§ 260.32 Endangering the welfare of a vulnerable elderly person,  or  an
             incompetent  or  physically  disabled  person in the second
             degree.
  A person is guilty of endangering the welfare of a vulnerable  elderly
person,  or  an  incompetent or physically disabled person in the second
degree when, being a caregiver for a vulnerable elderly  person,  or  an
incompetent or physically disabled person:
  1.  With  intent  to  cause  physical injury to such person, he or she
causes such injury to such person; or
  2. He or she recklessly causes physical injury to such person; or
  3. With criminal negligence, he or she causes physical injury to  such
person by means of a deadly weapon or a dangerous instrument; or
  4.  He  or  she  subjects  such  person  to sexual contact without the
latter's consent. Lack of consent under this  subdivision  results  from
forcible compulsion or incapacity to consent, as those terms are defined
in  article  one  hundred  thirty  of this chapter, or any other circum-
stances in which the vulnerable elderly person,  or  an  incompetent  or
physically  disabled person does not expressly or impliedly acquiesce in
the caregiver's conduct. In any prosecution under  this  subdivision  in
which the victim's alleged lack of consent results solely from incapaci-
ty  to consent because of the victim's mental disability or mental inca-
pacity, the provisions of section 130.16 of this chapter shall apply. In
addition, in  any  prosecution  under  this  subdivision  in  which  the
victim's  lack  of consent is based solely upon his or her incapacity to
consent because he or she was mentally disabled, mentally  incapacitated
or physically helpless, it is an affirmative defense that the defendant,
at  the  time he or she engaged in the conduct constituting the offense,
did not know of the facts or conditions responsible for such  incapacity
to consent.
  Endangering the welfare of a vulnerable elderly person, or an incompe-
tent  or  physically  disabled  person in the second degree is a class E
felony.
(As amended by L.2010 c.14 effective 5/22/10.)