As per the New York Penal Code, aggravated sexual abuse in the fourth degree is defined as involving the insertion of a foreign object into a person’s vagina, urethra, penis, rectum, or anus, when that person could not have consented. Similarly, it also applies to any situation in which a physical injury is caused by a finger being inserted into a vagina, urethra, penis, rectum, or anus, and again, with the stipulation that the person could not have consented.
Defining a Foreign Object
In order for someone to be convicted of sexual abuse in the fourth degree, a prosecutor must be able to prove that they used either a finger or a “foreign object” to commit the abuse. What exactly constitutes a foreign object is left intentionally vague by the statute, so that it can include anything ranging from a bottle to a knife.
In addition to the foreign object requirements, a prosecutor must also show that the person affected was unable to provide consent. This can apply to someone who was unconscious at the time of the alleged abuse, or was otherwise physically helpless. It’s worth noting that a person’s physical helplessness does not have to be a direct result of the abuser’s actions for it to still apply to the situation.
Aside from physical helplessness, a person who is coerced under the threat of violence or through the use of physical force can also be considered to be unable to provide consent. Similarly, if a person is forced to commit acts as the result of a family or friend being kidnapped, then they are also not able to provide consent.
Finally, anyone who is mentally disabled or otherwise incapable, such as from the consumption of alcohol, is also considered to be unable to provide consent. It’s important to know that if someone is sufficiently mentally disabled, to the point that they cannot properly comprehend sexual acts, then they cannot provide consent under any circumstance. This includes situations in which a mentally disabled person appears enthusiastic about sexual act or even if they are the one to initiate it.
Arrest and Arraignment Process
Since sexual abuse in the fourth degree is considered to be a class E felony, a person arrested for it will not be issued a Desk Appearance Ticket. Instead, the person will be taken to Central Booking, where they will wait for their arraignment hearing.
Depending on the circumstances surrounding a sexual abuse in the fourth degree case, the prosecutor may pursue additional charges, including rape, facilitating sexual abuse with a controlled substance, or any number of other related crimes. The court will then decide
whether the person will be held without bail, or how much bail will be set at. This depends on how much of a flight risk the court deems the person to be and can vary from case to case.
Sexual Abuse Defenses
One of the main defenses in a sexual abuse case is to prove that the alleged victim was actually capable of providing consent and was not physically or mentally helpless.
In the case of aggravated sexual abuse, one of the defenses is to show that the person was not physically injured as a result of the intrusion.
There is also a statutory defense that applies to medical practitioners. If a finger or foreign objected is inserted as a result of a medical examination, then it can act as a defense against sexual abuse charges. In cases like this, it’s worth consulting with NYC criminal attorneys to ensure that the best possible defense is brought forward.
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