Guest Column

21 Nov 2016

Sexual Consent: Tips to Avoid Criminal Problems

from Ilann Maazel


For those who missed our dynamic and informative Fall Seminar panel, “Teens and Sex: Understanding Healthy Decision Making,” please read the full recap of the event by PIA Board member, blogger and reporter Lori Gaon (in our PIA News and Views section).

For further edification on legal aspects of the topic of Consent, the following points outlining what constitutes criminal behavior has been provided by one of our panelists, Ilann Maazel (Attorney, Emery Celli Brinckerhoff & Abady LLP)


* Tips to Avoid Criminal Problems

  1. Never use physical force or threats
  2. Never have sexual contact with someone who is physically helpless, unconscious, or mentally incapacitated.
    1. For example: asleep, unconscious, drunk, on laughing gas (yes, this happened)
    2. Tip: if someone is more than a bit tipsy, don’t do it. (P.S. – alcohol use is illegal
      under 21.)
  3. No means no. If someone says no, stop. If someone pushes you away, stop.
  4. Make sure your partner “expressly or impliedly acquiesced.”

Even Better, Follow the “Yes Means Yes” Law, Which Applies in New York State Universities.

  2. Make sure you have affirmative consent. “Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in sexual activity.”
    1. Consent to one act does not mean consent to another.
    2. Consent is required even if you are under the influence.
    3. Consent can be withdrawn any time.
    4. Consent cannot be given if it is the result of coercion, intimidation, physical force, or threat of harm.
    5. If you kiss someone, and they kiss you back, that is consent (to kiss). If they just
      sit there, that is not consent.

Age of Consent in New York

  1. The age of consent in New York is 17.
    1. It is a misdemeanor to have sexual intercourse (vaginal, oral, anal) with someone
      less than 17, even if you are less than 17. (N.Y. Penal L. 130.20)
    2. This law is rarely enforced among teenagers, and when it is, courts usually
      dismiss the case.
  2. If 21 or older, do not have intercourse (vaginal, oral, anal) with someone less than 17 (3rd degree rape).
  3. If 18 or older, no intercourse with someone less than 13 (1st degree rape).
  4. If 18 or older, no intercourse unless age difference is less than 4 years (otherwise, 2nd degree rape).
    1. Precisely, 18-yr old and 14 1⁄2 yr-old would not be rape
    2. 18 3⁄4-yr old and 14 1⁄2 yr-old would be rape
  5. No intercourse with anyone with less than 11 (1st degree rape).

Now on to sexual contact. This is much broader than intercourse, and includes kissing.

      6. No sexual contact with someone under 14 (Sexual abuse, a misdemeanor)

  a. So, technically, a 14-yr old who kisses a 13-yr old commits sexual abuse.

  1. No sexual contact with someone between 14 and 16.999 years old, unless you are less than 5 years older. (Otherwise sexual abuse, a misdemeanor)
    1. e.g., a 19-yr old can kiss a 14 1/2-yr old (they are less than 5 years apart)
    2. a 22-yr old cannot kiss a 16-yr old (they are more than 5 years apart)
  2. Juliet was 13 years old. Romeo was older. Romeo: romantic hero, or sexual abuser?

A Note on Sexting

  1. Never send pictures of others or yourself revealing intimate body parts.
  2. It’s illegal. Even to send photos of yourself.

      3.    It’s just a bad idea. Nothing disappears on the Internet, not even Snapchat. Your friends will get it. If not, your enemies. If not, Vladimir Putin.

Legal Disclaimer: The materials in this publication are for educational purposes only. They do not constitute legal advice. The materials are not intended to create, and do not create, an attorney-client relationship between Emery Celli Brinckerhoff & Abady LLP or Ilann M. Maazel (“authors”) and anyone. The authors do not accept any liability for any loss or damage caused to any entity or person relying on any information or omission in these materials. Legal advice must be tailored to the specific circumstances of each case, so nothing provided herein should be used as a substitute for advice of competent counsel.

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