New York Penal Law § 130.70 – Aggravated Sexual Abuse in the First Degree

Under the New York Penal Law, Aggravated Sexual Abuse is a sex crime that generally prohibits individuals from inserting a finger or foreign object into another’s rectum, anus or sexual organ without their consent. There are four degrees of Aggravated Sexual Abuse, and Aggravated Sexual Abuse in the First Degree is the most serious. This crime covers situations where the defendant places a foreign object into the rectum, anus or sexual organ of another through “forcible compulsion” or when the alleged victim is physically helpless or under 11 years old. Aggravated Sexual Abuse in the First Degree is a class B felony.

Under the United States and New York constitutions, no one can be convicted of any crime, including Aggravated Sexual Abuse in the First Degree, unless and until the government proves each element of the offense beyond a reasonable doubt.

Under § 130.70, the elements of Aggravated Sexual Abuse in the First Degree are:

1. The defendant inserted a foreign object into another person’s vagina, penis, urethra, anus or rectum;
2. The alleged victim experienced physical injury; and
3. One of the following applies:
   1. The defendant used forcible compulsion;
   2. The alleged victim was physically helpless; or
   3. The alleged victim was under 11 years old at the time.

In this context, “physical injury” includes any “impairment of physical condition or substantial pain.” Additionally, forcible compulsion refers to a defendant’s use of physical force or threats that place the other person in fear of immediate death, physical injury, or that they will be kidnapped. Finally, the term “physically helpless” describes the state of being unconscious or otherwise unable to communicate unwillingness to the defendant’s acts.

Examples of Aggravated Sexual Abuse in the First Degree include:

• A defendant uses a sex toy to penetrate the anus of a 10-year-old child; or
• A defendant inserts an object into the anus of a person who is in a coma.

Depending on the situation, prosecutors may bring the following charges along with Aggravated Sexual Abuse in the First Degree:

• Aggravated Sexual Abuse in the Second Degree – NY Penal Law § 130.67
• Aggravated Sexual Abuse in the Third Degree – NY Penal Law § 130.66
• Aggravated Sexual Abuse in the Fourth Degree – NY Penal Law § 130.65-A
• Criminal Sexual Act in the First Degree – NY Penal Law § 130.50
• Criminal Sexual Act in the Second Degree – NY Penal Law § 130.45
• Criminal Sexual Act in the Third Degree – NY Penal Law § 130.40
• Forcible Touching – NY Penal Law § 130.52
• Sexual Misconduct – NY Penal Law § 130.20

There are several defenses to Aggravated Sexual Abuse in the First Degree. For example, under NY Penal Law § 130.70(2), it is a defense to these charges if the defendant’s actions were performed for a valid medical reason, such as conducting an rectal examination on a patient who was anesthetized at the time.

In addition, the following defenses may also apply:

• The alleged victim fabricated the allegations;
• The alleged victim consented to the conduct (when age is not an element of the offense); and
• The defendant’s finger or foreign object was not inserted into the alleged victim’s penis, urethra, vagina, rectum or anus.

In some cases where the defendant and alleged victim do not know each other, misidentification could also be a defense. Additionally, defendants may challenge the admissibility of evidence that was illegally obtained, such as statements made by the defendant to detectives.

Aggravated Sexual Abuse in the First Degree is a class B felony, which carries a sentence of up to 25 years in prison and a fine of up to $50,000. Additionally, because Aggravated Sexual Abuse in the First Degree is defined as a “sexually violent offense” under NY Corrections Law § 168-a, anyone convicted of Aggravated Sexual Abuse must register as a sex offender for the rest of their life.

If you or a loved one was recently arrested and charged with Aggravated Sexual Abuse in the First Degree or any other New York sex crime, it is imperative you consult with an experienced criminal defense attorney as soon as possible. At Tilem & Associates, P.C., our knowledgeable sex crime defense lawyers have aggressively defended the rights, freedoms and futures of our clients charged with these 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.