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130.05 – Sex offenses; lack of consent

§ 130.05 Sex offenses; lack of consent.

  1. Whether or not specifically stated, it is an element of every
    offense defined in this article that the sexual act was committed
    without consent of the victim.
  2. Lack of consent results from:
    (a) Forcible compulsion; or
    (b) Incapacity to consent; or
    (c) 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
    (d) Where the offense charged is rape in the third degree as defined
    in subdivision three of section 130.25, or criminal sexual act in the
    third degree as defined in subdivision three of section 130.40, 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.
  3. A person is deemed incapable of consent when he or she is:
    (a) less than seventeen years old; or
    (b) mentally disabled; or
    (c) mentally incapacitated; or
    (d) physically helpless; or
    (e) committed to the care and custody or supervision of the state
    department of corrections and community supervision or a hospital, as
    such term is defined in subdivision two of section four hundred of the
    correction law, 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. For purposes of this
    paragraph, “employee” means (i) an employee of the state department of
    corrections and community supervision who, as part of his or her
    employment, performs duties: (A) in a state correctional facility in
    which the victim is confined at the time of the offense consisting of
    providing custody, medical or mental health services, counseling
    services, educational programs, vocational training, institutional
    parole services or direct supervision to inmates; or
    (B) of supervising persons released on community supervision and
    supervises the victim at the time of the offense or has supervised the
    victim and the victim is still under community supervision at the time
    of the offense; or

    (ii) an employee of the office of mental health who, as part of his or
    her employment, performs duties in a state correctional facility or
    hospital, as such term is defined in subdivision two of section four
    hundred of the correction law in which the inmate is confined at the
    time of the offense, consisting of providing custody, medical or mental
    health services, or direct supervision to such inmates; or

    (iii) a person, including a volunteer, providing direct services to
    inmates in a state correctional facility in which the victim is confined
    at the time of the offense pursuant to a contractual arrangement with
    the state department of corrections and community supervision or, in the
    case of a volunteer, a written agreement with such department, provided
    that the person received written notice concerning the provisions of
    this paragraph; or

    (f) committed to the care and custody of a local correctional
    facility, as such term is defined in subdivision two of section forty of
    the correction law, 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. For purposes of this
    paragraph, “employee” means an employee of the local correctional
    facility where the person is committed who performs professional duties
    consisting of providing custody, medical or mental health services,
    counseling services, educational services, or vocational training for
    inmates. For purposes of this paragraph, “employee” shall also mean a
    person, including a volunteer or a government employee of the state
    department of corrections and community supervision or a local health,
    education or probation agency, providing direct services to inmates in
    the local correctional facility in which the victim is confined at the
    time of the offense pursuant to a contractual arrangement with the local
    correctional department or, in the case of such a volunteer or
    government employee, a written agreement with such department, provided
    that such person received written notice concerning the provisions of
    this paragraph; or

    (g) 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. For purposes of this paragraph,
    “employee” means an employee of the office of children and family
    services or of a residential facility in which such person is committed
    to or placed at the time of the offense who, as part of his or her
    employment, performs duties consisting of providing custody, medical or
    mental health services, counseling services, educational services,
    vocational training, or direct supervision to persons committed to or
    placed in a residential facility operated by the office of children and
    family services; or

    (h) a client or patient and the actor is a health care provider or
    mental health care provider charged with rape in the third degree as
    defined in section 130.25, criminal sexual act in the third degree as
    defined in section 130.40, aggravated sexual abuse in the fourth degree
    as defined in section 130.65-a, or sexual abuse in the third degree as
    defined in section 130.55, and the act of sexual conduct occurs during a
    treatment session, consultation, interview, or examination; or
    (i) 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. For purposes
    of this paragraph, “employee” means either: an employee of the agency
    operating the residential facility, who knows or reasonably should know
    that such person is a resident or inpatient of such facility and who
    provides direct care services, case management services, medical or
    other clinical services, habilitative services or direct supervision of
    the residents in the facility in which the resident resides; or an
    officer or other employee, consultant, contractor or volunteer of the
    residential facility, who knows or reasonably should know that the
    person is a resident of such facility and who is in direct contact with
    residents or inpatients; provided, however, that the provisions of this
    paragraph shall only apply to a consultant, contractor or volunteer
    providing services pursuant to a contractual arrangement with the agency
    operating the residential facility or, in the case of a volunteer, a
    written agreement with such facility, provided that the person received
    written notice concerning the provisions of this paragraph; provided
    further, however, “employee” shall not include a person with a
    developmental disability who is or was receiving services and is also an
    employee of a service provider and who has sexual contact with another
    service recipient who is a consenting adult who has consented to such
    contact.

Criminal Laws NY

Criminal Laws NY