New York Criminal Lawyer Blog
The Facts:
According to a New York Sex Crimes Lawyer, the defendant was charged with robbery, larceny, assault (two counts), endangering the welfare of a child, and sexual abuse in the third degree; a six-count indictment on criminal law violations.
As the crimes were allegedly committed on 26 September 1967, the prosecution was under the new Penal Law, which was enacted in 1965, effective as of 1 September 1967.
At the outset of the trial, the prosecutor stated that the complainant would testify to completed acts of intercourse and oral and anal sodomy; that there was no corroboration of those acts; and that for that reason defendant had not been indicted for rape and sodomy. The prosecutor then consented to dismissal of the five counts charging robbery, larceny, assault, and endangering the welfare of a child; he did not consent to dismissal of the count charging sexual abuse in the third degree as he wished the appellate courts to have a clear-cut issue concerning the validity of a conviction on that count as to which the proof was of a consummated rape and sodomy and there was no corroboration of the complainant’s testimony. A New York Sex Crimes Lawyer said that thereafter, the trial court granted the defendant’s motion to dismiss the count of sexual abuse in the third degree.
The People have appealed, contending that corroboration is not needed to establish that crime.
The Issue:
The case presents the novel question whether section 130.15 of the new Penal Law overruled previous court rulings, so that a defendant can now be convicted of the minor offense of sexual abuse in the third degree, despite the fact that the victim’s testimony establishes a consummated rape and there is no corroboration of her testimony.
The Ruling:
The court finds that the determination of the trial court was correct and should be affirmed.
The crime of sexual abuse in the third degree is new, at least insofar as it applies to adults. In relevant part, it is defined as: A person is guilty of sexual abuse in the third degree when he subjects another person to sexual contact without the latter’s consent. This crime is a class B misdemeanor and is punishable by a definite sentence not exceeding three months. Further, sexual contact is defined as: Any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. Furthermore, under “Sex Offenses; Corroboration”: A person shall not be convicted of any offense defined, or of an attempt to commit the same, solely on the uncorroborated testimony of the alleged victim. This section shall not apply to the offense of sexual abuse in the third degree.
When the Legislature enacted section 130.15, did it intend to eliminate the need for corroboration when the offense charged was sexual abuse in the third degree (despite the fact that the offense actually committed was rape or another sex offense requiring corroboration), or did it intend to eliminate the need for corroboration only when the offense actually committed was the minor offense of sexual abuse in the third degree?
Did the Legislature intend to permit a prosecutor to avoid the requirement of corroboration for rape by charging the defendant with only the petty offense of sexual abuse in the third degree when he had no corroboration of the victim’s story that she had been raped?
The court finds no clear clue to the legislative intent. A Nassau County Sex Crimes Lawyer said various case laws related to the subject have been considered.
In one of the relevant cases, the defendant was acquitted of rape but convicted on a count of endangering the morals of a minor by having intercourse with her; reversing the conviction, the Court of Appeals said: Were we to hold that no corroboration was necessary to support the conviction of the crime as charged in this indictment, then a prosecutor might easily circumvent the requirement of corroboration necessary for a conviction of misdemeanor rape simply by charging instead the impairment of the morals of a minor, as he did here. The law may not be so circumvented.
With various court rulings considered, the court finds that a prosecutor cannot evade the statutory requirement of corroboration for rape by charging a lesser or different offense which he intends to prove by uncorroborated testimony that the rape was committed. For example, in the new Penal Law, as in the old one, there is no specific requirement of corroboration for an assault charge; yet the court cannot believe that the courts would now abandon the principles of a prior ruling and permit an assault conviction to stand where it was proved only by uncorroborated testimony of a rape. Analogously, in the court’s opinion, the provision in section 130.15 that expressly exempts the offense of sexual abuse in the third degree from the corroboration requirement that applies to other sex offenses merely puts the offense of sexual abuse in the third degree into the same general category as non-sex crimes, insofar as the need for corroboration is concerned, and it consequently should be governed by the same rules. A Queens Sex Crimes Lawyer said those rules apply to all cases where uncorroborated testimony of a rape has been used to prove a crime intrinsically related to rape or committed in aid of effecting rape, or based upon an act which is a part of the rape, or which is interdependent with the rape. Clearly, where a rape has been committed, sexual abuse in the third degree would be an offense interdependent with the rape, intrinsically related to it, committed in aid of effecting it, and based upon an act which is a part of it.
In sum, a conviction for sexual abuse in the third degree may not stand if the only proof to support it is the uncorroborated testimony of the victim that a rape was committed.
The court construes section 130.15 to mean that corroboration is unnecessary if the actual offense committed, charged and proved is sexual abuse in the third degree; but that corroboration is still required if the actual offense committed and proved is a sex crime for which corroboration is required by statute (such as rape) and the offense charged is only sexual abuse in the third degree.
The basis for the court to reach such conclusion are as follows: running through the case laws based upon is a thread of thought which seems to equate a prosecutor’s attempt to evade the corroboration requirement with invasion of a defendant’s rights or with some kind of impropriety; section 130.15 apparently was intended to codify the holdings; when enacting the new Penal Law the Legislature greatly increased the requirement for corroboration by extending it to all sex offenses except sexual abuse in the third degree; in one case, the court noted that this well-defined legislative policy has been extended by the courts to cases where charges not requiring corroboration have been proved by evidence of a rape; the history of section 130.15 and the commentaries on it indicate that the offense of sexual abuse in the third degree was exempted from the corroboration requirement only because the contemplated offense was the minor one of improperly touching a woman in a dark theatre, crowded subway, etc., and it is impossible to obtain corroboration of such an offense; and the reason for the exemption of the offense from the corroboration requirement would not apply where the charge is sexual abuse in the third degree but the offense actually committed is a major sex crime.
Henceforth, the order appealed from, which granted defendant’s motion to dismiss the fifth count of the indictment and discharged him, is affirmed.
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