ESPN.com is reporting that Syracuse police are re-opening an investigation
into allegations that a Syracuse University assistant basketball coach
molested two underage ballboys beginning in the 1970s. The story reports that the criminal statute of limitations – or the
deadlines for bringing a criminal case against someone - is five years.
That is only somewhat accurate as the statutes of limitation for child-related
sex abuse crimes are complicated and depend upon the nature of the criminal
act. Criminal Procedure Law Section 30.10 sets forth the applicable criminal
statutes of limitation. New legislation passed in 2006 changed many of
these statutes of limitation for sex crimes. Now, there is no deadline
for bringing cases of Rape in the First Degree (Penal Law 130.35), Aggravated
Sexual Abuse in the First Degree (Penal Law Section 130.70), or Course
of Sexual Conduct in the First Degree (Penal Law Section 130.75), which
are all Class B violent sexual felonies. In cases involving other sex
crimes against children, there is a five-year statute of limitation that
begins upon the victim turning 18 (meaning that the deadline would be
the person's 23rd birthday). See Criminal Procedure Law Section 30.10[f].
It is unclear what exactly Bernie Fine is alleged to have done with these
two ball-boys, Bobby Davis and Mike Lang, but according to the complaints,
the victims were under the age of 13 and Fine was an adult. Thus, the
charges above could potentially apply, but there are many others that
might apply that would be too old to pursue.
A look now at the potential charges without a statute of limitation in New York:
A person is guilty of Rape in the First Degree (Penal Law Section 130.35)
if he or she engages in sexual intercourse 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 eleven years old; or 4. Who
is less than thirteen years old and the actor is eighteen years old or more.
"Sexual intercourse" has its ordinary meaning and occurs upon
any penetration, however slight. See Penal Law Section 130.00(1). By “ordinary
meaning,” the statute means vaginal intercourse.
"Forcible compulsion" means to compel by either: a) use of physical
force, or b) a threat, express or implied, which places a person in fear
of immediate death or physical injury to himself, herself or another person,
or in fear that he, she or another person will immediately be kidnapped.
See Penal Law Section 130.00(8).
"Physically helpless" means that a person is unconscious or for
any other reason is physically unable to communicate unwillingness to
an act. This term often applies in cases involving "date rape"
drugs, such as rohypnol. See Penal Law Section 130.00(7).
A person is guilty of Aggravated Sexual Abuse in the First Degree (Penal
Law Section 130.70) when he or she inserts a foreign object in the vagina,
urethra, penis, rectum or anus of another person causing physical injury
to such person: a) by forcible compulsion; b) When the other person is
incapable of consent by reason of being physically helpless; or c) When
the other person is less than eleven years old.
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:
a) he or she engages in two or more acts of sexual conduct, which includes
at least one act of sexual intercourse, oral sexual conduct, anal sexual
conduct, or aggravated sexual contact, with a child less than eleven years
old; or b) he or she, being eighteen years old or more, engages in two
or more acts of sexual conduct, which include at least one act of sexual
intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual
contact, with a child less than thirteen years old.
"Oral sexual conduct" means conduct between persons consisting
of contact between the mouth and the penis, the mouth and the anus, or
the mouth and the vulva or vagina. See Penal Law Section 130.00(2)(a).
"Anal sexual conduct" means conduct between persons consisting
of contact between the penis and anus. See Penal Law Section 130.00(2)(b).
"Sexual contact" means any touching of the sexual or other intimate
parts of a person for the purpose of gratifying sexual desire of either
party. It includes the touching of the actor by the victim, as well as
the touching of the victim by the actor, whether directly or through clothing,
as well as the emission or ejaculate by the actor upon any part of the
victim, clothed or unclothed. See Penal Law Section 130.00(3).
"Aggravated sexual contact" means inserting, other than for a
valid medical purpose, a foreign object in the vagina, urethra, penis,
rectum or anus of a child, thereby causing physical injury to such child.
See Penal Law Section 130.00(11).
"Sexual conduct" means sexual intercourse, oral sexual conduct,
anal sexual conduct, aggravated sexual contact, or sexual contact. See
Penal Law Section 130.00(10). Thus, in determining whether the statute
of limitations might have run in the Syracuse case, the police will have
to determine whether the witnesses are credible, what their ages were
at the time of the crimes, and the number and nature of the acts committed
against them. In short, though, Bernie Fine is probably safe from criminal
prosecution by virtue of the states of limitation unless there is a finding
that he committed a forcible act or an act of sexual intercourse, oral
sexual conduct, anal sexual conduct, or aggravated sexual contact.
If you are a victim of rape or sexual abuse, or if you have been falsely
accused of having committed one of these crimes, then you should strongly
consider contacting the experienced attorneys at Galluzzo & Arnone
LLP. Matthew Galluzzo, in particular, was a prosecutor in the famous Sex
Crimes Unit at the Manhattan District Attorney's Office, and now represents
victims in civil lawsuits against their abusers, as well as innocent criminal
Give them a call today to discuss your case and determine whether they
can be of assistance to you.
Aggravated Sexual Abuse in the First Degree,
Course of Sexual Conduct Against a Child in the First Degree,
criminal defense attorney,
Galluzzo & Arnone LLP,
new york city,
Penal Law Section 130.35,
Penal Law Section 130.70,
Penal Law Section 130.75,
Rape in the First Degree,
sex crime lawsuit,
sexual abuse lawsuit,
sexual abuse victim,
statute of limitation,
statutes of limitation,
Syracuse basketball assistant coach,