A person is guilty of forcible touching when such person intentionally and for no legitimate purpose forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person or for the purpose of gratifying his or her sexual desire. That includes squeezing, grabbing, or pinching. A similar crime that is often charged along with forcible touching is Sexual abuse in the third degree. That happens when the actor subjects another person to sexual contact without that person’s consent. There is an affirmative defense to the sexual abuse in the 3rd degree when the complaining witness is between the ages of 14 and 17, and the actor is less than 5 years older than the complaining witness. Forcible touching is a class A misdemeanor punishable by up to one year in jail, while sexual abuse in the 3rd degree is a class B misdemeanor punishable by up to 90 days in jail.
Quite often in our practice, we come across clients who wrongly believe that it is OK to “friendly” or “playfully” touch another person because it was socially acceptable in the countries where they came from or because they believe it was socially acceptable and tolerated in this country decades ago. The reality is now this is a crime taken seriously, and the violator will be arrested and prosecuted regardless of what was acceptable in their country of origin or back in the day.
For a better understanding what are exactly the elements of forcible touching and sexual abuse misdemeanor crimes, it makes sense to carefully examine the definitions and court interpretation of the law relevant to these offenses. As defined in New York Penal Law, “sexual contact” means any touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculation by the actor upon any part of the victim, clothed or unclothed. “Intentionally” has an ordinary meaning and excludes accidental touching. Accidental touching, for example during a sudden train stop when people may fall on each other, obviously would not be charged as a crime. Also, touching for a legitimate purpose, for example, as part of the health care by a licensed medical professional also would not count as a crime. The same goes for the consented touching, as between intimate partners, spouses, friends, or during contact sports practice or competition (e.g. wrestling). Consent may be expressed or implied, such as participation in a wrestling competition or playing a role in a movie or theater play. Forcibly touching another includes squeezing, grabbing, pinching, rubbing, or other bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts.
The Penal Law further explains that in case of forcible touching and/or sexual abuse offenses, lack of consent may result from 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. The person is deemed incapable of consent when he or she is less than 17 years old, mentally disabled, mentally incapacitated, physically helpless, or is incarcerated in jail or is a patient in the hospital and the actor is an employee of such prison and/or hospital.
District Attorney’s offices have strict guidelines regarding forcible touching crimes. Usually, the prosecutor would insist on a plea to the charge and a long treatment program for the offender. The possible sentence may be probation or conditional discharge unless there are aggravated circumstances when the sentence may include incarceration. Our law firm has experience in obtaining an acquittal verdict after a jury trial of our client who was charged with forcible touching.
Besides forcible touching and sexual abuse misdemeanors, New York Penal law defines various other, more serious felony sex offenses, such as rape, sexual criminal act, and sexual abuse in the 2nd or higher degrees. Those are very serious charges, where the prosecution likely would not engage in a meaningful plea bargain providing for the dismissal of the felony sex offense charges and where the positive case outcome oftentimes may come only from winning the acquittal during the jury trial. Besides strict prosecution policy guidelines and serious prison term sentencing options, felony and some misdemeanor sex offense convictions will result in a mandatory sex offense registration pursuant to Sex Offense Registration Act (“SORA”). Dependent on the level of such SORA registration it may last from 20 years to a lifetime and will severely affect the person’s life, including professional licensing, housing, immigration consequences in case of a non-citizen, and employment. In general, the level of SORA registration will be determined by the sentencing court.
If you have any questions regarding forcible touching or other sex offense, please contact our office.