2023 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.
* NB Effective until September 1, 2024
* (d) Where the offense charged is rape in the third degree as defined
in subdivision seven, eight or  nine  of  section  130.25,  or  a  crime
formerly  defined in subdivision three of section 130.40, in addition to
forcible compulsion, circumstances under which, at the time of  the  act
of  vaginal  sexual contact, oral sexual contact or anal sexual contact,
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.
* NB Effective September 1, 2024
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
* NB Effective until September 1, 2024
* (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, a crime formerly 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
* NB Effective September 1, 2024
(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.