New York State Laws
Explanation of Sex Offense Statute 130 and the NYS Sexual Assault Reform Act (SARA):
Explanation of Sex Offense Statute 130 and the Sexual Assault Reform Act (SARA):
Penal Code section 130 governs the prosecution of sexual offenses in New York State. For many years, prosecutors, victim advocates and legislators argued that New York’s laws needed to be revamped. As a result of their efforts, the State legislature passed the Governor’s omnibus, 52-point bill, Sexual Assault Reform Act (SARA), which became law on February 1, 2001. Since that time, the law has been amended several times.
The following is an interpretation of the New York State Penal Code 130 and changes brought about by SARA. This information should not be substituted for any information or advice offered by your local District Attorney’s Office.
What constitutes lack of consent?
Under New York State law, a sexual offense occurs when certain sexual acts are perpetrated against a victim without his or her consent. The law defines both (1) the behavior and the physical nature (body parts, etc) of a sex offense and (2) the lack of consent involved.
"Lack of consent" is defined in New York State's Penal Law as occurring in the following circumstances:
Forcible Compulsion:
actual physical force.
the threat of physical force, expressed or implied, that puts the victim in fear of being physically harmed or of another person being physically harmed (e.g. one’s child).
the threat to kidnap the victim or a third person.
OR Physically helpless: physically unable to indicate a lack of consent (e.g. because victim is unconscious or because of a physical disability that makes one unable to physically or verbally communicate lack of consent).
OR
Under 17 years of age: New York law states that a person less than 17 years of age is legally incapable of consenting to sexual intercourse or other sexual contact. These laws are typically known as statutory rape laws.
]If the victim is under 13, and the defendant is at least 18, this constitutes a 1st degree sexual offense. 1st degree crimes are considered the most serious ones and carry the longest penalties.
If the victim is under 15 and the perpetrator is at least 18, this constitutes a 2nd degree sexual offense. However, if the defendant is less than 4 years older than the victim, this may constitute an affirmative defense. Affirmative defenses are those in which the defendant introduces evidence which negates criminal liability.
OR
Mentally Incapacitated: when the victim is made temporarily incapable of understanding or controlling his or her conduct because a drug or other intoxicating substance (e.g. alcohol) was given to them without their consent.
OR
Mentally Disabled: when a person suffers from a mental illness or a condition that renders them incapable of understanding the nature of their conduct.
OR
Inmate: when a person is literally or physically under the control of others. Some examples are:
The victim is an inmate in either a state or city correctional facility (i.e. jail or prison)
The victim is committed to a psychiatric institution
The victim is a juvenile held in any facility, if the perpetrator is anyone employed at that facility
The perpetrator is a health care or mental health provider and the victim is his/her client, unless the doctor makes clear that the sex act is not part of the treatment. If the medical provider can prove that s/he informed the client that intercourse was not part of the treatment, and the client consented, then a crime has not occurred. This is a Class E felony.
Penal Code 130 also prohibits workers in Office of Children and Family Services facilities from having sexual contact with patients of those facilities.
OR
Some Factor Other Than Incapacity to Consent: Rape 3 and Criminal Sexual Act 3 have recently been modified with a "no means no" clause. In cases of intercourse only, if the victim expressed that he or she did not consent to the sex act in such a way that a reasonable person would have understood those words or acts as expressing lack of consent, this would be prosecutable as Rape in the third degree or Criminal Sexual Act in the third degree. This makes a case easier for the District Attorney to prosecute because it is based on a reasonable person standard, and not on the specific interpretation of a defendant.
What constitutes a sexual offense?
If any of the following acts are perpetrated against a victim "without his or her consent," as defined above, it is a crime under New York State Law:
Sexual Intercourse: the penetration of the penis into the vagina, however slight-- in other words, if the penis goes into the vagina just a little, not in its entirety, that is considered completed "sexual intercourse". (There is no requirement of physical injury and usually there is no requirement that ejaculation or orgasm have occurred.)
AND/OR
Criminal Sexual Act (Oral or Anal Sexual Conduct): does not require any penetration and occurs upon contact between penis and mouth, penis and anus (rectum), mouth and anus, or mouth and vaginal area.
AND/OR
Sexual Contact: any touching of the sexual or intimate parts of the body whether over or under clothing:
done for the purpose of gratifying the sexual desire of either party
includes the touching of the victim’s sexual or intimate parts by the perpetrator AND the touching of the perpetrator’s sexual or intimate parts by the victim
AND/OR
Forcible Touching: the intentional and forcible touching of another
done for the purpose of degrading or abusing another person or done for the purpose of gratifying the defendant’s sexual desire
includes squeezing, grabbing, or pinching
AND/OR
Aggravated Sexual Contact: insertion of a foreign object (e.g. coke bottle, broom handle, etc.) into the vagina, urethra, penis or rectum.
Insertion of a finger into vagina, urethra, penis or rectum causing injury, constitutes 2nd degree sexual offense
If the insertion of the object causes physical injury, this constitutes a 1st degree sexual offense
If no injury occurs, this constitutes a 3rd degree sexual offense
http://www.svfreenyc.org/survivors_legal.html#A