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.
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