Under New York law, which statement best describes an offense involving a person incapable of consent (not due to age)?

• A. Sex with a dead person or animal
• B. Sex with a person incapable of consent
• C. Sex by force
• D. Sex with a physically helpless person

Answer: (B)

In New York, a key element of the offense is that the other person cannot legally give consent. If someone cannot consent because they’re physically helpless or mentally incapable, engaging in sexual intercourse with them is unlawful, regardless of whether there’s force involved. That broad concept—sex with someone incapable of consent—is the most accurate description of the offense when the incapacity isn’t due to age.

The other options describe specific scenarios that are either separate crimes (necrophilia) or specific ways the act can occur (by force, or with a physically helpless person). While sex with a physically helpless person is indeed a form of acting without consent, the general description that directly captures the lack of consent applies most accurately to the situation described.