Last Updated on: 15th October 2023, 01:29 pm

An Overview of New York Penal Code § 130.40 Criminal Sexual Act in the Third Degree

New York Penal Code § 130.40 defines the crime of Criminal Sexual Act in the Third Degree. This statute makes it illegal for a person to engage in oral or anal sexual conduct with another person without their consent. Let’s break down the key elements of this crime and what it means for people in New York.

What Conduct Does This Law Prohibit?

Penal Code § 130.40 specifically applies to oral or anal sexual conduct. This includes oral-genital contact, oral-anal contact, or insertion of a finger or foreign object in the anus or vagina. The statute is gender-neutral, so it applies both when the perpetrator is male or female, and the victim is male or female.

Consent is a key element. The sexual conduct must occur without the victim’s consent for Criminal Sexual Act 3° to apply. This means the victim did not freely agree to engage in the sexual conduct, or they were unable to consent due to age, intoxication, or other inability.

What Are the Penalties?

Criminal Sexual Act in the Third Degree is a Class E felony in New York. Conviction carries potential penalties of:

– Up to 4 years in state prison
– Up to $5,000 in fines
– Sex offender registration

Probation or a conditional discharge are also possible sentences at the judge’s discretion. Immigration consequences may also apply if the defendant is not a U.S. citizen.

When Does This Law Apply?

There are a few main scenarios where prosecutors often charge Criminal Sexual Act 3°:

1. Nonconsensual Oral or Anal Sex

This includes situations where one person forces or coerces the other person into performing or receiving oral sex or anal penetration against their will. Threats of violence or other means of intimidation may be used.

2. Sexual Contact with a Physically Helpless Person

Physically helpless means someone is unconscious, asleep, physically unable to communicate, or otherwise physically incapable of giving consent. Engaging in oral/anal sexual conduct with a physically helpless person is criminal regardless of the perpetrator’s relationship with the victim.

3. Sexual Contact with a Mentally Incapacitated Person

This applies when the victim suffers from a mental illness, mental defect, or mental incapacity that renders them incapable of appraising the nature of their conduct. Examples are intellectual disabilities, Alzheimer’s disease, or involuntarily intoxication.

4. Sexual Contact with a Minor

Engaging in oral or anal sexual conduct with a minor under 17 is criminal, even if the minor purports to consent. The age of consent in New York is 17.

Defenses to This Charge

There are some defenses that may apply in fighting a Criminal Sexual Act 3° charge:

– The sexual contact was consensual. This requires showing the accuser was not forced, threatened, intoxicated or otherwise inability to legally consent.

– Misidentification. Mistaken identity where the defendant did not actually engage in the alleged criminal sexual act.

– False accusations. If there is evidence the accuser fabricated or exaggerated the allegations.

An experienced New York sex crimes attorney can evaluate the evidence and determine if any defenses apply in your case.

Why You Need an Attorney

Being accused of a sex crime like Criminal Sexual Act 3° can totally upend your life. Just being charged leads to stigma, stress, and complicated legal issues. An attorney can help by:

– Conducting a thorough investigation of what happened.

– Finding weaknesses in the prosecutor’s case.

– Advocating for your rights and best interests.

– Guiding you through the legal process.

– Creating an effective defense strategy with the aim of getting charges reduced or dismissed.

Don’t go it alone when accused of a sex offense. Consult with a dedicated New York sex crimes lawyer as early as possible. An experienced attorney can protect your rights, avoid missteps, and give you the strongest defense.

With smart representation and a firm defense, there is hope for an outcome much better than the maximum penalties. But you have to take action quickly, as these cases move fast once charges are filed. Schedule a free case evaluation with our firm today. Our number one goal is preventing this accusation from destroying your life.