Under Section 130.75(a) of the New York State Penal Law, the crime of Course of Sexual Conduct against a Child in the First Degree reads as follows:
A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration, he or she engages in two or more acts of sexual conduct, which includes at least one-act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact, with a child not less 11 years old.
FIRST ELEMENT
The first element that the Jury/Judge would need to find would be that the defendant, engaged in two (2) or more acts of sexual conduct:
which included at least one (1) act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact to the victim.
So we need two (2) acts of sexual conduct, and at a minimum one of those acts has to be either:
- sexual intercourse
- deviate sexual intercourse or
- aggravated sexual contact.
We now again turn to the Penal Law to examine the statutory definitions of those terms
Sexual Conduct is defined as sexual intercourse, deviate sexual intercourse and sexual contact.
Sexual Intercourse has the ordinary meaning that everyone knows it to mean. However, under the Law, any penetration is sufficient.
Deviate Sexual Intercourse means sexual contact between two people, who are not married, consisting of either contact between the :
- penis and the anus
- mouth and the penis
- mouth and the vulva
Sexual Contact is defined as any touching of the intimate (private) parts of another person. The two people can not be married. The touching has to be for the purpose of gratifying the sexual desire of other party. This can be the offeender touching the victim, or the victim touching the offender. The touching can be skin to skin or through clothing.
Aggravated Sexual Contact – Inserting a foreign object into vagina, urethra, penis or rectum of a child and causing physical injury to child. This inserting can not be done for a valid medical purpose.
SECOND ELEMENT
That the Defendant intentionally engaged in these two or more acts of sexual conduct. Intentionally means that the defendants conscious objective was to cause the result, or to engage in the conduct. This is proven by the facts and circumstances leading up to, surrounding and following the events in question.
THIRD ELEMENT
The time period where the two (2) acts of sexual conduct over a period of time not less than three (3) months. The time period that these events took place has to be at a minimum three (3) months long.
FOURTH ELEMENT
That the victim/child was less than 11 years old on the date of the acts charged. The defendant does not need to know the age of the victim at the time of the offense – it does not matter what age the defendant though the victim was. The victim just has to be under 11 at the time the acts were committed.
DIFFERENCE BETWEEN THE FIRST DEGREE AND SECOND DEGREE
The difference between the first degree crime, and the second degree crime is that the first degree crime requires that one of the acts of sexual conduct be either:
- sexual intercourse
- criminal sexual act
- aggravated sexual contact
The second degree crime just requires two or more acts of sexual conduct.
The first degree crime is a B Felony, whereas the second degree crime is D Felony.
Todd A. Spodek is a Partner at Storobin & Spodek, LLP a Criminal Defense law firm in New York.