Persistent Sexual Abuse: New York Penal Code § 130.53

According to New York Penal Code § 130.53, felony persistent sexual abuse may be charged if a person has been convicted of forcible touching, second degree sexual abuse, or third degree sexual abuse and any other felony sex crime two or more times within the past ten years, excluding any time of incarceration. The crimes of forcible touching, second degree sexual abuse and third degree sexual abuse are all misdemeanor crimes. If a person is convicted of three misdemeanor sex crimes within ten years, on the third or subsequent conviction, the offending person may be charged with felony persistent sexual abuse.

Suppose an adult man was sitting next to an adult woman on a train and grabbed her breasts and buttocks for sexual gratification without consent. He was subsequently convicted of forcible touching and his first misdemeanor. Two years later, the same man kissed a young girl on the lips while rubbing her breasts. He is subsequently convicted of third degree sexual abuse and his second sexual misdemeanor. Two years later, the same adult man grabbed the buttocks and breasts of another woman on a subway platform without consent. On commission of this third sexual misdemeanor, the prosecutor could charge the man with felony persistent sexual abuse since the man had been convicted of sexual misdemeanor crimes two times prior, both within a ten year timespan, excluding any time for incarceration.

Presence of consent. In the third misdemeanor sexual abuse case, if it can be demonstrated that consent was given for the act, then the misdemeanor sexual abuse case may be shown to have no merit. If no consent was given to the act, then felony persistent sexual abuse may be the charge that the prosecuting attorney advocates to the court. The absence of consent is critical to a case of sexual abuse and lends to the prosecuting attorney’s ability to win a conviction for felony persistent sexual abuse.

Absence of intent. Another defensive approach may be to produce evidence that the act was not intentional and was, in fact, accidental. If evidence can be produced that shows the act was not of sexual intent and was circumstantial or accidental, then the prosecuting attorney may find it challenging to prove a case for a third incidence of sexual abuse and, by association, felony persistent sexual abuse. Without intent, the possibility that a sexual abuse charge may be dismissed exists.

Other lines of defense. Circumstantial evidence and other factors exposed by an experienced and knowledgeable defense attorney may open up other defensive strategies. Mistaken identity may also be a line of defense; however, the defensive strategies described above are commonly used.

Imprisonment. If a conviction of felony persistent sexual abuse is given, the judge could levy a sentence of up to four years of incarceration, as a felony Class E. If the felony charge is the first, the judge may exercise discretion and levy a lesser prison sentence.

Probation. If a conviction of felony persistent sexual abuse is the decision, the judge might also add ten years of probation to the sentence.

Registration as a sex offender. A conviction of felony persistent sexual abuse brings with it a mandatory registration requirement as a sex offender for twenty or more years under section 168 of the Sex Offender Registration Act of the New York Correction Law. It is possible that some individuals who are convicted for felony persistent sexual abuse are registered sex offenders the rest of their living days.

To reiterate, a person may be charged with felony persistent sexual abuse if :

1. The person was convicted of two or more misdemeanor sex crimes within the ten years prior, excluding time spent in prison, and commits a third misdemeanor sex crime within the ten years prior, excluding time spent in prison.
2. The person is convicted of one felony sex crime within the ten years prior, excluding time spent in prison, and commits another misdemeanor or felony sex crime within the ten years prior, excluding time spent in prison.

The misdemeanor sex crimes may be forcible touching, second degree sexual abuse or third degree sexual abuse. For additional information with respect to these misdemeanor sex crimes, refer to the related sections of the law provided below.

An offense of felony persistent sexual abuse can result in a person being considered a repeat offender which is treated more harshly. The stigma of being labeled as a sex offender has long-lasting repercussions. It is therefore imperative that an individual seek legal counsel to make sure that every viable option is considered to defend against the charge of felony persistent sexual abuse.

If you are accused of committing the crime of felony persistent sexual abuse, it is critical that you seek the assistance of a reputable law firm that has a record of success in defending individuals accused of felony and misdemeanor sex crimes. A successful defense against an accusation of felony persistent sexual abuse necessitates a keen understanding of the law, legal procedure, and legal strategies.

Barry C. Weiss P.C. is a formidable attorney firm that has successfully defended clients accused of felony and misdemeanor sex crimes in the state of New York, including accusations of felony persistent sexual abuse, forcible touching, assaulting a person sexually, engaging in a criminal sexual act, using a controlled substance to facilitate a sex crime, committing sexual abuse, raping a person, 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.

For additional information, refer to the following sections of the New York Penal Code:

1. Forcible touching: § 130.52
2. Second degree sexual abuse: § 130.60
3. Third degree sexual abuse: § 130.55