§ 130.05 Sex offenses; lack of consent.\n 1. Whether or not specifically stated, it is an element of every\noffense defined in this article that the sexual act was committed\nwithout consent of the victim.\n 2. Lack of consent results from:\n (a) Forcible compulsion; or\n (b) Incapacity to consent; or\n (c) Where the offense charged is sexual abuse or forcible touching,\nany circumstances, in addition to forcible compulsion or incapacity to\nconsent, in which the victim does not expressly or impliedly acquiesce\nin the actor's conduct; or\n (d) Where the offense charged is rape in the third degree as defined\nin subdivision seven, eight or nine of section 130.25, or a crime\nformerly defined in subdivision three of section 130.40, in addition to\nforcible compulsion, circumstances under which, at the time of the act\nof vaginal sexual contact, oral sexual contact or anal sexual contact,\nthe victim clearly expressed that he or she did not consent to engage in\nsuch act, and a reasonable person in the actor's situation would have\nunderstood such person's words and acts as an expression of lack of\nconsent to such act under all the circumstances.\n 3. A person is deemed incapable of consent when he or she is:\n (a) less than seventeen years old; or\n (b) mentally disabled; or\n (c) mentally incapacitated; or\n (d) physically helpless; or\n (e) committed to the care and custody or supervision of the state\ndepartment of corrections and community supervision or a hospital, as\nsuch term is defined in subdivision two of section four hundred of the\ncorrection law, and the actor is an employee who knows or reasonably\nshould know that such person is committed to the care and custody or\nsupervision of such department or hospital. For purposes of this\nparagraph, "employee" means (i) an employee of the state department of\ncorrections and community supervision who, as part of his or her\nemployment, performs duties: (A) in a state correctional facility in\nwhich the victim is confined at the time of the offense consisting of\nproviding custody, medical or mental health services, counseling\nservices, educational programs, vocational training, institutional\nparole services or direct supervision to incarcerated individuals; or\n (B) of supervising persons released on community supervision and\nsupervises the victim at the time of the offense or has supervised the\nvictim and the victim is still under community supervision at the time\nof the offense; or\n (ii) an employee of the office of mental health who, as part of his or\nher employment, performs duties in a state correctional facility or\nhospital, as such term is defined in subdivision two of section four\nhundred of the correction law in which the incarcerated individual is\nconfined at the time of the offense, consisting of providing custody,\nmedical or mental health services, or direct supervision to such\nincarcerated individuals; or\n (iii) a person, including a volunteer, providing direct services to\nincarcerated individuals in a state correctional facility in which the\nvictim is confined at the time of the offense pursuant to a contractual\narrangement with the state department of corrections and community\nsupervision or, in the case of a volunteer, a written agreement with\nsuch department, provided that the person received written notice\nconcerning the provisions of this paragraph; or\n (f) committed to the care and custody of a local correctional\nfacility, as such term is defined in subdivision two of section forty of\nthe correction law, and the actor is an employee, not married to such\nperson, who knows or reasonably should know that such person is\ncommitted to the care and custody of such facility. For purposes of this\nparagraph, "employee" means an employee of the local correctional\nfacility where the person is committed who performs professional duties\nconsisting of providing custody, medical or mental health services,\ncounseling servi
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