New York Penal Law § 130.65-A – Aggravated Sexual Abuse in the Fourth Degree

Aggravated Sexual Abuse in the Fourth Degree is a New York sexual offense that harshly punishes conduct related to the insertion of a finger or foreign object into the penis, urethra, vagina, rectum or anus of another person without their consent. Aggravated Sexual Abuse in the Fourth Degree applies when the alleged victim is incapable of providing consent for any reason other than the fact that they are under 17 years old. Aggravated Sexual Abuse in the Fourth Degree is a class E felony.

Before a judge or jury can convict anyone of any offense, including Aggravated Sexual Abuse in the Fourth Degree, the government must prove every element of the offense beyond a reasonable doubt. There are two ways someone can commit Aggravated Sexual Abuse in the Fourth Degree.

Under § 130.65-A(1)(a), the elements of Aggravated Sexual Abuse in the Fourth Degree are:

1. The accused nserted a foreign object into another person’s vagina, penis, urethra, anus or rectum; and
2. The other person was physically helpless or unable to consent to the sexual conduct.

Under § 130.65-A(1)(b), the elements of Aggravated Sexual Abuse in the Fourth Degree are:

1. The defendant inserted a finger into another person’s vagina, penis, urethra, anus or rectum;
2. The person suffered physical injury; and
3. The other person was physically helpless or otherwise unable to consent to the sexual conduct.

These two subsections are similar; however, the primary difference is that penetration with a finger under subsection (b) requires the prosecution to prove that the alleged victim suffered physical injury. In this context, physical injury is defined as “impairment of physical condition or substantial pain.”

Examples of Aggravated Sexual Abuse in the Fourth Degree include:

• A defendant inserts an object, such as a sex toy, into the vagina of a person who was intoxicated to the point they could not provide consent; or
• Without a valid medical purpose, the defendant inserts an object into the anus of someone who was physically helpless.

Note, however, that many of the scenarios giving rise to these charges could also be charged under more serious versions of the Aggravated Sexual Abuse statutes. Thus, Aggravated Sexual Abuse of the Fourth Degree is a sort of catch-all charge that prosecutors often bring in conjunction with more serious offenses.

Often, prosecutors bring charges of Aggravated Sexual Abuse in the Fourth Degree along with one or more of the following:

• Forcible Touching – NY Penal Law § 130.52
• Sexual Misconduct – NY Penal Law § 130.20
• Aggravated Sexual Abuse in the Third Degree – NY Penal Law § 130.66
• Aggravated Sexual Abuse in the Second Degree – NY Penal Law § 130.67

Available Defenses to 4^th Degree Aggravated Sexual Abuse

There are various defenses to Aggravated Sexual Abuse in the Fourth Degree, including one contained within the statutory text. Under subsection (2), it is a defense if the conduct that would otherwise violate the statute was performed for valid medical purposes. For example, a doctor conducting a necessary examination on a patient would not commit Aggravated Sexual Abuse in the Fourth Degree.

Other than this relatively narrow defense, other defenses to Aggravated Sexual Abuse in the Fourth Degree include:

• Fabrication;
• The alleged victim was capable of and did provide consent;
• While contact between a finger or foreign object occurred, the finger or object was not inserted into the alleged victim’s penis, urethra, vagina, rectum or anus; and
• Misidentification.

Additionally, in certain situations, the fact that the defendant was married to the alleged victim may be a defense to these charges.

Aggravated Sexual Abuse in the Fourth 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 Aggravated Sexual Abuse in the Fourth Degree must register as a sex offender for life.

If you have been charged with Aggravated Sexual Abuse or any other New York sex crime, it is imperative that you have an experienced attorney by your side as early as possible. At the NY criminal defense law firm of Tilem & Associates, P.C., our lawyers have decades of experience defending aggressively defending the rights and freedoms of our clients, regardless of the serious nature of the crimes they face. 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.