Michael Joseph is an attorney with extensive experience in defending accusations of sex crimes in the New York Courts. As a New York Criminal Defense Lawyer, Michael Joseph has handled the criminal defense of both felonies and misdemeanors in New York City (Bronx, Brooklyn, Manhattan and Kings), Long Island, Rockland and Westchester including White Plains, Yonkers, Valhalla, New Rochelle, Rye, Mount Kisco, and Mount Vernon. If you are facing allegations that you committed a sex crime, contact us immediately. Additionally, never speak with the police without an attorney present. Early preparation greatly enhances the likelihood that your attorney will be able to prepare an effective against allegations of sexual crimes.
Sex Crimes are some of the most difficult crimes to defend. An accusation is easy to make and hard to defend. The defense of these cases requires extensive investigation into why an accusation is being made and whether the medical evidence supports the allegation. A brief description of New York law concerning Sex Crimes is as follows:
Sex crimes tend to fall into three general categories. First is prostitution related offenses where sexual activity is engaged for compensation. The next is where there is some type of sexual contact without consent. The third is where one actor is alleged to be unable to consent.
NEW YORK CRIMES INVOLVING
RAPE AND NON-CONSENSUAL SEXUAL CONTACT
Sexual misconduct: New York Penal Law130.20, is a Class A Misdemeanor. Sexual misconduct is sexual intercourse with another person without such person’s consent; or oral sexual conduct or anal sexual conduct with another person without such person’s consent; or sexual conduct with an animal or a dead human body.
Rape in the third degree New York Penal Law 130.25 is a class E felony. Rape in the third degree is having sexual intercourse with someone who is incapable of consent because of some reason other than being less than seventeen years old or if someone 21 years old or older, has sexual intercourse someone less than seventeen years old. Rape in the third degree also occurs when someone has sexual intercourse with another person without such person’s consent where such lack of consent (Not including an inability to consent)
Rape in the second degree, New York Penal Law 130.30 is a class d felony. Rape in the second degree occurs when a person who is over eighteen years old has sexual intercourse with someone less than fifteen years old; or has sexual intercourse with a person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. However, if the accused was less than four years older than the other person, they cannot be convicted of rape in the second degree.
Rape in the first degree New York Penal Law 130.35 is a class B felony. Rape in the first degree occurs when someone has sexual intercourse with another person by forcible compulsion; or who is incapable of consent by reason of being physically helpless; or who is less than eleven years old; or who is less than thirteen years old and the actor is eighteen years old or more. Forcible compulsion” means to compelling a person to engage in sexual activity by either use of physical force; or a threat which causes the person to fear immediate death or physical injury.
NEW YORK SEX CRIMES AND INABILITY TO CONSENT
In New York, a person can be guilty of a sex offense if the victim was unable to consent to sexual activity because they were mentally disabled, mentally incapacitated or physically helpless. An accusation from someone who was either mentally disabled, incapacitated or physically helpless is not enough. Sex crimes where someone who is technically unable to consent requires corroboration that sexual contact occurred and that the accused was the person who caused the contact.
Under New York Penal Law, “Mentally disabled” means that a person suffers from a mental disease or defect which renders them incapable of appraising the nature of his or her conduct. A person is “Mentally Incapacitated” if they are temporarily incapable of appraising or controlling their conduct because of the effect of a narcotic or intoxicating substance administered without their consent, or to any other act committed upon him without his consent. Physically helpless means that a person is unconscious or is physically unable to communicate unwillingness to an act.
However, just because a person is mentally disabled, mentally incapacitated or physically helpless does not mean that you are guilty if you did not know about the mental disability, incapacitation or physical helplessness. Under Penal Law 130.10 where the victim’s lack of consent is based solely upon 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.
Also, just because someone has a mental defect does not mean that they cannot consent to sexual activity. In mild cases of mental retardation, people still retain the ability to consent so long as they can understand what they are doing and have the ability to say yes or no.
In intoxication and drug cases, often “morning after” rape allegations arise. This is when one partner voluntarily engages in sexual activity but later claims that they don?t recall it, so it must have been non-consensual. In these cases, it is often useful to have the complaining witnesses blood, urine or other fluids reviewed by a forensic expert to determine what substances affected the complaining witness and how much of that substance they ingested. Even where a complaining witness was drunk or has used drugs, they are not necessarily physically helpless. So long as they can communicate whether or not they want to engage in sexual activity, there is no crime, even if they regret their actions later.