Penal Codes

A Summary of New York State Penal Code 130
Sex Offenses as of 2008

In general, a sex offense occurs when a person does not consent to sexual conduct; a weapon, physical force or threats are used; a person is mentally disabled, mentally incapacitated or physically helpless; is committed to the care and custody of the state correctional system or hospital; or is under the age of seventeen.

§ 130.00 Sex offenses; definitions of terms. The following definitions are applicable to this article:

  1. "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight.
    1. "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.
    2. "Anal sexual conduct" means conduct between persons consisting of contact between the penis and anus.
  2. "Sexual contact" means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying 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, whether directly or through clothing.
  3. For the purposes of this article "married" means the existence of the relationship between the actor and the victim as spouses which is recognized by law at the time the actor commits an offense proscribed by this article against the victim.
  4. "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.
  5. "Mentally incapacitated" means that a person 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.
  6. "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.
  7. "Forcible compulsion" means to compel by either:
    1. use of physical force; or
    2. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.
  8. "Foreign object” means any instrument or article which, when inserted in the vagina, urethra, penis or rectum, is capable of causing physical injury.
  9. "Sexual conduct" means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact.
  10. "Aggravated sexual contact" means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis or rectum of a child, thereby causing physical injury to such child.
  11. "Health care provider" means any person who is, or is required to be, licensed or registered or holds himself or herself out to be licensed or registered, or provides services as if he or she were licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry under any one of the following: article one hundred thirty-one, one hundred thirty-two, one hundred thirty-three, or hundred forty-one of the education law.
  12. "Mental health care provider" shall mean a licensed physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker.

Lack of consent, along with forcible compulsion, includes circumstances when the victim clearly expressed they did not consent to the act of intercourse or by means of age, mental disability, mental incapacitation or being physically helpless and a reasonable person in the defendant’s situation would have understood the victim’s words, actions or condition.

NOTE: As of the Legislative session of 2006, two new crimes were added 130.95 and 130.96* and four of the Class B Felonies no longer have time limits for investigation and prosecution. In 2007 two new crimes were added **130.91 and 130.92**

A Summary of New York State Penal Code
130 Sex Offenses as 2008

D=defendant          V=Victim
OffenseConductLack of ConsentCategory/Maximum Sentence RangeMinimum Determinant Sentence
First Degree Rape
130.35       
     

 
Sexual IntercourseForcible compulsion OR V physically helpless OR D18+ and V under 13
OR V under 11
Class B * Violent Felony
Max 12½ -25 years 
5 years
Second Degree Rape
130.30       
       
 
Sexual IntercourseIncapable of consent by reason of being mentally disabled or mentally incapacitated
D over 18 V under 15 
Class D Felony
Max 2⅓-7years
 
Third Degree Rape
130.25   
   
 
Sexual IntercourseIncapable of consent by reason
D over 21 AND V under 17
OR V lack of consent OR D Health Care or Mental Health Provider
Class E Felony
Max1⅓-4 years
 

First Degree Criminal Sexual Act
130.50            
 

Oral or Anal Sexual ConductForcible Compulsion OR V physically helpless OR V under 11 OR D 18+ AND V under 13  Class B *Violent Felony
Max 12½ -25
 5 years
Second Degree Criminal Sexual Act
130.45        Class D
 
Oral or Anal Sexual Conduct  Incapable of consent by reason of being mentally disabled or mentally incapacitated
D 18 AND V under 15  
Felony
Max 2⅓-7 years
 
Third Degree Criminal Sexual Act
130.40        
 
Oral or Anal Sexual Conduct   Incapable of consent by reason
D over 21 AND V under 17 OR V lack of consent OR D Health Care or
Mental Health Provider
Class E Felony
Max 1⅓-4 years
 
Forcible Touching
130.52       
 
Forcible Touching   Intentionally for no legitimate purpose, D grabs, squeezes or pinches the sexual or other intimate parts of V for purpose of degrading/abusing or gratifying own desire Class A misdemeanor
Max 1 year
 

First Degree Sexual Abuse
130.65              

Sexual Contact Forcible compulsion OR physically helpless OR V under 11Class D *Violent Felony
Max 2 1/3 – 7 years
2 years

Second Degree Sexual Abuse
130.60        

Sexual ContactV incapable of consent other than age OR V under 14   Class A misdemeanor
Max 1 year
 

Third Degree Sexual Abuse
130.55           

Sexual ContactAny circumstances where V does not consent excepting D is not 5 years older than V Class B misdemeanor
Max 3 months
 
First Degree Course of Sexual Conduct Against a Child
130.75               
 
Sexual Intercourse, oral or anal sexual conduct or aggravated contactV under 11 D engages in two or more acts over a period of not less than three months OR D 18+ AND V under 13Class B*Violent Felony
Max 12½ - 25 years
5 years
Second Degree Course of Conduct Against a Child
130.80             
 
Sexual Contact V under 11 D engages in two or more acts over a period of not less than three months OR D 18+ AND V under 13 Class D *Violent Felony
Max 3½  –7 years
 2 years
First Degree Aggravated Sexual Abuse
130.70           
 
Insertion of foreign object causing physical injury   Forcible compulsion OR V physically helpless OR V under 11Class B *Violent Felony
Max 12½ - 25 years
  5 years
Second Degree Aggravated Sexual Abuse
130.67           
 
Insertion of finger causing physical injury   Forcible compulsion OR V physically helpless OR V under 11 Class C *Violent Felony
Max 7½ -15 years
 3 ½ years
Third Degree Aggravated Sexual Abuse
130.66               
 
Insertion of foreign objectForcible compulsion OR V physically helpless OR V under 11Class D Violent Felony
Max 2⅓ -7 years
 2 years
 Fourth Degree Aggravated Sexual Abuse
130.65-a 
 
Insertion of foreign object or fingerV incapable of consent other than age   Class E Felony
Max 1 1/3 – 4 years
 
Sexual Misconduct
130.20      
 
Sexual Intercourse, oral or anal conduct or sexual conduct with animal or dead human bodyV does not consent to conduct D   Class A*Misdemeanor
Max 1 year
 
Persistent Sexual Abuse
130.53
Second conviction of 2nd or 3rd degree sexual abuse or forcible touching in a ten year period See PL §130.52 , §130.55 AND §130.60   Class E Felony
Max 1⅓- 4 years
 
Facilitating Sex Offense w/ Controlled Substance
130.90   
 
Knowingly possess and administer controlled substance including GHB without consent with intent to commit Penal Code 130V lack of consent D intends to commits felony offense defined in Penal Code 130Felony        Class D Felony
Max 3 -7 years
 
**Sexually motivated felony.
130.91
A person commits a sexually motivated felony when he or she commits a specified offense for the purpose, in whole or substantial part, of his or her own direct sexual gratification.    
Assault in the second degree as defined in section 120.05, assault in the first  degree  as  defined  in
section  120.10, gang assault in the second degree as defined in section 120.06, gang assault in the first degree as defined in  section  120.07,   stalking  in the first degree as defined in section 120.60, manslaughter in the second degree as defined in subdivision one  of  section  125.15,
manslaughter in the first degree as defined in section 125.20, murder in the  second  degree  as defined in section 125.25, aggravated murder as
defined in section 125.26, murder in the  first  degree  as  defined  in section  125.27,  kidnapping  in the second degree as defined in section 135.20, kidnapping in the first degree as  defined  in  section  135.25,  burglary  in  the third degree as defined in section 140.20, burglary in
the second degree as defined in section 140.25, burglary  in  the  first degree  as  defined  in  section  140.30,  arson in the second degree as
defined in section 150.15, arson in  the  first  degree  as  defined  in section  150.20,  robbery  in  the  third  degree  as defined in section 160.05, robbery in the second  degree  as  defined  in  section  160.10,  robbery  in  the  first  degree  as defined in section 160.15, promoting
prostitution  in  the  second  degree  as  defined  in  section  230.30,  promoting prostitution in the first degree as defined in section 230.32,
compelling  prostitution  as  defined  in  section 230.33, disseminating indecent material to minors in the first degree as  defined  in  section 235.22,  use  of  a  child in a sexual performance as defined in section 263.05, promoting an obscene sexual performance by a child as defined in section 263.10, promoting a sexual performance by a child as defined  in section 263.15, or any felony attempt or conspiracy to commit any of the foregoing offenses.
 
  
** Sentencing
130.92
When a person is convicted of a sexually motivated felony pursuant to this article, and the specified felony is a violent  felony  offense,
as  defined  in  section  70.02  of this chapter, the sexually motivated
felony shall be deemed a violent felony offense.
    
When a person is convicted of a sexually motivated felony pursuant to this article, the sexually motivated felony shall be deemed to be the same offense level as the specified offense the defendant committed.
Persons convicted of a sexually motivated felony as defined in section 130.91 of this article, must be sentenced in accordance with the provisions of section 70.80 of this chapter.
 
  
*Predatory Sexual Assault
130.95
 
Same as first degree rape, criminal sexual act, aggravated sexual abuse or course of sexual conduct against a child causing serious physical injury OR uses/threatens use of dangerous instrument OR previously conviction of Penal codes 130, 255.25 (incest)or 263.05 (use of child in performance)
 

 
Forcible compulsion OR V physically helpless OR D engages in two or more acts over a period of not less than three months with V under 11  Class A-II
Max 10-25
Persistent violent felony offender (2 or more felony convictions) Min= 25 years
 
     

 *Violent Felonies require determinate terms, which eliminate parole and add a period of post release supervision.  Minimum sentences exist for first and second violent offenses as stated but persistent violent felonies retain the indeterminate terms of sentencing.

Other offenses that may occur along with the above include incest, kidnapping, endangering the welfare of a child, assault, offenses against public sensibilities, unlawful imprisonment, sexual performance by a child, coercion, or harassment and are covered under other penal codes and carry similar penalties.