NY Penal Law § 130.45: Criminal Sexual Act in the Second Degree

Criminal sexual act in the second degree is among the three criminal sexual act crimes in the New York penal code. You would have committed criminal sexual act in the second degree  according to New York Penal Code § 130.45 if you:

1. Are 18 years old or older and conduct anal or oral sex with a child who is younger than 15 years old, or i
2. Have anal or oral sex with an individual who is incapable of consent because of a mental disability or mental incapacity.

Pursuant to New York Penal Code § 130.00(5), a person is said to suffer from a mental disability if that individual does not possess the ability to understand the nature of the sexual act.  If that is the victim’s circumstance, then you would have committed a criminal sexual act in the second degree. On the other hand, the definition of  mental incapacity in New York Penal Code § 130.00(6) is a person who is intoxicated by drugs or alcohol.

For Example

A woman works as a caregiver for a man who suffers from a disorder such that his mental ability is akin to that of a young child. The caregiver encourages her patient to engage in oral sex with her. The caregiver could be prosecuted for criminal sexual act in the second degree since the man did not have the mental capacity to consent to oral sex. Whether or not the man appeared to have consented is irrelevant in this scenario.

Offenses that are Related

Sexual abuse in the first degree: New York Penal Code § 130.65

Rape in the second degree: New York Penal Code § 13

Facilitating a sex offense with a controlled substance: New York Penal Code § 130.90

Aggravated sexual abuse in the third degree: New York Penal Code § 130.66

Course of sexual conduct against a child in the second degree: New York Penal Code § 130.80

Possible Defenses

Depending on the particular facts of your case, there are a few possible defenses including:

Absence of corroboration. There must be corroborating evidence in addition to the victim’s testimony if the case against you is based on the victim having been mentally disabled or mentally incapacitated at the time of the occurnece, according to New York Penal Code § 130.16.

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Statute of limitations. If you are not prosecuted within 5 years of the date of the alleged incident, under New York Criminal Procedure Law § 30.10 the prosecutor would be legally barred from ever being able to prosecute you for this occurrence.

Legal Scenario: What Would You Do?

Scenario

A 19-year-old college student discovered that the person he had been in a consensual relationship with for several months was actually 14 years old, after she had told him she was 16. He is now facing charges under NY Penal Law § 130.45 for criminal sexual act in the second degree based on oral sexual contact that occurred during the relationship.

Can I use the defense that she lied about her age and I genuinely believed she was 16?

Attorney's Answer

Unfortunately, under New York Penal Law § 130.45, criminal sexual act in the second degree is a strict liability offense when it involves a person 18 or older engaging in oral or anal sexual conduct with someone under 15. This means the prosecution does not need to prove you knew the victim's actual age, and mistaken belief about age is not a recognized defense to this charge. A conviction carries classification as a Class D felony, which can result in up to 7 years in prison and mandatory sex offender registration under SORA. An experienced criminal defense attorney may explore other strategic defenses, such as challenging the evidence of the act itself or negotiating with prosecutors, so it is critical that you retain counsel immediately.

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

The Sentence

If you do get convicted of a criminal sexual act in the second degree, since it is considered a class D felony, the maximum prison sentence that you could get is 7 years in prison. Your sentence could also include a 10 year probation term. Regardless of what sentence you receive, you will also be obligated to register as a sex offender under New York Correction Law § 168, also known as the Sex Offender Registration Act (SORA). You will be required to follow the registration rules for at least 20 years and, in some cases, for the rest of your life.