Sexual Assault - The Litvak Law Firm

Any act of sexual violence is viewed unfavorably in our society today and sexual assault is a particularly serious offense. If you are accused of forcing yourself onto someone who did not give you their consent, you could be looking at jail time or prison.

This isn’t a charge that you can simply brush off. It should not be taken lightly. Now more than ever the courts and prosecutors are being pressured by the public to hold people accountable for the sex crimes that they commit. With the “Me Too” movement bringing sexual assault and other sexual crimes to light, there is a growing push to hand out harsher penalties and get more convictions.

A sexual assault conviction can mean that you spend some time behind bars. You could also be required to pay fines and register as a sex offender. This can impact your job prospects, where you live, who you live with, activities you can do, and even if you are allowed to maintain your parental rights.

Your life could be turned upside down if you are convicted of a sexual assault crime. It is not a joke, and it is not a game. It is a serious charge that can follow you for the rest of your life.

When You are Facing a Sexual Assault Charge and You Need an Attorney, Experience Counts

Anytime you are charged with a crime you really should get legal representation. However, some crimes are more difficult or complex because of how the laws or written or how the public perceives the crime. Sexual assault falls under that category so when you go to court you want to go with an attorney who has the experience and training to make sure your rights are protected. You need the Litvak Law Firm, which was successful in getting many sexual assault charges dismissed or resolved with reduced charges.

Overview of Sexual Assault Offenses

Sexual assault is an umbrella term that involves one individual sexually touching another individual without their consent. This also includes physically forcing, drugging, or coercing an individual to engage in a sexual act. There are several crimes that fall under sexual assault. They include:

Domestic violence
Child sexual assault and incest
Elderly sexual assault
Sexual exploitation or trafficking
Sexual harassment
Unwanted sexual touching/contact
Masturbating in public
Exposing one’s naked body or genitals to others without consent
Groping
Voyeurism/watching someone engage in private acts without their permission or knowledge
Rape
Image sharing without the subject’s consent

It is important to note that consent is not as simple as “yes” or “no.” Consent must be informed and freely given without any coercion or physical force. It also means that the person giving consent can change their mind at any time.

Federal Sexual Assault Offenses

In the United States, sex crimes are considered to be some of the most serious, carrying more severe penalties. In many cases though, sexual assault is tried at the state level.

There are, however, some exceptions where federal laws may apply:

The crime is aggravated or severe enough that it triggers specific federal laws.
The crime occurred
- on federal land or territory
- in a federal facility such as a federal institution, prison, etc.
- on a military base
- on an Indian reservation
Sex crimes involving children (most)
Purchase of a child for the purpose of sex
Child pornography (distribution or possession)
Human trafficking
Sex crimes that cross state lines

It is also possible for a person to be tried in both state and federal court for their crimes. This means that they also receive both state and federal penalties such as time in prison, fines, and registering as a sex offender.

New York Sexual Assault Offenses

Under New York law, sexual assault is referred to as “sexual abuse” and covers a wide range of sexual conduct that it considers criminal. According to New York Penal Code Section 130(3), sexual contact is, “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party,” and touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.”

New York sexual assault charges include:

Rape in the first degree – Engaging in sexual intercourse with another individual
- By force (physical or threat)
- If the person is not able to consent because they are helpless
- If the person is younger than eleven years old and the offender is any age
- If the person is younger than thirteen years old and the offender is eighteen years old or older
Rape in the second degree – Engaging in sexual intercourse with a person who is not capable of giving consent due to mental incapacitation or mental disability, or a person eighteen years old or older who engages in sexual intercourse with a person who is younger than fifteen years old. However, they may be exempted if at the time of the offense:
- The offender was less than four years older than the victim
- The victim gave consent
Rape in the third degree – Engaging in sexual intercourse with a person who:
- Is not capable of giving consent due to a reason other than being younger than seventeen years old
- Who is younger than seventeen years old and the offender is 21 years old or older
- Who does not give their consent due to a reason other than the incapacity to consent
Sexual misconduct – Engaging in sexual intercourse, oral sexual conduct, or anal sexual conduct with a person without their consent, or engaging in sexual conduct with a dead human body or animal.
Criminal sexual act in the first degree – Engaging in anal sexual conduct or oral sexual conduct with a person:
- By the use of physical force or threats (forcible compulsion)
- Who is not capable of giving consent because they are physically helpless
- Who is eleven years old or younger
- Who is younger than thirteen and the accused is eighteen years old or older
Criminal sexual acts in the second degree – Engaging in anal sexual conduct or oral sexual conduct with a person who is not capable of giving consent due to mental incapacitation or mental disability, or a person eighteen years old or older who engages in anal sexual conduct or oral sexual conduct with a person who is younger than fifteen years old and the accused is eighteen years old or older.
Criminal act in the third degree – Engaging in anal sexual conduct or oral sexual conduct with a person who is not capable of giving consent due to mental incapacitation, mental disability, or a factor other than they are younger than seventeen years old, or a person twenty-one years old or older who engages anal sexual conduct and oral sexual conduct with a person who is younger than seventeen years old and the accused is eighteen years old or older.
Forcible touching – The intentional and with no legitimate purpose act of forcible touching (pinching, grabbing, squeezing) the intimate or sexual parts of another person either to:
- Abuse or degrade them
- Obtain sexual gratification
Predatory sexual assault – When a person commits against a child
- Rape in the first degree
- Criminal sexual act in the first degree;
- Aggravated sexual abuse in the first degree;
- Course of sexual conduct against a child in the first degree;
- and during the commission of the crime
  - The victim is physically injured
  - The accused uses or threatens to use a dangerous object or instrument
  - The accused commits the acts against more people other than the victim
  - The accused has prior convictions for felony, incest, or use of a child in a sexual performance
Predatory sexual assault against a child – When the accused is eighteen years old or older and commits any or all of the following crimes against a child who is younger than thirteen years old.
- Rape in the first degree
- Criminal sexual act in the first degree
- Aggravated sexual abuse in the first degree
- Course of sexual conduct against a child in the first degree
Course of sexual conduct against a child in the first degree – When a person who, over a span of time that is three months or more:
- Engages in sexual conduct two or more times with a child who is younger than eleven years old and includes at least one act of sexual intercourse, anal sexual conduct, oral sexual conduct, or aggravated sexual conduct.
- Engages in sexual conduct with a child who is younger than thirteen years old and the accused is eighteen years old or older and includes at least one act of sexual intercourse, anal sexual conduct, oral sexual conduct, or aggravated sexual conduct. The person may also be charged and prosecuted for sexual offenses that involve the same victim but did not occur within the span of time. charged
Course of sexual conduct against a child in the second degree – When a person who, over a span of time that is three months or more:
- Engages in sexual conduct two or more times with a child who is younger than eleven years old
- Engages in sexual conduct with a child who is younger than thirteen years old and the accused is eighteen years old or older. The person may also be charged and prosecuted for sexual offenses that involve the same victim but did not occur within the span of time charged.
Sexual abuse in the first degree – Sexual contact by one person with another without that person’s consent because:
- By physical force or coercion
- When the person is physically helpless, thus unable to give consent
- When the person is younger than eleven years old
- When the person is younger than thirteen years old and the accused is twenty-one years old or older
Sexual abuse in the second degree – Sexual contact by one person with another without that person’s consent because:
- That person is younger than fourteen years old
- That person is not capable of giving consent due to a reason other than being younger than seventeen years old (i.e., being physically helpless)
Sexual abuse in the third degree – Sexual contact by one person with another without that person’s consent because:
- The person could not legally consent because they were younger than seventeen years old
- The other person was older than fourteen years old but younger than seventeen and the offender was less than five years older than the person
Persistent sexual abuse – When a person is convicted of
- Forcible touching
- Sexual abuse in the third degree
- Sexual abuse in the second degree
- And has been convicted within the previous ten-year period (except for any time that they were incarcerated for any reason) has been convicted not less than two times in two separate crimes of:
  - Forcible touching
  - Sexual abuse in the third degree
  - Sexual abuse in the second degree
  - Any offense that is a felony as defined under New York law
Aggravated sexual abuse in the first degree – When a person, other than for valid medical purposes:
- Inserts a foreign object into the anus, rectum, penis, urethra, or vagina or a person,
  - By physical force or coercion
  - When the person is physically helpless, thus unable to give consent
  - When the person is younger than eleven years old
Aggravated sexual abuse in the second degree – When a person, other than for valid medical purposes:
- Inserts a finger into the anus, rectum, penis, urethra, or vagina or a person,
  - By physical force or coercion
  - When the person is physically helpless, thus unable to give consent
  - When the person is younger than eleven years old
Aggravated sexual abuse in the third degree – When a person, other than for valid medical purposes:
- Inserts a foreign object into the anus, rectum, penis, urethra, or vagina or a person
  - By physical force or coercion
  - When the person is physically helpless, thus unable to give consent
  - When the person is younger than eleven years old
- Inserts a foreign object into the anus, rectum, penis, urethra, or vagina or a person, resulting in physical injury to the person and if the person is not capable of giving consent for a reason other than they are younger than seventeen years old.
Aggravated sexual abuse in the fourth degree – When a person, other than for valid medical purposes:
- Inserts a foreign object into the anus, rectum, penis, urethra, or vagina or a person, resulting in physical injury to the person and if the person is not capable of giving consent for a reason other than they are younger than seventeen years old.
- Inserts a finger into the anus, rectum, penis, urethra, or vagina or a person, resulting in physical injury to the person and if the person is not capable of giving consent for a reason other than they are younger than seventeen years old.

Penalties for Federal Sexual Assault Offenders

Conviction of a federal sex crime, or any federal crime, typically carries a mandatory minimum sentence as well as fines. These penalties can be increased due to several factors:

Pre-meditation
Severity
Sadistic
Multiple offenses
Prior convictions

When a sex crime that falls under sexual assault results in a person’s death, it can result in a life sentence.

At the completion of a federal sentence, the offender will also usually be on probation after finishing his or her sentence, assuming one was imposed. While this is not prison, the offender is required to adhere to certain rules and must meet with their appointed court official on a regular basis.

The National Sex Registry

Once the offender is released from prison, he or she may be required to comply with the national sex offender registration laws. They are required to provide their residence address, school information if they are a student, employment information if they work, as well as other personal data.

There are three tiers of the registry that determine how long the person is required to remain as a sex offender:

Tier I – 15 years
Tier II – 25 years
Tier III – Life

Additionally, registration as a sex offender may also set restrictions on the type of work the person can have if they can have children in their home, and where they are allowed to live. For instance, they may not be allowed to live within a certain proximity of a public park, daycare, or school.

Penalties for Sexual Assault Offenders in New York

Under New York law, the penalties for sexual assault offenses almost always carry at least some time in prison. Terms range from a few months to life imprisonment. There are several factors that influence the severity of the sentence. If the defendant is a repeat offender the penalties will be harsher, the same if there was physical violence involved or the victim was killed in the assault.

Rape in the first degree – Minimum five years and maximum twenty-five years in prison.
Rape in the second degree – Minimum two years and maximum seven years in prison
Rape in the third degree – Minimum one and a half years and four years in prison
Sexual misconduct – Maximum one year in prison
Criminal sexual act in the first degree – Minimum of five years and maximum of twenty-five years in prison
Criminal sexual acts in the second degree – Minimum of two years and maximum of seven years in prison
Criminal act in the third degree – Minimum one and a half and maximum four years in prison.
Forcible touching – Maximum one year in prison
Predatory sexual assault – Minimum ten years and maximum twenty-five years in prison
Predatory sexual assault against a child – Minimum ten years and maximum twenty-five years in prison
Course of sexual conduct against a child in the first degree – Minimum five years and maximum twenty-five years in prison
Course of sexual conduct against a child in the second degree – Minimum two years and maximum seven years in prison
Sexual abuse in the first degree – Minimum two years and maximum seven years in prison
Sexual abuse in the second degree – Maximum one year in prison
Sexual abuse in the third degree – Maximum three months in jail
Persistent sexual abuse – Minimum one and a half years and maximum four years in prison
Aggravated sexual abuse in the first degree – Minimum five years and maximum twenty-five years in prison
Aggravated sexual abuse in the second degree – Minimum three and a half years and maximum fifteen years in prison
Aggravated sexual abuse in the third degree – Minimum two years and maximum seven years in prison
Aggravated sexual abuse in the fourth degree – Minimum one and a half years and maximum four years in prison

There may be some times when the accused is given probation instead of jail time or prison, but that is up to the judge and is based on various circumstances and factors.

Sexual Assault Defenses

There are three broad defenses for sexual assault, except where the victim is a minor.

Innocence – they did not commit the crime at all
Consent – the victim consented to the act
Mental incapacity or insanity – the accused claims a mental disease or defect

The onus of proof is on the prosecuting attorney. The defense attorney can promote doubt. The prosecution must show beyond a reasonable doubt that the defendant is guilty. When the defense attorney casts doubt on that charge, then the prosecutor may not be able to meet that burden.

When the victim is a child, claiming to not know the age or that the child was a minor is not a valid sexual assault defense in New York. The only defenses for that situation are that the accused can claim the Romeo and Juliet exception.

Being charged with a sexual assault crime is very stressful and you are certain to encounter certain challenges that only an experienced criminal defense attorney can provide. Call Igor Litvak of the Litvak Law Firm at (718) 989-2908 today. Let him put his experience to work for you to ensure your rights are protected.