Summary of new crimes and sentences under the

New York Sexual Assault Reform Act

Applies to crimes committed on or after February 1, 2001

 

New "Date Rape" Crimes.

Facilitating a Sex Offense with a Controlled Substance. Penal Law 130.90 – a Class D felony:

1. Knowingly & unlawfully possesses a controlled substance, and

2. Administers such substance to another person without such person’s consent,

3. With the intent to commit a felony under Penal Law 130, and

4. Commits or attempts to commit such felony.

 

Rape 3^rd & Sodomy 3^rd. Penal Law 130.25 and 130.40 – Class E felonies.

1. Sexual intercourse,

2. without consent

3. where the lack of consent is not due to "incapacity to consent." That is, the victim actually expresses lack of consent by words and/or actions during the incident. Use of force is not required. No means no.

The new definition of lack of consent in Penal Law 130.05(2) adds "circumstances under which at the time of intercourse, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the [defendant’s] situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances."

 

Forcible Touching. Penal Law 130.52 – Class A Misdemeanor.

1. intentionally, and for no legitimate purpose

2. forcibly touches

3. the sexual or other intimate parts of another person

4. for the purpose of degrading or abusing such person or for the purpose of gratifying the [defendant’s] sexual desire.

 

Forcible touching includes squeezing, grabbing, or pinching.

 

Persistent Sexual Abuse. Penal Law 130.53.

Misdemeanor sexual abuse is upgraded to a felony if the defendant has at least two prior misdemeanor sexual abuse convictions within the previous 10 year period.

 

Crimes against a "mentally incapacitated"
or "mentally disabled" victim.

"Mentally incapacitated" means that "a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him or her without consent, or to any other act committed upon him or her without consent."

"Mentally disabled" means that "a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct."

Upgrade from E felony to D felony - Rape 2^nd and Sodomy 2^nd.

Aggravated Sexual Abuse 3^rd. Penal Law 130.66(2) – Class D felony where victim is "mentally incapacitated" or "mentally disabled."

Aggravated Sexual Abuse 4^th. Penal Law 130.65-a – Class E felony. No force necessary where victim is "mentally disabled."

 

Statutory Age Changes.

New York law states that a person less than 17 years old is legally incapable of consenting to sexual intercourse or other sexual contact.

Rape 1^st & Sodomy 1^st –when the age of the victim is less than 13, where the defendant is at least 18. Under the old law, this only applied when the victim was less than 11.

Rape 2^nd & Sodomy 2^nd - when the age of the victim is less than 15 and the defendant is at least 18, however there is an affirmative defense where the defendant is less than 4 years older than the victim.

Course of Conduct against a Child 1^st and 2^nd. Penal Law 130.75 & 130.80. Two or more acts of sexual conduct, within a three month period, against a child less than 11 or against a child less than 13 by a defendant who is at least 18.

Use or Promotion of a Child in a Sexual Performance. Penal Law 263.05 & 263 .15 – Class C and D felonies. Age of victim raised from under 16 to under 17.

Obscene Sexual Performance by a Child. Penal Law 263.10 – Class D felony. Age of victim raised from under 16 to under 17.

 

Sexual Assault by Health Care Providers.

Rape 3^rd, Sodomy 3^rd, Aggravated Sexual Abuse 4^th & Sexual Abuse 3^rd. The definition of "incapacity to consent" amended to include "a patient of a health care or mental health care provider."

 

Sentencing Changes.

Probation periods doubled: Felonies = 10 years & A misdemeanors 6 years.

Sex Offenders prohibited from school grounds – mandatory condition of any release on conditional discharge, probation or parole once convicted of any sex offense.

Second Child Sexual Assault Felony Offender. Penal Law 70.07.

1. victim less than 15

2. second within 15 years (10 years for other crimes)

3. raises minimum permissible sentence.

 

Bail is prohibited after conviction and pending appeal

For a Class B or C felony sex offense against a child less than 18 years old. Penal Law 530.40(3), 530.45(1), 530.50.

 

Click here for a more detailed description of the Sexual Assault Reform Act.