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New York Court Discusses Presence of Consent in Sex Case


Frank G was indicted for two counts of third degree sodomy upon a victim identified as J.P; three counts of third degree sodomy upon a victim identified as C.V.; and one count of second degree sexual abuse against a victim identified as L.G. The third degree sodomy counts were classified as E felonies and the sexual abuse count as a Class A misdemeanor. The counts were all categorized as statutory in nature due to the ages of the victims, who were 16, 14 and 13, respectively.

Mr. G’s criminal defense attorney filed a motion with the Albany County Court to dismiss the indictment because of insufficient evidence. According to Section 130.16 of the New York Penal code, a person cannot be convicted of consensual sodomy, attempted consensual sodomy or a similar sex crime that includes lack of consent as an element if the failure to consent stems solely from the victim’s age. In cases of sexual abuse, molestation or other sex crimes involving an underage victim, the child’s testimony must be supported by additional evidence to prove that sexual contact occurred or was attempted. Essentially, the defense argued that the victim’s testimony should not be considered sufficient on its face value to render an indictment since they were all underage when the alleged sex crimes occurred.

The court held that the defense’s arguments were illogical and noted that in common law, testimony offered by victims in sex offense cases was not required to be corroborated. The requirement for corroboration of victim testimony was fairly new at the time of Mr. Grady’s trial and applied to cases involving forcible or statutory sodomy.

According to the court, Section 130.16 of the New York Penal Code eliminated the corroboration requirement for forcible sex crimes but upheld it for cases involving statutory sex offenses where lack of consent is tied specifically to the victim’s age or mental capacity. The court also noted that corroboration is not required in cases involving other serious crimes, such as attempted murder, assault, robbery and burglary.

In particular, the court seemed to take issue with the fact that the teenagers in Mr. G’s case could be charged and convicted for serious offenses based on uncorroborated testimony but that they did not enjoy the same standard of trust when they themselves were victims. The court went so far as to raise the issue of whether Section 130.16 actually violated the rights of teenagers under the age 17 to equal protection under the law.

According to the evidence, the victims, J.P, C.V. and L.G., resided together in a group home for boys in Albany, New York. According to J.P., he was approached by Mr. G at a donut shop in December, 1977 and invited to go to his apartment. J.P. testified that he visited the apartment several times and on December 29, 1977, Mr. G allegedly performed sexual acts on him, including anal and oral intercourse.

J.P. also stated that Mr. G repeatedly insisted that he bring C.V. to the apartment so that he could commit the same acts upon the boy. J.P. eventually agreed and C.V. testified that he went to the apartment sometime before August 1978. On or about August 25th, 29th and 30th, Mr. G allegedly performed several acts involving anal and oral intercourse on C.V.

L.G. then testified that C.V. took him to Mr. G’s apartment on or near September 1st, 1978 and that Mr. G attempted to commit similar acts upon him.

After reviewing the evidence and testimony presented to the grand jury, the court determined that while the evidence was not fully developed, it was sufficient to satisfy the corroboration requirement and sustain each count of the indictment.

In the case of C.V., corroboration came through the testimony of J.P. that Mr. G repeatedly asked him to bring the boy to the apartment so that he could perform acts of sodomy. The court concluded that in each succeeding case, the preceding victim testified that he was responsible for introducing the next victim to Mr. G. This connecting thread served as satisfactory evidence for corroboration purposes. The court held that Mr. G’s actions and the actions of the victims constituted a scheme or plan and that the testimony of C.V. corroborated the statements made by the other two victims. The court essentially viewed each of the victims as one and the same and said that the evidence offered by each boy was admissible to prove not only his individual case but the other two as well.

After reviewing the evidence, the court held that the corroboration requirement of Penal Law 130.16 was satisfied and that there was sufficient evidence to sustain each count of the indictment. As such, Mr. G’s motion to dismiss was denied.

Sex crimes, including forcible and/or consensual sodomy, child sex abuse, sex with a minor and possession or distribution of child pornography are serious charges under New York law. If you’ve been charged with any of these sex offenses, you need the help of an experienced New York criminal defense attorney.

The law firm of Stephen Bilkis and Associates specializes in assisting criminal defendants in protecting their rights. Call 1-800-NY-NY-LAW today to get the help you need in fighting a sex offense charge. Alternately, you may also visit one of our New York area office locations to speak with a criminal defense expert in person. A sex crimes conviction can have serious and long-lasting consequences. Call Stephen Bilkis and Associates now to get the experienced legal representation you need to defend your rights.

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