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New York Penal Code 130.50: Criminal Sexual Act in the First Degree

May 1, 2017

The New York Penal Code enumerates three different crimes in the criminal sexual act category. The most serious of the crimes in this category is criminal sexual act in the first degree. Criminal sexual act in the first degree is a classified as a class B felony.

Elements of Criminal Sexual Act in the First Degree

Criminal sexual act in the first degree involves engaging in anal or oral sex with another individual under a specific set of circumstances. Criminal sexual act in the first degree involves anal or oral sex by forcible compulsion or with a person who is physically helpless. This crime also occurs when it involves a child under the age of 11. In addition, the crime occurs when the victim is a child under the age of 13 and the perpetrator is at least 18-years old.

The statute further defines specifically what constitutes anal or oral sex for the purposes of this crime. All of these elements must be satisfied in order for a person to be prosecuted under this provision of the New York penal code.

Examples of Criminal Sexual Act in the First Degree

An example of criminal sexual act in the first degree is two adults, a man and a woman, drinking alcoholic beverages. The woman consumes in excess and passes out.

While the woman is passed out, the man engages in oral contact with the woman’s vaginal area. This would constitute criminal sexual act in the first degree because it meets the description of the type of conduct anticipated by the statute. In addition, the act occurred while the woman was physically helpless.

Another example involves an 18-year old young man who entices a 12-year old to perform oral sex on him. The 18-year old cannot make the argument that the 12-year old willingly participated. A minor cannot consent to sexually contact.

Sentence for Criminal Sexual Act in the First Degree

Criminal sexual act in the first degree is classified as a class B felony. As a result, in New York, a person convicted of the crime can be sentenced up to 25 years in prison. If the crime is further classified as a violent offense, a defendant would face a mandatory five years incarcerated.

Probation may also be a part of a person’s sentence when convicted for criminal sexual act in the first degree. The mandatory probationary term is 10 years in this type of case. A person will also be ordered to register as a sex offender. This will likely be a lifetime requirement.

Defenses for Criminal Sexual Act in the First Degree

If an adult is the alleged victim, a valid defense would be consent to the sexual act. If a defendant can demonstrate the other adult party in fact consented to the act, prosecuting this type of case would become next to impossible. The only potential exception would arise from a demonstration that the purported consent was coerced.

Another defense may be that you lacked the necessary intent to be guilty of criminal sexual act in the first degree. A person may be guilty of a lesser charge, but not criminal sexual act in the first degree, if he or she lacked the necessary criminal intent.

An NYC criminal attorney can provide insights into possible defenses in a criminal sexual act in the first degree case. A defense attorney will schedule an initial consultation to discuss a case, and to provide an overall case evaluation. This includes an analysis of potential defense strategies. As a general rule, a criminal defense lawyer does not charge a fee for an initial consultation with a prospective client.

New York Penal Code 130.45: Criminal Sexual Act in the Second Degree

One of the most serious criminal sexual act crimes in the state of New York is criminal sexual act in the second degree. As per the New York Penal Code 130.45, the crime is committed if you are at least 18 years of age and engage in oral or anal sex with another person who is under 15 years old or if you have oral or anal sex with a person who is incapable of consenting because they are mentally disabled or mentally incapacitated.

As per New York’s Penal Code 130.00(5), if a person has a mental disability and doesn’t have the capacity to understand what entails a sexual act and then you engage in one of those sexual acts with that person, it is considered to be a criminal sexual act in the second degree. In addition, New York’s penal code 130.00(6), a person is mentally incapacitated if they are intoxicated due to using alcohol or drugs. In that instance, if you engaged in one of the sexual acts with an individual in that scenario, it would also be considered a criminal sexual act in the second degree.

Example of Criminal Sexual Act in the Second Degree Under New York Penal Code 130.45

An example of a criminal sexual act in the second degree is that a woman serves as a caretaker for a man who suffers from mental retardation that results in his mental ability to be like that of a child. The woman initiates sexual contact and encourages the man to engage in oral sex with her. As a result of these actions, the woman could be charged with and prosecuted for a criminal sexual act in the second degree because the man lacked the mental capacity to consent to the sexual contact. Even if the man supposedly consented, it is irrelevant because his mental capacity would deem it impossible for him to consent.

Possible Defenses for Criminal Sexual Act in the Second Degree

There are a few possible defenses for a criminal sexual act in the second degree charge. Of course, the specific facts of your case depend on which of the defenses your NYC criminal attorney can use. The defenses are as follows:

Lack of Corroboration: If the charges against you came about as a result of the victim being mentally disabled or mentally incapacitated at the time of the incident, in addition to the testimony of the victim, as per the New York Penal Code 130.16, there must be evidence to corroborate the claims.

Statute of Limitations: New York, like the other states in the United States, has what is known as a statute of limitations. This is a time limit required to prosecute for a crime. In this instance, there is five years from the date of the incident for prosecution to take place. Under New York Criminal Procedure Law 30.10, if the case isn’t brought to court against you within that time frame, you cannot legally be prosecuted.

Penalties and Sentences for Criminal Sexual Act in the Second Degree

Criminal sexual act in the second degree is charges as a class D felony, with the maximum prison sentence being seven years. In addition to the prison term, you may also be given probation that last up to 10 years. However, regardless of the sentence you receive, you are also required to register as a sex offender under New York’s Correction Law 168. It’s also required to follow the rules of the registration for 20 years and possibly for the rest of your lifetime.

New York Penal Code 130.40: Criminal Sexual Act in the third degree

New York City takes a hard stance on sexual offenses. In many instances the prosecution must show that there was a lack of consent on the part of the victim. The following outlines New York penal code 130.40, which is criminal sexual act in the third degree. If you are facing a sexually based offense such as this, it is important to seek the advice of a NYC criminal defense attorney as soon as possible.


According to New York law, those who engage in the following conduct can be charged with violating penal code 130.40 of committing a criminal sexual act in the third degree:

  • Having Oral Sex Against A Person’s Will
  • Engaging In Anal Sex Without Consent
  • Having Oral Or Anal Sex With Someone Who Cannot Give Legal Consent
  • Being Over 21 And Having Anal Or Oral Sex With Someone Under 17

The law defines anal sex as:

  • Contact With The Anus And Penis

Oral sex is defined as contact between the mouth and:

  • The Vulva
  • The Vagina
  • The Penis
  • The Anus


Violation of New York penal code 130.40 is a Class E felony and can carry penalties of:

  • A Prison Sentence Of Up To 4 Years
  • Extended Probation Time
  • Fines And Fees
  • Registration As A Sex Offender

Being convicted of a sexually motivated crime that is a felony, will impact your life in negative ways. Because felony charges and convictions show up on routine background checks, you may not be able to get a job or rent an apartment or house. Having to register as a sex offender everywhere you live is also problematic for most people. Failing to register when required to do so could mean jail time.


Few crimes are as difficult to defend as sex charges. To do so, you need an experienced criminal defense attorney to help you avoid prison. Some things your defense attorney may do to defend you are:

  • Hire Investigators
  • Get The Case Dismissed Based On New York Statute Of Limitations
  • Prove Consent Was Given

Even though this criminal offense is less serious than other sex crimes, it is still a felony and can create havoc in your life if you are found guilty and convicted. For this reason, you must not wait to speak with a lawyer for advice. Your attorney may be able to negotiate a lighter sentence for you that does not include jail time and long periods of probation.

Being accused of any crime is difficult, but sexually based offenses are embarrassing for you and your loved ones. There is also a great deal of stress association with facing felony charges and possible jail time. Contact a criminal defense attorney today to discuss your options. After going over the facts in your case, a lawyer will let you know the best way to mount a defense in court. Once you have a competent attorney working for you, it will be less stressful for you until you can tell your story in court. Your criminal defense attorney will work hard to preserve both your reputation and your freedom.



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