Sex Crimes: Definitions and Penalties
New York

• Engaging in sexual intercourse with another person:
• By forcible compulsion; or
• Who is incapable of consent by reason of being physically helpless; or
• Who is less than 11 years old; or
• Who is less than 13 years old and the actor is 18 years old or more.

• 5 to 25 years in prison (determinate sentence).

• “Forcible compulsion” means to compel by either:
• use of physical force; or
• a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.
• “Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.  “Physical helplessness is present when ‘a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act’ Of note, ‘a person who is sleeping is “physically helpless” for the purposes of consenting to sexual intercourse, particularly where the sleep was drug and alcohol induced.’”  People v. Dunham, 172 A.D.3d 1462, 1463 (N.Y. App. Div. 2019) (internal citations omitted).
• “Sexual intercourse” has its ordinary meaning and occurs upon any penetration, however slight.
• “Oral sexual conduct” means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.
• “Anal sexual conduct” means conduct between persons consisting of contact between the penis and anus.
• “Sexual conduct” means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact.
• Rape in the First Degree is a class B felony.

• N.Y. Penal Law § 130.35; see also id. § 130.00 (definitions); id. § 70.80 (penalty).

• A person, being 18 years old or more, engages in sexual intercourse with another person less than 15 years old; or
• It shall be an affirmative defense to this crime if the defendant was less than 4 years older than the victim at the time of the act.

• Engaging in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

• In general, 2 to 7 years in prison (determinate sentence).
• The court may impose a sentence of probation. If the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose a determinate sentence upon a person convicted of a class D or class E felony sex offense, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

• See definition of “sexual intercourse” under Rape in the First Degree.
• “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.
• “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 without his consent, or to any other act committed upon him without his consent.
• Rape in the Second Degree is a class D felony.

• N.Y. Penal Law § 130.30; see also id. § 130.00 (definitions); id. § 70.80 (penalty).

• Engaging in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than 17 years old;
• A person, being 21 years old or more, engages in sexual intercourse with another person less than 17 years old; or
• Engaging in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.

• In general, 1.5 to 4 years in prison.
• The court may impose a sentence of probation. If the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose a determinate sentence upon a person convicted of a class D or class E felony sex offense, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

• See definition of “sexual intercourse” under Rape in the First Degree.
• “Lack of consent” results from:
• forcible compulsion;
• incapacity to consent;
• where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor's conduct; or
• where the offense charged is rape in the third degree, or criminal sexual act in the third degree, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’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.
• Rape in the Third Degree is a class E felony.

• N.Y. Penal Law § 130.25; id. § 130.05 (lack of consent); id. § 70.80 (penalty).

• Engaging in sexual intercourse with another person without such person’s consent; or
• Engaging in oral sexual conduct or anal sexual conduct with another person without such person’s consent; or
• Engaging in sexual conduct with an animal or a dead human body.

• Maximum of 1 year in prison (definite sentence).

• See definition of “sexual intercourse,” “sexual conduct,” “oral sexual conduct” and “anal sexual conduct” under Rape in the First Degree.
• Sexual Misconduct is a class A misdemeanor.

• N.Y. Penal Law § 130.20; id. § 70.15 (penalty).

• Engaging in oral sexual conduct or anal sexual conduct with another person:
• By forcible compulsion; or
• Who is incapable of consent by reason of being physically helpless; or
• Who is less than 11 years old; or
• Who is less than 13 years old and the actor is 18 years old or more.

• 5 to 25 years in prison (determinate sentence).

• See definition of “forcible compulsion,” “physically helpless,” “oral sexual conduct” and “anal sexual conduct” under Rape in the First Degree.
• Criminal Sexual Act in the First Degree is a class B felony.

• N.Y. Penal Law § 130.50;  id. § 70.80 (penalty).

• A person, being 18 years old or more, engages in oral sexual conduct or anal sexual conduct with another person less than 15 years old; or
• It shall be an affirmative defense to this crime if the defendant was less than 4 years older than the victim at the time of the act.
• Engaging in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

• In general, 2 to 7 years in prison.
• The court may impose a sentence of probation. If the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose a determinate sentence upon a person convicted of a class D or class E felony sex offense, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

• See definition of “oral sexual conduct” and “anal sexual conduct” under Rape in the First Degree.
• See definition of “mentally disabled or mentally incapacitated” under Rape in the Second Degree
• Criminal Sexual Act in the Second Degree is a class D felony.

• N.Y. Penal Law § 130.45; see also id. § 70.80 (penalty).

• Engaging in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than 17 years old;
• A person, being 21 years old or more, engages in oral sexual conduct or anal sexual conduct with a person less than 17 years old; or
• Engaging in oral sexual conduct or anal sexual conduct with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.

• In general, 1.5 to 4 years in prison.
• The court may impose a sentence of probation. If the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose a determinate sentence, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

• See definition of “oral sexual conduct” and “anal sexual conduct” under Rape in the First Degree.
• See definition of “lack of consent” under Rape in the Third Degree.
• Criminal Sexual Act in the Third Degree is a class E felony.

• N.Y. Penal Law § 130.40; see also id. § 70.80 (penalty).

• Intentionally, and for no legitimate purpose:
• forcibly touching the sexual or other intimate parts of another person for the purpose of degrading or abusing such person or for the purpose of gratifying the actor’s sexual desire; or
• subjecting another person to sexual contact for the purpose gratifying the actor’s sexual desire and with intent to degrade or abuse such other person while such other person is passenger on a bus, train, or subway car operated by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions.
• For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.

• Maximum of 1 year in prison (definite sentence).

• Forcible Touching is a class A misdemeanor.
• Inquiry as to whether a defendant was seeking sexual gratification, as element of offense of forcible touching, can be inferred from his or her conduct. People v. Fuller, 50 A.D.3d 1171, 1175 (N.Y. Sup. Ct. 2008).
• “Bodily contact alone, especially when it is effected by a mere touching,” does not rise to the level of physical force contemplated by the forcible compulsion element of the forcible touching statute; rather, physical force is found where there is some “power or strength or violence exerted against a body.” People v. Parbhu, 743 N.Y.S.2d 660, 665 (N.Y. Crim. Ct. 2002).

• N.Y. Penal Law § 130.52; see id. § 70.15 (penalty)

• Committing the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, and when:
• In the course of the commission of the crime or the immediate flight therefrom, he or she:
• Causes serious physical injury to the victim of such crime; or
• Uses or threatens the immediate use of a dangerous instrument; or
• He or she has engaged in conduct constituting the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, against one or more additional persons; or
• He or she has previously been subjected to a conviction for a felony defined in this article, incest as or use of a child in a sexual performance.

• 10 to 25 years in prison (indeterminate sentence).

• Predatory Sexual Assault is a class A-II felony.

• N.Y. Penal Law §130.95; see also id. §§ 70.80, 70.00, 70.06, 70.08 (penalty).

• Committing the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, and the victim is less than 13 years old, when the person is 18 years old or more.

• 10 to 25 years in prison (indeterminate sentence).

• Predatory Sexual Assault Against a Child is a class A-II felony.

• N.Y. Penal Law §130.96; see also id. §§ 70.80, 70.00, 70.06, 70.08 (penalty).

• When, over a period of time not less than three months in duration, a person:
• engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than 11 years old; or
• who is 18 years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than 13 years old.
• A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section.

• 5 to 25 years in prison (determinate sentence)

• See definition of “sexual intercourse,” “oral sexual conduct” and “anal sexual conduct” under Rape in the First Degree.
• Course of Sexual Contact Against a Child in the First Degree is a class B felony.
• Crime of course of sexual conduct against a child is “a continuing crime to which the usual requirements of specificity with respect to time do not pertain.”  People v. McLoud, 291 A.D.2d 867, 867 (N.Y. Sup. Ct. 2002) (two-year period).

• N.Y. Penal Law §130.75; see also id. § 70.80 (penalty).

• When, over a period of time not less than three months in duration, a person:
• engages in two or more acts of sexual conduct with a child less than 11 years old; or
• who is 18 years old or more, engages in two or more acts of sexual conduct with a child less than 13 years old.
• A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section.

• In general, 2 to 7 years in prison.
• The court may impose a sentence of probation.  If the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose a determinate sentence upon a person convicted of a class D or class E felony sex offense, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

• Course of Sexual Contact Against a Child in the Second Degree is a class D felony.

• N.Y. Penal Law §130.80; see also id. § 70.80 (penalty).

When a person subjects another person to sexual contact:

• By forcible compulsion;
• When the other person is incapable of consent by reason of being physically helpless;
• When the other person is less than 11  years old; or
• When the other person is less than 13 years old and the actor is 21 years old or older.

• In general, 2 to 7 years in prison (determinate sentence).
• The court may impose a sentence of probation. If the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose a determinate sentence upon a person convicted of a class D or class E felony sex offense, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

• “Sexual contact” means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.
• See definitions of “physically helpless” under Rape in the First Degree and “lack of consent” under Rape in the Third Degree.
• Sexual Abuse in the First Degree is a class D felony.

• N.Y. Penal Law §130.65; see also id. §§ 130.00, 130.05 (definitions); id. § 70.80 (penalty).

• When a person subjects another person to sexual contact and when such other person is:
• incapable of consent by reason of some factor other than being less than 17 years old; or
• less than 14 years old.

• Maximum of 1 year in prison (definite sentence).

• See definition of “sexual contact” under Sexual Abuse in the First Degree.
• See definitions of “physically helpless” and “lack of consent” under Rape in the Third Degree.
• Sexual Abuse in the Second Degree is a class A misdemeanor.

• N.Y. Penal Law §130.60; see also id. § 130.00 (definitions); id. § 70.50 (penalty).

• When a person subjects another person to sexual contact without the latter’s consent; except that in any prosecution under this section, it is an affirmative defense that (a) such other person’s lack of consent was due solely to incapacity to consent by reason of being less than 17 years old, and (b) such other person was more than 14 years old, and (c) the defendant was less than 5 years older than such other person.

• Maximum sentence of 3 months (definite sentence).

• See definition of “sexual contact” under Sexual Abuse in the First Degree. 
• See definition of “lack of consent” under Rape in the Third Degree
• Sexual Abuse in the Third Degree is a class B misdemeanor.

• N.Y. Penal Law §130.55; see also id. § 130.00 (definitions); id. § 70.15 (penalty).

• A person is guilty of persistent sexual abuse when he or she commits the crime of forcible touching, sexual abuse in the third degree, or sexual abuse in the second degree, and, within the previous 10 year period, excluding any time during which such person was incarcerated for any reason, has been convicted two or more times, in separate criminal transactions for which sentence was imposed on separate occasions, of forcible touching, sexual abuse in the third degree, sexual abuse in the second degree, or any offense defined in this article, of which the commission or attempted commission thereof is a felony.

• In general, 1.5 to 4 years in prison.
• The court may impose a sentence of probation. If the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose a determinate sentence upon a person convicted of a class D or class E felony sex offense, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

• Persistent Sexual Abuse is a class E felony.

• N.Y. Penal Law § 130.53; see also id. § 130.00 (definitions); id. § 70.80 (penalty).

A person is guilty of aggravated sexual abuse in the first degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person:

• By forcible compulsion;
• When the other person is incapable of consent by reason of being physically helpless; or
• When the other person is less than 11 years old.

Conduct performed for a valid medical purpose does not violate the provisions of this section.

• 5 to 25 years in prison (determinate sentence).

• See definition of “physically helpless” under Rape in the First Degree.
• “Foreign object” means any instrument or article which, when inserted in the vagina, urethra, penis, rectum or anus, is capable of causing physical injury.  A finger does not constitute a “foreign object” for purposes of aggravated sexual abuse.  People v. Peet, 101 A.D.2d 656, 656 (N.Y. App. Div. 1984), aff'd, 477 N.E.2d 620 (N.Y. 1985).
• Aggravated Sexual Abuse in the First Degree is a class B felony.

• N.Y. Penal Law §130.70; see also id. § 130.00 (definitions); id. § 70.80 (penalty).

A person is guilty of aggravated sexual abuse in the second degree when he or she inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person:

• By forcible compulsion;
• When the other person is incapable of consent by reason of being physically helpless; or
• When the other person is less than 11 years old.

Conduct performed for a valid medical purpose does not violate the provisions of this section.

• 3.5-15 years in prison.

• See definitions of “forcible compulsion” and “physically helpless” under Rape in the First Degree.
• Aggravated Sexual Abuse in the Second Degree is a class C felony.

• N.Y. Penal Law §130.67; see also id. § 130.00 (definitions); id. § 70.80 (penalty).

A person is guilty of aggravated sexual abuse in the third degree when he or she:

• inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person:

• By forcible compulsion;
• When the other person is incapable of consent by reason of being physically helpless;
• When the other person is less than 11 years old; or
• When the other person is less than 13 years old and the actor is 18 years of age or older; or
• inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person and such person is incapable of consent by reason of being mentally disabled or mentally incapacitated.

Conduct performed for a valid medical purpose does not violate the provisions of this section.

• In general, 2 to 7 years in prison.
• The court may impose a sentence of probation. If the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose a determinate sentence upon a person convicted of a class D or class E felony sex offense, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

• See definitions of “forcible compulsion” and “physically helpless” under Rape in the First Degree.
• “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.
• “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 without his consent, or to any other act committed upon him without his consent.
• Aggravated Sexual Abuse in the Third Degree is a class D felony.

• N.Y. Penal Law §130.66; see also id. § 130.00 (definitions); id. § 70.80 (penalty).

A person is guilty of aggravated sexual abuse in the fourth degree when he or she:

• inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person and the other person is incapable of consent by reason of some factor other than being less than 17 years old; or

• inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person and such person is incapable of consent by reason of some factor other than being less than 17 years old.

Conduct performed for a valid medical purpose does not violate the provisions of this section.

• In general, 1.5 to 4 years in prison.
• The court may impose a sentence of probation. If the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose a determinate sentence upon a person convicted of a class D or class E felony sex offense, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

• See definition of "lack of consent" under Rape - 3rd Degree.
• Aggravated Sexual Abuse in the Fourth Degree is a class E felony.

• N.Y. Penal Law §130.65-a.; see also id. § 130.00 (definitions); id. § 70.80 (penalty).