New York Penal Law § 130.45 – Criminal Sexual Act in the Second Degree

Criminal Sexual Act in the Second Degree is a sex crime in New York prohibiting individuals from engaging in oral or anal sex with a person who is incapable of providing consent, either because they are under 15 years old or because they are “mentally disabled” or “mentally incapacitated.” Committing a Criminal Sexual Act in the Second Degree is a class D felony.

Before a judge or jury can convict anyone of Criminal Sexual Act in the Second Degree, the government must prove each element of the offense beyond a reasonable doubt. The elements of a Criminal Sexual Act in the Second Degree under subsection (1) are:

1. The defendant engaged in “oral sexual conduct” or “anal sexual conduct”; and
2. The defendant was at least 21 years old; and
3. The alleged victim was less than 17 years old.

The elements of a Criminal Sexual Act in the Second Degree under subsection (2) are:

1. The defendant engaged in “oral sexual conduct” or “anal sexual conduct”; and
2. The alleged victim was incapable of providing consent due to a mental disability or mental incapacitation.

Examples of Criminal Sexual Acts in the Second Degree include:

• A 19-year-old defendant has consensual oral sex or anal sex with a 14-year-old; or
• A defendant engages in oral sex or anal sex with someone who is intellectually disabled and unable to consent because of their disability.

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

• Criminal Sexual Act in the Third Degree – NY Penal Law § 130.40
• Criminal Sexual Act in the First Degree – NY Penal Law § 130.50
• Rape in the First Degree – NY Penal Law § 130.20
• Rape in the Third Degree – NY Penal Law § 130.25
• Rape in the Second Degree – NY Penal Law § 130.30
• Sexual Abuse in the Second Degree – NY Penal Law § 130.55
• Sexual Abuse in the First Degree – NY Penal Law § 130.60
• Forcible Touching – NY Penal Law § 130.52
• Sexual Misconduct – NY Penal Law § 130.20

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

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

Additionally, § 130.45 contains an affirmative defense that applies if the charges are based on the victim’s age, and the defendant is less than four years older than the victim at the time of the crime.

Criminal Sexual Act in the Second Degree is a class D felony. In New York, class D felonies are punishable by a term of up to seven years in prison and a fine of up to $5,000. Additionally, anyone convicted of committing a Criminal Sexual Act in the Second Degree must register as a sex offender for at least 20 years.

If you are facing charges related to criminal sexual conduct, it is essential that you have an experienced New York sex crimes defense lawyer representing your interests at every step of the process. At Tilem & Associates, P.C., we take pride in our ability to think outside the box when it comes to developing compelling defenses for our clients. We’re also skilled negotiators and can often convince prosecutors to offer favorable plea deals to those clients who are interested in a non-trial resolution. 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.