The Alliance has compiled a number of resources available for survivors, their friends and families, and professionals assisting survivors in New York City.
Sexual Offenses under New York State Law
Penal Law Article 130 governs the prosecution of sexual offenses in New York State. After years of calls for reforms by prosecutors, legislators, and victims’ advocates, the State legislature passed the Governor’s omnibus, 52-point bill, Sexual Assault Reform Act (SARA), which became law on February 1, 2001. Since that time, the law has been amended several times.
The following is an interpretation of the New York State Penal Law 130 and changes brought about by SARA and subsequent amendments. This information should not be substituted for any information or advice offered by your local District Attorney’s Office.
1. What constitutes lack of consent?
Under New York State law, a sexual offense occurs when certain sexual acts are perpetrated against a victim without his or her consent. The law defines both (1) the behavior and the physical nature (body parts, etc.) of a sex offense and (2) the lack of consent involved.
"Lack of consent" is defined in New York State's Penal Law as occurring in all of the following circumstances:
*For any prosecution based on the victim’s lack of consent because of physical helplessness or mental incapacity, it shall be a defense available to the accused that he or she did not know of the facts or conditions responsible for such an incapacity to consent.
2. What constitutes a sexual offense?
If any of the following acts are perpetrated against a victim without his or her consent, as defined above, it is a crime under New York State Law. Unless otherwise stated, these crimes are found in the NYS Penal Law under article 130.
· Sexual Intercourse (Rape): the penetration of the penis into the vagina, however slight. In other words, if the penis goes into the vagina just a little, not in its entirety, that is considered completed "sexual intercourse.” There is no requirement of physical injury or ejaculation.
· Criminal Sexual Act (Oral or Anal Sexual Conduct): does not require any penetration and occurs upon contact between penis and mouth, penis and anus, mouth and anus, or mouth and the vulva (the external opening of the vagina).
· Sexual Abuse: any touching of the sexual or intimate parts of the body without that person’s consent, whether over or under clothing, done for the purpose of gratifying the sexual desire of either party. This 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.
· Aggravated Sexual Abuse: insertion of a foreign object (e.g. bottle, broom handle, etc.) with or without injury, or a finger, only if it causes injury, into the vagina, urethra, penis or rectum without consent. The extent of injury, if any, and age of the victim are factors that raise the degree of the crime.
· Forcible Touching: the intentional and forcible touching of another done for the purpose of degrading or abusing another person or done for the purpose of gratifying the perpetrator’s sexual desire. This includes squeezing, grabbing, or pinching through or under clothing.
· Promotion or use of sexual performances by a child: prosecutable for sexual conduct involving victims under the age of 17 (PL Section 263)
· Sexual misconduct: sexual intercourse and/or criminal sexual act with a person without consent, or with an animal or a dead body
· Female Genital Mutilation: a person knowingly circumcises, excises or infibulates the whole or any part of the labia major, labia minora, or clitoris of another person under eighteen years old OR the parent, guardian, or person legally responsible for a child under eighteen years old consents to such circumcision, excision, or infibulation.
· Drug-Facilitated Rape: Committing a sex crime by using a controlled substance (drug) is a D level felony. The law requires a showing of the following: (1) an individual knowingly and unlawfully possesses a controlled substance (2) he or she administers that substance without such person’s consent (3) the drug is administered with the intent to commit felonious sexual assault (4) he or she commits or attempts to commit such a felony.
Commonly used controlled substances in sexual assault according to the New York State Police:
o Rohyponol ("roofies," "roopies," "circles," "the forget pills") works like a tranquilizer. It causes muscle weakness, fatigue, slurred speech, loss of motor coordination and judgment, and amnesia that lasts up to 24 hours. They look like an aspirin - small, white and round - and are colorless and flavorless. When dissolved in liquids, they can take effect in as little as 20 minutes.
o Gamma Hydroxybutyrate or GHB (also known as "liquid X," "salt water," or "scoop") also causes quick sedation. Its side effects include drowsiness, nausea, vomiting, headaches, dizziness, coma and death. The drug’s most common form is a clear liquid, although it can also be a white, grainy powder.
o Both of these powerful sedatives are illegal if possessed in New York State, especially if used in the commission of a sexual assault.
· Persistent Sexual Abuse: applies to repeat sexual offenders who have been convicted of forcible touching or sexual abuse two or more times within the previous 10 years (jail time does not count towards the 10 year time frame).
· Course of Sexual Conduct against A Child: consists of 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, or any person who engages in sexual conduct with a child less than 11.
· Predatory sexual assault: occurs when the perpetrator commits certain sex offenses (including rape, criminal sexual act, aggravated sexual abuse, course of sexual conduct against a child—all in the first degree), and causes (1) serious physical injury to the victim, (2) threatens the immediate use of a dangerous instrument, (3) commits these crimes against more than one person, OR (4) the perpetrator was previously convicted another sexual offense felony.
· Predatory sexual assault against a child: when the perpetrator is over 18 years old and commits certain sex offenses (including rape, criminal sexual act, aggravated sexual abuse, course of sexual conduct against a child—all in the first degree) against a child under thirteen years old.
· Sexually motivated felony: when a person commits specified offenses (including but not limited to burglary, robbery, and assault), in whole or substantial part for his or her sexual gratification.
3. Victim Rights
NYS Office of Victim Services (formerly the Crime Victims Board) Compensation
In New York State, the Office of Victim Services (OVS) provides compensation to innocent victims of crime. The OVS also provides funding to agencies serving crime victims and advocates for crime victims’ rights and benefits. You can learn more about OVS on their website: http://www.ovs.ny.gov.
In cases of sexual offense, the Office of Victim Services:
· Provides direct reimbursement for sexual assault forensic exams (FRE) 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 OVS as payment in full.
· Is a “payer of last resort” meaning victims of crime can apply for coverage of expenses related to a crime if their insurance carrier or workers compensation does not cover these expenses.
· 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. However, OVS requires a victim with on-going medical expenses to seek insurance reimbursement if the victim has health insurance coverage.
Sexual Assault victims may apply to OVS for compensation related to personal injury, death and loss of essential personal property. The specific expenses OVS may cover include:
· Follow-up Post-Exposure Prophylaxis (PEP) medication after the first 7 days of medication (this can be obtained on an emergency, expedited basis)
· Medical and counseling expenses
· Loss or damage of essential personal property (up to $500, including $100 for cash)
· Lost wages or lost support including lost wages of parents if a child victim is hospitalized (up to $30,000)
· Transportation (necessary court appearances for prosecution)
· Occupational/vocational rehabilitation
· Use of domestic violence shelters
· Crime scene clean-up (up to $2,500)
· Good Samaritan property losses (up to$5,000)
· Moving expenses (up to $2,500)
The OVS compensation application can be found at: http://www.ovs.ny.gov
New York State Public Health Law, Chapter 39, Section 2805-i requires hospitals providing treatment to victims of sexual assault to provide 7-day starter packs of medication on-site for rapid initiation of Post-Exposure Prophylaxis (PEP) following sexual assault. Arrangements should be made to ensure that the patient receives a continued supply of medication and that a follow-up appointment is made with a clinician experienced in HIV PEP. Generally, the prophylaxis is most effective if initiated within 72 hours of the assault, and adhered to for the full course of treatment (28 days).
If a sexual assault victim decides to initiate treatment, a follow-up visit should be scheduled within 24 hours to review the decision, evaluate initial drug tolerability, reinforce the need for adherence to the regimen, and arrange for follow-up care. In New York State, hospitals providing treatment to victims of sexual assault must provide or arrange for an appointment for medical follow-up related to PEP and other care as appropriate. For more information, please refer to the New York State HIV Guidelines.
As of 2003, a new provision requires hospitals that treat sexual assault victims to provide information on emergency contraception. The NYS Department of Health was given the responsibility to develop and produce informational materials on emergency contraception to be used by all hospitals in New York State. If requested by the victim, the hospital must provide emergency contraception.
No Marital Exemption
SARA eliminated marital exemption, meaning sexual offenses can take place within a marriage.
Age of Swearability
SARA lowered the age of presumptive swearability from 12 to 9, meaning that children 9 and older are presumed to understand the nature and consequences of an oath and can therefore testify without a court inquiry into such matters.
4. Prosecuting and Sentencing Offenders
Key terms and definitions
· Misdemeanor: an offense that is punishable by more than fifteen days but less than one year in jail. Misdemeanors are described as “A” misdemeanors, “B” misdemeanors and “unclassified” misdemeanors. While “A” misdemeanors are punishable by up to one year, “B” misdemeanors are punishable by up to ninety days jail.
· Felony: A felony is an offense where the punishment may exceed the one year maximum associated with misdemeanors. Felonies range from Class A (highest level felony) to Class E (lowest level felony). When someone is convicted of a felony, they lose many rights and privileges including: the right to vote, exclusion from the purchase of firearms, exclusion from public benefits and federally funded housing.
· Statute of Limitations: The statute of limitations for an offense is the maximum length of time during which a defendant can be prosecuted.
Statutes of Limitations in Criminal Prosecutions
Statute of limitation calculations can be complex due to start dates of statute amendments, so calculation should be made by qualified law enforcement experts.
· As of June 23, 2006, there is no statute of limitations for rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree or predatory sexual assault. When lifting the statute of limitations, the legislature errantly omitted sodomy in the first degree (which was what criminal sex act in the first degree was called prior to 2003). This omission was corrected effective August, 2008.
· It is 5 years for all other felonies, with a possible additional five years if the defendant’s whereabouts or identity is unknown after due diligence was used by law enforcement to try to identify or locate him or her.
· It is 2 years for all misdemeanors.
· For victims younger than 18 years old, the statute of limitations on felony sex crimes is the shorter of 5 years from the victim’s 18th birthday or from the first report to law enforcement, unless the perpetrator is charged with a first degree crime, then there is no statute of limitation. For misdemeanor sex crimes, the statute of limitations is the shorter of 2 years from the victim’s 18th birthday or from the first report to law enforcement.
Classification of Crimes
(From least to most serious)
NOTE: The various sex offenses and their sentences can be found in the following Penal Law sections:
· Sex offenses including female genital mutilation: NYS Penal Law (Article 130)
· Sentencing provisions: NYS Penal Law (Article 70)
This document was prepared by the NYC Alliance Against Sexual Assault with assistance from the New York and Queens District Attorney’s Offices. A special thanks to law students Arielle Humphries and Lauren Brangman for their assistance.