Aggravated Sexual Abuse in the Second Degree: New York Penal Code § 130.67
Second degree aggravated sexual abuse is a felony Class C offense and, according to New York Penal Code § 130.67, it is when a person without consent inserts a foreign object or finger into the rectum, anus, vagina, urethra, or penis of a victim, causing physical injury and one or more of the following is present at the time of the incident:
- The act is committed by force; or
- The victim is unable to help themselves physically; or
- The victim is a child who is younger than eleven years of age.
The New York statutes do not define “foreign object,” but precedence demonstrates that courts consider a variety of objects to be “foreign objects,” including bottles, knives, sticks, and other items.Hypothetical Case
Suppose an adult man pushed his finger into the vagina of his six year old niece. The girl said that as a result of the insertion, she was feeling persistent pain in her private area. A pediatrician who examined the girl testified that she had serious physical injuries resulting from the incident and was in severe pain.The adult man could be prosecuted for second degree sexual abuse because the girl was under eleven years of age, and she suffered physical injury as a result of his putting his finger into her vagina.Possible Defenses
Presence of consent. The absence of consent must exist for the charge of second degree aggravated sexual abuse to become a prosecutable offense. If it is present, then the charge may be dismissed. However, children are not legally able to provide consent; so this will likely not be the preferred defensive strategy.
Absence of medical necessity. Another defensive tactic might be to convince the court that the victim was not physically injured and was not in need of medical attention; producing evidence or an expert witness such as another physician who will testify to that effect might form the foundation for a viable defense. If the uncle was himself a physician who was performing an examination on his niece, there may merit to the defense against second degree sexual abuse.
Other lines of defense. If enough time has passed, the statute of limitations may provide the basis for successfully defending against the charge of second degree aggravated sexual abuse.
Understanding the details of an incident and how they may be used to create a viable defense may be advantageous to the case. A highly skilled defense attorney with a trained mind and who knows how to analyze the details will provide strong representation for defendants facing a charge of second degree aggravated sexual abuse.Possible Sentence
Imprisonment. The judge presiding the case may sentence the person convicted of second degree aggravated sexual abuse from three and a half years to as many as fifteen years of incarceration, as a felony category Class C and as a first offense. If the conviction is the second violent felony offense, then the minimum imprisonment sentence must be seven years.
Probation. In addition to the prison sentence, the judge may tack on ten years of probation that will be observed after the time spent in jail.
Registration as a sex offender. Section 168 of the Sex Offender Registration Act of the New York Correction Law mandates that a person convicted of second degree aggravated sexual abuse register as a sex offender for twenty years and, possibly, the rest of their lives. A convicted sex offender must comply with the registration directives handed down by the court.NY Penal Code § 130.66: Second Degree Aggravated Sexual Abuse
To reiterate, a person may be prosecuted for second degree aggravated sexual abuse if a finger or foreign object is inserted into the rectum, anus, vagina, urethra, or penis of a victim, causing physical injury, and one or more of the following are present in the incident:
- The victim is forced to comply to the act; or
- The victim is physically not able to help themselves; or
- The victim is a child who is not even eleven years of age.
A person who is convicted of second degree aggravated sexual abuse will be registered as a sex offender; this stigma has serious social and economic consequences. Because of these factors, it is extremely important that a person charged with second degree aggravated sexual abuse engage the legal representation of a top-notch defense attorney who is experienced and successful in this area.
If you are charged with having committed second degree aggravated sexual abuse, it is critical that you seek the aid of a highly respected and capable attorney firm that is successful in defending persons accused of misdemeanor and felony sex crimes.
Barry C. Weiss P.C. is a formidable attorney firm that has successfully defended clients accused of misdemeanor and felony sex crimes in the state of New York, including accusations of second degree aggravated sexual abuse, engaging in a criminal sexual act, assaulting a person sexually, using a controlled substance to facilitate a sex crime, raping a person, forcible touching, molesting a child, and committing other sex crimes.
We can be reached at (212) 785-1300 or newyorkcriminallawyer24-7.com to schedule a no-obligation, free legal consultative meeting to evaluate your case.Related Offenses
For additional information, refer to the following sections of the New York Penal Code:
- Aggravated sexual abuse in the fourth degree: § 130.65a
- Aggravated sexual abuse in the third degree: § 130.66
- Aggravated sexual abuse in the first degree: § 130.70