New York Penal Law § 130.40 – Criminal Sexual Act in the Third Degree

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Criminal Sexual Act in the Third Degree is a New York sex offense prohibiting engaging in oral or anal sex with another person, either without their consent or because the alleged victim was unable to provide their consent. A Criminal Sexual Act in the Third Degree constitutes a class E felony.

Factors of Third-Degree Criminal Sexual Act

Before a judge or jury can convict someone of committing a Criminal Sexual Act in the Third Degree, the government must establish each element of the offense beyond a reasonable doubt.

The components of a Criminal Sex Act in the 3^rd Degree include:

1. The defendant engaged in “oral sexual conduct” or “anal sexual conduct”;
2. And one or more of the following applies:
   1. The victim was incapable of providing consent;
   2. The victim was under 17 years old and the defendant was 21 years or older; or
   3. The victim had the capacity but did not provide their consent.

In this context, oral sexual conduct involves any contact between the mouth and the penis, vulva or anus. Similarly, anal sexual conduct refers to any contact between the penis and the anus.

Under New York Law, minors under the age of 17 are cannot legally provide consent. Thus, a violation occurs even if a minor consents to oral sexual conduct or anal sexual conduct.

Examples of Criminal Sexual Acts in the Third Degree

Examples of Third-Degree Criminal Sexual Acts include:

• A 21-year-old defendant has consensual oral sex or anal sex with a 15-year-old;
• A defendant has oral or anal sex with another person without their consent; or
• A defendant has oral or anal sex with another person who could not consent because they were under he influence of drugs.

Offenses Linked to NY Penal Law § 130.40

Prosecutors frequently file charges for Criminal Sexual Act in the Third Degree alongside one or more of the following offenses:

• Rape in the 3^rd Degree – NY Penal Law § 130.25
• Rape in the 2^nd Degree – NY Penal Law § 130.30
• Sexual Misconduct – NY Penal Law § 130.20
• Sexual Abuse in the 2^nd Degree – NY Penal Law § 130.55
• Sexual Abuse in the 1^st Degree – NY Penal Law § 130.60
• Criminal Sexual Act in the 2^nd Degree – NY Penal Law § 130.45
• Criminal Sexual Act in the 1^st Degree – NY Penal Law § 130.50

What Defenses Can Be Used Against Allegations of Committing a Criminal Sexual Act in the Third Degree?

Defenses against charges of Criminal Sexual Act in the Third Degree encompass:

• Consent (if consent is a requirement of the offense)
• Misidentification
• Fabrication
• Absence of any sexual conduct

What Penalties Apply for Breaking NY Penal Law § 130.40?

Criminal Sexual Act in the Third Degree is a class E felony.

In New York, individuals convicted of class E felonies may face imprisonment for up to four years and a maximum fine of $5,000. Moreover, individuals convicted of committing a Criminal Sexual Act in the Third Degree are required to register as sex offenders for a minimum of 20 years, potentially extending for their lifetime.

Speak With an Experienced New York Criminal Defense Lawyer to Get Started on Your Defense Today

If you’re confronted with sex crime charges in New York, having an experienced defense attorney by your side can make the difference in your case. At Tilem & Associates, P.C., we have over 25 years of experience aggressively defending the rights, futures, and freedom of good people charged with serious crimes. We are ready to meet with you promptly to begin crafting a strong defense against the charges you are facing. To learn more and schedule a free consultation today, call 877-377-8666. You can also reach us by using our online contact form.