NYC Criminal Sexual Act in the Third Degree Lawyers

In the state of New York, per the Penal Code, a person can be guilty of criminal sexual act in the third degree through three ways. The charge can be placed upon someone if they engage in oral or anal sex with another person who is incapable of giving consent, if a person is 21 years or older and engages in such sexual activities with a person under 17 or has oral or anal sex with another person without their consent.

Criminal sexual act in the third degree is a class E felony. As per the New York Penal Law 130.40, a person convicted of the crime can face up to four years in prison. Sex crimes are also considered particularly heinous and can carry long-term repercussions for the perpetrator, with their personal and professional lives affected. Any person who is accused of or charged with criminal sexual act in the third degree or any other type of sex crime should waste no time in getting in touch with an experienced defense attorney.

What is criminal Sexual Act in the Third Degree?

criminal sexual act in the third degree is similar to rape in the third degree, but it involves oral or anal sexual contact instead of vaginal intercourse. Per New York’s Penal Code, oral sex is a type of sexual contact that occurs between a person’s mouth and another person’s genitals. Anal sex involves sexual contact that occurs between a penis and anus.

Lack of Consent

Generally speaking, the crime can take place when there is oral or anal sex that involved a lack of consent. In other words, the act would have to be forced upon another person. In some cases, the other person may seem to give consent, but if they are under 17 years of age, is physically helpless or has a mental disability, they are incapable of giving consent. Another way in which this crime can be committed is if the perpetrator is an employee of the Department of Corrections and the victim is in custody.

A person who is mentally incapacitated does not understand the concept of the sexual act, so they are unable to give consent. Likewise, a person who is intoxicated, such as with the date rape drug GHB, does not have the ability to give consent because they would be completely incapacitated and even unconscious during the act.

There is no rule as to the gender of the individual who can be charged with criminal sexual act in the third degree. The perpetrator can be a man or a woman.

Sentencing for criminal Sexual Act in the Third Degree

Typically, a person who is convicted of criminal sexual act in the third degree is sentenced to a maximum of four years in prison. However, if there are additional charges and the circumstances warrant it, there may be a more severe charge on top of that, such as rape in the third degree, endangering the welfare of a child or forcible touching, which can harshen the sentence. Even misdemeanors added to the conviction can increase the penalties the individual faces. For instance, if the victim was under 17 at the time of the commission of the crime, the individual may also face charges of endangering the welfare of a child, which can increase the defendant’s prison sentence to up to 12 years.

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Of course, the individual will also have to register as a sex offender.

Legal Scenario: What Would You Do?

Scenario

A 22-year-old college senior in Manhattan discovered that the person he had been intimate with on several occasions was actually 16 years old, despite having told him she was 19. He was arrested and charged with Criminal Sexual Act in the Third Degree under New York Penal Law § 130.40 after the minor's parents filed a complaint.

Can I use the fact that she lied about her age as a defense against this charge?

Attorney's Answer

Under New York Penal Law § 130.40, Criminal Sexual Act in the Third Degree is a class E felony that carries up to four years in prison, and unfortunately, mistake of age is generally not a valid defense to this charge in New York. The statute is structured as a strict liability offense regarding the age element — meaning the prosecution does not need to prove you knew the person was underage, only that you were 21 or older and engaged in oral or anal sexual conduct with someone under 17. However, an experienced defense attorney can examine whether the conduct alleged actually meets the statutory definition, challenge the credibility of witnesses, and negotiate with prosecutors for reduced charges or alternative dispositions. Given the serious consequences of a felony conviction and potential sex offender registration requirements under SORA, it is critical that you retain a criminal defense lawyer immediately and refrain from making any statements to law enforcement.

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

Possible Defenses

There are a few possible defenses the defense attorney can use. There may be a way to prove that the other person did, in fact, give consent and was legally able to do so. Another common defense for this type of crime is that the statute of limitations has expired. In other words, the charges were brought against the defendant after the time limit to do so had expired. However, if the victim was 17 or younger when the act was committed, the statute of limitations defense would not apply.