

practitioner, midwife, or person in training to become such a

practitioner or midwife.

3. For the purposes of paragraph (a) of subdivision two of

this section, no account shall be taken of the effect on the person on

whom such procedure is to be performed of any belief on the part of

that or any other person that such procedure is required as a matter

of custom or ritual.

Female genital mutilation is a class E felony.

L97 (1997, added by chap. 618, eff. 11/1/97.)

L00 §130.90. Facilitating a sex offense with a controlled

substance.

A person is guilty of facilitating a sex offense with a

controlled substance when he or she:

L93 1. knowingly and unlawfully possesses a controlled

substance or any preparation, compound, mixture or substance that

requires a prescription to obtain and administers such substance or

preparation, compound, mixture or substance that requires a

prescription to obtain to another person without such person's consent

and with intent to commit against such person conduct constituting a

felony defined in this article; and

L93 2. commits or attempts to commit such conduct constituting

a felony defined in this article.

L93 (2003, chgd. by chap. 264, eff. 11/1/2003.)

Facilitating a sex offense with a controlled substance is a

class D felony.