Letter on Dream Act mischaracterized NY laws on sex offenses, officer says
To the editor:
Regarding a letter to the editor published in April 2018 edition of Catholic Courier written by J.L. Gelormini, there are clarifications that should be made in order to fully understand not only the Dream Act, but the New York State Penal Law and the New York State Corrections Law as it applies to Sex Offenders and the Sex Offender Registry (SORA). Namely, without precise language to characterize how different types of sexual misconducts fall into respective types of offense categories (many under Felony, others under Misdemeanor) clearly defined by the Penal Law, depending on the circumstances of the offender and the victim, and the victim’s capability to consent, simply stating that “crimes involving sexual intercourse without consent, with persons less than 14 years old or forcible sexual contact” are considered Misdemeanor in NYS is a mischaracterization of the law.
While Section 130.20 seems to capture all sexual misconduct, whether an offense is eventually classified as a felony or a misdemeanor depends on the detail of the offense, including the age of the victim and the age of the actor due to the legal definition on capability of consent. Sexual Misconduct is a class A misdemeanor under the New York State Penal Law Article 130 section 20. What the letter in the April issue fails to state is that the first two subsections of the law are specifically in regards to a person who engages in intercourse or oral/anal sexual conduct (not CONTACT), without the other person’s consent. But Gelormini did not clarify what consent is. This is not about splitting hairs, but rather understanding the law.
Section 130.20 that is cited in the letter applies most appropriately to incapacity to consent referred to by subsection 3.a) – being less than 17 years old. While New York State may have decided that a 17 or 18 year old engaging in sexual intercourse with a subject LESS than 17 is subject to placement on the Sex Offender Registry, one should not think that this is some sort of loophole. A fifteen year old, while in other areas is capable of consenting, is NOT able to consent according to the New York State Penal Law.
In other words, an otherwise consensual encounter (however morally distasteful and corrupt) between a 15 or 16 year old with a 17 or 18 year old, is a crime in this context if it is reported and prosecuted, and would be Sexual Misconduct (an A Misdemeanor). However, if the actor is over 21 and the victim is less than 17, there is relief provided by section PL 130.25 (Rape 3rd – E Felony). Further, should the actor be older, say 18, and the victim be less than 15, there is relief provided in PL Section 130.30 (Rape 2nd Degree – Class D Felony). Additionally, if an actor is 18 years or more and the victim is less than 13, the charge rises (Rape 1st - Class B Felony).
With regard to Penal Law section 130.52 (Forcible Touching) and 130.60 (Sexual Abuse 2nd Degree), J.L. Gelormini is correct in stating that these sections are Class A Misdemeanors. From a moral standpoint I argue that these two statutes should hold a greater penalty than they do. However, one should understand both of these sections and their use. Both of these sections are used generally only when no other section applies. While touching, grabbing, or pinching the private or intimate parts of another without their consent seems felonious, New York law currently does not provide for it. It could be argued that an actor (someone being over 17) should not be labeled as a felon for life by these acts.
In order to preserve the gravitas of the felony conviction, the act should have to rise to such a degree that it is so morally reprehensible that anyone, in any capacity, should see the act as absolutely repugnant. The author is correct in that acts of sexual misconduct (as defined in the Penal Law) are criminal, but not felonious. I write only to clarify the muddling of the above sections with the section regarding Sexual Misconduct. The letter would have provided the readers the impression that NYS is not tough on Sexual Offenders, insinuating that having intercourse with someone less than fourteen is a misdemeanor. That is not correct. While certain forms of sexual contact are in fact misdemeanor crimes, sexual conduct (anal/oral) as well as intercourse are felonies under most common circumstances. As a side, misdemeanor crimes in New York carry the potential of one year of incarceration as a penalty. I have been a police officer for 25 years and have seen first hand the crimes referenced above. New York State is not soft on sex offenders; but its laws are not barbaric either.
I agree that the laws of this state are not perfect; but we should not “throw the baby out with the bath water”, under the guise that scrapping the Dream Act would somehow make our children and our citizens safer from sexual violence and degradation. Deporting thousands of young men and women for crimes of their parents hardly seems in keeping with the tenants of Christianity. Similarly, the Dream Act is not perfect; but it is one of our best efforts at upholding our Christian ideals. Making our country and our society a safer place will come from introspection, respect, and guidance from above.
Woodsview Drive, Webster