Lebedin Kofman LLP

Sexual Abuse In The Second Degree


Penal Law 130.60(1)

Incapacity to Consent Other Than By Age 130.60(1)

Under New York State law, a person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is incapable of consent. If a person is found guilty of sexual abuse in the second degree, he or she will be charged with a Class A Misdemeanor.

Under 130.00(3) of the New York State Penal law, sexual contact means any touching of the sexual or other intimate parts of a person for the purpose of gratifying the 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. The touching may be directly or through clothing and may include the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.

Sexual contact takes place without a person’s consent when that person is deemed by the law to be incapable of consent. An individual is incapable of consent when he or she is: (1) less than seventeen years old; (2) mentally disabled; (3) mentally incapacitated; or (4) physically helpless.

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.

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 130.60(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 defendant subjected complainant to sexual conduct; (2) complainant was incapable of consent; and (3) 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.

Complainant less than 14 130.60(2)

Under New York State law, a person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is incapable of consent. If a person is found guilty of sexual abuse in the second degree, he or she will be charged with a Class A Misdemeanor.

Sexual contact takes place without another’s consent when that person is deemed incapable of consent by the law. A person is incapable of consenting to sexual contact when he or she is less than fourteen years old. New York State Penal law deems sexual contact with a person under fourteen 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 130.60(2) that the actor did not know that the person with whom the actor had sexual intercourse was less than fourteen years old. Additionally, it is not a defense that the actor believed such person was fourteen years old or more on the date of the crime.

Under 130.00(3) of the New York State Penal law, sexual contact means any touching of the sexual or other intimate parts of a person for the purpose of gratifying the 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. The touching may be directly or through clothing and may include the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.

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 defendant subjected complainant to sexual conduct; and (2) the complainant was less than fourteen years old.

For more information on Sexual Abuse 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