Sexual Misconduct

Sexual misconduct is a Class A misdemeanor under New York Penal Law §130.20. There are many acts that can be considered sexual misconduct, including sexual conduct with another person without such person's consent. Sexual misconduct is often a lesser included offense of more serious felony charges.

Given the negative social stigma that comes with a sexual misconduct charge, it's important to quickly discuss your case with an experienced defense attorney. The more time you delay in forming a defense strategy, the more risk for damage to your life or that of your loved ones.

Queens Sexual Misconduct Defense Attorney

With more than 20 years of experience in the New York City criminal justice system, both as a prosecutor and defense attorney, Rochelle S. Berliner has the experience to confidently defend her clients. She is passionate about fighting for the rights and futures of people charged with misdemeanor or felony offenses.

Rochelle S. Berliner understands the value of developing strong relationships with clients and makes every effort to educate clients about their situation. She will fight for your rights through every step of the criminal process. Call the Law Office at or send an online message for a free consultation about your legal options in allegations of sexual misconduct in New York City.

New York City Sexual Misconduct Information Center

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Forcible Compulsion of Sexual Intercourse in New York

Under New York Penal Law §130.20 (1), it is a Class A misdemeanor offense to engage in sexual intercourse without the other party's consent. The law defines sexual intercourse as any penetration of the penis into the vaginal opening, regardless of the length penetrated. Erection, emission, or orgasms are not required functions of sexual intercourse.

When there is no consent for sexual intercourse because of forcible compulsion, this is considered a criminal offense. Forcible compulsion means to intentionally compel either:

  • by the use of physical force; or
  • by a threat, express or implied, which places a person in fear of immediate death or physical injury to himself or herself [or  another person] or in fear that he or she [or  another person] will immediately be kidnapped.

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Forcible Anal or Oral Sexual Conduct in New York

New York Penal Law § 130.20(2) states: a person is guilty of sexual misconduct if he or she engages in oral or sexual misconduct with another person without such person's consent.

Oral sexual conduct refers to conduct between people using contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina. Anal sexual conduct means conduct between people using contact between the penis and anus.

It is a misdemeanor offense to force anal or oral sexual acts onto or from another individual, either:

  • by using physical force; or
  • by threatening (express or implied) and putting a person in fear of immediate death, or physical injury to himself or herself (or another person), or fear that he or she will immediately be kidnapped.

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Incapacity to Consent to Sexual Conduct in New York

There are certain types of individuals who are incapable of providing consent. This includes people who are:

  • Under 17 years old;
  • Mentally disabled;
  • Mentally incapacitated;
  • Physically helpless;
  • Under the care and custody of the New York State Department of Correctional Services or a hospital;
  • Committed to the care of a local correctional facility; or
  • Placed in the New York State Office of Children and Family Services.

An individual under seventeen (17) years old is legally incapable of consenting to sexual intercourse. It is not a valid argument that the defendant was not aware that the other party was under 17 years old or that the defendant believed that the other party was 17 years old or older at the time of the offense. Note: an exception to this law is when both individuals are legally recognized as married to one another.

Individuals who are mentally disabled also cannot give consent legally. A mentally disabled person is somebody that suffers from a disease or defect that renders them incapable of understanding the nature of their actions.

Mentally incapacitated individuals cannot provide consent to sexual intercourse. A person is mentally incapacitated when they been made temporarily unable to understand or control their actions through the use of narcotics or alcohol administered without their consent (or any act committed upon the individual without their consent).

The state of being physically helpless is defined as being unconscious or for any other reason being unable to communicate consent.

People who are committed to hospitals, correctional facilities, or the office of children and family services are incapable of providing consent. The actor of the sexual misconduct in these situations is not married to the individual committed, and knows or reasonably should know that the individual committed is committed to the care of said facility.

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Law Office | Sexual Misconduct Arrest in New York City

Prosecutors in New York take sex crimes very seriously. If you are under investigation for or have already been charged with sexual misconduct, you will want to immediately contact the Law Office.

Queens criminal defense attorney Rochelle S. Berliner represents clients in all five boroughs of New York City, including Manhattan, the Bronx, Queens, Staten Island, and Brooklyn. You can call or submit an online form to take advantage of a free consultation that will let our firm review your case.