Criminal Definitions

Consent. Under New York State Penal Law, Article 130.05, lack of consent results from forcible compulsion and incapacity to consent due to mental disability, mental incapacity, physical helplessness, or being less than 17 years old. Rape 3 and Criminal Sexual Act 3 have recently been modified with a "no means no" clause. In cases of intercourse only, if the victim expressed that he or she did not consent to the sex act in such a way that a reasonable person would have understood those words or acts as expressing lack of consent, this would be prosecutable as Rape in the third degree or Criminal Sexual Act in the third degree.

Rape is defined as the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

Fondling is defined as the touching of the private parts of another person for the purposes of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.

Incest is defined as non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

Statutory Rape is defined as non-forcible sexual intercourse with a person who is under the statutory age of consent.

Under New York State Penal Law, rape is always a felony. A person is guilty of rape when a person engages in sexual intercourse with another person without that person’s consent. Rape may be committed in seven (7) ways:

1. Forcible compulsion
2. Mentally Defective
3. Mentally Incapacitated
4. Person 21 years of age or older, engages in sexual intercourse with another person who is less than seventeen (17) years of age (16, 15, or 14).
5. Person, age 18 years of age or older, engages in sexual intercourse with another person who is less than 14 years old (13, 12, or 11).
6. The victim is physically helpless.
7. A male engages in intercourse with a female who is less than 11 years old (10 or less).

Sodomy is always a felony. A person is guilty of sodomy when that person engages in deviant sexual intercourse with another person, without that person’s consent. Sodomy may be committed in seven (7) ways as described above, under rape.

Sexual misconduct is always a misdemeanor. A person is guilty of sexual misconduct when:

• He or she engages in sexual intercourse with another person without such person’s consent; or
• He or she engages in deviant sexual intercourse with another person without such person’s consent; or
• He or she engages in sexual conduct with an animal or a dead human body.

Domestic Violence. The term “domestic violence” means 1) Felony or misdemeanor crimes of violence committed (i) by a current or former spouse or intimate partner of the victim; by a person with whom the victim shares a child in common; (iii) by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner; (iv) by a person similarly situated to a spouse of the victim or family violence laws of the jurisdiction in which the crime of violence occurred; or (v) by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred. 2) For the purposes of complying with the Clery reporting requirements, any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.

New York’s Domestic Violence Law requires that when the police are called, they must investigate even if the victim did not request their services. There is a mandatory arrest law in New York State when the police have probable cause to believe that a CRIME has been committed. The police MUST arrest the offender if the victim and the offender are members of the same family/household or intimate partners and:

• a felony was committed, or
• an Order of Protection was violated, or
• a family offense misdemeanor was committed (unless the victim requests otherwise), or
• Violation committed in the Officer’s Presence (unless the victim requests otherwise).

The law further:

• enables victims to bring their cases to family and criminal courts concurrently, instead of forcing victims to choose between them.
• requires violators face felony charges when harassing or threatening a victim during an order of protection violation.
• maintains a statewide Orders of Protection Registry to aid police and courts when taking action.
• allows courts to give orders of protection, even when the offender does not reside in New York state, thus giving victims who live or work in New York protection.
• requires police to determine the primary physical aggressor, so that victims of domestic violence are not inappropriately arrested along with their abusers when more than one person alleges violence.
• ensures safety for victims of domestic violence by promoting more rigorous interstate enforcement of orders of protection.

Dating Violence. The term “dating violence” means violence committed by a person 1) who is or has been in a social relationship of a romantic or intimate nature with the victim and 2) the existence of such a relationship shall be based on the reporting party’s statement and with consideration of the length of the relationship, the type pf relationship, and the frequency of interaction between the persons involved in the relationship. 3) For the purposes of this definition (i) dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse; (ii) dating violence does not include acts covered under the definition of domestic violence. For the purposes of complying with the Clery reporting requirements of this section, any incident meeting this definition is considered a crime for the purposes of Clery Reporting.

• Under New York State Penal Law, persons who commit criminal acts associated with dating violence are subject to arrest. Such crimes include, but are not limited to “Offenses against the person involving physical injury, sexual conduct, restraint and intimidation, as listed in Article 120, title H.

Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others; or suffer substantial emotional distress. For the purposes of this definition, (i) course of conduct means two or more acts, including, but not limited to, acts which the stalker directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, or interferes with a person’s property. (ii) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment of counseling. (iii) Reasonable persons may mean a reasonable person under similar circumstances and with similar identities to the victim. For the purposes of complying with the Clery reporting requirements of this section, any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.

• Under New York State Penal Law, a person is guilty of stalking when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:
  • Is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person's immediate family or a third party with whom such person is acquainted; or
  •  Causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person's immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or
  • Is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.

Effective October 21, 2014, "following" shall include the unauthorized tracking of such person's movements or location through the use of a global positioning system or other device. There are varying aggravating factors that may raise the level for a charge of Stalking (P.L. 120.45-120.60)