New York State Criminal Definitions

The Violence Against Women Act (VAWA) requires Relay to include certain New York State (home of Relay’s flagship campus) criminal definitions in its annual security report and also requires that these definitions be provided in other materials disseminated by Relay. Relevant New York definitions are set forth below*. Ultimately, the state district attorney will determine whether an act meets the criminal standard.

 

Consent^

Lack of consent results from: forcible compulsion; or incapacity to consent; or 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. Where the offense charged is rape in the third degree, a criminal sexual act in the third degree, or forcible compulsion in 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. A person is incapable of consent when he or she is: less than 17 years old; or mentally disabled; or mentally incapacitated; or physically helpless; or committed to the care and custody of the state department of correctional services, a hospital, the office of children and family services and is in residential care, or the other person is a resident or inpatient of a residential facility operated by the office of mental health, the office for people with developmental disabilities, or the office of alcoholism and substance abuse services, 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.

 

Consent, Abbreviated

Clear, unambiguous, and voluntary agreement between the participants to engage in specific sexual activity.

 

Dating Violence

New York State does not specifically define “dating violence.” However, under New York law, intimate relationships are covered by the definition of domestic violence when the crime is committed by a person in an “intimate relationship” with the victim. See Family or Household Member for definition of “intimate relationship.”

 

Domestic Violence

An act which would constitute a violation of the penal law, including, but not limited to, acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted murder, criminal obstruction or breaching of blood circulation, or strangulation; and such acts have created a substantial risk of physical or emotional harm to a person or a person’s child. Such acts are alleged to have been committed by a family member. The victim can be anyone over the age of 16, any married person, or any parent accompanied by his or her minor child or children in situations in which such person or such person’s child is a victim of the act.

 

Family or Household Member 

Persons related by consanguinity or affinity; persons legally married to each other; persons formerly married to each other regardless of whether they still reside in the same household; persons who have a child in common regardless of whether such persons are married or have lived together at any time; unrelated persons who are continually or at regular intervals living in the same household or who have in the past continually or at regular intervals lived in the same household; persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors that may be considered in determining whether a relationship is an “intimate relationship” include, but are not limited to: the nature or type of relationship regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship;” any other category of individuals deemed to be a victim of domestic violence as defined by the office of children and family services in regulation. Intimate relationship status shall be applied to teens, lesbian/gay/bisexual/transgender, and elderly individuals, current and formerly married and/or dating heterosexual individuals who were, or are in an intimate relationship.

 

Parent

Natural or adoptive parent or any individual lawfully charged with a minor child’s care or custody. 

 

Sexual Assault

New York State does not specifically define sexual assault. However, sexual assault includes offenses that meet the definitions of rape, fondling, incest, or statutory rape.

 

Sex Offenses, Lack of Consent

Whether or not specifically stated, it is an element of every sexual act committed without consent of the victim.

 

Sexual Misconduct

When a person:

• engages in sexual intercourse with another person without such person’s consent, or

• engages in oral sexual conduct or anal sexual conduct without such person’s consent, or

• engages in sexual conduct with an animal or a dead human body.

 

Rape in the Third Degree

When a person:

• engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than 17 years old,

• being 21 years old or more, engages in sexual intercourse with another person less than 17 years old, or

• 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 Second Degree 

When a person:

• being 18 years old or more, engages in sexual intercourse with another person less than 15 years old, or

• engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It is an affirmative defense to the crime of rape in the second degree the defendant was less than four years older than the victim at the time of the act.

 

Rape in the First Degree

When a person engages in sexual intercourse with another person:

• by forcible compulsion, or

• who is incapable of consent by reason of being physically helpless, or

• who is less than 11 years old, or

• who is less than 13 years old and the actor is 18 years old or more.

 

Criminal Sexual Act in the Third Degree

When a person engages in oral or anal sexual conduct:

• with a person who is incapable of consent by reason of some factor other than being less than 17 years old,

• being 21 years old or more, with a person less than 17 years old,

• 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 Second Degree

When a person engages in oral or anal sexual conduct with another person:

• and is 18 years or more and the other person is less than 15 years old, or

• who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It is an affirmative defense that the defendant was less than four years older than the victim at the time of the act.

 

Criminal Sexual Act in the First Degree

When a person engages in oral or anal sexual conduct with another person:

• by forcible compulsion,

• who is incapable of consent by reason of being physically helpless,

• who is less than 11 years old, or

• who is less than 13 years old and the actor is 18 years old or more.

 

Forcible Touching

When a 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. It includes squeezing, grabbing, or pinching.

 

Persistent Sexual Abuse

When a person commits a crime of forcible touching, or second- or third-degree sexual abuse within the previous 10-year period, has been convicted two or more times, in separate criminal transactions for which a sentence was imposed on separate occasions of one of the above-mentioned crimes or any offense defined in this article, of which the commission or attempted commissions thereof is a felony.

 

Sexual Abuse in the Third Degree

When a person subjects another person to sexual contact without the latter’s consent. For any prosecution under this section, it is an affirmative defense that:

• such other person’s lack of consent was due solely to incapacity to consent by reason of being less than 17 years old, and

• such other person was more than 14 years old and the defendant was less than five years older than such other person.

 

Sexual Abuse in the Second Degree

When a person subjects another person to sexual contact and when such other person is:

• incapable of consent by reason of some factor other than being less than 17 years old, or

• less than 14 years old.

 

Sexual Abuse in the First Degree

When a person subjects another person to sexual contact:

• by forcible compulsion,

• when the other person is incapable of consent by reason of being physically helpless, or

• when the other person is less than 11 years old, or

• when the other person is less than 13 years old.

 

Aggravated Sexual Abuse 

For the purposes of this section, conduct performed for a valid medical purpose does not violate the provisions of this section.

 

Aggravated Sexual Abuse in the Fourth Degree

When a person inserts a:

• foreign object in the vagina, urethra, penis, or rectum of another person and the other person is incapable of consent by reason of some factor other than being less than 17 years old; or

• finger in the vagina, urethra, penis, rectum, or anus of another person causing physical injury to such person and such person is incapable of consent by reason of some factor other than being less than 17 years old.

 

Aggravated Sexual Abuse in the Third Degree

When a person inserts a foreign object in the vagina, urethra, penis, rectum, or anus of another person:

• (a) by forcible compulsion, (b) when the other person is incapable of consent by reason of being physically helpless, or (c) when the other person is less than 11 years old, or

• causing physical injury to such person and such person is incapable of consent by reason of being mentally disabled or mentally incapacitated. 

 

Aggravated Sexual Abuse in the Second Degree

When a person inserts a finger in the vagina, urethra, penis, rectum, or anus of another person causing physical injury to such person by:

• forcible compulsion, or

• when the other person is incapable of consent by reason of being physically helpless, or

• when the other person is less than 11 years old.

 

Aggravated Sexual Abuse in the First Degree

When a person subjects another person to sexual contact:

• by forcible compulsion, or

• when the other person is incapable of consent by reason of being physically helpless, or

• when the other person is less than 11 years old, or

• when the other person is less than 13 years old and the actor is 21 years old or older.

 

Stalking in the Fourth Degree

When a person intentionally, and for not legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:

• is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted; or 

• causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning, or initiating communication or contact with such person, a member of such person’s immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or 

• is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person’s place of employment or business, and the actor was previously clearly informed to cease that conduct.

 

Stalking in the Third Degree

When a person:

• commits the crime of stalking in the fourth degree against any person in three or more separate transactions, for which the actor has not been previously convicted; or 

• commits the crime of stalking in the fourth degree against any person, and has previously been convicted, within the preceding 10 years of a specified predicate crime and the victim of such specified predicate crime is the victim, or an immediate family member of the victim, of the present offense; or 

• with an intent to harass, annoy or alarm a specific person, intentionally engages in a course of conduct directed at such person which is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of such person or a member of such person’s immediate family; or 

• commits the crime of stalking in the fourth degree and has previously been convicted within the preceding 10 years of stalking in the fourth degree.

 

Stalking in the Second Degree

When a person: 

• commits the crime of stalking in the third degree and in the course of and furtherance of the commission of such offense: (a) displays, or possesses and threatens the use of, a firearm, pistol, revolver, rifle, sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, slingshot, slungshot, shirken, “Kung Fu Star,” dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, dangerous instrument, deadly instrument or deadly weapons; or (b) displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or 

• commits the crime of stalking in the third against any person, and has previously been convicted, within the preceding five years, of a specified predicate crime, and the victim of such specified predicate crime is the victim, or an immediate family member of the victim, of the present offense; or 

• commits the crime of stalking in the fourth degree and has previously been convicted of stalking in the third degree; or

• being 21 years of age or older, repeatedly follows a person under the age of fourteen or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place such person who is under the age of fourteen in reasonable fear of physical injury, serious physical injury or death; or 

• commits the crime of stalking in the third degree, against 10 or more persons, in 10 or more separate transactions, for which the actor has not been previously convicted.

 

Stalking in the First Degree

When a person commits the crime of stalking in the third degree or stalking in the second degree and, in the course and furtherance thereof, they intentionally or recklessly cause physical injury to the victim of such crime.

 

Illinois Rights and Options for Survivors of Sexual Violence, Sexual Misconduct, Dating Violence, Domestic Violence, and Stalking 

 

Relay provides survivors of sexual misconduct specific rights and options, including:  

• Students have several reporting options, and they may pursue one or all of these options at any time. 

• They have the right to decide who and when to tell about sexual violence. 

• Students should call 9-1-1 if they are in the midst of any kind of emergency, immediate harm, or threat of harm.

• The Title IX Coordinator, Dr. Nichelle Bowes, [email protected], can assist students in notifying the police if they choose. 

  • The Title IX coordinator can assist in obtaining interim protective measures and accommodations for individuals involved in reports of sexual and relationship violence when requested and reasonably available. Such options are available regardless of whether a survivor reports to local law enforcement or pursues an internal disciplinary option. 

• It is the right of students to have an advocate of their choice (a friend, family member, sexual-assault advocate, or other representative) with them while reporting the incident. They also have the right to have a sexual-assault counselor and support person of their choice present with them during a rape examination. 

• Relay Chicago contracts with a community-based sexual assault–crisis partner: Resilience. Students may contact Resilience by calling (773) 907-1062. This is not a crisis hotline. If students are in crisis and in the Chicago area, they should call the Rape Crisis Hotline at (888) 293-2080. 

• Relay also contracts with Guardian WorkLifeMatters to provide students with a variety of support services, including emergency and ongoing support for issues related to gender-based misconduct. To access these services, students can contact Guardian directly: 

  • (800) 386-7055 

  • www.ibhworklife.com (Username: matters) 

  • Password: wlm70101 

• It is important that students take steps to preserve and collect evidence; doing so preserves the full range of options available to them. If students have already cleaned up from the assault, they can still report the crime, as well as seek medical or counseling treatment. Please follow these evidence-preservation practices:

  • Do seek a medical exam immediately

  • Do not wash face or hands 

  • Do not shower or bathe 

  • Do not brush teeth 

  • Do not change clothes or straighten up or clean the area where the assault took place 

  • Do not dispose of clothes or other items that were present during the assault, or use the restroom

 

Texas Gender-Based Misconduct: Affirmative Consent 

The age of consent varies by state. According to Texas law, children under 17 years of age cannot legally consent to sex or sexual contact with an adult (i.e., someone who is 17 years of age or older). Any sexual contact in Texas between a child under 17 and an adult is a crime, and any such illegal behavior between a Relay student under 17 and a Relay employee or employee of a contracted service provider to Relay will be reported to an appropriate law enforcement agency. Other jurisdictions may have different standards, and any illegal behavior in such jurisdiction also will be reported to the appropriate law enforcement agency

 

*For purposes of enforcing the expectations and requirements of this policy, sexual and gender-based misconduct is defined in the body of this policy.

^ Relay defines consent as affirmative consent consistent with NY Educ. Law § 6441.