Mentally Defective: a person suffers from a mental disease or defect which renders him incapable of appraising the nature of his conduct.
Mentally Incapacitated: a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.
Physically helpless: a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.
Forcible compulsion: to compel by either (a) use of physical force; or (b) a threat, express or implied, which placed a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.
Age: male/female less than17 years of age is incapable of consenting to any act as per NYS Penal Law Article 130 (Sex Offenses). One must be at least 17 years of age to legally engage in any sexual activity. If age is the only factor, it is known as a “statutory” offense.
Note: It is not a defense that the defendant did not know the age of the victim. A basic element of all sex offenses is the lack of consent. Without lack of consent there would be no sex offense.
Rape is always a felony. A person is guilty of rape when a person engages in sexual intercourse with another person without that persons consent. Rape may be committed in seven (7) ways:
Person 21 years of age or older, engages in sexual intercourse with another person who is less than seventeen (17) years of age (16, 15, or 14).
Person, age 18 years of age or older, engages in sexual intercourse with another person who is less than 14 years old ( 13, 12, or 11).
The victim is physically helpless.
A male engages in intercourse with a female who is less than 11years old (10 or less.)
Sodomy is always a felony. A person is guilty of sodomy when that person engages in deviant sexual intercourse with another person, without that person’s consent. Sodomy may be committed in seven (7) ways as described above, under rape.
Sexual misconduct is always a misdemeanor. A person is guilty of sexual misconduct when:
He or She engages in sexual intercourse with another person without such person’s consent; or
He or she engages in deviate sexual intercourse with another person without such person’s consent; or
He or she engages in sexual conduct with an animal or a dead human body.
Sexual abuse is either a felony or a misdemeanor. A person is guilty of sexual abuse when he or she subjects another person to sexual contact without the latter’s consent. In addition to forcible compulsion or incapacity to consent a person can be charged with sexual abuse in any case in which the victim does not expressly or impliedly acquiesce in the actor’s conduct.
“Misdemeanor” means an offense, other than a “traffic infraction,” for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year may not be imposed.
“Felony” means an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.