Lebedin Kofman LLP

Criminal Sexual Acts In The Second Degree


Penal Law 130.45

Defendant 18 or more/Complainant less than 15 130.45(1)

Under New York State law, a person is guilty of criminal sexual act in the second degree when he or she is eighteen years old or more and he or she engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old. If a person is found guilty of criminal sexual act in the second degree, he or she will be charged with a Class D 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 fifteen years old. New York State Penal law deems oral or anal sexual conduct with a person under fifteen 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 130.45(1) that the actor did not know that the person with whom the actor had engaged in oral or anal sexual conduct was less than fifteen years old. Additionally, it is not a defense that the actor believed such person was fifteen years old or more on the date of the crime.

It is a defense to a charge under 130.45(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 the following three or four elements: (1) that on the date alleged the defendant engaged in oral sexual conduct or anal sexual conduct with complainant; (2) the defendant was eighteen years old or more; (3) the complainant was less than fifteen years old; and (4) if applicable, 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.

Mentally Disabled or Mentally Incapacitated 130.45(2)

Under New York State law, a person is guilty of criminal sexual act in the second degree when he or she engages 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. If a person is found guilty of criminal sexual act in the second degree, he or she will be charged with a Class D 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 to be incapable of consenting to sexual intercourse when he or she is mentally disabled or mentally incapacitated. A person is mentally disabled under New York State law when that person suffers from a mental disease or defect which renders him or her incapable of assessing the nature of his or her conduct. A person is mentally incapacitated under New York State law when that person is rendered temporarily incapable of assessing or controlling his or her conduct because of the influence of a narcotic or intoxicating substance administered to him or her without his or her consent. A person is physically helpless under New York State law when that person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. The law deems oral or anal sexual conduct with a person who is mentally disabled or mentally incapacitated to be without the person’s consent even if that person did consent.

It is a defense to a charge under 130.45(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 two or three elements: (1) that on the date alleged the defendant engaged in oral sexual conduct or anal sexual conduct with complainant; (2) complainant was incapable of consent by reason of being mentally disabled or mentally incapacitated; and (3) if applicable, that the defendant was not married to the complainant.

For more information on Criminal Sex Acts In The Second 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