§ 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.

* NB Effective until September 1, 2024

* (d) Where the offense charged is rape in the third degree as defined
in subdivision seven, eight or nine of section 130.25, or a crime
formerly defined in subdivision three of section 130.40, in addition to
forcible compulsion, circumstances under which, at the time of the act
of vaginal sexual contact, oral sexual contact or anal sexual contact,
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.

* NB Effective September 1, 2024

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 or supervision of the state
department of corrections and community supervision 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 who knows or reasonably
should know that such person is committed to the care and custody or
supervision of such department or hospital. For purposes of this
paragraph, "employee" means (i) an employee of the state department of
corrections and community supervision who, as part of his or her
employment, performs duties: (A) in a state correctional facility in
which the victim is confined at the time of the offense consisting of
providing custody, medical or mental health services, counseling
services, educational programs, vocational training, institutional
parole services or direct supervision to incarcerated individuals; or

(B) of supervising persons released on community supervision and
supervises the victim at the time of the offense or has supervised the
victim and the victim is still under community supervision at the time
of the offense; or

(ii) an employee of the office of mental health who, as part of his or
her employment, performs duties in a state correctional facility or
hospital, as such term is defined in subdivision two of section four
hundred of the correction law in which the incarcerated individual is
confined at the time of the offense, consisting of providing custody,
medical or mental health services, or direct supervision to such
incarcerated individuals; or

(iii) a person, including a volunteer, providing direct services to
incarcerated individuals in a 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 corrections and community
supervision 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
incarcerated individuals. For purposes of this paragraph, "employee"
shall also mean a person, including a volunteer or a government employee
of the state department of corrections and community supervision or a
local health, education or probation agency, providing direct services
to incarcerated individuals 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 in which such person is committed
to or placed at the time of the offense who, as part of his or her
employment, performs duties consisting of providing custody, medical or
mental health services, counseling services, educational services,
vocational training, or direct supervision to persons committed to or
placed in a residential facility operated by the office of children and
family services; 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; or

* NB Effective until September 1, 2024

* (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, a crime formerly 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; or

* NB Effective September 1, 2024

(i) a resident or inpatient of a residential facility operated,
licensed or certified by (i) the office of mental health; (ii) the
office for people with developmental disabilities; or (iii) the office
of alcoholism and substance abuse services, and the actor is an employee
of the facility not married to such resident or inpatient. For purposes
of this paragraph, "employee" means either: an employee of the agency
operating the residential facility, who knows or reasonably should know
that such person is a resident or inpatient of such facility and who
provides direct care services, case management services, medical or
other clinical services, habilitative services or direct supervision of
the residents in the facility in which the resident resides; or an
officer or other employee, consultant, contractor or volunteer of the
residential facility, who knows or reasonably should know that the
person is a resident of such facility and who is in direct contact with
residents or inpatients; provided, however, that the provisions of this
paragraph shall only apply to a consultant, contractor or volunteer
providing services pursuant to a contractual arrangement with the agency
operating the residential facility or, in the case of a volunteer, a
written agreement with such facility, provided that the person received
written notice concerning the provisions of this paragraph; provided
further, however, "employee" shall not include a person with a
developmental disability who is or was receiving services and is also an
employee of a service provider and who has sexual contact with another
service recipient who is a consenting adult who has consented to such
contact; or

(j) detained or otherwise in the custody of a police officer, peace
officer, or other law enforcement official and the actor is a police
officer, peace officer or other law enforcement official who either: (i)
is detaining or maintaining custody of such person; or (ii) knows, or
reasonably should know, that at the time of the offense, such person was
detained or in custody.