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Third Degree Criminal Sexual Conduct: New York Penal Code § 130.40

Sexual acts that are a crime in New York are defined in the state’s Penal Code section 130.00(2). There are various degrees of the criminal sexual act.

According to New York Penal Code § 130.40, the legal definition of a third degree criminal sexual act is:

  1. having anal or oral sex with a person who was not capable of giving consent,
  2. having anal or oral sex with a person without consent, or
  3. having anal or oral sex with a person who is under the age of 17 years by someone who is 21 years of age or older.

An oral sexual act is when there is sexual contact of the mouth of one person and penis of another person, the mouth of one person and the anus of another person, or the mouth of one person and the vulva or vagina of another person’s penis.

Hypothetical Case

Suppose a male teacher at a high school who was 25 years old had a female student who was 16 years old. The student had a crush on her teacher. She attempted to gain his interest by flirting with him and asking him to date her. Initially, the teacher did not give in to the student’s advances, but one day after class, she wrapped her arms around him and kissed the teacher enticingly on his lips. This went on for a while before the high school teacher eventually succumbed and gave in to the student’s desires. The two eventually had oral sex.

It is possible that the male teacher could be charged with engaging in third degree criminal sex because his student was under the age of 17, even though the female student initiated the sexual encounter.

Possible Defenses

Since absence of consent is a component essential to any sex crime, the prosecutor must show that the underaged student did not give consent. If there is evidence that shows that the underaged student gave consent to the sexual act, the prosecutor would not have a strong case to convict the high school teacher or to proceed with the prosecution.

A possible other line of defense might be the implementation of the applicable time-limiting statute. This time-limiting statute talks about the length of time within which a prosecutor has to file charges against someone. The statute of limitations for a third degree criminal sexual act is five years; it is a felony. So, if for whatever reason, the prosecuting attorney does not file the case within five years of when the purported criminal sexual act took place, time has run out for prosecution of the case and the case cannot be tried.

Possible Sentence

If a conviction is received for third degree criminal sexual conduct, a sentence of up to four years in prison is possible, as it is a Class E felony. If the convicted person has no previous record of criminal offenses, the chances are good that the sentence given would be less than four years or even just probation. The downside is that a conviction requires that, under section 168 (Sex Offender Registration Act) of the New York Correction Law, the convicted person is mandated to be a registered sex offender for 20 years or more. Some sex offenders will be registered as such for as long as they live.

New York Penal Code § 130.40: Third degree criminal sexual act

To reiterate, a person is guilty of third degree criminal sexual act when:

  1. The person engages in anal or oral sex with someone who is not capable of consent for a reason other than that they less than 17 years of age; or
  2. The person engages in anal or oral sex with someone without their consent where the absence of consent is for a reason other than inabililty to consent; or
  3. The person is 21 years of age or older and engages in anal or oral sex with someone who is less than 17 years of age.
Lawyer for Third Degree Criminal Sexual Act

Even though an offense of third degree criminal sexual conduct is not the most profound sexual crime, it nonetheless has serious consequences. The charge may bring many other associated criminal charges that, in aggregate, result in sentences of many years of imprisonment. A conviction of third degree criminal sexual conduct may mean difficulty in supporting oneself and one’s family and securing a job. The stigma of the conviction is difficult to overcome in society and could also lead to displacement in the community or depression, and many other damaging repercussions.

Due to the gravity of potential deleterious outcomes, it is imperative that if you are accused of third degree criminal sexual conduct, you should contact a law firm that is experienced with defending individuals accused of sex crimes immediately.

The team at Barry C. Weiss P.C. have extensive experience defending clients who have been accused of sex crimes in New York with success, including criminal sexual act, sexual assault, sexual abuse, child molestation, using a controlled substance to facilitate a sexual crime, and rape.

We can be reached at (212) 785-1300 or 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. Sexual misconduct: New York Penal Code § 130.20
  2. Rape in the third degree: New York Penal Code § 130.25
  3. Fourth degree aggravated sexual abuse: New York Penal Code § 130.65a
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