Lawyers Manual - Unified Court System

186 Jill Laurie Goodman
The rape may come within the definition of one of the crimes, such as menacing
and assault, that is a family offense, and, even if it does not, raising it may
convince a judge that your client needs a strong order of protection, with
provisions that keep the abuser out of her home and far away from her. Sexual
abuse also may be pleaded in a matrimonial action as a form of cruel and
inhuman treatment, and it may be a cause of action in a tort case. Immigrants
who are not lawful permament residents may find that providing information
about sexual violence helps establish entitlement to immigration relief, such as
a VAWA self-petition, a battered spouse waiver, a U Visa, or asylum.
Your Role in Criminal Prosecutions
The sexual abuse to which your client has been subjected may be a crime.
In New York, rape in the first degree is sexual intercourse accomplished by
forcible compulsion, which is defined as the use of either physical force or
threats, express or implied, that put the victim in fear of death, kidnaping, or
physical injury to herself or another person. 22 Like attempted murder and first
degree robbery, it is a Class B felony, punishable by 5-25 years in prison. 23
New York courts have taken a sufficiently expansive view of forcible
compulsion to permit victims of intimate partner sexual violence to present
evidence that conveys the kind of fear and physical force that their abuser may
have used against them. Courts agree that the nature of the force must be analyzed
from the point of view of the victim or, as one court said, “The proper focus is on
the state of mind produced in the victim by the defendant’s conduct.” 24 Evidence
of previous violent acts or forced sexual intercourse removed in time from the
rape has been used to establish ongoing fear demonstrating forcible compulsion. 25
In one case in which an appellate court found sufficient forcible compulsion to
support a conviction, evidence was admitted showing that the defendant had
attacked the victim a few days before the rape and, on the night of the rape,
confined her in a bedroom, sliced her clothes, sheets and mattress with a box
cutter and threatened to “drop” the victim and her daughter, a threat the victim
understood to mean he would kill her and her child. 26 In another case, evidence
was admitted showing that the defendant had made threats to the victim’s mother
and sister and had sexually molested the victim both before and after the rape for
which he was being tried. 27 Stalking, by contacting the victim repeatedly at work
and at home for several days prior to the sexual attack, has also been allowed to
show forcible compulsion. 28
If you think the sexual abuse qualifies as a crime, you should consider
encouraging your client to contact a district attorney’s office and to assist in the