Lebedin Kofman LLP

Criminal Sexual Act In The Third Degree


Penal Law 130.40

Incapacity to Consent by a Person Subject to Care and Custody 130.40(1)

Under New York State law, a person is guilty of criminal sexual act in the third degree when he or she engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent. If a person is found guilty of criminal sexual act in the third degree, he or she will be charged with a Class E Felony.

Under 130.00(2)(a) of the New York State Penal Law, 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. Under 130.00(2)(b), anal sexual conduct means conduct between persons consisting of contact between the penis and anus. Oral or anal sexual conduct takes place without a person’s consent when such person is deemed incapable of giving consent. The law deems oral or anal sexual conduct with such a person to be without that person’s consent, even if in fact the person did consent.

An individual who is also 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 the office of children and family services and in residential care; or (4) a resident or inpatient of a residential facility operated, licensed or certified by the office of mental health, the office for people with developmental disabilities, the office of alcoholism and substance abuse services, and the actor is an employee of the facility not married to such resident or inpatient.

It is a defense to a charge under 130.40(1) that the defendant was married to the victim. Married means the existence of a spousal relationship between the defendant and the victim as recognized by New York State law at the time of the alleged offense.

To be found guilty of this crime, the prosecution must be able to prove beyond a reasonable doubt two or three elements (1) that on the date alleged the defendant engaged in oral sexual conduct or anal sexual conduct with the complainant; (2) the complainant was incapable on consent; and (3) if applicable that the defendant was not married to the complainant.

Lebedin Kofman LLP

Russ Kofman is a founding partner in Lebedin Kofman LLP. He has extensive litigation experience defending clients accused of felonies, misdemeanors and DWI/ DUI crimes.

Defendant 21 or More/Complainant less than 17 130.40(2)

Under New York State law, a person is guilty of criminal sexual act in the third degree when he or she is twenty-one years old or more and he or she engages in oral sexual conduct or anal sexual conduct with another person who is less than seventeen years old. . If a person is found guilty of criminal sexual act in the third degree, he or she will be charged with a Class E Felony.

Under 130.00(2)(a) of the New York State Penal Law, 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. Under 130.00(2)(b), anal sexual conduct means conduct between persons consisting of contact between the penis and anus. Oral or anal sexual conduct takes place without a person’s consent when such person is deemed incapable of giving consent.

A person is deemed incapable of consent when he or she is less than seventeen years old. New York State Penal law deems oral or anal sexual conduct with a person under seventeen years of age to be without that person’s consent, even if in fact that person did consent.

It is not a defense to a charge under 130.40(2) that the actor did not know that the person with whom the actor had sexual intercourse was less than seventeen years old. Additionally, it is not a defense that the actor believed such person was seventeen years old or more on the date of the crime.

It is a defense to a charge under 130.40(2) that the defendant was married to the victim. Married means the existence of a spousal relationship between the defendant and the victim as recognized by New York State law at the time of the alleged offense

To be found guilty of this crime, the prosecution must be able to prove beyond a reasonable doubt three or four elements: (1) that on the alleged date defendant engaged in oral sexual conduct or anal sexual with the complainant; (2) the defendant was twenty-one years old or more at that time; (3) the complainant was incapable of consent because he or she was less than seventeen years old; and (4) if applicable the defendant was not married to the complainant.

Lack of Consent-Totality of the Circumstances 130.40(3)

Under New York State law, a person is guilty of criminal sexual act in the third degree when he or she engages in oral sexual conduct or anal sexual conduct with another person without such person’s consent. If a person is found guilty of criminal sexual act in the third degree, he or she will be charged with a Class E Felony.

Under 130.00(2)(a) of the New York State Penal Law, 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. Under 130.00(2)(b), anal sexual conduct means conduct between persons consisting of contact between the penis and anus. Oral or anal sexual conduct takes place without a person’s consent when there is a lack of consent to the act.

Lack of consent results from circumstances that surround the act. If the complainant 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 under stood the complainant’s words and acts as an expression of lack of consent, then this element will be satisfied.

To be found guilty of this crime, the prosecution must be able to prove beyond a reasonable doubt two elements: (1) that on the date alleged the defendant engaged in oral sexual conduct or anal sexual conduct with the complainant; and (2) the defendant did so without consent.

For more information on Criminal Sex Acts In The Third Degree, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (212) 500-3273 today.

Lebedin Kofman LLP

Russ Kofman is a founding partner in Lebedin Kofman LLP. He has extensive litigation experience defending clients accused of felonies, misdemeanors and DWI/ DUI crimes.

Related Articles