N.Y. Penal Law § 130.05: Sex offenses; lack of consent

§ 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.

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

(d) Where the offense charged is rape in the third degree as defined

in subdivision seven, eight or nine of section 130.25, or a crime

formerly defined in subdivision three of section 130.40, 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.

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 who knows or reasonably

should know that such person is committed to the care and custody or

supervision of such department or hospital. 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 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, vocational training, institutional

parole services or direct supervision to incarcerated individuals; or

(B) of supervising persons released on community supervision and

supervises the victim at the time of the offense or has supervised the

victim and the victim is still under community supervision 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 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 incarcerated individual is

confined at the time of the offense, consisting of providing custody,

medical or mental health services, or direct supervision to such

incarcerated individuals; or

(iii) a person, including a volunteer, providing direct services to

incarcerated individuals in a state correctional facility in which the

victim is confined at the time of the offense pursuant to a contractual

arrangement with the state department of corrections and community

supervision or, in the case of a volunteer, a written agreement with

such department, provided that the person received written notice

concerning the provisions of this paragraph; or

(f) committed to the care and custody of a local correctional

facility, 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

committed to the care and custody of such facility. For purposes of this

paragraph, "employee" means an employee of the local correctional

facility where the person is committed who performs professional duties

consisting of providing custody, medical or mental health services,

counseling services, educational services, or vocational training for

incarcerated individuals. For purposes of this paragraph, "employee"

shall also mean a person, including a volunteer or a government employee

of the state department of corrections and community supervision or a

local health, education or probation agency, providing direct services

to incarcerated individuals 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

(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,

vocational training, or direct supervision to persons committed to or

placed in a residential facility operated by the office of children and

family services; or

(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, a crime formerly 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 examination; or

(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

(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.

(k) under the supervision of a local probation department, pursuant to

section two hundred seventy-two of the correction law, or another local

department or agency which fulfills a similar function and the actor is

an employee who knows or reasonably should know that such person is

committed to the supervision of a local probation department. For

purposes of this paragraph, "employee" means an employee of such local

probation department or agency who, as part of his or her employment,

supervises the victim at the time of the offense or has supervised the

victim and the victim is still under supervision of a local probation

department or agency at the time of the offense.