A person is guilty of aggravated sexual abuse in the fourth degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum, or anus of another person and that person is incapable of consent. Actions performed for a valid medical purpose will not violate the provisions of this law. If a person is found guilty of aggravated sexual abuse in the fourth degree, he or she will be charged with a Class E felony.

A foreign object is any instrument or article that, when inserted into the victim’s body, is capable of causing physical injury. Physical injury means impairment of a person’s physical condition or substantial pain.

Insertion of a foreign object takes place without a person’s consent when that person is deemed by the law to be incapable of consent. An individual is incapable of consent when he or she is: (1) Mentally disabled; (2) mentally incapacitated; or (3) physically helpless.

A person is mentally disabled under New York State law when that person suffers from a mental disease or defect which renders him or her incapable of assessing the nature of his or her conduct. A person is mentally incapacitated under New York State law when that person is rendered temporarily incapable of assessing or controlling his or her conduct because of the influence of a narcotic or intoxicating substance administered to him or her without his or her consent. A person is physically helpless under New York State law when that person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

An individual who is also incapable of consent when he or she is: (1) Committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital 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; (2) committed to the care and custody of a local correctional facility 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; (3) 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 the office of children and family services and in residential care; or (4) a resident or inpatient of a residential facility operated, licensed, or certified by the office of mental health, the office for people with developmental disabilities, the office of alcoholism and substance abuse services, and the actor is an employee of the facility not married to such resident or inpatient.

It is a defense to a charge under 130.60(1) that the defendant was married to the victim. Married means the existence of a spousal relationship between the defendant and the victim as recognized by New York State law at the time of the alleged offense.

To be found guilty of this crime, the prosecution must be able to prove beyond a reasonable doubt two or three elements: (1) That on the alleged date, the defendant, without a valid medical purpose, inserted a foreign object into the vagina, urethra, penis, rectum, or anus of the complainant; (2) that complainant was incapable of consent; and (3) if applicable, the defendant was not married to the complainant.

To schedule a consultation with our skilled sexual assault defense lawyers, call us at 646-663-4430.