Appendix II: New York State Law

DEFINITIONS 

Many of the acts covered by this Policy are also considered crimes under New York state law. The following are definitions related to crimes under New York state law: 

Consent 

Lack of consent results from: forcible compulsion; or incapacity to consent; or where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct, or where  the offense charged is rape in the third degree [as defined in NYS Penal Law Section 130.25 (7), (8), or (9)], criminal sexual act in the third degree [as defined in Section 130.40(3)], in addition to forcible compulsion,  circumstances under which, at the time of the act of vaginal sexual contact, oral sexual contact or anal sexual contact, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.  

A person is deemed incapable of consent when he or she is: less than 17 years old; or mentally disabled; or mentally incapacitated; or physically helpless; or committed to the care and custody of the state department of corrections and community supervision or a hospital [as defined in NYS Corrections Law Section 400 (2)], and the actor is an employee who knows or reasonably should know that such person is committed to the care and custody of such department or hospital. 

Dating Violence 

New York state does not specifically define “dating violence.” However, under New York law, intimate relationships are covered by the definition of domestic violence when the act constitutes a crime listed elsewhere in this document and is committed by a person in an “intimate relationship” with the victim. See “Family or Household Member” for definition of “intimate relationship.” 

Domestic Violence                                   

Any act committed against any person over the age of 16, any married person or any parent accompanied by his or her minor child or children in situations in which such person or such person’s child is a victim of the act, which would constitute a violation of the penal law, including but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, strangulation, identity theft, grand larceny, or coercion; and such acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to a person or a person’s child. Such acts are alleged to have been committed by a family or household member.  

Family or Household Member 

Persons related by consanguinity or affinity; Persons legally married to one another; Persons formerly married to one another regardless of whether they still reside in the same household; Persons who have a child in common regardless of whether such persons are married or have lived together at any time; Unrelated persons who are continually or at regular intervals living in the same household or who have in the past continually or at regular intervals lived in the same household; Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors that may be considered in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”; Any other category of individuals deemed to be a victim of domestic violence as defined by the Office of Children and Family Services in regulation.  

Parent 

Means natural or adoptive parent or any individual lawfully charged with a minor child’s care or custody. 

Sex Offenses; Lack of Consent 

Whether or not specifically stated, it is an element of every sexual offense defined here that the sexual act was committed without consent of the victim. 

Sexual Misconduct 

When a person (1) engages in vaginal sexual contact with another person without such person’s consent; or (2) engages in oral sexual contact or anal sexual contact without such person’s consent; or (3) engages in sexual conduct with an animal or a dead human body. 

Rape in the Third Degree 

When a person (1) engages in vaginal sexual contact ,oral sexual contact or anal sexual contact with another person who is incapable of consent by reason of some factor other than being less than 17 years old; (2) being 21 years old or more, engages in vaginal sexual contact, oral sexual contact or anal sexual contact with another person less than 17 years old; or (3) engages in  vaginal sexual contact, oral sexual contact or anal sexual contact with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent. 

Rape in the Second Degree 

When a person (1) being 18 years old or more, engages in vaginal sexual contact , oral sexual contact or anal sexual contact with another person less than 15 years old; or (2) engages in vaginal sexual contact, oral sexual contact or anal sexual contactwith another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It is an affirmative defense to the crime of rape in the second degree that the defendant was less than four years older than the victim at the time of the act. 

Rape in the First Degree 

When a person engages in vaginal sexual contact, oral sexual contact or anal sexual contact with another person (1) by forcible compulsion; or (2) who is incapable of consent by reason of being physically helpless; or (3) who is less than 11 years old; or (4) who is less than 13 years old and the actor is 18 years old or more. 

Criminal Sexual Act in the Third Degree 

When a person engages in oral or anal sexual conduct (1) with a person who is incapable of consent by reason of some factor other than being less than 17 years old; or (2) being 21 years old or more, with a person less than 17 years old; or (3) with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent. 

Criminal Sexual Act in the Second Degree 

When a person engages in oral or anal sexual conduct with another person (1) and is 18 years or more and the other person is less than 15 years old; or (2) who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It is an affirmative defense that the defendant was less than four years older than the victim at the time of the act. 

Criminal Sexual Act in the First Degree 

When a person engages in oral or anal sexual conduct with another person (1) by forcible compulsion; or (2) who is incapable of consent by reason of being physically helpless; or (3) who is less than 11 years old; or (4) who is less than 13 years old and the actor is 18 years old or more. 

Forcible Touching 

Forcible touching includes: (1) When a person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire.  Forcible touching includes squeezing, grabbing, or pinching. 

Persistent Sexual Abuse 

When a person commits a crime of forcible touching, or second or third degree sexual abuse and, within the previous 10-year period, has been convicted two or more times, in separate criminal transactions for which a sentence was imposed on separate occasions of one of the above mentioned crimes or any offense defined in Article 130 of the NYS Penal Law, of which the commission or attempted commissions thereof is a felony. 

Sexual Abuse in the Third Degree 

When a person subjects another person to sexual contact without the latter’s consent. For any prosecution under this section, it is an affirmative defense that (1) such other person’s lack of consent was due solely to incapacity to consent by reason of being less than 17 years old; and (2) such other person was more than 14 years old; and (3) the defendant was less than five years older than such other person. 

Sexual Abuse in the Second Degree 

When a person subjects another person to sexual contact and when such other person is (1) incapable of consent by reason of some factor other than being less than 17 years old; or (2) less than 14 years old. 

Sexual Abuse in the First Degree 

When a person subjects another person to sexual contact (1) by forcible compulsion; or (2) when the other person is incapable of consent by reason of being physically helpless; or (3) when the other person is less than 11 years old; or (4) when the other person is less than 13 years old and the actor is 21 years old or older. 

Aggravated Sexual Abuse 

For the purposes of this section, conduct performed for a valid medical purpose does not violate the provisions of this section. 

Aggravated Sexual Abuse in the Fourth Degree 

When a person inserts a (1) foreign object in the vagina, urethra, penis,  rectum, or anus of another person and the other person is incapable of consent by reason of some factor other than being less than 17 years old; or (2) finger in the vagina, urethra, penis, rectum, or anus of another person causing physical injury to such person and such person is incapable of consent by reason of some factor other than being less than 17 years old. 

Aggravated Sexual Abuse in the Third Degree 

When a person inserts a foreign object in the vagina, urethra, penis, rectum, or anus of another person (1) (a) by forcible compulsion; or (b) when the other person is incapable of consent by reason of being physically helpless; or (c) when the other person is less than 11 years old;   (2) causing physical injury to such person and such person is incapable of consent by reason of being mentally disabled or mentally incapacitated. 

Aggravated Sexual Abuse in the Second Degree 

When a person inserts a finger in the vagina, urethra, penis, rectum, or anus of another person causing physical injury to such person by (1) forcible compulsion; or (2) when the other person is incapable of consent by reason of being physically helpless; or (3) when the other person is less than 11 years old. 

Aggravated Sexual Abuse in the First Degree 

When a person inserts a foreign object in the vagina, urethra, penis, rectum, or anus of another person causing physical injury to such person (1) by forcible compulsion; or (2) when the other person is incapable of consent by reason of being physically helpless; or (3) when the other person is less than 11 years old. 

Course of Sexual Conduct against a Child in the Second Degree 

When over a period of time, not less than three months in duration, a person: (1) Engages in two or more acts of sexual conduct with a child less than 11 years old; or (2) being 18 years old or more engages in two or more acts of sexual conduct with a child less than 13 years old. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside of the time period charged under this section. 

Course of Sexual Conduct against a Child in the First Degree 

When over a period of time, not less than three months in duration, a person: (1) Engages in two or more acts of sexual conduct, which includes at least one act of vaginal sexual contact, oral sexual contact, anal sexual contact or aggravated sexual contact with a child less than 11 years old; or (2) being 18 years old or more engages in two or more acts of sexual conduct which includes at least one act of  vaginal sexual contact, oral sexual contact, anal sexual contact or aggravated sexual contact with a child less than 13 years old. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside of the time period charged under this section.  

Facilitating a Sex Offense with a Controlled Substance 

A person is guilty of facilitating a sex offense with a controlled substance when he or she: (1) knowingly and unlawfully possesses a controlled substance or any preparation, compound, mixture, or substance that requires a prescription to obtain and administers such substance or preparation, compound, mixture, or substance that requires a prescription to obtain to another person without such person’s consent and with intent to commit against such person conduct constituting a felony defined in Article 130 of the NYS Penal Law; and (2) commits or attempts to commit such conduct constituting a felony defined in Article 130 of the NYS Penal Law. 

Incest in the Third Degree 

A person is guilty of incest in the third degree when he or she marries or engages in vaginal sexual contact, oral sexual contact or anal sexual contact with a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew, or niece. 

Incest in the Second Degree 

A person is guilty of incest in the second degree when he or she commits the crime of rape in the second degree, or criminal sexual act in the second degree, against a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew, or niece. 

Incest in the First Degree 

A person is guilty of incest in the first degree when he or she commits the crime of rape in the first degree, or criminal sexual act in the first degree, against a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or half blood, uncle, aunt, nephew, or niece. 

Stalking in the Fourth Degree 

When a person intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct (1) is likely to cause reasonable fear of material harm to the physical health, safety, or property of such person, a member of such person’s immediate family, or a third party with whom such person is acquainted; or (2) causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning, or initiating communication or contact with such person, a member of such person’s immediate family, or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or (3) is likely to cause such person to reasonably fear that his or her employment, business, or career is threatened, where such conduct consists of appearing, telephoning, or initiating communication or contact at such person’s place of employment or business, and the actor was previously clearly informed to cease that conduct. 

For purposes of section (2) above, “following” shall include unauthorized tracking of such person's movement or location through the use of a global positioning system or other device. 

Stalking in the Third Degree 

When a person (1) commits the crime of stalking in the fourth degree against any person in three or more separate transactions, for which the actor has not been previously convicted; or (2) commits the crime of stalking in the fourth degree against any person, and has previously been convicted, within the preceding 10 years, of a specified predicate crime [as defined in NYS Penal Law section 120.40(5)], and the victim of such specified predicate crime is the victim, or an immediate family member of the victim, of the present offense; or (3) with an intent to harass, annoy, or alarm a specific person, intentionally engages in a course of conduct directed at such person which is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment, or death of such person or a member of such person’s immediate family; or (4) commits the crime of stalking in the fourth degree and has previously been convicted, within the preceding 10 years, of stalking in the fourth degree. 

Stalking in the Second Degree 

When a person (1) commits the crime of stalking in the third degree and in the course of and furtherance of the commission of such offense: (a) displays, or possesses and threatens the use of, a firearm, pistol, revolver, rifle, , shotgun, machine gun, electronic dart gun, electronic stun gun, canesword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, slingshot, slungshot, shirken, “Kung Fu Star,” dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, dangerous instrument, deadly instrument, or deadly weapon; or (b) displays what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm; or (2) commits the crime of stalking in the third degree against any person, and has previously been convicted, within the preceding five years, of a specified predicate crime [as defined in NYS Penal Law section 120.40(5)], and the victim of such specified predicate crime is the victim, or an immediate family member of the victim, of the present offense; or (3) commits the crime of stalking in the fourth degree and has previously been convicted of stalking in the third degree; or (4) being 21 years of age or older, repeatedly follows a person under the age of 14 or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place such person who is under the age of 14 in reasonable fear of physical injury, serious physical injury, or death; or (5) commits the crime of stalking in the third degree, against 10 or more persons, in 10 or more separate transactions, for which the actor has not been previously convicted. 

Stalking in the First Degree 

When a person commits the crime of stalking in the third degree or stalking in the second degree and, in the course and furtherance thereof, he or she intentionally or recklessly causes physical injury to the victim of such crime; or commits a class A misdemeanor defined in Article 130 of the NYS Penal Law, or a class E felony defined in Section 130.25, 130.40, or 130.85 of the NYS Penal Law, or a class D felony defined in Section 130.30 or 130.45 of the NYS Penal Law. 

Hate Crimes/Bias-Related Crimes 

Hate crimes/bias-related crimes are criminal acts, including acts of violence, intimidation, or destruction of property, based upon bias and prejudice. Under the New York State Penal Code, a person commits a hate crime when he or she commits a specified offense and either (a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability, or sexual orientation of a person, regardless of whether the belief or perception is correct, or (b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability, or sexual orientation of a person, regardless of whether the belief or perception is correct. The New York State Penal Code, including the Hate Crimes Act of 2000, subjects bias-related and hate crimes to criminal prosecution and severe punishment. See Prohibited Bias and Discriminatory Harassment Policy.