What is the legal difference between molestation and rape concerning children?

Full Question:

Please explain the legal difference between molestation and rape concerning children. It has always puzzled me as to why a person is charged with molestation instead of rape..
11/20/2007   |   Category: Criminal ยป child molest...   |   State: New York   |   #12569

Answer:

The following are New York statutes:

§ 130.05 Penal. 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 of the state department of
correctional services 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, not married to such person, who knows or reasonably should know
that such person is committed to the care and custody of such department or
hospital. For purposes of this paragraph, "employee" means (i) an employee
of the state department of correctional services who performs professional
duties in a state correctional facility consisting of providing custody,
medical or mental health services, counseling services, educational
programs, or vocational training for inmates;

(ii) an employee of the division of parole who performs professional
duties in a state correctional facility and who provides institutional
parole services pursuant to section two hundred fifty-nine-e of the
executive law; or

(iii) an employee of the office of mental health who performs
professional duties in a state correctional facility or hospital, as such
term is defined in subdivision two of section four hundred of the
correction law, consisting of providing custody, or medical or mental
health services for such inmates; or

(iv)[fn*] a person, including a volunteer, providing direct services to
inmates in the 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 correctional services 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

[fn*] NB Effective November 1, 2007

(f)[fn*] 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; or

[fn*] NB Effective until November 1, 2007

(f)[fn*] 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 division of parole 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

[fn*] NB Effective November 1, 2007

(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 who performs duties consisting of providing custody, medical or
mental health services, counseling services, educational services, or
vocational training for persons committed to or placed with the office of
children and family services and in residential care; 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.

§ 130.25 Penal. Rape in the third degree.

A person is guilty of rape in the third degree when:

1. He or she engages in sexual intercourse with another person who is
incapable of consent by reason of some factor other than being less than
seventeen years old;

2. Being twenty-one years old or more, he or she engages in sexual
intercourse with another person less than seventeen years old; or

3. He or she engages in sexual intercourse with another person without
such person's consent where such lack of consent is by reason of some
factor other than incapacity to consent. Rape in the third degree is a
class E felony.

§ 130.30 Penal. Rape in the second degree.

A person is guilty of rape in the second degree when:

1. being eighteen years old or more, he or she engages in sexual
intercourse with another person less than fifteen years old; or

2. he or she engages in sexual intercourse with another person who is
incapable of consent by reason of being mentally disabled or mentally
incapacitated.

It shall be an affirmative defense to the crime of rape in the second
degree as defined in subdivision one of this section that the defendant was
less than four years older than the victim at the time of the act. Rape in
the second degree is a class D felony.

§ 130.35 Penal. Rape in the first degree.

A person is guilty of rape in the first degree when he or she engages in
sexual intercourse with another person: 1. By forcible compulsion; or 2.
Who is incapable of consent by reason of being physically helpless; or 3.
Who is less than eleven years old; or 4. Who is less than thirteen years
old and the actor is eighteen years old or more. Rape in the first degree
is a class B felony.

§ 130.40 Penal. Criminal sexual act in the third degree.

A person is guilty of criminal sexual act in the third degree when:

1. He or she engages in oral sexual conduct or anal sexual conduct with a
person who is incapable of consent by reason of some factor other than
being less than seventeen years old;

2. Being twenty-one years old or more, he or she engages in oral sexual
conduct or anal sexual conduct with a person less than seventeen years old;
or

3. He or she engages in oral sexual conduct or anal sexual conduct with
another person without such person's consent where such lack of consent is
by reason of some factor other than incapacity to consent.

Criminal sexual act in the third degree is a class E felony.

§ 130.45 Penal. Criminal sexual act in the second degree.

A person is guilty of criminal sexual act in the second degree when:

1. being eighteen years old or more, he or she engages in oral sexual
conduct or anal sexual conduct with another person less than fifteen years
old; or

2. he or she engages in oral sexual conduct or anal sexual conduct with
another person who is incapable of consent by reason of being mentally
disabled or mentally incapacitated.

It shall be an affirmative defense to the crime of criminal sexual act in
the second degree as defined in subdivision one of this section that the
defendant was less than four years older than the victim at the time of the
act.

Criminal sexual act in the second degree is a class D felony.

§ 130.50 Penal. Criminal sexual act in the first degree.

A person is guilty of criminal sexual act in the first degree when he or
she engages in oral sexual conduct or anal sexual conduct with another
person:

1. By forcible compulsion; or

2. Who is incapable of consent by reason of being physically helpless; or

3. Who is less than eleven years old; or

4. Who is less than thirteen years old and the actor is eighteen years
old or more.

Criminal sexual act in the first degree is a class B felony.

§ 130.52 Penal. 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 for the purpose of degrading or abusing
such person; or for the purpose of gratifying the actor's sexual desire.

For the purposes of this section, forcible touching includes squeezing,
grabbing or pinching.

Forcible touching is a class A misdemeanor.

§ 130.75 Penal. Course of sexual conduct against a child in the first
degree

1. A person is guilty of course of sexual conduct against a child in the
first degree when, over a period of time not less than three months in
duration:

(a) he or she engages in two or more acts of sexual conduct, which
includes at least one act of sexual intercourse, oral sexual conduct, anal
sexual conduct or aggravated sexual contact, with a child less than eleven
years old; or

(b) he or she, being eighteen years old or more, engages in two or more
acts of sexual conduct, which include at least one act of sexual
intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual
contact, with a child less than thirteen years old.

2. A person may not be subsequently prosecuted for any other sexual
offense involving the same victim unless the other charged offense occurred
outside the time period charged under this section. Course of sexual
conduct against a child in the first degree is a class B felony.

§ 130.80 Penal. Course of sexual conduct against a child in the second
degree

1. A person is guilty of course of sexual conduct against a child in the
second degree when, over a period of time not less than three months in
duration:

(a) he or she engages in two or more acts of sexual conduct with a child
less than eleven years old; or

(b) he or she, being eighteen years old or more, engages in two or more
acts of sexual conduct with a child less than thirteen years old.

2. A person may not be subsequently prosecuted for any other sexual
offense involving the same victim unless the other charged offense occurred
outside the time period charged under this section. Course of sexual
conduct against a child in the second degree is a class D felony.

§ 130.96 Penal. Predatory sexual assault against a child.

A person is guilty of predatory sexual assault against a child when,
being eighteen years old or more, he or she commits the crime of rape in
the first degree, criminal sexual act in the first degree, aggravated
sexual abuse in the first degree, or course of sexual conduct against a
child in the first degree, as defined in this article, and the victim is
less than thirteen years old.

Predatory sexual assault against a child is a class A-II felony.

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