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

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

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

The elements of a Criminal Sexual Act in the Third Degree are:

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 less than 17 years old, and the defendant was 21 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 legally incapable of providing consent. Thus, even if a minor consents to oral sexual conduct or anal sexual conduct, it is still a violation of the statute.

Examples of a Criminal Sexual Act in the Third Degree 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 couldn’t consent because they were intoxicated.

Often, prosecutors bring Criminal Sexual Act in the Third Degree charges along with one or more of the following:

• Rape in the Third Degree – NY Penal Law § 130.25
• Rape in the Second Degree – NY Penal Law § 130.30
• Forcible Touching – NY Penal Law § 130.52
• Sexual Misconduct – NY Penal Law § 130.20
• Sexual Abuse in the Second Degree – NY Penal Law § 130.55
• Sexual Abuse in the First Degree – NY Penal Law § 130.60
• Criminal Sexual Act in the Second Degree – NY Penal Law § 130.45
• Criminal Sexual Act in the First Degree – NY Penal Law § 130.50

The defenses to Criminal Sexual Act in the Third Degree include:

• Consent (if consent is an element of the crime);
• Misidentification;
• Fabrication; or
• No sexual conduct occurred.

Criminal Sexual Act in the Third Degree is a class E felony. In New York, class E felonies are punishable by up to four years in prison and a fine of up to $5,000. Additionally, anyone convicted of committing a Criminal Sexual Act in the Third Degree must register as a sex offender for at least 20 years and possibly for the rest of their life.

If you are facing 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 immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.