Consisting of two misdemeanors and one violent felony, the three degrees of Sex Abuse in New York are distinct and separate sex crimes that your criminal lawyer will strategize and implement different defense against depending the evidence and degrees of the crime you face. Not to be conflated with Rape, Sexual Misconduct, Forcible Touching and other offenses codified in New York Penal Law Article 130, First Degree, Second and Third Degree Sex Abuse, Penal Law 130.65, 130.60 and 130.55 respectively, each involve either likely or mandatory incarceration and potential or required registration as a sex offender in accordance with New York State’s Sex Offender Registration Act, or SORA. In other words, no matter the degree, a conviction for any of these crimes will result in a very real reckoning on your life and that of your family. Whatever crime you may be under investigation, arrested, or indicted for, recognize that these three are of the same ilk that leave indelible stains that cannot be expunged from your criminal record and equally painful and embarrassing scars on your life in perpetuity.
Understanding the Penal Law: Elements & DefinitionsRegardless of the degree you face or whether you have to fight your case through to trial, the central elements for each of these offenses involve a lack of consent and contact with the intimate or sexual parts of the other party’s body including the vagina and penis, buttocks and breasts of a woman or girl. Remember, you needn’t penetrate the other party digitally, aka, with your fingers, or with your penis, for example, but merely make contact with those intimate or sexual parts.
With the above framework in mind, when you add the various additional elements to the lack of consent, such as forcible compulsion through actual physical violence or threats, the age of your accuser, and other factors, the crimes jump from a class “B” misdemeanor to a class “A” misdemeanor, and finally a class “D” violent felony.
The Penalties & Sentences: Up to Seven Years Prison & SORAThe lowest of the three, Third Degree Sex Abuse, Penal Law 130.55, is a class “B” misdemeanor. Must a judge sentence you to prison or jail? No. Can he or she? Yes. Not only could you face up to 90 days jail but you could find yourself under the continued and regular oversight of the Department of Probation.
Second Degree Sex Abuse, Penal Law 130.60, is a class “A” misdemeanor with enhanced sentencing of up to one year in a county jail and longer stints with probation. In NYC, that one year is on, or in, the notorious Rikers Island.
Lastly, and unquestionably the most consequential, First Degree Sex Abuse, Penal Law 130.65, is a class “D” violent felony. Under the New York Penal Law, a violent felony is even more sever than a “regular” felony. For class “D” crimes, your judge almost has no option but sentencing you to prison for a minimum of two years and a maximum of seven years even without any prior touches with the criminal justice system. I share “almost” because unlike class “C” and “B” violent felonies, courts are given some discretion in sentencing. With this window of opportunity to avoid New York’s worst prisons – Green Haven, Sing Sing, Auburn and Attica – there is never a time soon enough to retain nor for you to be more involved with your defense attorney to best ensure you never set foot in any prison. Simply put, its presumed you will go to prison if convicted of this offense but you have the opportunity to work with your chosen counsel to avoid what would undoubtedly be a life altering and horrific experience.
If not handled diligently and if you do not identify and implement the right defense, not only can or will you find yourself incarcerated, but for at least First and Second Degree Sexual Abuse, and possibly Third Degree, you will leave either your jail cell or your probation officer and sign on the proverbial dotted line as a sex offender. Better stated, New York State will do that for you, and it will be the beginning of what will be years of “Big Brother” overseeing you, knowing where you live, and sharing certain information about you publicly through the Sex Offender Registry and SORA.
Your Case, Your Life, Your FutureRead the word “Sex Abuse” and when you are done read it again and again. Why? The word by itself generates thoughts of sick, evil, horrendous acts committed by the worst of society even if that in no way defines you. Equally terrible, though the law cloaks you in the presumption of innocence, your employer, neighbors, colleagues, and friends are not going to remind themselves you are innocent until if and when proven guilty beyond a reasonable doubt. The likelihood is that they will see you as a convicted sex offender first and only ask questions later or acknowledge your innocence if and when exonerated.
While it may not be politically correct, people lie. Accusations are false. Regret, jealous, and anger do not negate consent after the fact just as claims of forcible compulsion or some other incapacity preventing consent may be false or exaggerated. Of course, it is easy to deny these truths when it is someone else, but you deserve the same presumption innocence and to hold prosecutors to their burden. If you did commit the acts you are accused, you are still entitled to the same due process and the ability to challenge the lawfulness of the evidence and strength of the case against you, and even mitigate your behavior. In the end, this is your life, and you needn’t make apologies to anyone for fighting within the confines of the law to protect it now and in the future.
To learn more about Sex Abuse and the other New York sex crimes, follow the highlighted links found on this page. If you are charged with any of these offenses, remember that there is never a substitute for knowledge, advocacy and experience. Jeremy Saland, a former Manhattan prosecutor, stands ready to protect and defend you.
Call us at 212.312.7129 or contact us online today to speak with Jeremy Saland, a criminal attorney and former Manhattan prosecutor.