Sex Crimes: Definitions and Penalties
New York

• Engaging in vaginal sexual contact, oral sexual contact, or anal sexual contact 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.
• Where the victim’s lack of consent is based solely upon incapacity to consent because physical helplessness, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct, did not know of the facts or conditions responsible for such incapacity to consent.
• Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.

• 5 to 25 years in prison (determinate sentence).
• Even in the absence of a prior criminal history, an aggregate sentence of 15 years followed by 5 years of post release supervision, imposed on defendant for first-degree rape, second-degree rape, and endangering child welfare was not unduly harsh or severe.  People v Cruz, 238 A.D. 3d 1327 (N.Y. App. Div. 2025)

• “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).
• “Vaginal sexual contact” means conduct between persons consisting of contact between the penis and the vagina or vulva.
• “Oral sexual contact” 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 contact” means conduct between persons consisting of contact between the penis and anus.
• “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.
• “Sexual conduct” means vaginal sexual contact, oral sexual contact, anal sexual contact, 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. § 130.10 (defenses); id. § 70.80 (penalty); id. § 15.20(3) (effect of ignorance or mistake regarding age).

• A person, being 18 years old or more, engages in vaginal sexual contact, oral sexual contact, or anal sexual contact 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.
• Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.

• Engaging in vaginal sexual contact, oral sextual contact, or anal sexual contact with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.
• Where the victim’s lack of consent is based solely upon incapacity to consent because of mental disability or mental incapacity, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct, did not know of the facts or conditions responsible for such incapacity to consent.
• Where the victim’s lack of consent is based solely upon incapacity to consent because the victim is mentally disabled, it is a defense that the defendant was married to the victim.
• The victim and the defendant must be legally married.  Unless the marriage was “recognized by law” the court will not instruct the jury on a marital or spousal defense.  United States v. Helbrans, 2021 WL 4778525 (S.D.N.Y. Oct. 12, 2021)
• Where the victim is incapable of consent because of the victim’s “mental defect” or mental incapacity, a person shall not be convicted based solely on the testimony of the victim without corroborating evidence.

• 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.

• “Vaginal sexual contact” means conduct between persons consisting of contact between the penis and the vagina or vulva.
• “Oral sexual contact” 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 contact” means conduct between persons consisting of contact between the penis and anus.
• “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.
• “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. § 130.10 (defenses); id. § 130.16 (corroboration); id. § 70.80 (penalty); id. § 15.20(3) (effect of ignorance or mistake regarding age).

• Engaging in vaginal sexual contact, oral sexual contact, or anal sexual contact with another person who is incapable of consent by reason of some factor other than being less than 17 years old;
• Where the victim’s lack of consent is based solely upon incapacity to consent because of mental disability, mental incapacity or physical helplessness, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct, did not know of the facts or conditions responsible for such incapacity to consent.
• Where the victim’s lack of consent is based solely upon incapacity to consent because the victim is mentally disabled, it is a defense that the defendant was married to the victim.
• The victim and the defendant must be legally married.  Unless the marriage was “recognized by law” the court will not instruct the jury on a marital or spousal defense.  United States v. Helbrans, 2021 WL 4778525 (S.D.N.Y. Oct. 12, 2021)
• Where the victim is incapable of consent because of the victim’s “mental defect” or mental incapacity, a person shall not be convicted based solely on the testimony of the victim without corroborating evidence.
• A person, being 21 years old or more, engages in vaginal sexual contact, oral sexual contact, or anal sexual contact with another person less than 17 years old; or
• Where the victim’s lack of consent is based solely upon incapacity to consent because the victim is less than 17 years old, it is a defense that the defendant was married to the victim.
• The victim and the defendant must be legally married.  Unless the marriage was “recognized by law” the court will not instruct the jury on a marital or spousal defense.  United States v. Helbrans, 2021 WL 4778525 (S.D.N.Y. Oct. 12, 2021)
• Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.  Engaging in vaginal sexual contact, oral sexual contact, or anal sexual contact 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.

• “Vaginal sexual contact” means conduct between persons consisting of contact between the penis and the vagina or vulva.
• “Oral sexual contact” 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 contact” means conduct between persons consisting of contact between the penis and anus.
• “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.
• “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 vaginal sexual contact, oral sexual contact, or anal sexual contact, 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. § 130.10 (defenses); id. § 130.16 (corroboration); id. § 70.80 (penalty); id. § 15.20(3) (effect of ignorance or mistake regarding age).

• Engaging in vaginal sexual contact with another person without such person’s consent; or
• Engaging in oral sexual contact or anal sexual contact 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).

• “Vaginal sexual contact” means conduct between persons consisting of contact between the penis and the vagina or vulva.
• “Oral sexual contact” 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 contact” means conduct between persons consisting of contact between the penis and anus.
• “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.
• “Sexual conduct” means vaginal sexual contact, oral sexual contact, anal sexual contact, aggravated sexual contact, or sexual contact.
• Sexual Misconduct is a class A misdemeanor.

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

Repealed by L.2023, c. 777, § 1, eff. Sept. 1, 2024

N/A

N/A

• N.Y. Penal Law § 130.50; id. § 70.80 (penalty); Repealed by L.2023, c. 777, § 1, eff. Sept. 1, 2024

• Repealed by L.2023, c. 777, § 1, eff. Sept. 1, 2024

• N/A

• N/A

• N.Y. Penal Law § 130.50; id. § 70.80 (penalty); Repealed by L.2023, c. 777, § 1, eff. Sept. 1, 2024

• Repealed by L.2023, c. 777, § 1, eff. Sept. 1, 2024

• N/A

• N/A

• N.Y. Penal Law § 130.50; id. § 70.80 (penalty); Repealed by L.2023, c. 777, § 1, eff. Sept. 1, 2024

• 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 but is not limited to squeezing, grabbing or pinching.
• A person’s buttocks constitute an “intimate part” under this section.
• A person’s face, neck, ankles, feet or legs can be an intimate body part depending on the manner and circumstances of the touching.  People v. Kumar, 235 N.Y.S.3d 593 (2025); People v. Dunkley, 186 N.Y.S.3d 812 (2023).

• 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, 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, 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 or use of a child in a sexual performance.

• Minimum 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, 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.
• Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.

• Minimum 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); id. § 15.20(3) (effect of ignorance or mistake regarding age).

• 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 vaginal sexual contact, oral sexual contact, anal sexual contact 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 vaginal sexual contact, oral sexual contact, anal sexual contact 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.
• Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.

• 5 to 25 years in prison (determinate sentence)

• “Vaginal sexual contact” means conduct between persons consisting of contact between the penis and the vagina or vulva.
• “Oral sexual contact” 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 contact” means conduct between persons consisting of contact between the penis and anus.
• “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.
• “Sexual conduct” means vaginal sexual contact, oral sexual contact, anal sexual contact, aggravated sexual contact, or sexual contact.
• “Aggravated sexual contact” means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis, rectum or anus of a child, thereby causing physical injury to such child.
• 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); id. § 15.20(3) (effect of ignorance or mistake regarding age).

• 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.
• Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.

• 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); id. § 15.20(3) (effect of ignorance or mistake regarding age).

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.
• Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.
• Where the victim’s lack of consent is based solely upon incapacity to consent because physical helplessness, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct, did not know of the facts or conditions responsible for such incapacity to consent
• Testimony that the complainant was “asleep when the sexual contact started” was sufficient to establish incapacity due to physical helplessness.  People v Zuniga, 228 N.Y.S.3d304 (2025)

• 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. § 130.10 (defenses); id. § 70.80 (penalty); id. § 15.20(3) (effect of ignorance or mistake regarding age).

• 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.
• Where the victim’s lack of consent is based solely upon incapacity to consent because of mental disability, mental incapacity or physical helplessness, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct, did not know of the facts or conditions responsible for such incapacity to consent.
• Where the victim’s lack of consent is based solely upon incapacity to consent because the victim is mentally disabled, it is a defense that the defendant was married to the victim.
• The victim and the defendant must be legally married.  Unless the marriage was “recognized by law” the court will not instruct the jury on a marital or spousal defense.  United States v. Helbrans, 2021 WL 4778525 (S.D.N.Y. Oct. 12, 2021)
• Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.
• Where the victim is incapable of consent because of the victim’s “mental defect” or mental incapacity, a person shall not be convicted based solely on the testimony of the victim without corroborating evidence.

• 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. § 130.10 (defenses); id. § 130.16 (corroboration); id. § 70.15 (penalty); id. § 15.20(3) (effect of ignorance or mistake regarding age).

• 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.
• Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.
• Lack of consent can be shown when “an older and presumably stronger defendant, in a position of authority, forcibly detains a victim inside his home.”  Forcefully holding of the victim is not a statutory requirement.  People v. Miller, 856 N.Y.S.2d 443 (2008)
• No showing of “brazen or depraved conduct” is required.  People v. Sumpter, 737 N.Y.S.2d 219 (2001)
• Where the victim’s lack of consent is based solely upon incapacity to consent because of mental disability, mental incapacity or physical helplessness, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct, did not know of the facts or conditions responsible for such incapacity to consent.
• Where the victim’s lack of consent is based solely upon incapacity to consent because the victim is less than 17 years old, it is a defense that the defendant was married to the victim.
• The victim and the defendant must be legally married.  Unless the marriage was “recognized by law” the court will not instruct the jury on a marital or spousal defense.  United States v. Helbrans, 2021 WL 4778525 (S.D.N.Y. Oct. 12, 2021)
• Where the victim is incapable of consent because of the victim’s “mental defect” or mental incapacity, a person shall not be convicted based solely on the testimony of the victim without corroborating evidence.

• Maximum sentence of 3 months (definite sentence).

• “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.
• Buttocks are an intimate part of the body within the definition of the term “sexual contact.”  People v. Darryl M., 475 N.Y.S.2d 704 (1984)
• A person’s face, neck, ankles, feet or legs can be an intimate body part depending on the manner and circumstances of the touching.  People v. Kumar, 235 N.Y.S.3d 593 (2025); People v. Dunkley, 186 N.Y.S.3d 812 (2023)
• Kissing constitutes sexual contact.  People v. Miller, 856 N.Y.S.2d 443 (2008)
• “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 vaginal sexual contact, oral sexual contact, or anal sexual contact, 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.
• The intent of the legislature was to limit the applicability of sexual abuse in the third degree to cases of sexual contact that fall short of actual intercourse.
• Sexual Abuse in the Third Degree is a class B misdemeanor.

• N.Y. Penal Law §130.55; see also id. § 130.00 (definitions); id. § 130.10 (defenses); id. § 130.16 (corroboration); id. § 70.15 (penalty); id. § 15.20(3) (effect of ignorance or mistake regarding age).

• 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.

Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.

Where the victim’s lack of consent is based solely upon incapacity to consent because of physical helplessness, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct, did not know of the facts or conditions responsible for such incapacity to consent.

• 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. § 130.10 (defenses); id. § 70.80 (penalty); id. § 15.20(3) (effect of ignorance or mistake regarding age).

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.

Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.

Where the victim’s lack of consent is based solely upon incapacity to consent because of physical helplessness, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct, did not know of the facts or conditions responsible for such incapacity to consent.

• 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. § 130.10 (defenses); id. § 70.80 (penalty); id. § 15.20(3) (effect of ignorance or mistake regarding age).

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.

Knowledge by the defendant of the age of a child is not an element of the offense.  Therefore, it is not a defense that the defendant did not know the age of the child or believed the child to be older.

Where the victim’s lack of consent is based solely upon incapacity to consent because of mental disability, mental incapacity or physical helplessness, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct, did not know of the facts or conditions responsible for such incapacity to consent.

Where the victim’s lack of consent is based solely upon incapacity to consent because the victim is mentally disabled, it is a defense that the defendant was married to the victim.

• The victim and the defendant must be legally married.  Unless the marriage was “recognized by law” the court will not instruct the jury on a marital or spousal defense.  United States v. Helbrans, 2021 WL 4778525 (S.D.N.Y. Oct. 12, 2021)

Where the victim is incapable of consent because of the victim’s “mental defect” or mental incapacity, a person shall not be convicted based solely on the testimony of the victim without corroborating evidence.

• 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. § 130.10 (defenses); id. § 130.16 (corroboration); id. § 70.80 (penalty); id. § 15.20(3) (effect of ignorance or mistake regarding age).

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.

Where the victim’s lack of consent is based solely upon incapacity to consent because of mental disability, mental incapacity or physical helplessness, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct, did not know of the facts or conditions responsible for such incapacity to consent.

Where the victim’s lack of consent is based solely upon incapacity to consent because the victim is mentally disabled, it is a defense that the defendant was married to the victim.

• The victim and the defendant must be legally married.  Unless the marriage was “recognized by law” the court will not instruct the jury on a marital or spousal defense.  United States v. Helbrans, 2021 WL 4778525 (S.D.N.Y. Oct. 12, 2021)

Where the victim is incapable of consent because of the victim’s “mental defect” or mental incapacity, a person shall not be convicted based solely on the testimony of the victim without corroborating evidence.

• 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. § 130.10 (defenses); id. § 130.16 (corroboration); id. § 70.80 (penalty).

A person is guilty of facilitating a sex offense with a controlled substance when he or she:

• knowingly and unlawfully possesses
• a controlled substance or prescription drug and
• administers the controlled substance or prescription drug to another person
• without such person’s consent and
• with the intent to commit against such person conduct constituting a felony sex offense.

• 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.

• The crime is not committed by engaging in the proscribed conduct with a lawfully possessed controlled substance, lawfully possessed prescription drug, or a drug that does not require a prescription.
• The administration of the drug and the intent must be contemporaneous.
• It is not a requirement that the drug causes the victim to become mentally incapacitated, physically helpless, or to suffer any other effect.
• Facilitating a sex offense with a controlled substance is a class D felony. 

• N.Y. Penal Law §130.90.; id. § 70.80 (penalty).