Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 4, #21©

Issue: Recent changes in sexual offense prosecutions

The crime of "Consensual Sodomy," embodied in Penal Law § 130.38, was declared unconstitutional in 1980.  People v Onofre, 51 NY2d 476, 434 NYS2d 947 (1980).  The State Legislature responded to the unconstitutionality of the statute by repealing it 20 years later. L. 2000, ch. 1.

The same chapter that repealed this class B misdemeanor also enacted a new Article 130 crime, Forcible Touching. This offense, a class A misdemeanor, includes "the squeezing, grabbing or pinching" of another's sexual or other intimate parts. Penal Law § 130.52.  The statute was enacted in response to the groping of women by men in Central Park after a parade.

This crime requires that some power or strength or violence be employed against a body.  People v Parbhu, 191 Misc2d 473, 743 NYS2d 660 (City Crim Ct 2002); see also, People v Soto, 192 Misc2d 161, 745 NYS2d 880 (City Crim Ct 2002). The crime overlaps with Sexual Abuse.

Locally, prosecutions under the Forcible Touching statute appear to be employed with increasing frequency against gay men. An undercover police officer, acting as a decoy at a public park, meets a man seeking sex. If the man touches the officer in the groin area, an arrest is made, even though there is no grabbing or other "forcible" touching. All that is needed to complete the accusatory instrument locally is the defendant's name and the date and time; the rest of the allegations have already been typed into the form: "That the above named defendant at about ____ am/ pm did grab your complainant's Genitals for the purpose of gratifying his sexual desires." It appears that Forcible Touching is being used to indirectly enforce the former Consensual Sodomy statute.

In other legislative developments, the crime of Sodomy no longer exists in New York State. That word was removed from the statute books, and in its stead was substituted "Criminal Sexual Act." Additionally, the term "deviate sexual intercourse" is eliminated and replaced by "oral sexual conduct or anal sexual conduct." L. 2003, ch. 264, effective November 1, 2003.

"I will not carry a gun.. . .  I will carry your books, I'll carry a torch, I'll carry a tune, I'll carry on, carry over, carry forward, Cary Grant, cash and carry, carry me back to Old Virginia, I'll even 'hari-kari' if you show me how, but I will not carry a gun!"
Hawkeye Pierce, quoted by Justice Ginsburg in Muscarello v US, 524 US 125, 144, n. 6, 118 SCt 1911, 141 LEd2d 111 (1998).

Plea in satisfaction
State. A guilty plea to one or more charges that satisfies charges pending in more than one court. Also, package. CPL 200.30(3); Handling §§ 17:58, 17:103.


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