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N.Y.S. PENAL LAW
DEFINITIONS INVOLVING LACK OF CONSENT:
A) Mentally Defective: a person suffers
from a mental disease or defect which renders him incapable
of appraising the nature of his conduct.
B) Mentally Incapacitated: a person is
rendered temporarily incapable of appraising or controlling
his conduct owing to the influence of a narcotic or intoxicating
substance administered to him without his consent, or to any
other act committed upon him without his consent.
C) Physically helpless: a person is unconscious
or for any other reason is physically unable to communicate
unwillingness to an act.
D) Forcible compulsion: to compel by either
(a) use of physical force; or (b) a threat, express or implied,
which placed a person in fear of immediate death or physical
injury to himself, herself or another person, or in fear that
he, she or another person will immediately be kidnapped.
E) Age: male/female less than17 years of
age is incapable of consenting to any act as per NYS Penal
Law Article 130 (Sex Offenses). One must be at least
17 years of age to legally engage in any sexual activity.
If age is the only factor, it is known as a “statutory”
offense.
Note: It is not a defense that the defendant did not
know the age of the victim. A basic element of all sex
offenses is the lack of consent. Without lack of
consent there would be no sex offense.
RAPE
Rape is always a felony. A person is guilty
of rape when a person engages in sexual intercourse with another
person without that persons consent. Rape may be committed
in seven (7) ways:
1.Forcible compulsion
2.Mentally Defective
3.Mentally Incapacitated
4.Person 21 years of age or older, engages in sexual intercourse
with another person who is less than seventeen (17) years
of age (16, 15, or 14).
5.Person, age 18 years of age or older, engages in sexual
intercourse with another person who is less than 14 years
old ( 13, 12, or 11).
6.The victim is physically helpless.
7.A male engages in intercourse with a female who is less
than 11years old (10 or less.)
SODOMY
Sodomy is always a felony. A person is guilty
of sodomy when that person engages in deviant sexual intercourse
with another person, without that person’s consent.
Sodomy may be committed in seven (7) ways as described above,
under rape.
SEXUAL MISCONDUCT
Sexual misconduct is always a misdemeanor. A
person is guilty of sexual misconduct when:
1.He or She engages in sexual intercourse with another person
without such person’s consent; or
2.He or she engages in deviate sexual intercourse with another
person without such person’s consent; or
3.He or she engages in sexual conduct with an animal or a
dead human body.
SEXUAL ABUSE
Sexual abuse is either a felony or a misdemeanor.
A person is guilty of sexual abuse when he or she subjects
another person to sexual contact without the latter’s
consent. In addition to forcible compulsion or incapacity
to consent a person can be charged with sexual abuse in any
case in which the victim does not expressly or impliedly acquiesce
in the actor’s conduct.
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“Misdemeanor” means an offense, other
than a “traffic infraction,” for which a sentence
to a term of imprisonment in excess of fifteen days may be
imposed, but for which a sentence to a term of imprisonment
in excess of one year may not be imposed.
“Felony” means an offense for which a
sentence to a term of imprisonment in excess of one year may
be imposed.
“Crime” means a misdemeanor or a felony.
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