Sexual Abuse in the Second Degree: New York Penal Code § 130.60

Second degree sexual abuse is one of three types of sexual abuse crimes in the state of New York. The other types of sexual abuse crimes are third degree sexual abuse and first degree sexual abuse.

According to New York Penal Code § 130.60, misdemeanor second degree sexual abuse may be charged if an individual has engaged in sexual contact with another individual without the latter’s consent, and the absence of consent is: (a) due to a factor other than being less than seventeen years of age, or (b) being a child less than the age of fourteen.

Second degree sexual abuse is not sexual intercourse which is when the penis penetrates the vagina. Also, this type of sexual abuse does not involve oral or anal sex. Second degree sexual abuse involves the touching of the private, intimate, or sexual areas of another person for one’s own sexual gratification without the victim’s permission or consent. Even though private, intimate, or sexual areas of another person are not defined explicitly in the statutes, second degree sexual abuse has resulted in convictions for contacts with an individual’s breasts, buttocks, mouth, lips, anus, rectum, vagina, and penis. Further, the ejaculation on another person is a form of sexual contact.

Hypothetical Case

Suppose an adult man was playing with his nine-year old grandson and, spontaneously, placed his hand inside the grandson’s shorts to fondle his penis. Separately, suppose a mother fondled her 11 year-year old daughter’s breasts and touched her sexual parts to gratify herself vicariously. In both cases the adults could be charged and prosecuted for second degree sexual abuse as they had sexual contact with children who were less than fourteen years of age. Evidence could point to the proposition that in each case, the fondling was not a caregiving behavior but intended to give the adults sexual pleasure.

Possible Defenses

Presence of consent. If it can be shown that consent to the sexual contact was given, then the case for second degree sexual abuse has no merit; however, in the hypothetical cases described above, both victims were children under the age of fourteen. By legal definition children under the age of fourteen are not capable of giving consent. The lack of consent is pivotal in a case of second degree sexual abuse and weighs heavily in the balance for a prosecuting attorney’s ability to win conviction for second degree sexual abuse. Child abuse and child endangerment charges may also levied against the adults in the incidences relayed above.

Absence of intent. Another defensive tactic may be to convince the court that the incidents could be characterized as accidental or unintentional and with no purpose of sexual gratification. If it can be shown that the incidents were free of sexual intent or were accidental or incidental, then it may be problematical for the prosecuting attorney to make the charge of second degree sexual abuse stick.

Other lines of defense. Other related circumstances or events that are uncovered by a highly competent defense attorney may be useful in mounting other defensive tactics.

Possible Sentence

Imprisonment. If conviction for second degree sexual abuse is the decision of the court, as a misdemeanor Class A, the judge could sentence an individual for up to one year in prison. In deciding upon the appropriate punishment, the judge will consider the gravity and details of the crime committed, the person’s background, and any criminal history, if present. First time offenders may receive a lesser sentence.

Probation. Also, if a conviction for second degree sexual abuse is garnered, the judge may issue a probation term of six years.

Registration as a sex offender. A conviction for second degree sexual abuse is a registrable sexual offense under section 168 of the Sex Offender Registration Act of the New York Correction Law. Registration must take place with an assigned law enforcement agency that will keep the convicted person’s information in the sex offenders database. A convicted sex offender must follow the registration rules for at least twenty years and sometimes for the remainder of their life.

NY Penal Code § 130.60: Second degree sexual abuse

To reiterate, a person may be charged with second degree sexual abuse if a person causes another person to be the victim of sexual contact, and the latter is:

  1. Not able to give consent because of a factor other than being less than seventeen years of age; or
  2. Not able to give consent because they are a child who is less than fourteen years of age.

The sexual contact does not require penetration of the vagina by the penis, or direct contact with the vagina, anus, or mouth.

Second Degree Sexual Abuse Attorney

An offense of second degree sexual abuse may lead to the stigma of being labeled as a sex offender, and it has socio-economic implications. Therefore, it is critical that an individual seek legal counsel to make sure that every available option is weighed to defend against the charge of second degree sexual abuse.

If you are accused of committing the misdemeanor of second degree sexual abuse, it is imperative that you seek the assistance of a highly competent and 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 second degree sexual abuse requires a keen understanding of the applicable law, legal protocols and legal posturing.

Elliott Adler PC 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 second degree sexual abuse, forcible touching, molesting a child, raping a person, assaulting a person sexually, using a controlled substance to facilitate a sex crime, engaging in a criminal sexual act, and committing other sex crimes.

We can be reached at (212) 785-1300 or http://www.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:

  1. Endangering the welfare of a child: § 260.10
  2. Forcible touching: § 130.52
  3. Sexual misconduct: § 130.20