This is a case for sexual misconduct charged against a defendant for violation of Penal Law Section 130.20 (1) that provides: “A person is guilty of sexual misconduct when: being a male, he engages intercourse with a female without her consent.”
In this case, the information revealed that the defendant was the twin brother of the complainant’s boyfriend. The facts of the case includes: On March 18, 1993, at around 3:30 in the morning, the complainant was sleeping in her apartment, the front door of which was left unlock for she was expecting her boyfriend to come over. Complainant thought that her boyfriend had forgotten the key which she had given him.
When a male person arrived at the apartment, she instructed the latter to come in. But, when the lights were turned on, she realized that said person was not her boyfriend but the latter’s twin brother. They talked for a moment. Later, she asked the man to lock the door after he leaves.
At around 5:00 o’clock in the morning, complainant was again awakened by a knock on the door and a voice of a man saying “open the door”. Curiously, complainant went to the door, but, instead of opening the light by the door, she turned it off. The man went inside the apartment. It was dark and complainant could not see the man’s face. She believed that it was her boyfriend. She went to bed and the man lay beside her. She asked the man why he has not used the key which she had given him. The latter answered that he either lost it or left it at his father’s house.
Later, the man pleaded to have sex with the complainant. The latter, believing that the man was her boyfriend conceded. They had sexual intercourse for a few minutes. After the carnal act, the man asked the private complainant, “Was that the best sex you ever had?” and followed by “What are you going to tell your boyfriend?”. At that moment, the private complainant knew that the man wasn’t her boyfriend. She took his clothes and threw it in the hallway and asked the man to leave. After which, she called the police.
Defendant was later charged with sexual misconduct and was arraigned. Defendant pleaded not guilty and asked for the dismissal of the charges.
The issue presented before this court is whether or not the female actually consented to the sexual intercourse with a male who procured the female’s consent by impersonating the female’s boyfriend.
Under the Penal Law, lack of consent was defined as results from forcible compulsion or incapacity to consent. It was discussed that a person who is incapable of consent when he or she is less than 17 years of age or mentally defective or mentally incapacitated or physically helpless. When the offense charged is Sexual Abuse, any circumstances in addition to forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor’s conduct may be considered as lack of consent.
History dictates that the legislature defined lack of consent under the Penal Law and intended to exclude cases of fraud or impersonation. It is clear that the legislature intended to extend the definition of consent to include any circumstances in which the victim does not expressly or impliedly acquiesce in the actor’s conduct.
However, in sexual misconduct, the lack of consent has been defined by the legislature as to not include the circumstances present in this instant case. Therefore, even if the defendant did deceive the complainant into having sexual intercourse with him, the defendant cannot be found guilty of sexual misconduct.
The Court made it clear that its decision does not mean that defendant did not do anything wrong. It only means that the District Attorney’s Office charged the defendant with the wrong crime.
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