Sexual Misconduct - NYPL § 130.20

Under New York State law, a person is guilty of sexual misconduct when he or she engages in sexual intercourse with another without such person’s consent. If a person is found guilty of sexual misconduct, he or she will be charged with a Class A misdemeanor.

Under 130.20(1) of the New York State Penal Law, sexual intercourse is defined as any penetration of the penis into the vaginal opening. The penetration may be of any type. Sexual intercourse does not require an erection of the penis, emission, or orgasm. Under 130.05 of the New York State Penal Law, sexual intercourse takes place without a person’s consent when there is a lack of consent to the sexual intercourse as a result of the incapacity to consent.

Sexual intercourse 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 17 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.

It is not a defense to a charge under 130.20(1) that the actor did not know that the person with whom the actor had sexual intercourse was less than 17 years old. Additionally, it is not a defense that the actor believed such a person was 17 years old or more on the date of the crime.

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 130.20(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 alleged date, the defendant engaged in sexual intercourse with the complainant; (2) that the defendant did so without the consent of the complainant because he or she was incapable of consent; and (3) if applicable, that the defendant was not married to the complainant.