Section 130.05. Sex offenses; lack of consent

1.  Whether  or  not  specifically  stated,  it is an element of every
  offense defined in this  article  that  the  sexual  act  was  committed
  without consent of the victim.
    2. Lack of consent results from:
    (a) Forcible compulsion; or
    (b) Incapacity to consent; or
    (c)  Where  the  offense charged is sexual abuse or forcible touching,
  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; or
    (d) Where the offense charged is rape in the third degree  as  defined
  in  subdivision  three  of section 130.25, or criminal sexual act in the
  third degree as defined in  subdivision  three  of  section  130.40,  in
  addition  to forcible compulsion, circumstances under which, at the time
  of the act of intercourse, oral sexual conduct or anal  sexual  conduct,
  the victim clearly expressed that he or she did not consent to engage in
  such  act,  and  a reasonable person in the actor's situation would have
  understood such person's words and acts as  an  expression  of  lack  of
  consent to such act under all the circumstances.
    3. A person is deemed incapable of consent when he or she is:
    (a) less than seventeen years old; or
    (b) mentally disabled; or
    (c) mentally incapacitated; or
    (d) physically helpless; or
    (e)  committed  to  the  care  and  custody of the state department of
  correctional services  or  a  hospital,  as  such  term  is  defined  in
  subdivision  two  of section four hundred of the correction law, and the
  actor is  an  employee,  not  married  to  such  person,  who  knows  or
  reasonably  should  know  that  such person is committed to the care and
  custody of such department or hospital. For purposes of this  paragraph,
  "employee" means (i) an employee of the state department of correctional
  services  who  performs  professional  duties  in  a  state correctional
  facility consisting of  providing  custody,  medical  or  mental  health
  services,  counseling  services,  educational  programs,  or  vocational
  training for inmates;
    (ii) an employee of the division of parole who  performs  professional
  duties  in  a state correctional facility and who provides institutional
  parole services pursuant to section  two  hundred  fifty-nine-e  of  the
  executive law; or
    (iii)  an  employee  of  the  office  of  mental  health  who performs
  professional duties in a state correctional  facility  or  hospital,  as
  such  term  is defined in subdivision two of section four hundred of the
  correction law, consisting of providing custody, or  medical  or  mental
  health services for such inmates; or
    (iv)  a  person,  including  a volunteer, providing direct services to
  inmates in the state  correctional  facility  in  which  the  victim  is
  confined   at  the  time  of  the  offense  pursuant  to  a  contractual
  arrangement with the state department of correctional  services  or,  in
  the  case  of  a  volunteer,  a  written agreement with such department,
  provided  that  the  person  received  written  notice  concerning   the
  provisions of this paragraph; or
    (f)  committed  to  the  care  and  custody  of  a  local correctional
  facility, as such term is defined in subdivision two of section forty of
  the correction law, and the actor is an employee, not  married  to  such
  person,  who  knows  or  reasonably  should  know  that  such  person is
  committed to the care and custody of such facility. For purposes of this
  paragraph, "employee"  means  an  employee  of  the  local  correctional

  facility  where the person is committed who performs professional duties
  consisting of providing custody,  medical  or  mental  health  services,
  counseling  services,  educational  services, or vocational training for
  inmates.  For  purposes  of this paragraph, "employee" shall also mean a
  person, including a volunteer or a  government  employee  of  the  state
  division  of  parole  or  a local health, education or probation agency,
  providing direct services to inmates in the local correctional  facility
  in which the victim is confined at the time of the offense pursuant to a
  contractual  arrangement  with  the local correctional department or, in
  the case of such a volunteer or government employee, a written agreement
  with such department, provided that such person received written  notice
  concerning the provisions of this paragraph; or
    (g)  committed  to  or  placed  with the office of children and family
  services and in residential care, and the  actor  is  an  employee,  not
  married  to  such  person, who knows or reasonably should know that such
  person is committed to or placed with such office of children and family
  services and in  residential  care.  For  purposes  of  this  paragraph,
  "employee"  means  an  employee  of  the  office  of children and family
  services or of a residential facility who performs duties consisting  of
  providing   custody,  medical  or  mental  health  services,  counseling
  services, educational  services,  or  vocational  training  for  persons
  committed  to  or placed with the office of children and family services
  and in residential care; or
    (h) a client or patient and the actor is a  health  care  provider  or
  mental  health  care  provider  charged with 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, and the act of sexual conduct occurs during a
  treatment session, consultation, interview, or examination.