ALTHOUGH DEFENDANT AND DEFENDANT’S SISTER TOLD THE COMPLAINANT TO HAVE SEX WITH THEIR BOYFRIENDS, THERE WAS NO EVIDENCE OF FORCIBLE COMPULSION; DEFENDANT, WHO RECORDED SOME OF THE SEXUAL ACTS, HAD A REASONABLE BELIEF COMPLAINANT WAS OVER 17; RAPE, CRIMINAL SEXUAL ACT AND USE OF A CHIILD IN A SEXUAL PERFORMANCE CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s rape first, criminal sexual act firs and use of a child in a sexual performance convictions, determined there was no evidence complainant was forced to have sex and defendant had a reasonable belief the complainant was not under 17. Complainant was told by defendant to have sex with her boyfriend (Graham) in a group setting and defendant recorded some of the acts on her phone. Defendant’s sister also told complainant to have sex with her boyfriend (Wapples). Although complainant felt uncomfortable, she complied:

There was no evidence in this case that either Graham or Wapples used actual physical force to compel the complainant to engage in sexual intercourse or oral sexual conduct, and the complainant herself testified that she was not explicitly threatened by any of the perpetrators. To the extent that this case turned on whether there was sufficient evidence of an implied threat, we conclude, viewing the evidence in the light most favorable to the People, that there was not sufficient evidence of an implied threat here. * * *

… [W]e also vacate the defendant’s conviction of use of a child in a sexual performance … . The complainant testified at trial that she had “lied” … about her age, and that she had not ever told the defendant how old she really was. A trial witness who had rented rooms to … the complainant testified that the complainant stated that she was in her early 20s. People v Patterson, 2023 NY Slip Op 01103, Second Dept 3-1-23

Practice Point: Here, although the defendant told the complainant to have sex with her boyfriend, there was no evidence of forcible compulsion. There also was no evidence defendant, who recorded some of the sexual acts, was aware the complainant was less than 17. Rape, criminal sexual act and use of a child in a sexual performance convictions reversed.