Sec. 130.05 Sex offenses; lack of consent.
1. Whether or not specifically stated, it is an element of every
offense defined in this article,
that the sexual act was committed without consent of the victim.
(As amended by L.2003, c.264, effective 11/1/03.)
2. Lack of consent results from:
(a) Forcible compulsion; or
(b) Incapacity to consent; or
(c) 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
(As amended by L.2003, c.264, effective 11/1/03.)
(d) Where the offense charged is rape in the third degree as defined
in subdivision three of section 130.25, or criminal sexual act
in the third degree as defined in subdivision three of section 130.40,
in addition to forcible compulsion, circumstances under which, at the
time of the act of intercourse, oral sexual conduct or anal sexual
conduct, 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.
(As amended by L.2003, c.264, effective 11/1/03.)
(As amended by L.2004, c.40, effective 4/20/04.)
3. A person is deemed incapable of consent when he or she is:
(a) less than seventeen years old; or
(b) mentally disabled; or
(c) mentally incapacitated; or
(d) physically helpless; or
(e) committed to the care and custody or supervision of the state
department of corrections and community supervision or a hospital, as
such term is defined in subdivision two of section four hundred of the
correction law, and the actor is an employee[, not married to such
person,] who knows or reasonably should know that such person is commit-
ted to the care and custody or supervision of such department or hospi-
tal. For purposes of this paragraph, "employee" means (i) an employee of
the state department of corrections and community supervision who, as
part of his or her employment, performs [professional] duties: (A) in a
state correctional facility in which the victim is confined at the time
of the offense consisting of providing custody, medical or mental health
services, counseling services, educational programs, [or] vocational
training [for], institutional parole services or direct supervision to
inmates; or
(B) [in a state correctional facility and who provides institutional
parole services] of supervising persons released on community super-
vision and supervises the victim at the time of the offense or has
supervised the victim and the victim is still under community super-
vision at the time of the offense; or
(ii) an employee of the office of mental health who, as part of his or
her employment, performs [professional] duties in a state correctional
facility or hospital, as such term is defined in subdivision two of
section four hundred of the correction law in which the inmate is
confined at the time of the offense, consisting of providing custody,
[or] medical or mental health services [for], or direct supervision to
such inmates; or
(iii) a person, including a volunteer, providing direct services to
inmates in [the] a state correctional facility in which the victim is
confined at the time of the offense pursuant to a contractual arrange-
ment with the state department of [correctional services] corrections
and community supervision or, in the case of a volunteer, a written
agreement with such department, provided that the person received writ-
ten notice concerning the provisions of this paragraph; or
(As amended by L.2011 c.205 eff. 11/01/11)
(f) committed to the care and custody of a local correctional facili-
ty, as such term is defined in subdivision two of section forty of the
correction law, and the actor is an employee, not married to such
person, who knows or reasonably should know that such person is commit-
ted to the care and custody of such facility. For purposes of this para-
graph, "employee" means an employee of the local correctional facility
where the person is committed who performs professional duties consist-
ing of providing custody, medical or mental health services, counseling
services, educational services, or vocational training for inmates. For
purposes of this paragraph, "employee" shall also mean a person, includ-
ing a volunteer or a government employee of the state division of parole
or a local health, education or probation agency, providing direct
services to inmates in the local correctional facility in which the
victim is confined at the time of the offense pursuant to a contractual
arrangement with the local correctional department or, in the case of
such a volunteer or government employee, a written agreement with such
department, provided that such person received written notice concerning
the provisions of this paragraph; or
(Added by L.2007 c.335 effective )
(g) committed to or placed with the office of children and family
services and in residential care, and the actor is an employee, not
married to such person, who knows or reasonably should know that such
person is committed to or placed with such office of children and family
services and in residential care. For purposes of this paragraph,
"employee" means an employee of the office of children and family
services or of a residential facility in which such person is committed
to or placed at the time of the offense who, as part of his or her
employment, performs duties consisting of providing custody, medical or
mental health services, counseling services, educational services, [or]
vocational training [for], or direct supervision to persons committed to
or placed [with] in a residential facility operated by the office of
children and family services [and in residential care]; or
(As amended by L.2011 c.205 eff. 11/01/11)
(h) a client or patient and the actor is a health care provider or
mental health care provider charged with rape in the third degree as
defined in section 130.25, {sodomy} CRIMINAL SEXUAL ACT in the third
degree as defined in section 130.40, aggravated sexual abuse in the
fourth degree as defined in section 130.65-a, or sexual abuse in the
third degree as defined in section 130.55, and the act of sexual conduct
occurs during a treatment session, consultation, interview, or examina-
tion; or
(As amended by L.2003, c.264, effective 11/1/03.)
(i) a resident or inpatient of a residential facility operated,
licensed or certified by (i) the office of mental health; (ii) the
office for people with developmental disabilities; or (iii) the office
of alcoholism and substance abuse services, and the actor is an employee
of the facility not married to such resident or inpatient. For purposes
of this paragraph, "employee" means either: an employee of the agency
operating the residential facility, who knows or reasonably should know
that such person is a resident or inpatient of such facility and who
provides direct care services, case management services, medical or
other clinical services, habilitative services or direct supervision of
the residents in the facility in which the resident resides; or an
officer or other employee, consultant, contractor or volunteer of the
residential facility, who knows or reasonably should know that the
person is a resident of such facility and who is in direct contact with
residents or inpatients; provided, however, that the provisions of this
paragraph shall only apply to a consultant, contractor or volunteer
providing services pursuant to a contractual arrangement with the agency
operating the residential facility or, in the case of a volunteer, a
written agreement with such facility, provided that the person received
written notice concerning the provisions of this paragraph; provided
further, however, "employee" shall not include a person with a
developmental disability who is or was receiving services and is also an
employee of a service provider and who has sexual contact with another
service recipient who is a consenting adult who has consented to such
contact; or
(Added by L.2012, c.501 Part G section 2)
(j) detained or otherwise in the custody of a police officer, peace
officer, or other law enforcement official and the actor is a police
officer, peace officer or other law enforcement official who either: (i)
is detaining or maintaining custody of such person; or (ii) knows, or
reasonably should know, that at the time of the offense, such person was
detained or in custody.
(Added by L.2018, c.255, effective 06/11/18.)