NY Penal Law § 130.90: Facilitating a Sexual Offense with a Controlled Substance

To give another person incapacitating drugs without that person’s consent in order to have sex with them is a crimnial offense. If you do so, you could be looking at a charge of facilitating a sexual offense with a controlled substance under New York Penal Code § 130.90. The drugs covered in this code include legal and illegal controlled substances alike, as well as any preparation, mixture or compound that necessitates a prescription.

For Example

A man and a woman meet up in a club. The man offers to buy her a drink. Without the woman’s knowledge, the man slips ecstasy into the drink. After the woman finishes her drink, she starts to feel lightheaded and giddy. She and the man leave the club together and get into a cab. The next morning, she wakes up inside his apartment, naked in his bed. It became clear to her that they had sex, but the woman had no memory of it. The man could face prosecution for facilitating a sexual offense with a controlled substance, among a few other sex crimes including rape in the second degree and criminal sexual act in the second degree.

Related Offenses

Criminal sexual act in the first degree: New York Penal Code § 130.50

Criminal sexual act in the second degree: New York Penal Code § 130.45

Rape in the first degree: New York Penal Code § 130.35

Rape in the second degree: New York Penal Code § 130.30

Other related offenses include drug possession crimes under New York Penal Code § 220.

Possible Defenses

With this crime, two issues will arise in relation to to establishing consent: consent with regards to taking the drug and the her consent to engage in the the sex act. If you could possibly demonstrate that you did not administer the drug to the alleged victim without their consent and that the individual knowingly and willingly took the drug, you can mount a defense against the charge. That said, you would still have to deal with a charge related to engaging in sexual conduct with a person who was mentally incapacitated or physically helpless.  Even if you can establish that she consented to taking the drug, she was intoxicated by drugs at the time of the sex act. To evade a conviction of any sex crime, you must demonstrate that the act was consensual.

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The Sentence

Legal Scenario: What Would You Do?

Scenario

A college student contacted you after being arrested at a party where police found GHB in his backpack and a female attendee reported feeling drugged after accepting a drink from him. He insists the substance belonged to someone else and that he never put anything in anyone's drink, but witnesses told police they saw him near the drink station shortly before the victim became disoriented.

Can I really be charged with facilitating a sexual offense with a controlled substance even though no sexual act actually occurred?

Attorney's Answer

Under NY Penal Law § 130.90, the prosecution must prove that you knowingly administered a controlled substance to another person without their consent for the purpose of facilitating a sexual offense — but the statute does not require that a completed sexual act actually took place. This is a Class D felony carrying up to seven years in prison, and the charge hinges on intent and the act of administering the substance, not on whether the intended offense was carried out. However, the prosecution still bears the burden of proving beyond a reasonable doubt that you were the one who introduced the substance and that you did so with the specific intent to engage in sexual conduct. We would immediately challenge the witness identifications, seek forensic analysis of the drink and the substance found, and file motions to suppress any improperly obtained evidence to build the strongest possible defense.

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

As a class D felony, a conviction of facilitating a sexual offense with a controlled substance yields a maximum possible prison sentence of 7 years. Since this crime is also in the category of a violent felony, the judge is obligated to impose a minimum sentence of 2 years in prison. The actual length of your sentence will rely on the collection of details, including your past criminal record and other factors. If you do have a criminal record, the judge will consider that to be an aggravating factor. When you get released from prison, you will also be required to serve a term of post-release supervision.

Facilitating a sexual offense with a controlled substance is a “registrable” offense. You will need to register information such as your name, address, work address, email address,  school, photograph, aliases,, social media handles, crimes and victim attributes with law enforcement. You will be required to regularly verify and update these details. If you move, you will be required to follow the registration and verification obligations of your new jurisdiction. You will remain a registered sex offender for at least the next 20 years of your life.