§ 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 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) 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
(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
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
(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.
because she says that she dosent want us being together to cause him to end up in jail. she is saying that any random person can say something to the wrong person and he could get arrested for seeing me.