N.Y. Penal Law § 130.05

§ 130.05 Sex offenses; lack of consent.\n 1. Whether or not specifically stated, it is an element of every\noffense defined in this article that the sexual act was committed\nwithout consent of the victim.\n 2. Lack of consent results from:\n (a) Forcible compulsion; or\n (b) Incapacity to consent; or\n (c) Where the offense charged is sexual abuse or forcible touching,\nany circumstances, in addition to forcible compulsion or incapacity to\nconsent, in which the victim does not expressly or impliedly acquiesce\nin the actor's conduct; or\n (d) Where the offense charged is rape in the third degree as defined\nin subdivision seven, eight or nine of section 130.25, or a crime\nformerly defined in subdivision three of section 130.40, in addition to\nforcible compulsion, circumstances under which, at the time of the act\nof vaginal sexual contact, oral sexual contact or anal sexual contact,\nthe victim clearly expressed that he or she did not consent to engage in\nsuch act, and a reasonable person in the actor's situation would have\nunderstood such person's words and acts as an expression of lack of\nconsent to such act under all the circumstances.\n 3. A person is deemed incapable of consent when he or she is:\n (a) less than seventeen years old; or\n (b) mentally disabled; or\n (c) mentally incapacitated; or\n (d) physically helpless; or\n (e) committed to the care and custody or supervision of the state\ndepartment of corrections and community supervision or a hospital, as\nsuch term is defined in subdivision two of section four hundred of the\ncorrection law, and the actor is an employee who knows or reasonably\nshould know that such person is committed to the care and custody or\nsupervision of such department or hospital. For purposes of this\nparagraph, "employee" means (i) an employee of the state department of\ncorrections and community supervision who, as part of his or her\nemployment, performs duties: (A) in a state correctional facility in\nwhich the victim is confined at the time of the offense consisting of\nproviding custody, medical or mental health services, counseling\nservices, educational programs, vocational training, institutional\nparole services or direct supervision to incarcerated individuals; or\n (B) of supervising persons released on community supervision and\nsupervises the victim at the time of the offense or has supervised the\nvictim and the victim is still under community supervision at the time\nof the offense; or\n (ii) an employee of the office of mental health who, as part of his or\nher employment, performs duties in a state correctional facility or\nhospital, as such term is defined in subdivision two of section four\nhundred of the correction law in which the incarcerated individual is\nconfined at the time of the offense, consisting of providing custody,\nmedical or mental health services, or direct supervision to such\nincarcerated individuals; or\n (iii) a person, including a volunteer, providing direct services to\nincarcerated individuals in a state correctional facility in which the\nvictim is confined at the time of the offense pursuant to a contractual\narrangement with the state department of corrections and community\nsupervision or, in the case of a volunteer, a written agreement with\nsuch department, provided that the person received written notice\nconcerning the provisions of this paragraph; or\n (f) committed to the care and custody of a local correctional\nfacility, as such term is defined in subdivision two of section forty of\nthe correction law, and the actor is an employee, not married to such\nperson, who knows or reasonably should know that such person is\ncommitted to the care and custody of such facility. For purposes of this\nparagraph, "employee" means an employee of the local correctional\nfacility where the person is committed who performs professional duties\nconsisting of providing custody, medical or mental health services,\ncounseling services, educational services, or vocational training for\nincarcerated individuals. For purposes of this paragraph, "employee"\nshall also mean a person, including a volunteer or a government employee\nof the state department of corrections and community supervision or a\nlocal health, education or probation agency, providing direct services\nto incarcerated individuals in the local correctional facility in which\nthe victim is confined at the time of the offense pursuant to a\ncontractual arrangement with the local correctional department or, in\nthe case of such a volunteer or government employee, a written agreement\nwith such department, provided that such person received written notice\nconcerning the provisions of this paragraph; or\n (g) committed to or placed with the office of children and family\nservices and in residential care, and the actor is an employee, not\nmarried to such person, who knows or reasonably should know that such\nperson is committed to or placed with such office of children and family\nservices and in residential care. For purposes of this paragraph,\n"employee" means an employee of the office of children and family\nservices or of a residential facility in which such person is committed\nto or placed at the time of the offense who, as part of his or her\nemployment, performs duties consisting of providing custody, medical or\nmental health services, counseling services, educational services,\nvocational training, or direct supervision to persons committed to or\nplaced in a residential facility operated by the office of children and\nfamily services; or\n (h) a client or patient and the actor is a health care provider or\nmental health care provider charged with rape in the third degree as\ndefined in section 130.25, a crime formerly defined in section 130.40,\naggravated sexual abuse in the fourth degree as defined in section\n130.65-a, or sexual abuse in the third degree as defined in section\n130.55, and the act of sexual conduct occurs during a treatment session,\nconsultation, interview, or examination; or\n (i) a resident or inpatient of a residential facility operated,\nlicensed or certified by (i) the office of mental health; (ii) the\noffice for people with developmental disabilities; or (iii) the office\nof alcoholism and substance abuse services, and the actor is an employee\nof the facility not married to such resident or inpatient. For purposes\nof this paragraph, "employee" means either: an employee of the agency\noperating the residential facility, who knows or reasonably should know\nthat such person is a resident or inpatient of such facility and who\nprovides direct care services, case management services, medical or\nother clinical services, habilitative services or direct supervision of\nthe residents in the facility in which the resident resides; or an\nofficer or other employee, consultant, contractor or volunteer of the\nresidential facility, who knows or reasonably should know that the\nperson is a resident of such facility and who is in direct contact with\nresidents or inpatients; provided, however, that the provisions of this\nparagraph shall only apply to a consultant, contractor or volunteer\nproviding services pursuant to a contractual arrangement with the agency\noperating the residential facility or, in the case of a volunteer, a\nwritten agreement with such facility, provided that the person received\nwritten notice concerning the provisions of this paragraph; provided\nfurther, however, "employee" shall not include a person with a\ndevelopmental disability who is or was receiving services and is also an\nemployee of a service provider and who has sexual contact with another\nservice recipient who is a consenting adult who has consented to such\ncontact; or\n (j) detained or otherwise in the custody of a police officer, peace\nofficer, or other law enforcement official and the actor is a police\nofficer, peace officer or other law enforcement official who either: (i)\nis detaining or maintaining custody of such person; or (ii) knows, or\nreasonably should know, that at the time of the offense, such person was\ndetained or in custody.\n (k) under the supervision of a local probation department, pursuant to\nsection two hundred seventy-two of the correction law, or another local\ndepartment or agency which fulfills a similar function and the actor is\nan employee who knows or reasonably should know that such person is\ncommitted to the supervision of a local probation department. For\npurposes of this paragraph, "employee" means an employee of such local\nprobation department or agency who, as part of his or her employment,\nsupervises the victim at the time of the offense or has supervised the\nvictim and the victim is still under supervision of a local probation\ndepartment or agency at the time of the offense.\n