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New York State Penal Law Definitions

New York State Penal Law contains the following legal provisions relating to sexual assault, dating violence, domestic violence, and stalking. More specific information can be found in the New York State Penal Code, which is available online at: ypdcrime.com/penal.law/part_index.htm

These definitions are provided for educational and awareness purposes only. FIT’s definitions for purposes of its College policies are provided in FIT’s Sexual Misconduct Response policy, and FIT uses the Clery Act definitions for purposes of statistical reporting.

Consent (NY Penal Law Section 130.05): Whether or not specifically stated, it is an element of every offense in Article 130 of the NY Penal Law that the sexual act was committed without consent of the victim.

Lack of consent results from: forcible compulsion; or incapacity to consent; or where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct; or where the offense charged is rape in the third degree or criminal sexual act in the third degree, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.

A person is deemed incapable of consent when he or she is: less than 17 years old; or mentally disabled; or mentally incapacitated; or physically helpless; or committed to the care and custody of the state department of corrections and community supervision or a hospital and the actor is an employee who knows or reasonably should know that such person is committed to the care and custody or supervision of such department or hospital; or committed to the care and custody of a local correctional facility and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility; or committed to or placed with the office of children and family services and in residential care, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to or placed with such office of children and family services and in residential care; or a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree, criminal sexual act in the third degree, aggravated sexual abuse in the fourth degree, or sexual abuse in the third degree as defined in, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination; or a resident or inpatient of a residential facility operated, licensed or certified by (i) the office of mental health; (ii) the office for people with developmental disabilities; or (iii) the office of alcoholism and substance abuse services, and the actor is an employee of the facility not married to such resident or inpatient.

Sexual Assault: New York State does not specifically define sexual assault.

Sexual Misconduct (NY Penal Law Section 130.20): When a person (1) engages in sexual intercourse with another person without such person’s consent; or (2) engages in oral sexual conduct or anal sexual conduct without such person’s consent; or (3) engages in sexual conduct with an animal or a dead human body.

Rape in the Third Degree (NY Penal Law Section 130.25): When a person (1) engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old; (2) Being twenty-one years old or more, engages in sexual intercourse with another person less than seventeen years old; or (3) engages in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent.

Rape in the Second Degree (NY Penal Law Section 130.30): When a person (1) being 18 years old or more, engages in sexual intercourse with another person less than 15 years old; or (2) engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It is an affirmative defense to the crime of rape in the second degree the defendant was less than four years older than the victim at the time of the act.

Rape in the First Degree (NY Penal Law Section 130.35): When a person engages in sexual intercourse with another person (1) by forcible compulsion; or (2) Who is incapable of consent by reason of being physically helpless; or (3) who is less than 11 years old; or (4) who is less than 13 years old and the actor is 18 years old or more.

Criminal Sexual Act in the Third Degree (NY Penal Law Section 130.40): When a person engages in oral or anal sexual conduct (1) with a person who is incapable of consent by reason of some factor other than being less than 17 years old; (2) being 21 years old or more, with a person less than 17 years old; (3) with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.

Criminal Sexual Act in the Second Degree (NY Penal Law Section 130.45): When a person engages in oral or anal sexual conduct with another person (1) and is 18 years or more and the other person is less than 15 years old; or (2) who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It is an affirmative defense that the defendant was less than four years older than the victim at the time of the act.

Criminal Sexual Act in the First Degree (NY Penal Law Section 130.50): When a person engages in oral or anal sexual conduct with another person (1) by forcible compulsion; (2) who is incapable of consent by reason of being physically helpless; (3) who is less than 11 years old; or (4) who is less than 13 years old and the actor is 18 years old or more.

Forcible Touching (NY Penal Law Section 130.52): When a person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire; or subjects another person to sexual contact for the purpose of gratifying the actor's sexual desire and with intent to degrade or abuse such other person while such other person is a passenger on a bus, train, or subway car operated by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions. Forcible touching includes squeezing, grabbing, or pinching.

Persistent Sexual Abuse (NY Penal Law Section 130.53): When a person commits a crime of forcible touching, or second or third degree sexual abuse, and, within the previous ten year period, excluding any time during which such person was incarcerated for any reason, has been convicted two or more times, in separate criminal transactions for which sentence was imposed on separate occasions, of forcible touching, sexual abuse in the third degree, sexual abuse in the second degree, or any offense in Article 130, of which the commission or attempted commission thereof is a felony.

Sexual Abuse in the Third Degree (NY Penal Law Section 130.55): When a person subjects another person to sexual contact without the latter’s consent. It is an affirmative defense that (1) such other person’s lack of consent was due solely to incapacity to consent by reason of being less than 17 years old; and (2) such other person was more than 14 years old and (3) the defendant was less than five years older than such other person.

Sexual Abuse in the Second Degree (NY Penal Law Section 130.60): When a person subjects another person to sexual contact and when such other person is (1) incapable of consent by reason of some factor other than being less than 17 years old; or (2) less than 14 years old.

Sexual Abuse in the First Degree (NY Penal Law Section 130.65): When a person subjects another person to sexual contact (1) by forcible compulsion; or (2) when the other person is incapable of consent by reason of being physically helpless; or (3) when the other person is less than 11 years old; or (4) when the other person is less than 13 years old and the actor it 21 years old or older.

Aggravated Sexual Abuse in the Fourth Degree (NY Penal Law Section 130.65-a): When a person inserts a (1) foreign object in the vagina, urethra, penis, rectum or anus of another person and the other person is incapable of consent by reason of some factor other than being less than 17 years old; or (2) finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person and such person is incapable of consent by reason of some factor other than being less than 17 years old. Conduct performed for a valid medical purpose does not violate the provisions of this section.

Aggravated Sexual Abuse in the Third Degree (NY Penal Law Section 130.66): When a person inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person (1)(a) by forcible compulsion; (b) when the other person is incapable of consent by reason of being physically helpless; or (c) when the other person is less than 11 years old; or (2) causing physical injury to such person and such person is incapable of consent by reason of being mentally disabled or mentally incapacitated. Conduct performed for a valid medical purpose does not violate the provisions of this section.

Aggravated Sexual Abuse in the Second Degree (NY Penal Law Section 130.67): When a person inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person by (1) forcible compulsion; or (2) when the other person is incapable of consent by reason of being physically helpless; or (3) when the other person is less than 11 years old. Conduct performed for a valid medical purpose does not violate the provisions of this section.

Aggravated Sexual Abuse in the First Degree (NY Penal Law Section 130.70): When a person inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person by (1) forcible compulsion; or (2) when the other person is incapable of consent by reason of being physically helpless; or (3) when the other person is less than 11 years old. Conduct performed for a valid medical purpose does not violate the provisions of this section.

Course of Sexual Conduct Against a Child in the Second Degree (NY Penal Law Section 130.80): When over a period of time, not less than three months, a person: (1) Engages in two or more acts of sexual conduct with a child less than 11 years old; or (2) being 18 years old or more engages in two or more acts of sexual conduct with a child less than 13 years old. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charges offense occurred outside of the time period charged under this section.

Course of Sexual Conduct Against a Child in the First Degree (NY Penal Law Section 130.75): When a person over a period of time, not less than three months in duration,: (1) Engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, with a child less than 11 years old; or (2) being 18 years old or more engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, with a child less than 13 years old. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charges offense occurred outside of the time period charged under this section.

Facilitating a Sex Offense with a Controlled Substance (NY Penal Law Section 130.90): When a person: (1) knowingly and unlawfully possesses a controlled substance or any preparation, compound, mixture or substance that requires a prescription to obtain and administers such substance or preparation, compound, mixture or substance that requires a prescription to obtain to another person without such person’s consent and with intent to commit against such person conduct constituting a felony defined in this Article 130; and (2) commits or attempts to commit such conduct constituting a felony defined in Article 130.

Sexually Motivated Felony (NY Penal Law Section 130.91): When a person commits a sexually motivated felony when he or she commits a specified offense for the purpose, in whole or substantial part, of his or her own direct sexual gratification. A “specified offense” is a felony of: assault in the first or second degree, gang assault in the first or second degree, stalking in the first degree, strangulation in the first or second degree, manslaughter in the first or second degree, murder in the first or second degree, aggravated murder, kidnapping in the first or second degree, burglary in the first, second, or third degree, arson in the first or second degree, robbery in the first, second, or third degree, promoting prostitution in the first or second degree, compelling prostitution, disseminating indecent material to minors in the first degree, use of a child in a sexual performance, promoting an obscene sexual performance by a child, promoting a sexual performance by a child, or any felony attempt or conspiracy to commit any of the foregoing offenses.

Incest in the Third Degree (NY Penal Law 255.25): A person is guilty of incest in the third degree when he or she marries or engages in sexual intercourse, oral sexual conduct or anal sexual conduct with a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece.

Incest in the Second Degree (NY Penal Law 255.26): A person is guilty of incest in the second degree when he or she commits the crime of rape in the second degree, or criminal sexual act in the second degree, against a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece.

Incest in the First Degree (NY Penal Law 255.27): A person is guilty of incest in the first degree when he or she commits the crime of rape in the first degree, or criminal sexual act in the first degree, against a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or half blood, uncle, aunt, nephew or niece.

Stalking in the Fourth Degree (NY Penal Law Section 120.45): When a person intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct (1) is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted; or (2) causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person’s immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or (3) is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person’s place of employment or business, and the actor was previously clearly informed to cease that conduct. “Following” shall include the unauthorized tracking of such person’s movements or location through the use of a global positioning system or other device.

Stalking in the Third Degree (NY Penal Law Section 120.50): When a person (1) Commits the crime of stalking in the fourth degree against any person in three or more separate transactions, for which the actor has not been previously convicted; or (2) commits the crime of stalking in the fourth degree against any person, and has previously been convicted, within the preceding ten years of a specified predicate crime and the victim of such specified predicate crime is the victim, or an immediate family member of the victim, of the present offense; or (3) with an intent to harass, annoy or alarm a specific person, intentionally engages in a course of conduct directed at such person which is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of such person or a member of such person’s immediate family; or (4) commits the crime or stalking in the fourth degree and has previously been convicted within the preceding ten years of stalking in the fourth degree.

Stalking in the Second Degree (NY Penal Law Section 120.55): When a person: (1) Commits the crime of stalking in the third degree and in the course of and furtherance of the commission of such offense: (a) displays, or possesses and threatens the use of, a firearm, pistol, revolver, rifle, shotgun, machine gun, electronic dart gun, electronic stun gun, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sand club, slingshot, shuriken, “Kung Fu Star,” dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, dangerous instrument, deadly instrument or deadly weapon; or (b) displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or (2) commits the crime of stalking in the third degree against any person, and has previously been convicted, within the preceding five years, of a specified predicate crime, and the victim of such specified predicate crime is the victim, or an immediate family member of the victim, of the present offense; or (3) commits the crime of stalking in the fourth degree and has previously been convicted of stalking in the third degree against any person; or (4) being 21 years of age or older, repeatedly follows a person under the age of fourteen or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place such person who is under the age of fourteen in reasonable fear of physical injury, serious physical injury or death; or (5) commits the crime of stalking in the third degree, against ten or more persons, in ten or more separate transactions, for which the actor has not been previously convicted.

Stalking in the First Degree (NY Penal Law Section 120.60): When a person commits the crime of stalking in the third degree or stalking in the second degree and, in the course and furtherance thereof, he or she intentionally or recklessly causes physical injury to the victim of such crime or commits a misdemeanor sex offense, a felony rape in the second or third degree, a felony criminal sexual act in the second or third degree, or a felony female genital mutilation.

Dating Violence: New York State does not specifically define “dating violence.” However, under New York Law, intimate relationships are covered by the definition of domestic violence when the act constitutes a crime listed elsewhere in this document and is committed by a person in an “intimate relationship” with the victim. See “Family or Household Member” for definition of “intimate relationship.”

Domestic Violence (NY Social Services Law 459-a; NY Criminal Procedure Law Section 530.11): New York state does not specifically define “domestic violence” within its Penal Law.

However, it does define domestic violence in the Social Services Law under the Domestic Violence Prevention Act. A “victim of domestic violence” under that law means any person over the age of sixteen, any married person or any parent accompanied by his or her minor child or children in situations in which such person or such person’s child is a victim of an act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; and (i) such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person's child; and (ii) such act or acts are or are alleged to have been committed by a family or household member.

·         A family or household member is defined as persons related by consanguinity or affinity; Persons legally married to one another; Persons formerly married to one another regardless of whether they still reside in the same household; Persons who have a child in common regardless of whether such persons are married or have lived together at any time; Unrelated persons who are continually or at regular intervals living in the same household or who have in the past continually or at regular intervals lived in the same household; Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time; or any other category of individuals deemed to be a victim of domestic violence as defined by the office of children and family services in regulation. Factors that may be considered in determining whether a relationship is an “intimate relationship” include, but are not limited to: the nature or type of relationship regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”.

·         A parent means natural or adoptive parent or any individual lawfully charged with a minor child’s care or custody.

Further, under the NY Criminal Procedure Law Section 530.11, the family courts and the criminal courts have concurrent jurisdiction over any proceeding concerning: acts which would constitute disorderly conduct (including disorderly conduct not in a public place), harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, strangulation in the first degree, strangulation in the second degree, criminal obstruction of breathing or blood circulation, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree or coercion in the second degree, between spouses or former spouses, or between parent and child, or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section.

·         Members of the same family or household with respect to a proceeding in the criminal courts means: persons related by consanguinity or affinity; persons legally married to one another; persons formerly married to one another regardless of whether they still reside in the same household; persons who have a child in common, regardless of whether such persons have been married or have lived together at any time; and persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”.

·         More information on New York’s special courts for domestic violence and integrated domestic violence is available online at: https://www.nycourts.gov/courts/family-violence/index.shtml.

 

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