2012 New York Consolidated Laws
PEN - Penal
Part 3 - SPECIFIC OFFENSES
Title H - OFFENSES AGAINST THE PERSON INVOLVING PHYSICAL INJURY, SEXUAL CONDUCT, RESTRAINT AND INTIMIDATION
Article 130 - (130.00 - 130.96) 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 inmates; 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 inmate  is  confined  at  the
  time  of the offense, consisting of providing custody, medical or mental
  health services, or direct supervision to such inmates; or
    (iii) a person, including a volunteer, providing  direct  services  to
  inmates 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
  inmates. 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 inmates 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.