In New York, criminal intent usually doesn’t matter in sexual assault, rape, or sexual battery prosecutions. All these infractions are basically the same offense. The intent is a requirement in forcible touching, which is a misdemeanor. The defendant must sexually touch the alleged victim “for the purpose of degrading or abusing such person or for the purpose of gratifying the actor’s sexual desire.”[1] This provision separates forcible touching from ABC, or assault by contact, which is basically a harmful or offensive touch.

Criminal intent usually does not matter in felony sex crime cases. These cases weren’t always so straightforward. In fact, until the mid-1970s, prosecutors generally had to prove a sexual assault defendant used physical force and the alleged victim strongly resisted the defendant. Additionally, a credible witness had to corroborate all parts of the alleged victim’s testimony.[2]

Even back in the old days, sexual assault never had an intent requirement. Sexual assault, prostitution, and almost all other sex crimes, except indecent exposure cases, usually have no intent requirement. This intentional omission, which is probably a good thing for society, makes sexual assault cases harder to defend. Therefore, only the most experienced Rochester criminal defense lawyer should handle these matters.

Elements of the Offense

Third-degree rape is the most common sexual assault charge in New York. Penal Law Section 130.25 is the “date rape” statute. As many as 90 percent of sexual assault cases are acquaintance rape cases.[3] These cases have several defenses, which are outlined below. Lack of intent isn’t one of them because third-degree rape has no mental element.

Other third-degree rape scenarios include intercourse with a person who cannot consent as a matter of law, usually because the person is under seventeen.

Second-degree rape is intercourse with someone under fifteen or someone who cannot consent because of a mental deficiency. First-degree rape is sexual intercourse with “forcible compulsion.” So, this offense is much like the pre-1980s rape laws, except the alleged victim’s testimony is presumptively credible. Section 130.35 charges could also apply if the alleged victim was “physically helpless” or was younger than eleven or thirteen, depending on the defendant’s age.

Three similar criminal sexual act statutes apply to non-intercourse cases, which in New York is “oral sexual conduct or anal sexual conduct.”

Substantive Defenses

Since almost all the rape cases a Rochester criminal defense lawyer handles are acquaintance rape cases, this section will focus on Section 130.25 matters.

The alleged victim’s credibility is often an issue. Frequently, the defendant and the alleged victim were both drinking. Alcohol impairs memory.

While we’re on this point, we should touch on the issues regarding alcohol, drugs, physical restraint, and “physically helpless.”

Physical helplessness implies involuntariness. Alleged victims who are tied up or physically incapacitated are physically helpless. Involuntary alcohol or drug use could also constitute physical helplessness, although it’s harder for prosecutors to make that case.

Consent is a defense to rape and most other sex crimes. Basically, consent is a current, affirmative, and voluntary agreement to engage in sexual activity. Kissing and flirting are not consent to sexual contact. It’s certainly not consenting to sexual intercourse.

However, kissing and flirting are circumstantial evidence of consent. Is this evidence strong enough to create reasonable doubt? That’s for a jury to decide.

Note that a Rochester criminal defense lawyer need not “prove” consent or anything else. An attorney must create reasonable doubt about the defendant’s guilt.

Lack of physical evidence is a third possible rape defense. Even if a rape kit is available, this evidence only proves the two people had sex, not that they had unconsented sex. Usually, defendants must choose between a lack of evidence defense and a consent defense. Lack of consent is an affirmative defense, which basically means the actor admits to the act and argues that s/he didn’t commit a criminal act.

Procedural Defenses

This section applies to all sex crime cases, whether they are misdemeanors or felonies. Fifth Amendment violations are extremely common in sex crimes cases.

If Tim and Sarah were drinking heavily or using drugs on their date, Tim might remember having sex with Sarah, but he might not remember the details. So, when investigators arrive at his door, he may not know why they are there. Generally, investigators are very vague at this stage. They typically say something like, “we believe you may have witnessed a crime last week, we cannot go into the details here, but we can cover this ground at the station.” In most cases, Tim readily agrees to what, unbeknownst to him, is a rape interrogation.

Legally, officers don’t have to tell defendants why they’re being detained or arrested. But they do have to inform defendants of their Fifth Amendment rights. They must provide this information when they start asking questions, even if they are unrelated to the alleged rape if Tim doesn’t feel free to leave. If police officers were at my front door, I wouldn’t feel free to run out the back. Would you?

If investigators violate the Fifth Amendment, the judge typically excludes the defendant’s confession and any evidence obtained from that contact, like a DNA sample.

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. We routinely handle matters in Monroe County and nearby jurisdictions.






The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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