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Dimitry Esquire
Dimitry Esquire, Attorney
Category: Criminal Law
Satisfied Customers: 41221
Experience:  I provide general practice and mediation & arbitration services to my clients.
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My son is 18 and was just charged in New York with forcible

Customer Question

My son is 18 and was just charged in New York with "forcible touching." To have teenage is sex is incredibly shameful, but I am ignorant of the law and our lawyer is on vacation. He had a series of text conversations with a 17 year old girl where she said, "if you mean sexually, I would do anything and everything with you" (the police took pictures of the text messages). They snuck off into the woods and engaged in sexual activity. He touched her breasts (never touched her vagina) and she performed oral sex in preparation for intercourse and he put on a condom. However, they were interrupted by some friends calling her - her father (a policeman) was picking her up for practice. Apparently her father suspected something and two hours later my son was picked up and interviewed and charged. He insists absolutely no force (has no history of ever being forceful) and that, in fact, she was the aggressor but is trying to stave off her father's rage. I'm ashamed but terrified for him and can't reach my lawyer. Can I get any guidance on how things proceed in cases like this?
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Dimitry Esquire replied 6 years ago.
Thank you for your question.

First of all, please permit me to calm you down (at least a little bit)--age of consent in New York is 17. That means that if the female sticks to her story that she agreed and consented to the touching, your son did not break ANY laws when he was engaged in sexual activity with her.

Second, this is the statute that your son was charged under:

S 130.52 Forcible touching.
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:
1. for the purpose of degrading or abusing such person; or
2. for the purpose of gratifying the actor`s sexual desire.
For the purposes of this section, forcible touching includes the
squeezing, grabbing or pinching of such other person`s sexual or other
intimate parts.
Forcible touching is a class A misdemeanor.
In New York, a class A misdemeanor's penalties are listed below. To summarize, he has up to 1 year in jail and up to $1,000 fine. Usually a "forcible touching" penalty, even if upheld, is given simply probation, and is not usually considered a sexual registry requirement:

§ 70.15 Sentences of imprisonment for misdemeanors and violation.
1. Class A misdemeanor. A sentence of imprisonment for a class A
misdemeanor shall be a definite sentence. When such a sentence is
imposed the term shall be fixed by the court, and shall not exceed one
year; provided, however, that a sentence of imprisonment imposed upon a
conviction of criminal possession of a weapon in the fourth degree as
defined in subdivision one of section 265.01 must be for a period of no
less than one year when the conviction was the result of a plea of
guilty entered in satisfaction of an indictment or any count thereof
charging the defendant with the class D violent felony offense of
criminal possession of a weapon in the third degree as defined in
subdivision four of section 265.02, except that the court may impose any
other sentence authorized by law upon a person who has not been
previously convicted in the five years immediately preceding the
commission of the offense for a felony or a class A misdemeanor defined
in this chapter, if the court having regard to the nature and
circumstances of the crime and to the history and character of the
defendant, finds on the record that such sentence would be unduly harsh
and that the alternative sentence would be consistent with public safety
and does not deprecate the seriousness of the crime.

That is very unlikely--if your son or your attorney can get the other child to admit that she consented, then your son will not be convicted.

Good luck.

Edited by Dimitry Alexander Kaplun on 8/1/2010 at 8:01 PM EST
Customer: replied 6 years ago.
Crap - my son says 17 in two weeks. How does that change things?
Expert:  Dimitry Esquire replied 6 years ago.
Yes, that does--he can then be charged with "Sexual Abuse in the Third Degree". Here is the statute below:

130.55 Sexual abuse in the third degree.
A person is guilty of sexual abuse in the third degree when he or she
subjects another person to sexual contact without the latter`s consent;
except that in any prosecution under this section, it is an affirmative
defense that (a) such other person`s lack of consent was due solely to
incapacity to consent by reason of being less than seventeen years old,
and (b) such other person was more than fourteen years old, and (c) the
defendant was less than five years older than such other person.
Sexual abuse in the third degree is a class B misdemeanor.

However the penalty for this offense is less than the one that your child is being charged with--a class B misdemeanor has a fine of up to $500.00 and up to 6 months in jail (again, unlikely).

Good luck.

Edited by Dimitry Alexander Kaplun on 8/1/2010 at 8:08 PM EST
Customer: replied 6 years ago.
Final thing - I promise - he was already charged and it was "Forcible touching" - specifically of her breasts, and my son says he asked permission to undo her top and she consented - but no proof - and he did not tell the police that part. On two occasions he tried to slip his hand into her bathing suit bottoms and she said "that's wierd" and he stopped. The police recovered the condom (no semen becasue they were interrupted before intercourse) Could the charge change to sexual abuse becasue of her age?
Expert:  Dimitry Esquire replied 6 years ago.
Thank you for your follow-up.

Please do not say that this is your "final thing"--if you have additional questions, or you need further explanation, I will be happy to assist. I realize that for you especially right now this is a very sensitive and troubling question, so I would rather provide you with more information and provide you with a bit of piece of mind (at least in what may occur), then have you worry about what you may not know about this situation.

Having said that...

The charges can also be grown, dropped, or modified. That is up to the police--if they see that there is no real evidence of sexual assault or abuse, they may drop the charges completely. Here the other party may only claim "penetration" pertaining to oral sex but not to other orifices, making it fairly hard for the prosecutor to prove (no semen or evidence of entry).

Hope that helps.

Edited by Dimitry Alexander Kaplun on 8/1/2010 at 8:22 PM EST
Customer: replied 6 years ago.
Thanks so much for saying I can continue to ask! If it is, ultimately, his word against hers, how is anything proven? Her father being a cop scares me about how things can be manipulated. Frankly, I want my son to be scared to death for his stupid recklessness, but I don't want him convicted of any crime.
Expert:  Dimitry Esquire replied 6 years ago.
The way it is proven is by circumstantial evidence, and by her age (and his). Since the police found them together, there is enough to claim that "something" took place, and if the 16 year old changes her story, then such evidence can be brought in. From your facts I assumed that the child's parent was either a peace officer or a politician or attorney as otherwise such charges are simply not usually prosecuted. You will need your attorney, once he comes back from vacation, to formally find out just how much evidence there is, and get the courts to dismiss it based on lack of evidence, or if it goes to tried (possible but unlikely), to show that there is no evidence past the burden of "beyond a reasonable doubt" that your son actually broke any laws.

Hope that helps.

Edited by Dimitry Alexander Kaplun on 8/1/2010 at 8:30 PM EST
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Customer: replied 6 years ago.
My wife has more questions and I don't want to start over. You have been very helpful. Am I able to add more money and ask more questions and make sure it is you who answers?
Expert:  Dimitry Esquire replied 6 years ago.
Thank you for your follow-up.

You are free to add more money and continue--you can either continue in this thread or open a new one. If you want to open a new thread, simply title it "For Dimitry..." and I will be able to assist you directly.