New York State Laws

• What constitutes lack of consent?
• What constitutes a sexual assault?

• Crime Victims Board Reimbursement
• GHB and drug-facilitated rape
• Emergency Contraception
• New Crimes and New Provisions
• Offenders/Bail/Sentencing Provisions

New York State Anti-Trafficking Law

Explanation of Sex Offense Statute 130 and the Sexual Assault Reform Act (SARA):

What constitutes lack of consent?

• actual physical force.
• the threat of physical force, expressed or implied, that puts the victim in fear of being physically harmed or of another person being physically harmed (e.g. one’s child).
• the threat to kidnap the victim or a third person.

• If the victim is under 13, and the defendant is at least 18, this constitutes a 1st degree sexual offense. 1st degree crimes are considered the most serious ones and carry the longest penalties.
• If the victim is under 15 and the perpetrator is at least 18, this constitutes a 2nd degree sexual offense. However, if the defendant is less than 4 years older than the victim, this may constitute an affirmative defense. Affirmative defenses are those in which the defendant introduces evidence which negates criminal liability.

• The victim is an inmate in either a state or city correctional facility (i.e. jail or prison)
• The victim is committed to a psychiatric institution
• The victim is a juvenile held in any facility, if the perpetrator is anyone employed at that facility
• The perpetrator is a health care or mental health provider and the victim is his/her client, unless the doctor makes clear that the sex act is not part of the treatment. If the medical provider can prove that s/he informed the client that intercourse was not part of the treatment, and the client consented, then a crime has not occurred. This is a Class E felony.
• Penal Code 130 also prohibits workers in Office of Children and Family Services facilities from having sexual contact with patients of those facilities.

What constitutes a sexual offense?

• done for the purpose of gratifying the sexual desire of either party
• includes the touching of the victim’s sexual or intimate parts by the perpetrator AND the touching of the perpetrator’s sexual or intimate parts by the victim

• done for the purpose of degrading or abusing another person or done for the purpose of gratifying the defendant’s sexual desire
• includes squeezing, grabbing, or pinching

• Insertion of a finger into vagina, urethra, penis or rectum causing injury, constitutes 2nd degree sexual offense
• If the insertion of the object causes physical injury, this constitutes a 1st degree sexual offense
• If no injury occurs, this constitutes a 3rd degree sexual offense

New Provisions Brought About by the NYS Sexual Assault Reform Act (SARA)

Crime Victims Board Reimbursement

• The Crime Victim Board will provide direct reimbursement for sexual assault forensic exams performed by a hospital, sexual assault examiners program, or licensed health care provider.
• Requires examiners and facilities to accept the state’s determined reimbursement fee from Crime Victims Board as payment in full.
• Allows a victim to assign benefits to his/her private insurance, in which case the Crime Victims Board would not be billed.
• Allows a victim to choose not to inform the medical provider of his/her private insurance is she/he believes that providing that information would interfere with her/his personal privacy or safety.

Drug-Facilitated Rape

• An individual knowingly and unlawfully possesses a controlled substance
• He or she administers that substance without such person’s consent
• The drug is administered with the intent to commit felonious sexual assault
• He or she commits or attempts to commit such a felony

Emergency Contraception

New Crimes and New Provisions (not previously addressed)

• Creates the crime of persistent sexual abuse for repeat sexual offenders as an E level felony.
• Creates the crime of Aggravated Sexual Abuse IV that broadens conditions under which aggravated sexual abuse can be charged. This is an E level felony.
• In addition to age changes in statutory rape charges, SARA brought about other age changes including:
  • Age of swearability is lowered from 12 to 9, eliminating a separate hearing to determine whether children between ages of 9 and 12 can provide testimony in a court of law.
  • Promotion of sexual performances by a child or obscene sexual performances by a child is now prosecutable for victims under the age of 17.
  • Provisions in the Course of Sexual Conduct against a child in the 1st and 2nd degree which stipulate that someone 18 years of age or older who engages in two or more acts of sexual conduct with a child less than 13 years of age over a three month period will receive specific charges.
  • Repeat felony offenses against a child less than 15 years old by a person 18 years or older at the time of the pervious offense may carry a sentence up to life imprisonment. For offenders under 18 at the time if the first felony, sentences may not exceed 25 years.

Offenders/Bail/Sentencing Provisions

• Convicted sex offender changes
  1. Mandated probation and parole conditions are added for released convicted child molesters to keep them away from child settings, such as playgrounds and schoolyards.
  2. Harsher penalties and determinate sentences for repeat sex offenders and longer periods of probation and parole for persistent child molesters. This includes 10 years of probation for any felony sexual assault and 6 years for a misdemeanor sexual assault charge.
  3. No reduced bail or release on their own recognizance for offenders 18 years or older who have been convicted, but not sentenced, for Class A, B, or C felony sex offenses against a child less than 18 years old.
  4. No bail for those convicted of B or C level violent felonies, even on appeal. No orders of recognizance in bail pending an appeal for Class A, B, or C felony sex offenses against a child.
  5. New requirements for the sex offender registry were added whereby internet accounts and screen names must be added to aliases of registered sex offenders.
• Five years will be added to the maximum sentence of a defendant who engaged in sex with a child after contacting their victim through the Internet.
• The "900" number used to receive information about convicted sexual offenders will notify callers about the charge (lowered from $5.00 to .50) and provide basic information about a packet of materials that is available.
• Prosecutors who failed in discovery to reveal some non-essential document to the defense cannot result in a vacated conviction of the case.

New York State Anti-Trafficking Law

New York State (NYS), especially New York City (NYC), is a destination for trafficked persons from all over the world who are forced into various labor sectors, such as restaurants, agriculture, domestic or sex work. To address this important concern, New York State enacted an anti-trafficking law that took effect on November 1, 2007.1 This document highlights the key changes made to New York State laws. Download document in PDF format.