NY Penal L § 130.05 (2021)
2021 New York Laws PEN - Penal Part 3 - Specific Offenses Title H - Offenses Against the Person Involving Physical Injury, Sexual Conduct, Restraint and Intimidation Article 130 - Sex Offenses 130.05 - Sex Offenses; Lack of Consent.

§ 130.05 Sex offenses; lack of consent.   1.  Whether  or  not  specifically  stated,  it is an element of every offense defined in this  article  that  the  sexual  act  was  committed without consent of the victim.   2. Lack of consent results from:  (a) Forcible compulsion; or  (b) Incapacity to consent; or  (c)  Where  the  offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or  incapacity  to consent,  in  which the victim does not expressly or impliedly acquiesce in the actor's conduct; or  (d) Where the offense charged is rape in the third degree  as  defined in  subdivision  three  of section 130.25, or criminal sexual act in the third degree as defined in  subdivision  three  of  section  130.40,  in addition  to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal  sexual  conduct, the victim clearly expressed that he or she did not consent to engage in such  act,  and  a reasonable person in the actor's situation would have understood such person's words and acts as  an  expression  of  lack  of consent to such act under all the circumstances.   3. A person is deemed incapable of consent when he or she is:  (a) less than seventeen years old; or  (b) mentally disabled; or  (c) mentally incapacitated; or  (d) physically helpless; or  (e)  committed  to  the  care  and custody or supervision of the state department of corrections and community supervision or  a  hospital,  as such  term  is defined in subdivision two of section four hundred of the correction law, and the actor is an employee  who  knows  or  reasonably should  know  that  such  person is committed to the care and custody or supervision of  such  department  or  hospital.  For  purposes  of  this paragraph,  "employee"  means (i) an employee of the state department of corrections and community  supervision  who,  as  part  of  his  or  her employment,  performs  duties:  (A)  in a state correctional facility in which the victim is confined at the time of the  offense  consisting  of providing   custody,  medical  or  mental  health  services,  counseling services,  educational  programs,  vocational  training,   institutional parole services or direct supervision to incarcerated individuals; or  (B)  of  supervising  persons  released  on  community supervision and supervises the victim at the time of the offense or has  supervised  the victim  and  the victim is still under community supervision at the time of the offense; or  (ii) an employee of the office of mental health who, as part of his or her employment, performs duties in  a  state  correctional  facility  or hospital,  as  such  term  is defined in subdivision two of section four hundred of the correction law in which the  incarcerated  individual  is confined  at  the  time of the offense, consisting of providing custody, medical or  mental  health  services,  or  direct  supervision  to  such incarcerated individuals; or  (iii)  a  person,  including a volunteer, providing direct services to incarcerated individuals in a state correctional facility in  which  the victim  is confined at the time of the offense pursuant to a contractual arrangement with the  state  department  of  corrections  and  community supervision  or,  in  the  case of a volunteer, a written agreement with such department,  provided  that  the  person  received  written  notice concerning the provisions of this paragraph; or  (f)  committed  to  the  care  and  custody  of  a  local correctional facility, as such term is defined in subdivision two of section forty of  the correction law, and the actor is an employee, not  married  to  such person,  who  knows  or  reasonably  should  know  that  such  person is committed to the care and custody of such facility. For purposes of this paragraph,  "employee"  means  an  employee  of  the  local correctional facility where the person is committed who performs professional  duties consisting  of  providing  custody,  medical  or mental health services, counseling services, educational services, or  vocational  training  for incarcerated  individuals.  For  purposes  of this paragraph, "employee" shall also mean a person, including a volunteer or a government employee of the state department of corrections and community  supervision  or  a local  health,  education or probation agency, providing direct services to incarcerated individuals in the local correctional facility in  which the  victim  is  confined  at  the  time  of  the  offense pursuant to a contractual arrangement with the local correctional  department  or,  in the case of such a volunteer or government employee, a written agreement with  such department, provided that such person received written notice concerning the provisions of this paragraph; or  (g) committed to or placed with the  office  of  children  and  family services  and  in  residential  care,  and the actor is an employee, not married to such person, who knows or reasonably should  know  that  such person is committed to or placed with such office of children and family services  and  in  residential  care.  For  purposes  of this paragraph, "employee" means an employee  of  the  office  of  children  and  family services  or of a residential facility in which such person is committed to or placed at the time of the offense who,  as  part  of  his  or  her employment,  performs duties consisting of providing custody, medical or mental  health  services,  counseling  services,  educational  services, vocational  training,  or  direct supervision to persons committed to or placed in a residential facility operated by the office of children  and family services; or  (h)  a  client  or  patient and the actor is a health care provider or mental health care provider charged with rape in  the  third  degree  as defined  in  section  130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth  degree as  defined  in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination; or  (i) a resident  or  inpatient  of  a  residential  facility  operated, licensed  or  certified  by  (i)  the  office of mental health; (ii) the office for people with developmental disabilities; or (iii)  the  office of alcoholism and substance abuse services, and the actor is an employee of  the facility not married to such resident or inpatient. For purposes of this paragraph, "employee" means either: an employee  of  the  agency operating  the residential facility, who knows or reasonably should know that such person is a resident or inpatient of  such  facility  and  who provides  direct  care  services,  case  management services, medical or other clinical services, habilitative services or direct supervision  of the  residents  in  the  facility  in  which the resident resides; or an officer or other employee, consultant, contractor or  volunteer  of  the residential  facility,  who  knows  or  reasonably  should know that the person is a resident of such facility and who is in direct contact  with residents  or inpatients; provided, however, that the provisions of this paragraph shall only apply to  a  consultant,  contractor  or  volunteer providing services pursuant to a contractual arrangement with the agency operating  the  residential  facility  or, in the case of a volunteer, a written agreement with such facility, provided that the person  received written  notice  concerning  the  provisions of this paragraph; provided further,  however,  "employee"  shall  not  include  a  person  with   a  developmental disability who is or was receiving services and is also an employee  of  a service provider and who has sexual contact with another service recipient who is a consenting adult who has  consented  to  such contact; or  (j)  detained  or  otherwise in the custody of a police officer, peace officer, or other law enforcement official and the  actor  is  a  police officer, peace officer or other law enforcement official who either: (i) is  detaining  or  maintaining custody of such person; or (ii) knows, or reasonably should know, that at the time of the offense, such person was detained or in custody.