Criminal Sexual Act in the Second Degree, New York Penal Law Section 130.45

by ECL Writer
Criminal Sexual Act in the First Degree

In the intricate web of legal statutes governing sexual offences, the state of New York, like many others, has taken a firm stance against acts that violate the fundamental rights and autonomy of individuals. Among these statutes is the Criminal Sexual Act in the Second Degree, a critical component of New York’s Penal Law, encapsulating a range of offences that pertain to non-consensual sexual conduct.

In this article, eastcoastlaws.com will delve into the legal intricacies of the Criminal Sexual Act in the Second Degree, as defined by New York Penal Law Section 130.45. This statute addresses a spectrum of sexually related crimes, each characterized by specific elements and circumstances. Understanding this law is not only vital for legal professionals but for all members of society seeking to safeguard their rights and comprehend the consequences of sexual misconduct.

What is a Criminal Sexual Act in the Second Degree in NYC?

Criminal Sexual Act in the Second Degree in New York, defined under Penal Law Section 130.45, is a class D violent felony. Here is a summary of key points:

  • Severity: It is a serious offence classified as a class D violent felony in New York.
  • Maximum Sentence: The maximum prison sentence for a first-time felony offender is 7 years, followed by 3 to 10 years of post-release supervision.
  • Three Circumstances: Criminal Sexual Acts in the Second Degree can be charged under three specific circumstances: a. When an individual who is 18 years or older engages in Oral Sexual Conduct or Anal Sexual Conduct with a person under 15 years old. b. When an individual engages in Oral Sexual Conduct or Anal Sexual Conduct with another person who is incapable of giving consent due to being Mentally Disabled. c. When an individual engages in Oral Sexual Conduct or Anal Sexual Conduct with another person who is incapable of giving consent due to being Mentally Incapacitated.
  • Lack of Knowledge: Not knowing that a person was under 15 years old is not a defence in cases involving the first provision based on age.
  • Defence Strategies: A skilled defence lawyer may attempt to convince the prosecutor not to proceed with a Criminal Sexual Act in the Second Degree case, citing misleading behaviour by the complaining witness or misrepresentations of legal age.
  • Mental Incapacity Definitions: New York law provides specific definitions for Mentally Disabled and Mentally Incapacitated:
    • Mentally Disabled: Refers to a person suffering from a mental disease or defect that renders them incapable of appraising the nature of their conduct.
    • Mentally Incapacitated: Refers to a person temporarily rendered incapable of appraising or controlling their conduct due to the influence of a narcotic or intoxicating substance administered without their consent or due to any other act committed upon them without their consent.
  • Burden of Proof: In cases involving individuals who are Mentally Disabled or Mentally Incapacitated, a prosecutor must prove the condition beyond a reasonable doubt. This means showing that the person was either incapable of understanding the nature of their actions or temporarily unable to control their behaviour due to substances or actions against their will.

Criminal Sexual Act in the Second Degree

One of the three criminal sexual act offences in New York is a criminal sexual act in the second degree. If you are at least 18 years old and engage in anal or oral sex with a person under the age of 15, or if you engage in anal or oral sex with a person who is unable to consent due to a mental disability or mental incapacity, you have engaged in a criminal sexual act in the second degree, according to New York Penal Code 130.45.

You would have done a criminal sexual act in the second degree if, in accordance with New York Penal Code 130.00(5), the person did not have the mental capacity to comprehend the nature of the sexual act. However, according to New York Penal Code 130.00(6), a person has a mental incapacity if they are under the influence of drugs or alcohol.

Criminal Sexual Act in the Second Degree Affirmative Defense

When a charge of Criminal Sexual Act in the Second Degree is based on the age restriction, there is a significant defence. The fact that the defendant was under 4 years older than the complaining witness at the time of the alleged incident is an affirmative defence to a Criminal Sexual incident in the Second Degree under Penal Law 130.45.

A Criminal Sexual Act in the Second Degree should be dropped if the accused is 18 years old and the complaining witness is 14 years old, or if there are less than 4 complete years between the two. It’s common to refer to this as a Romeo and Juliet defence. The burden of proof is on the defence, nevertheless, since it is an affirmative defence.

Even if the affirmative defence of fewer than 4 years of age difference applies, a sexual misconduct case could still be brought. Sexual Misconduct is a class A misdemeanour that carries a maximum one-year prison penalty under Penal Law Section 130.20. For example, when the complaining witness is under the age of 17, sexual misconduct allegations include oral or anal conduct without a person’s consent.

Sentencing for Criminal Sexual Act in the Second Degree

Even if found guilty of an attempt to commit the offence, a person convicted of a criminal sexual act in the second degree in New York is required to register as a Sex Offender.

For those without a prior felony record, the minimum term is two years in jail and the maximum is seven years. Additionally necessary is a 3- to 10-year post-release supervision period. For a first-time felon, there are a number of alternative sentencing choices, such as a shorter sentence or none at all.

A judge may also impose a term of one year in prison, a split sentence of six months in imprisonment and ten years of probation, or a three-year conditional discharge for a first felony conviction.

A judge must find certain things, such as that a lengthy prison term would be unjustifiably harsh given the nature and circumstances of the crime as well as the history and character of the accused, that a lengthy prison term is not required to protect the public, and that the public interest or sense of justice would not be served by such a lengthy prison term.

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

A criminal sexual act in the second degree is committed when:

  • despite being at least eighteen years old, he or she participates in oral or anal sex with a child under the age of fifteen; or
  • He or she engages in oral or anal sexual activity with a person who is incapable of giving permission due to mental illness or disability.

The fact that the defendant was under four years older than the victim at the time of the offence is an affirmative defence to the crime of criminal sexual act in the second degree as specified in subdivision one of this section.

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