When Workplace Sexual Harassment Is Also a Crime in New York

If you are in immediate danger, call 911.⁠^[10] The New York State Domestic and Sexual Violence Hotline is 800-942-6906 (text 844-997-2121); the State's Office for the Prevention of Domestic Violence says conversations are confidential, secure and available 24/7 in most languages.⁠^[11] The national hotline of the Rape, Abuse & Incest National Network is 800-656-HOPE (800-656-4673).⁠^[12]

Yes, it can be. New York State's model sexual harassment prevention policy tells workers that harassment involving unwanted physical touching, coerced physical confinement or coerced sex acts "may constitute a crime," and encourages those who want to pursue criminal charges to contact their local police department.⁠^[1] A criminal case and a civil claim are separate tracks: two New York State civil statutes and New York City's gender-motivated violence law say outright that they do not require a criminal charge or conviction.⁠^[6][7][8]

This page lists New York Penal Law offenses that can overlap with workplace sexual harassment, explains how they differ from the civil definitions, and points to the civil claims that can exist alongside a criminal case or without one.

Which Penal Law offenses overlap with workplace sexual harassment?

The table gives the elements and the class of each offense as the New York State statute states them. All of them are New York State criminal laws, and none of them is written specifically for the workplace.

Offense	What the statute describes	Class
Forcible touching (Penal Law § 130.52)	Intentionally, and for no legitimate purpose, forcibly touching the sexual or other intimate parts of another person to degrade or abuse them or to gratify the actor's sexual desire. It includes squeezing, grabbing or pinching.⁠[2]	Class A misdemeanor⁠[2]
Sexual abuse in the third degree (Penal Law § 130.55)	Subjecting another person to sexual contact without that person's consent.⁠[3]	Class B misdemeanor⁠[3]
Sexual misconduct (Penal Law § 130.20)	Engaging in vaginal, oral or anal sexual contact with another person without that person's consent.⁠[13]	Class A misdemeanor⁠[13]
Harassment in the second degree (Penal Law § 240.26)	With intent to harass, annoy or alarm: striking, shoving, kicking or other physical contact (or attempting or threatening it); following a person in a public place; or a course of conduct or repeated acts that alarm or seriously annoy and serve no legitimate purpose.⁠[4]	Violation⁠[4]
Harassment in the first degree (Penal Law § 240.25)	Intentionally and repeatedly harassing a person by following them in or about a public place, or by a course of conduct or repeated acts, which places the person in reasonable fear of physical injury.⁠[14]	Class B misdemeanor⁠[14]
Unlawful surveillance in the second degree (Penal Law § 250.45)	For no legitimate purpose, intentionally using or installing an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom or shower, without the person's knowledge or consent.⁠[15] Other subdivisions cover recording a person dressing or undressing where the person has a reasonable expectation of privacy, when done for purposes the statute lists, and recording under a person's clothing.⁠[15]	Class E felony⁠[15]
Unlawful dissemination or publication of an intimate image (Penal Law § 245.15)	With intent to cause harm to a person's emotional, financial or physical welfare, intentionally disseminating or publishing an identifiable intimate image of that person, including one created or altered by digitization, when the actor knew or reasonably should have known the person did not consent.⁠[16]	Class A misdemeanor⁠[16]

The list is not complete. The State's model policy also names rape, sexual battery and molestation, and attempts to commit them, as conduct that "may be considered criminal conduct outside the scope of this policy."⁠^[17] This page does not set out the elements of those more serious offenses.

What does "without consent" mean for the touching offenses?

For sexual abuse and forcible touching, the New York Penal Law does not limit lack of consent to force or incapacity. Under Penal Law § 130.05(2)(c), lack of consent also results from "any circumstances" in which the victim "does not expressly or impliedly acquiesce in the actor's conduct."⁠^[18]

"Sexual contact" is defined in the Penal Law as any touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either party, whether directly or through clothing.⁠^[3]

Is "harassment" in the Penal Law the same as workplace harassment?

No, and the shared word causes confusion. Penal Law harassment in the second degree requires intent to harass, annoy or alarm, together with physical contact, following, or an alarming course of conduct that serves no legitimate purpose.⁠^[4] The State statute classifies it as a violation, not a misdemeanor.⁠^[4]

Workplace harassment under the New York State Human Rights Law (NYSHRL) is defined differently. It is an unlawful discriminatory practice when it subjects a person to inferior terms, conditions or privileges of employment because of membership in a protected category.⁠^[5] The State's model policy adds that sexual harassment is not limited to sexual contact, touching or sexually suggestive expressions.⁠^[19] Because the two definitions are different, the same behavior can meet one and not the other.⁠^[4][5]

The guide to what counts as sexual harassment in New York sets out the civil definitions under federal, State and New York City law.

Secret recording and intimate images

Two New York State offenses address recording and images. Unlawful surveillance in the second degree covers surreptitious viewing or recording with an imaging device in the situations the statute lists, including recording under a person's clothing, and is a class E felony.⁠^[15] Unlawful dissemination or publication of an intimate image is a class A misdemeanor and expressly includes an image "created or altered by digitization."⁠^[16]

There is also a State civil remedy. Under Civil Rights Law § 52-b, a person depicted in an intimate image that was taken when the person had a reasonable expectation it would remain private has a civil claim against an individual who, for the purpose of harassing, annoying or alarming the person, disseminated or published it, or threatened to, without consent.⁠^[20] The finder of fact, in its discretion, may award injunctive relief, punitive damages, compensatory damages and reasonable court costs and attorney's fees.⁠^[20] That civil action has to be started by the later of three years after the dissemination or one year after the person discovered, or reasonably should have discovered, it.⁠^[7]

The State's model policy also treats remote settings as part of the workplace: it says harassment can happen on virtual meeting platforms, in messaging apps and between personal cell phones after hours.⁠^[21] See the guide to remote work and online harassment.

Is reporting to the police the same as making a workplace complaint?

No. They go to different places and do different things.

• A police report goes to law enforcement. The State's model policy encourages those who wish to pursue criminal charges to contact their local police department.⁠^[1]
• A complaint to the employer triggers the employer's own process. Under the State's model policy, a complaint can be made verbally or by email as well as on the complaint form, and it is to be treated with equal priority.⁠^[22] The model policy calls for an investigation that is prompt, thorough and kept confidential to the extent possible.⁠^[23]
• A civil claim is filed with an agency or a court. Under the NYSHRL, a sexual harassment complaint may be filed with the Division of Human Rights within three years, and a court action may be brought within three years.⁠^[24]

Doing one does not do the others. The State's model policy warns that complaining internally to the employer does not extend the time to file with the Division of Human Rights or in court.⁠^[9] The guide on how to report harassment at work covers the internal complaint; the guide to New York employment claim deadlines covers the filing periods.

Does a civil claim depend on a criminal case?

Under the statutes described on this page, no.

• New York State's twenty-year civil statute for listed serious sex offenses says nothing in it requires "that a criminal charge be brought or a criminal conviction be obtained" before a civil claim or judgment.⁠^[6]
• The State's civil claim for non-consensual intimate images says it does not require a prior criminal complaint, prosecution or conviction.⁠^[7]
• New York City's gender-motivated violence law says no prior criminal complaint, prosecution or conviction is needed to establish the elements of the claim.⁠^[8]

A criminal case can still affect a civil one. Under CPLR § 215(8), if a criminal action was commenced against the same defendant over the same event, the plaintiff has at least one year from the end of the criminal action to start a civil action that is subject to that section's one-year period, and at least five years where the criminal action is for certain first-degree offenses.⁠^[25] Under New York City's gender-motivated violence law, a conviction arising from the same event is conclusive proof of the underlying facts of that crime in the civil action.⁠^[26]

Which civil claims can exist alongside a criminal case?

Several, each with its own time limit. Under New York State law, a civil action for assault or battery has a one-year limit, while civil claims for conduct that would constitute certain listed serious sex offenses may be brought within twenty years.⁠^[27][6] New York City's gender-motivated violence law has a seven-year limit.⁠^[28] A sexual harassment claim against an employer under the NYSHRL has a three-year limit, and a gender-based harassment claim may be filed with the NYC Commission on Human Rights within three years after the harassing conduct.⁠^[24][29]

The guides on civil deadlines for sexual assault and on New York City's gender-motivated violence law go further into these claims.

Can an agreement with my employer stop me from going to the police?

New York State law limits what such agreements can do. A provision in a contract between an employer and an employee, potential employee or independent contractor, entered into on or after January 1, 2020, that prevents disclosure of factual information about a future discrimination claim is void and unenforceable unless it tells the person that it does not prohibit speaking with law enforcement, the EEOC, the Division of Human Rights, the Attorney General, a local commission on human rights or the person's attorney.⁠^[30]

For settlements, a confidentiality term is void under State law to the extent it restricts the complainant from initiating, testifying in, assisting or participating in an investigation by a local, state or federal agency.⁠^[31] The guide to non-disclosure agreements in sexual harassment cases has the details.

Practical steps after an incident

These are practical suggestions, not legal rules.

• Put your safety first. The New York State hotline listed at the top of this page is confidential and available 24/7.⁠^[11]
• If you want medical care, seek it promptly; a hospital or clinic can explain what it offers.
• Write down what happened while it is fresh: the date, the place, what was said and done, and who was nearby.
• Keep the messages, emails, photos or call logs you already have, in their original form.
• Decide separately whether to tell the police, your employer, an agency, or more than one of them. Each is its own step.

Criminal time limits, the elements of felony sex offenses and what happens inside a criminal prosecution are outside the scope of this guide. For help finding a lawyer or a free legal service, see free and low-cost legal help for New York workers.