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New York Penal Code § 130.45: Criminal Sexual Act in the Second Degree

New York Penal Code § 130.45: Criminal Sexual Act in the Second Degree

New York’s penal code defines a number of crimes and punishments. Among these are sex crimes. For a second degree criminal sexual act to have been committed, the following criteria must be met:

  • The perpetrator is a minimum of 18 years old, and they had oral or anal sex with a person under the age of 15
  • The perpetrator had oral sex or anal sex with a person who could not give consent because of a mental incapacity or disability

A second degree criminal sexual act is defined as a class D felony. The mandatory sentencing guidelines mean that if you’re convicted, you will serve at least 3 years in prison. The maximum prison sentence is 7 years.

The consequences of a conviction are dire, but there may be lasting personal consequences even if you aren’t convicted. In some cases, the personal consequences occur even if the charge is never prosecuted.

For these reasons, it’s vital that you talk to a defense attorney right away. You have the legal right to representation. They will get to know the unique facts of your case and provide you the best possible defense.

Lack of Consent Defined

For this particular charge, the key factor is that the victim did not have the legal ability to consent. Even if they appeared to consent at the time, that consent is not legally binding because they were not capable of making an informed decision. There are three main ways this can be proven.

If the victim had a mental disability that prevented them from understanding the sexual conduct, they would not be capable of giving informed consent. Informed consent requires that all parties understand what is happening. When a person has a mental disability that impedes their ability to understand the situation, they are unable to consent in the eyes of the law. This remains true even if the person agreed to the sexual conduct or initiated it. The non-disabled party could be charged with a second degree criminal sexual act.

Another thing that prevents informed consent is mental incapacity. If you give someone any kind of intoxicating substance without consent, that person is suffering from a mental incapacity. They are not able to understand situations the same way they could if they were not intoxicated. For this reason, they’re unable to give informed consent. If you have oral or anal sex with this intoxicated person, you could receive a second degree criminal sexual act charge.

The last circumstance is age. In New York, people under the age of 15 have not yet reached the legal age of consent. This means that, in the eyes of the court, they have not achieved the maturity necessary to make an informed decision. Even if they agreed to participate in the sexual act, their consent is not legally valid. To be charged with a second degree criminal sexual act, the perpetrator would need to be a minimum of 18 years old.

Potential Defenses

The possible defenses for this charge vary widely depending on the circumstances. Each case has unique angles based on the dynamic of the people involved.

A common defense is to challenge the lack of consent. If a person is unable to consent due to mental incapacitation or a mental disability, a third party must corroborate the story. Alternatively, other evidence that a criminal sexual act occurred must be provided.

Second degree criminal sexual act charges cannot stand based on the testimony of a mentally incapacitated or mentally disabled individual alone. If there are no third party witnesses or physical evidence, you may have a valid defense.

If the act transpired between an individual of at least 18 years of age, and another person less than 15 years of age, one legal defense is the parties being married. With that said, the marriage must be legal according to United States law.

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