Consent Laws
New York

Last Updated: March 2020
Defining Consent Answer

How is consent defined?

Under New York law, lack of consent results from:

  • (1) forcible compulsion;
  • (2) incapacity to consent;
  • (3) 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
A person is deemed incapable of consent when he or she is:
(a) less than seventeen years old; or
(b) mentally disabled; or
(c) mentally incapacitated; or
(d) physically helpless; 
or in state custody
  • or when 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. New York Penal Law §130.05.

Does the definition require "freely given consent" or "affirmative consent"?

No.






Capacity to Consent Answer

At what age is a person able to consent?

17 years old. New York Penal Law §130.05.

Does difference in age between the victim and actor impact the victim's ability to consent?

Yes, there is an affirmative defense to rape and/or sexual acts in the 2nd degree that the defendant was less than four years older than the victim at the time of the act. New York Penal Law §130.30; §130.45.

The fact that the victim is more than 14 years old and the defendant is less than five years older than the victim is an affirmative defense to sexual abuse in the 3rd degree where lack of consent is due solely to incapacity to consent for being less than 17 years old. New York Penal Law §130.55.

Does elderly age impact the victim’s ability to consent?

No.

Does developmental disability and/or mental incapacity impact the victim’s ability to consent?

Yes, a mentally disabled person or mentally incapacitated person is incapable of giving consent. New York Penal Law §130.05(3)(b)-(c).The law does not presume that a person with mental retardation is unable to consent to sexual intercourse.

  • 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. New York Penal Law §130.00(5).
  • Mentally incapacitated” means a person that 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. New York Penal Law §130.00(6).

Does physical disability, incapacity or helplessness impact the victim’s ability to consent?

Yes, a physically helpless person is incapable of giving consent. New York Penal Law §130.05(3)(d). “Physically helpless” means a person that is unconscious or for any other reason physically unable to communicate unwillingness to an act. New York Penal Law §130.00(7).

Does consciousness impact the victim’s ability to consent?

Yes, a physically helpless person, which includes a person who is unconscious, is incapable of giving consent. New York Penal Law §130.00(7); §130.05(3)(d).

Does intoxication impact the victim’s ability to consent?

Yes, a mentally incapacitated person, which includes a person who 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, is incapable of giving consent. New York Penal Law §130.00(6); §130.05(3)(c)

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

  1. knowingly and unlawfully possesses a controlled substance or any preparation, compound, mixture or substance that requires a prescription to obtain and administers such substance or preparation, compound, mixture or substance that requires a prescription to obtain to another person without such person's consent and with intent to commit against such person conduct constituting a felony defined in this article; and
  2. commits or attempts to commit such conduct constituting a felony defined in this article.

New York Penal Law §130.90.

Does the relationship between the victim and actor impact the victim’s ability to consent?

Yes.

  • Marriage:
    • Marriage can be used as a defense when the victim's lack of consent is based solely on incapacity to consent because he/she was less than 17 years old, mentally disabled, a client or patient and the actor is a health care provider, or committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital and the actor is an employee. New York Penal Law §130.10(4).
  • Victim is under the care of the government:
    • A person is deemed incapable of consent when he or she is:
      • (1) committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital, and the actor is an employee who knows or reasonably should know that such person is committed to the care and custody or supervision of such department or hospital;
      • (2) committed to the care and custody of a local correctional facility, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility;
      • (3) committed to or placed with the office of children and family services and in residential care, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to or placed with such office of children and family services and in residential care;
      • (4) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in §130.25, criminal sexual act in the third degree as defined in §130.40, aggravated sexual abuse in the fourth degree as defined in §130.65-a, or sexual abuse in the third degree as defined in §130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination; or
      • (5) a resident or inpatient of a residential facility operated, licensed or certified by:
        • (i) the office of mental health;
        • (ii) the office for people with developmental disabilities; or
        • (iii) the office of alcoholism and substance abuse services, and the actor is an employee of the facility not married to such resident or inpatient. New York Penal Law §130.05.

(6) detained or otherwise in the custody of a police officer, peace officer, or other law enforcement official and the actor is a police officer, peace officer or other law enforcement official who either: (i) is detaining or maintaining custody of such person; or (ii) knows, or reasonably should know, that at the time of the offense, such person was detained or in custody.






Defenses Answer

Is consent a defense to sex crimes?

Yes. Whether or not specifically stated, it is an element of every sexual offense that the sexual act was committed without consent of the victim. New York Penal Law §130.05(1).

Where the victim's lack of consent is based solely on incapacity to consent because he/she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent.  New York Penal Law §130.10(1).

In any prosecution for the crime of rape in the third degree, criminal sexual act in the third degree, aggravated sexual abuse in the fourth degree, or sexual abuse in the third degree, it shall be an affirmative defense that the client or patient consented to such conduct charged after having been expressly advised by the health care or mental health care provider that such conduct was not performed for a valid medical purpose. New York Penal Law §130.10(3).

Is voluntary intoxication a defense to sex crimes?

No.









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