Sex offenses; limitation; defenses

§ 130.10 Sex offenses; limitation; defenses.

1. In any prosecution under this article in which the victim's lack of
consent is based solely upon his or her incapacity to consent because he
or she was mentally disabled, mentally incapacitated or physically
helpless, it is an affirmative defense that the defendant, at the time
he or she engaged in the conduct constituting the offense, did not know
of the facts or conditions responsible for such incapacity to consent.

2. Conduct performed for a valid medical or mental health care purpose
shall not constitute a violation of any section of this article in which
incapacity to consent is based on the circumstances set forth in
paragraph (h) of subdivision three of section 130.05 of this article.

* 3. In any prosecution for the crime of rape in the third degree as
defined in section 130.25, criminal sexual act in the third degree as
defined in section 130.40, aggravated sexual abuse in the fourth degree
as defined in section 130.65-a, or sexual abuse in the third degree as
defined in section 130.55 in which incapacity to consent is based on the
circumstances set forth in paragraph (h) of subdivision three of section
130.05 of this article it shall be an affirmative defense that the
client or patient consented to such conduct charged after having been
expressly advised by the health care or mental health care provider that
such conduct was not performed for a valid medical purpose.

* NB Effective until September 1, 2024

* 3. In any prosecution for the crime of rape in the third degree as
defined in section 130.25, a crime formerly defined in section 130.40,
aggravated sexual abuse in the fourth degree as defined in section
130.65-a, or sexual abuse in the third degree as defined in section
130.55 in which incapacity to consent is based on the circumstances set
forth in paragraph (h) of subdivision three of section 130.05 of this
article it shall be an affirmative defense that the client or patient
consented to such conduct charged after having been expressly advised by
the health care or mental health care provider that such conduct was not
performed for a valid medical purpose.

* NB Effective September 1, 2024

4. In any prosecution under this article in which the victim's lack of
consent is based solely on his or her incapacity to consent because he
or she was less than seventeen years old, mentally disabled, a client or
patient and the actor is a health care provider, detained or otherwise
in custody of law enforcement under the circumstances described in
paragraph (j) of subdivision three of section 130.05 of this article, or
committed to the care and custody or supervision of the state department
of corrections and community supervision or a hospital and the actor is
an employee, it shall be a defense that the defendant was married to the
victim as defined in subdivision four of section 130.00 of this article.

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