NY Penal Law § 13053 Persistent Sexual Abuse

NY Penal Law § 130.53: Persistent Sexual Abuse

You have committed persistent sexual abuse under New York Penal Code § 130.53 if you commit forcible touching, sexual abuse in the second degree or sexual abuse in the third degree and have also previousluy been convicted of these same offenses or any other felony sex crime at least twice within the past 10 years. Forcible touching, sexual abuse in the third degree and sexual abuse in the second degree are all misdemeanor sex offenses. The affects of being convicted of 3 misdemeanor sex crime in the space of 10 years is that on the 3rd conviction, you can be charged with persistent sexual abuse.  This offense is a felony.

For Example

A man grabs the buttocks of a stranger standing on a crowded subway platform. He gets convicted of forcible touching for this act. Four years later, the same man kisses a 13 year old minor child on the lips while rubbing her breasts. He draws a convicted of sexual abuse in the third degree for this infraction. Then, three years later, seven years after the first forcible touching conviction, the same man again grabs the buttocks of a stranger while standing on a crowded subway platform. With this third incident, the prosecutor could charge that man with felony persistent sexual abuse, becahse the man had already been convicted of forcible touching and sexual abuse in the third degree with in the 10 years prior.

Offenses that are Related

Forcible touching: New York Penal Code § 130.52

Sexual abuse in the second degree: New York Penal Code § 130.60

Sexual abuse in the third degree: New York Penal Code § 130.55

Possible Defenses

One defense to a charge of course of persistent sexual abuse would entail presenting a challenging against the underlying criminal charge. Since absense of consent is an component of forcible touching or sexual abuse in second or third degree, if you can demonstrate that the other individual consented, then that would be a possible defense to forcible touching or sexual abuse. The prosecutor would have a pretty hard time prosecuting you for persistent sexual abuse. Intent must also be shown for forcible touching. If you actually touched the other person by accident, then you did not have the necessary intent and a charge of forcible touching cannot be supported. Frequently, forcible touching occurs in a crowded space, like a bar or a party. Therefore, it may be easy for the victim to misidentify you as the perpetrator when it was someone else. Mistaken identity could be a valid defense.

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Legal Scenario: What Would You Do?

Scenario

You were arrested and charged with forcible touching after an incident at a bar, and the prosecutor discovered two prior convictions for sexual abuse in the third degree from 2019 and 2022. The district attorney's office has now informed your attorney that they intend to upgrade the charges to persistent sexual abuse under NY Penal Law § 130.53, a class E felony.

What does being charged with persistent sexual abuse mean for my case, and how is it different from the original forcible touching charge?

Attorney's Answer

Persistent sexual abuse under NY Penal Law § 130.53 elevates what would otherwise be a misdemeanor-level sex offense into a class E felony because of your prior conviction history. The statute requires proof that you committed forcible touching (PL § 130.52), sexual abuse in the second degree (PL § 130.60), or sexual abuse in the third degree (PL § 130.55), and that you were previously convicted of one of these offenses or any felony sex crime at least two times within the preceding ten-year period. A class E felony conviction carries up to four years in state prison and mandatory sex offender registration under SORA. We would need to carefully examine whether your prior convictions actually fall within the statutory ten-year lookback window and whether the prosecution can properly establish each element, as any gap in the predicate offenses could be grounds to challenge the upgraded charge.

This is general information only. Contact us for advice specific to your situation.

If you get convicted of persistent sexual abuse you could be sentenced to up to 4 years behind bars because it is a class E felony. If this is your first felony offense, a judge may opt to sentence you to much less prison time than 4 years. The judge may even opt to sentence you to 10 years of probation instead.

Unfortantely, the consequences of a conviction for persistent sexual abuse persist long after a prison term or after a probation sentence. Persistent sexual abuse like the majority of other sex crimes is a “registrable” offense. What this means is that if convicted you will be a registered sex offender under New York Correction Law § 168, also known as the Sex Offender Registration Act (SORA). The registration obligation will last for from 20 years to the rest of your life.