NY Penal Law § 13040: Criminal Sexual Act in the third degree

NY Penal Law § 130.40: Criminal Sexual Act in the third degree

The definition of criminal sexual act in the third degree according to New York Penal Code § 130.40 is as follows

Engaging in oral sex or anal sex with an individual who was incapable of consenting,

Engaging in oral or anal sex with an individual without that person’s consent, or

Engaging in oral sex or anal sex with an individual who is under the age of 17 years and you are at least 21 years old

The New York Penal Code § 130.00(2) categorizes oral sexual conduct as sexual contact between the mouth of one person and penis of another individual, the mouth and the anus of another person, or the mouth and another person’s vagina or vulva. Anal sexual conduct is defined as contact between the penis and another person’s anus.

Example

A 25 year old male high school teacher discovers that one of his students, a 16 year old junior, develops a crush on him. She frequently flirts with him. She goes so far as to ask him out on a date. He wisely opts not to flirt back and he declined her invitation to go out on a date with her. One day, the female student spontaneously kisses the male teacher. Ultimately the two engage in oral sexual conduct. This teacher could face prosecution for criminal sexual act in the third degree because the student was younger than 16 years old. Although the student initiated and encouraged the sexual contact, the teacher committed a crime because of her age.

Offenses that are Related

Rape in the third degree: New York Penal Code § 130.25

Aggravated sexual abuse in the fourth degree: New York Penal Code § 130.65a

Sexual misconduct: New York Penal Code § 130.20

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Possible Defenses

Since the absense of consent is an essential element to any sex crime, the prosecutor will have to demonstrate that there was no consent. If you can bring evidence to demonstrate that there was indeed consent, then it will become difficult for the prosecutor to convict you or even push forward with the prosecution. An alternate defense could be brought on the basis of the statute of limitations. The statute of limitations is the window of opportunity that a prosecutor has to bring criminal charges against an individual. Because this is a felony the statute of limitations for criminal act in the third degree, that window is five years. This means that if, for whatever reason,  the prosecutor is unable to file a case against you within five years of when the incident reportedly took place, under the law you cannot be prosecuted at all.

Legal Scenario: What Would You Do?

Scenario

A 22-year-old college student was arrested after his ex-partner reported a non-consensual sexual encounter that allegedly occurred several months ago. He was charged under NY Penal Law § 130.40 with Criminal Sexual Act in the Third Degree and is terrified about what this means for his future.

What exactly does a charge under NY Penal Law § 130.40 mean, and what kind of penalties am I facing if convicted?

Attorney's Answer

Criminal Sexual Act in the Third Degree under NY Penal Law § 130.40 is a Class E felony in New York, which carries a potential sentence of up to four years in state prison and mandatory sex offender registration under SORA. The statute covers oral or anal sexual conduct where the other person was incapable of consent or did not consent, and the prosecution must prove lack of consent beyond a reasonable doubt. A strong defense may involve challenging the credibility of the allegations, examining inconsistencies in the complainant's account, or raising issues around the timeline and circumstances of the reported incident. Given the severity of a felony sex offense conviction and its lifelong consequences including registration requirements, it is critical that you have an experienced criminal defense attorney reviewing the evidence and building your defense immediately.

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

The Sentence

Because this is a class E felony, a conviction for criminal sexual act in the third degree can yield a prison sentence of up to four years. The maximum possible sentence of 4 years notwithstanding, you will likely not get this sentence if you have no prior criminal record.  When all is said and done, your sentence may just be a probation period. Regardless of whether your sentence includes prison or probation, you will be obligated to register as a sex offender under the New York correction law § 168, also referred to as the Sex Offender Registration Act (SORA). SORA proides that a sex offender must register for at least 20 years. Some sex offenders will need to remain on the registry for the rest of their lives.