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New York Penal Code 130 45 Criminal Sexual Act Second Degree

By Spodek Law Group | July 17, 2023
(Last Updated On: October 17, 2023)

Last Updated on: 17th October 2023, 10:57 pm

New York Penal Code 130 45 Criminal Sexual Act Second Degree

New York Penal Code 130.45 defines the crime of Criminal Sexual Act in the Second Degree. This crime involves engaging in oral or anal sexual conduct with someone who is under 15 years old or who is mentally disabled or incapacitated and unable to consent.

What Does the Law Say?

According to New York Penal Code 130.45, a person is guilty of Criminal Sexual Act in the Second Degree when:

  • Being eighteen years old or more, he or she engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old; or
  • He or she engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

The law also contains an affirmative defense that the defendant was less than four years older than the victim at the time of the act.

What is Oral or Anal Sexual Conduct?

Oral or anal sexual conduct refers to contact between the mouth, tongue, or anus of one person and the sexual organs of another person. This includes oral-genital contact (like oral sex) or anal-genital contact.

What Does Age Have to Do With It?

If the victim is under 15 years old, then any oral or anal sexual conduct with them by a person 18 or older is considered Criminal Sexual Act in the Second Degree, even if the conduct was consensual.

The age difference is important – if the defendant is less than 4 years older than the victim, they can raise an affirmative defense against the charges. So for example, an 18 year old having consensual oral sex with a 14 year old could potentially defend against charges by showing they were less than 4 years apart in age.

Mental Disability or Incapacity

A person who is “mentally disabled” under the law does not have the ability to understand the nature of the sexual act. Engaging in oral or anal sexual conduct with them constitutes Criminal Sexual Act in the Second Degree because they are considered unable to legally consent[3].

Mental incapacity means the person was intoxicated by drugs or alcohol to the point where they could not consent. So having oral or anal sex with someone extremely drunk or high could lead to charges under this statute[3].


Criminal Sexual Act in the Second Degree is a Class D felony under New York law. The potential sentences for a Class D felony are:

  • Up to 7 years in prison
  • Up to 10 years probation
  • Fines up to $5,000

Anyone convicted under this statute will also have to register as a sex offender for a minimum of 20 years under New York’s Sex Offender Registration Act[1]. Some offenders have to register for life. This can severely impact housing, employment, and other aspects of daily life.


There are several potential defenses if charged under this statute:

  • Lack of corroboration – The charges must be corroborated by evidence beyond just the testimony of the victim if they were mentally disabled or incapacitated[1].
  • Statute of limitations – Prosecutors have just 5 years to bring charges under this statute. If that window has passed, the charges are barred[1].
  • Consent – Consent may be a valid defense if the victim was over 15 and not mentally disabled or incapacitated. The defendant can argue the conduct was consensual.
  • False accusations – If there is evidence the charges were fabricated for any reason, the defendant may be found not guilty.
  • Mistaken identity – If the defendant can show they are not the person who engaged in the alleged criminal sexual act, they can avoid conviction.
  • Affirmative defense – As mentioned above, if the defendant is less than 4 years older than a victim under 15, they have an affirmative defense against charges.

Examples of Criminal Sexual Act in the Second Degree

Here are some examples of situations that could lead to charges under Penal Code 130.45:

  • A 19 year old has oral sex with a 14 year old, even if the 14 year old consented. The age difference is more than 4 years.
  • A caretaker has oral sex with a patient who has an intellectual disability and the mental capacity of a child. The patient cannot legally consent.
  • A 21 year old has anal sex with an extremely drunk 17 year old who is nearly unconscious. The 17 year old was mentally incapacitated by alcohol.

Consulting an Attorney

The consequences for any criminal sexual act conviction can be severe. Simply being charged with this type of offense can ruin reputations. It is critical to consult with an experienced criminal defense attorney immediately if facing charges under Penal Code 130.45 or related statutes. An attorney can evaluate the evidence and determine the best defense strategy. They will also advocate for the defendant in negotiating pleas or mounting a defense at trial.

Don’t wait to seek legal counsel if accused of Criminal Sexual Act in the Second Degree or another sex crime in New York. A seasoned lawyer can protect your rights and future. Consultations are confidential.

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