A very common arrest in New York City involves charges of Forcible Touching and/or Sexual Abuse in the Third Degree. The two charges are very similar but subtly different, and a conviction for either can result in shame and embarrassment, a criminal record, jail time, and possible registration as a sex offender. So, although these charges are misdemeanors, it is absolutely critical that these allegations be taken seriously and that anyone facing such a charge consult with an experienced criminal defense attorney immediately.
Forcible Touching, a violation of Penal Law Section 130.52, is a class A misdemeanor punishable by up to one year in jail. A person is guilty of this charge when “such person intentionally and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire. For the purpose of this section, forcible touching includes squeezing, grabbing or pinching.”
Sexual Abuse in the Third Degree, a violation of Penal Law Section 130.55, is a class B misdemeanor punishable by up to 90 days in jail. A person is guilty of this charge when he or she “subjects another person to sexual contact without the latter’s consent,” except that in any prosecution under this section, it is an affirmative defense that “(a) such other person’s lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person.”
The most important term in that charge, “sexual contact,” is defined as “any touching of the sexual or other intimate parts of a person not married to the actor 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.” See Penal Law Section 130.00(3).
As you can see, the charges are very similar, though there is a force element to the first charge and not to the latter.
Both of these charges can result in sex offender registration, in cases where the victim is less than eighteen years of age or where the defendant has a prior conviction for a sex offense, a sexually violent offense, forcible touching or sexual abuse in the third degree or an attempt thereof even if registration was not required for the prior conviction; regardless of when the prior conviction occurred. For more on this, click here. For more on the classification process for sex offenders, visit this page.
These charges usually arise from incidents in crowded bars involving intoxicated people or on crowded subways or buses, and are frequently very defensible. After all, there is rarely any forensic evidence, or evidence of any sort, beyond the testimony of the complaining witness. In some cases, however, undercover police officers in the subway system or on mass transit notice suspicious individuals following their targets or “looping” up and down the same subway line looking for victims, and then actually catch the offenders in the act. These cases can be much more difficult to defend against.
Oftentimes, plea negotiations involving first-time offenders can result in convictions of lesser offenses like Harassment in the Second Degree (Penal Law Section 240.26) or Disorderly Conduct (Penal Law Section 240.20) with behavioral counseling. However, these cases can result in sentences involving incarceration and must be treated more seriously than the “average” misdemeanor. On the other hand, repeat offenders can be charged with Persistent Sexual Abuse, a Class E felony, in violation of Penal Law Section 130.53.
If you or a loved one have been arrested or issued a Desk Appearance Ticket for Forcible Touching or Sexual Abuse in the Third Degree, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Arnone LLP, who have a strong background in this area and a proven track record of success in defending against serious sex crimes cases.