Respondent is the mother of the three subject children: Wesley R. (date of birth, January 4, 1993), Marcos S. (date of birth, December 18, 1998), and Rosaly S. (date of birth, May 6, 1995). Prior to the commencement of this proceeding, all three children resided in Brooklyn with respondent and her husband, Christian A..

Wesley was born in the Dominican Republic. Respondent moved to the United States when he was about one year old. Wesley remained in the Dominican Republic where he lived with a paternal aunt and his paternal grandmother. His mother visited once each year and he spoke to her on the telephone on weekends. When he was 12 years old, his paternal aunt got married and moved to Florida. On July 4, 2006, Wesley moved to the United States. After his arrival, he lived with members of his extended family. In early 2007, he moved to New York to live with his mother, her husband and his two half-siblings.

Since the petition was filed, Wesley has been placed with Mercy First. His father, Jose R., resides in the Dominican Republic. Since approximately one month after the filing of the petition, Marcos and Rosaly have been temporarily released to their non-respondent father, who lives with his wife in New Jersey.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This action was commenced on January 2, 2008, when NYCCS filed abuse petitions against respondent mother. The petitions allege that on December 31, 2007, respondent allowed the subject child, Wesley R., to sleep in her bed, touch her, kiss her on the mouth, insert his finger in her anus, insert his finger in her vagina, and have sexual intercourse with her to the point of ejaculation. According to respondent, she did not stop the child because she could not believe that her son would do this to her, and she wanted to "see how far he would go." The above incident was alleged to be in violation of Penal Law §§ 130.05 (3)(a),^[FN1] 130.20 (sexual misconduct),^[FN2] 130.25 (2) (rape in the [*2]third degree),^[FN3] 130.30 (1) (rape in the second degree),^[FN4] and 130.55 (sexual abuse in the third degree).^[FN5] In addition, the petitions alleged that respondent failed to provide adequate care and supervision for the children by misusing alcoholic beverages to the extent that she loses control of her actions. Specifically, the petitions alleged that on December 30, 2007, she drank two Corona beers causing her to become intoxicated. In addition, the petitions alleged that Wesley woke up at 3:00 AM on December 31, 2007, in his mother's bed smelling alcohol because she drank three quarters of a fifth of Johnnie Walker Red on the previous evening. Finally, the petitions alleged that Rosaly and Marcos S. are derivatively abused and neglected children by virtue of the abuse of Wesley.

On the day the petitions were filed, this Court granted the request of NYCCS for a remand of all of the children. On January 2, 2008, Wesley was placed at a diagnostic residential center for an evaluation by Mercy First.

Thereafter, respondent requested a Family Court Act § 1028 hearing seeking the immediate return of Rosaly and Marcos S.. The hearing took place before Judicial Hearing Officer (hereinafter, "JHO") Betty E. Staton over several court dates, beginning on January 3, 2008 and ending on January 28, 2008. At the conclusion of the hearing, JHO Staton ordered the temporary release of Rosaly and Marcos to respondent mother on the condition that she cooperate with referrals for a mental health evaluation, individual counseling and parenting skills, as well as NYCCS supervision.

On January 29, 2008, NYCCS moved in the Appellate Division, Second Department for a stay of JHO Staton's order pending appeal. The Court granted an interim stay pending a decision on the motion. On February 14, 2008, the Court granted the motion for a stay pending appeal. Thereafter, by order and decision dated August 12, 2008, the Court reversed JHO Staton's order and remitted, holding that the undisputed evidence, establishing sexual contact between respondent and her son evidenced a "deeply flawed understanding of her parental duties and impaired judgment." The Court found that this evidence supported a finding that Marcos and Rosaly were derivatively abused. The Court noted that non-respondent father had indicated a willingness to assume custody in the event that the children were not returned to the mother (see Matter of Rosy S., 54 AD3d 377, 379 [2d Dept 2008]).

On January 31, 2008, this Court temporarily released Rosaly and Marcos S. to their non-respondent father under NYCCS supervision. Respondent mother was granted visitation with the two children to be supervised by non-respondent father or his wife.

On February 12, 2008, the Mercy First treatment team recommended that Wesley be placed in a Residential Treatment Center. He was not actually transferred to such a facility, however, until June 26, 2008. Thereafter, he was transferred to a group home on April 13, 2009.

Respondent mother has not visited or communicated with Wesley since the commencement of the proceeding. She does not want any contact. At this point, Wesley no longer wishes to have any [*3]contact with his mother. Since the petitions were filed, he has had no contact with his half-siblings or his stepfather. Wesley's paternal aunt and uncle have agreed to be resources for him. They currently reside in Florida and the ICPC has been submitted. They have repeatedly traveled to New York to visit with their nephew and have been active participants in his treatment. He has also had some contact with a maternal aunt.

The fact-finding hearing began on May 21, 2008 and continued over the course of approximately 22 months on numerous court dates. During the fact-finding hearing, NYCCS called Officer Ignatz from the 90th precinct, the NYCCS caseworker, Rosetta Means and the casework supervisor II, Nicole Laurain. Respondent mother called her husband to testify and she also testified on her own behalf.

Findings of Fact and the Fact-Finding Hearing

On December 30, 2007, at approximately 9:30 PM, respondent mother, her husband and the subject child, Wesley, went to a party at a cousin's house. Rosaly and Marcos were in New Jersey visiting their father.

At the party, respondent mother drank two Coronas and several glasses of a chocolate drink. Her husband drank approximately eight shots of Johnnie Walker Red and Wesley snuck about half a glass of rum.

The family members left the party at approximately 12:30 AM. They arrived at home at about 1:00 AM. Wesley was hungry. His stepfather gave him $20 to go out and get something to eat. He went to a local bakery that was opened all night. After returning home Wesley ate. He said he wanted to sleep with respondent because he was scared. At first, she refused; however, Wesley continued to ask and eventually she relented and allowed him to sleep in her bed. The stepfather went into the living room to watch television. The apartment is relatively small and, as a result, the stepfather was never more than five feet away from where his wife was with Wesley. The stepfather fell asleep for approximately one to one-and-one-half hours.

At approximately 3:00 AM, respondent mother called out to her husband. She was crying. She said to Wesley, "What did you do to me!?" The stepfather then entered the room. Wesley was sitting on the bed. Respondent was standing. Respondent then packed Wesley's belongings telling him he could not live in the house anymore. Respondent wanted to send Wesley back to the Dominican Republic. She testified that she wanted to "take him personally to talk to his father and his grandmother;" however, she could not find the documents she needed to travel.

Respondent called a taxi cab and began to head toward the airport with her husband and Wesley. Within several blocks, she changed her mind. She then told the cab to take them to the 90th Precinct.

They arrived at the precinct at approximately 7:00 AM on December 31, 2007. Respondent mother and Wesley were met by Officer Ignatz. The officer interviewed respondent twice. The first interview was conducted with an interpreter present and it lasted approximately five to ten minutes. The second interview was conducted with Detective Weaver and Officer Cruz, who interpreted. The officer also interviewed Wesley.

Evidence Adduced at Fact-Finding

Respondent's Statements to Police Officers

Officer Ignatz was called by NYCCS to testify at fact-finding. The officer testified that when she first met respondent mother she was crying. She said that her son had raped her. She told the officer [*4]that she had allowed Wesley to sleep in her bed since he was afraid of the dark. She said that the child kissed her on the mouth while she was sleeping. She said that she then turned away from him on her side. She said that he then put his finger into her anus. She said, he then inserted his penis in her vagina.

The officer testified that respondent said that the reason she did not stop him at first was because she wanted "to make sure he wasn't asleep." She said that after that she was "in shock and wanted to see how far he would go." She also said that she "could not believe he was doing the things he was doing."

Respondent also made a written statement at the precinct. The statement was made in Spanish and then subsequently translated into English by an official translator:

On the night of December 30, 2007, my son asked to sleep with me. At first I said no. But then I agreed to let him. He thought I was asleep and began to kiss me. I could not believe it. I was surprised, incredulous, and felt very sad. I then turned away from him, and he began to caress me from the back. I thought he was crazy. I decided to let him, just to see how far he would go. He kept kissing me. He continued doing asiendome la damilla,^[FN6]just to prove how far he could go. He took my pants off and pulled my panties to one side and put his finger in me and then his penis. I felt bad and could not believe my son would do that (petitioner's exhibit No.2 in evidence).

Officer Ignatz testified that respondent was taller than her son. He was 14, and she was 34 years of age. The officer testified that respondent never said that she had cried out or told her son to stop. She did not say that he hurt her or threatened her or threatened another family member. She did not say that she had been afraid.

After the interviews at the police precinct, respondent mother was taken to the hospital where she refused a rape kit. The officer called in the oral report transmission (hereinafter, "ORT") on December 31, 2007. Thereafter, Wesley was arrested and charged with sexual misconduct and sexual abuse in the third degree. Those charges were subsequently withdrawn.

Respondent's Testimony

Respondent mother testified at the fact-finding hearing that she was raped by her son. She testified that on December 30, 2007, she went to a party at a cousin's house with her husband and Wesley. After they returned home, Wesley went out to buy something to eat. When he returned, he said that he wanted to sleep with her because he was scared. At first, she refused; however, he continued to ask and eventually she relented and allowed him to sleep with her in her bed. Her husband went into the living room to watch television.

The mother then went to sleep in the bedroom with her son. When she woke up, Wesley was touching her face and kissing her lips. She turned away from him and rolled over to face the wall. She then pretended to be asleep. He pulled her panties aside and down. He turned her on her back. He then got on top of her. He put his leg in between her legs and pushed her legs apart. He placed his penis in her vagina. After that, she pushed him away and stood up.

According to respondent, she did not stop her son sooner because she "could not believe that he [*5]would do something like that." In addition, she reported that she wanted "to see how far he would go." She "wanted to see for [her]self what his intentions were." She "didn't know he would get where he got." She testified that she was "totally incredulous and confused and really wanted to know what he was pretending to do." She testified further that she believed that "if he could do something like that to [her], he could also do it to [her] daughter." She also testified that she "wasn't well" and "felt bad."

On cross-examination by the Attorney for Wesley, respondent testified that Wesley did not put his finger inside her anus, and that he did not put his penis all the way inside of her. She said that his penis was only partially inside her. She said that she did not know if Wesley ejaculated; however, she knew that her panties were wet.

On cross-examination by the Attorney for Wesley, respondent was asked the following question: "So (assuming that) your testimony is accurate and Wesley was kissing you on the lips, trying to move your legs apart, touching you inappropriately..., as an adult, as his parent...wouldn't it have been your responsibility to call out to your husband (..who was a light sleeper [and] only about five feet away from the bedroom you were in with Wesley ?)" Respondent gave the following answer: "But then, I would never have known what his intentions were." The Attorney for Wesley then asked, "Did you think that you might have used bad judgment at some point in pretending to be sleeping during this incident?" She responded,"Well, I didn't have a way of testing what the intentions of this devil, this demon were."

When respondent was asked whether she did anything to stop Wesley, she testified that the only action that she took was to turn over toward the wall after he first kissed her. Respondent acknowledged that she did not cry out or tell her son to stop. She did not stand up or get out of bed. She did not immediately call her husband for help. She did not tell her husband what happened when he first entered the room. She did not call the police. She refused to do a rape kit at the hospital.

When she was asked if she had been afraid of Wesley at the time of the incident, she said that she had been "out of sync." On cross-examination, when she was again asked whether she had been afraid, she said, "Yes." When she was asked why she had been afraid, she testified that her son had once said that he hated her and her daughter. She said that he once accused her of not loving him and saying that he wanted to burn down the apartment. She also said that he was a child "with a lot of problems" and that she "wanted to send him back (to the Dominican Republic), but nobody wanted him."

Stepfather's Testimony

Respondent's husband, Christian A., also testified about the events that took place on December 30, 2007. Mr. A. testified that he and respondent had been married for approximately three years and that Wesley had been living in the home for approximately 11 months at the time of the incident. He testified that on December 30, 2007 at about 9:30 PM, he went to a family reunion with his wife and Wesley. He testified that his wife was drinking chocolate and that he was drinking Johnnie Walker Red.

He testified that they left the party at about 12:30 AM and arrived home at 1:00 AM. After they returned home, the stepfather gave Wesley $20 to go out to buy something to eat. When Wesley returned, he ate in his room. The stepfather went into the living room to watch sports on television. Wesley went into his mother's room and repeatedly asked her if he could sleep with her because he [*6]was scared. At first, she refused; however, he continued to ask and eventually she relented and allowed him to sleep with her in her bed.

The apartment is relatively small and, as a result, the stepfather said that he was about five feet away from where his wife was with Wesley. The stepfather testified that he fell asleep for approximately one to one-and-one-half hours. During that time he did not hear anything.

He woke up at approximately 3:00 AM when he wife called him from the bedroom. She was crying. She said to Wesley, "What did you do to me?" The stepfather then entered the bedroom. Wesley was sitting on the bed wearing his pajamas. Respondent was standing and crying. Respondent then told Wesley to pack his belongings, telling him she was sending him back to the Dominican Republic. Wesley then went into his room and packed.

Respondent called a taxi cab and the three of them began to head toward the airport. Within two blocks, respondent changed her mind and told the cab driver to take them to the 90th Precinct. After that they spent several hours at the precinct. The stepfather left before either his wife or Wesley. Before he left, however, Wesley asked to speak with him. The stepfather testified that he went to speak with Wesley and Wesley repeatedly asked him if his mother was alright and then asked him, "What did I do?" The stepfather testified that he then asked Wesley what had happened and Wesley did not respond.

Wesley's Statements

Wesley did not testify. He has consistently maintained that he does not remember a great deal about what happened the night of December 30, 2007. He has said that, on that night, he went to a party at a cousin's house with his mother and stepfather. He said that his mother drank Johnnie Walker Red and that she was drunk. He said that he drank half of a glass of rum at the party. He said that his mother had previously allowed him drink alcoholic beverages on the weekends—an assertion that respondent mother has consistently denied.

According to Wesley, when they got home, he was hungry. His stepfather gave him $20. He went to the store, bought food and returned home. After eating, he told his mother that he wanted to sleep in her bed because he was scared. His stepfather went into the living room to watch television and he went to sleep in his mother's bed. According to Wesley, the only thing he remembered after that was having a "wet dream" about "having sex with a girl." He said that he ejaculated. He said that the next thing that he remembered was waking up at 3:00 AM with his mother standing over him saying, "What did you do!?"

Respondent's Statements to the Caseworker

NYCCS called caseworker, Rosetta Means, to testify. Ms. Means interviewed respondent on January 2, 2008, in Kings County Family Court. Ms. Means interviewed respondent in English without an interpreter present. Ms. Means testified that respondent told her that she did not need an interpreter. Ms. Means testified that she spoke with respondent on numerous occasions without an interpreter and that respondent was capable of effectively communicating in English.

NYCCS also called Ms. Means supervisor, Nicole Laurain, to testify. Ms. Laurain, like Ms. Means, interviewed respondent in English without an interpreter present. According to Ms. Laurain, no interpreter was available when respondent arrived at her office, without an appointment, during the lunch-hour, demanding to speak with her. According to Ms. Laurain, respondent insisted on talking even after she was told that there was no interpreter available. Ms. Laurain testified that respondent told her that she was able to communicate in English and that she did not need an interpreter. [*7]

Respondent asserts that the Court should disregard the testimony of both Ms. Means and Ms. Laurain. Respondent contends that although she is able to communicate in English to a limited extent, she is not actually fluent in English.

The Court has certain doubts about respondent's assertion that she is not sufficiently fluent in English to communicate effectively. These doubts are based on a number of things including but not limited to the fact that the statements she allegedly made to Ms. Means and Ms. Laurain were virtually identical to her testimony during the fact-finding hearing and the oral and written statements that she made at the police precinct. Nevertheless, to protect the record, the Court has resolved these doubts in favor of respondent. Accordingly, the testimony of Ms. Means and Ms. Laurain has not been considered.

Summary of the Arguments

NYCCS and the Attorney for Wesley seek a finding of sexual abuse against respondent mother based on sexual misconduct, rape in the second degree, rape in the third degree and sexual abuse in the third degree. They assert that the evidence establishes that she had sexual intercourse with her 14-year-old son willingly and voluntarily. They reject her claim that she was raped. They assert that there is no evidence of forcible compulsion since there is no indication that Wesley used physical force or a threat to compel his mother to submit to sexual intercourse. They also assert that there is no evidence that Wesley's actions placed respondent in fear that she or someone else would suffer any harm - - let alone immediate kidnapping, serious physical injury or death. They contend that her testimony in this regard is inconsistent and wholly inadequate. They contend that respondent acquiesced in Wesley's conduct and that she never expressed a lack of consent that would have been understandable to a reasonable person. NYCCS and the Attorney for Wesley urge this Court to infer sexual gratification from the nature of the acts themselves. Finally, they emphasize that since Wesley was 14 years old, he was legally incapable of consenting and that it is, therefore, irrelevant whether he initiated the sexual contact or not. NYCCS also notes that other courts have uniformly rejected claims by adults who seek to escape liability for sexual activity with minors by asserting that the minors were, in fact, the aggressors.

NYCCS also seeks findings of derivative abuse for Marcos and Rosaly. NYCCS asserts that where, as here, the underlying finding is based on acts of sexual abuse by a parent, derivative findings may made in the absence of evidence of direct abuse or neglect of the other children in the home. NYCCS asserts that respondent's actions with Wesley demonstrate such an impaired level of parental judgment as to create a substantial risk of protracted impairment to the two non-target children's physical or emotional health. Additionally, NYCCS asserts that the Appellate Division, Second Department has already determined that a finding of derivative abuse is warranted here. As NYCCS emphasizes, on prior appeal, the Court stated that "the undisputed evidence of sexual interaction between the mother and her first born son, which evidenced the mother's deeply flawed understanding of parental duties and impaired parental judgment, supported a finding that the subject children were derivatively abused" (Matter of Rosy S., 54 AD3d at 378 - 379).

Respondent mother disagrees and asserts that the petitions should be dismissed. First, she asserts that NYCCS has failed to establish that she abused alcohol. She contends that the evidence fails to establish that she ever drank to the extent necessary to support a finding under Family Court Act § [*8]1046(a)(iii).^[FN7]

Second, respondent asserts that she did not consent to sexual contact and that she was raped. She suggests that submission by a victim to a sexual attack is not the same as consent to a sex crime. Respondent asserts that the reason she did not resist more forcefully was that she was "in shock" and because she could not believe that her son would "do something like that to her." She believes that she acted reasonably under the circumstances by pushing her son off of her and getting out of bed when she did. She believes that a finding against her would amount to "blaming the victim."

The Attorney for the Children Rosaly and Marcos, agrees with respondent and opposes a finding of abuse or neglect for Wesley. In addition, he opposes a finding of derivative abuse or neglect as to his clients. He emphasizes that there is no evidence that they were ever maltreated by respondent, that they love her very much and that they wish to return home as soon as possible. Respondent and the Attorney for Wesley also oppose derivative findings for the two younger children. Respondent asserts that she was raped by her older son, that the petitions should be dismissed and that derivative findings are, therefore, impermissible. Wesley's attorney asserts that respondent's actions with her oldest son are unlikely to ever be repeated.

Respondent and both of the Attorneys for the Children also disagree with NYCCS about the precedential value of Matter of Rosy S. (54 AD3d 377, supra ). They assert that the Appellate Division, Second Department could not have intended to bind this Court to a finding of derivative abuse post-fact-finding. They emphasize that Matter of Rosy S. involved an appeal from the grant of a Family Court Act § 1028 hearing - - not a fact-finding hearing. Accordingly, they emphasize that the two hearings involved different issues and different evidentiary standards. In addition, they note that respondent testified at the fact-finding hearing although she did not testify at the § 1028 hearing. As a result, they contend that the negative inference that should have been drawn against her during the Family Court Act § 1028 hearing, is unwarranted here.

LEGAL ANALYSIS

Family Court Act § 1012 (e) (iii) defines a sexually abused child as a child less than 18 years of age whose parent or other person legally responsible for his care commits, or allows to be committed an offense against such child defined in article 130 of the Penal Law; or allows, permits or encourages such child to engage in any act described in §§ 230.25, 230.30 and 230.32 of the Penal Law [*9](involving prostitution); or commits incest in the first, second or third degree.^[FN8] Under Family Court Act § 1012 (e) (iii), it is unnecessary to allege or prove harm or threatened harm to the child.

Where sexual abuse or forcible touching is alleged, it is necessary to prove that respondent intended to gratify the sexual desire of either party. There is no requirement that actual gratification occur, but only that the touching be for that purpose (People v Teicher, 52 NY2d 638, 646 [1981]). It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing (People v Keane, 21 NY2d 883 [1968]). Because the question of gratification is a subjective one, this element may be inferred from respondent's conduct or from the acts themselves (In re Daniel R., 2010 WL 437162, 2 [2d Dept 2010]; see also In re Keisha McL., 261 AD2d 341 [1st Dept 1999] [sexual gratification can be inferred when a parent touches a minor child without an innocent explanation]; Matter of Shannon K., 222 AD2d 905 [3d Dept 1995] [sexual gratification can be inferred from the fondling of the child's vaginal area]; Matter of Patricia J., 206 AD2d 847 [4th Dept 1994], appeal denied 84 NY2d 810 [1994] [sexual gratification can be inferred from respondent's massaging of the child's vagina and buttocks]).

There was no Objective Indication that Respondent did not Consent

Respondent asserts that she did not consent to having sexual relations with her son and that he raped her. However, neither the applicable law nor the facts adduced at fact-finding, support respondent mother's contention.

The Penal Law defines "lack of consent" for purposes of a sex offense (Penal Law §130.05). It establishes that a "lack of consent" results from "forcible compulsion" or "incapacity to consent." In addition, the statute provides that where the offense charged is sexual abuse, "lack of consent" can be established by any circumstances indicating that "the victim did not expressly or impliedly acquiesce in the actor's conduct." Finally, where the offense charged is rape in the third degree, "lack of consent" can be established by any circumstances indicating that "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 under all the circumstances."

1.There is no Evidence of Forcible Compulsion

The statutory definition of the term "forcible compulsion," has been repeatedly amended to reflect the Legislature's view that the "elimination of victim resistance makes a long overdue public policy statement that submission to a sexual attack to preserve one's life or safety is not consent to a sex [*10]crime" (Penal Law § 130.00 [8]). "Forcible compulsion" is now defined as "physical force" or "a threat, express or implied, which force or threat of force places a person in fear of immediate death or serious physical injury to himself, herself or another person, or in fear that he or she or another person will immediately be kidnaped" (Penal Law § 130.00 [8]).

A.There is no Evidence of Physical Force

While "physical force" is not expressly defined in the Penal Law, case law has provided some guidance (People v Parbhu, 191 Misc 2d 473, 479 - 480 [Crim Ct, New York County 2002]). "[B]odily contact alone ... especially when it is effected by a mere touching," does not rise to the level of physical force contemplated by the Penal Law (People v Flynn,123 Misc 2d 1021, 1023 [Sup Ct, New York County 1984]). Physical force is found where there is some "power or strength or violence exerted against a body." (Flynn, 123 Misc 2d at 1023; see also, People v Thompson,158 AD2d 563 [2d Dept 1990], lv denied 76 NY2d 797 [1990] [forcible compulsion was established by the victim's testimony that defendant cornered her, threw her down and had sexual intercourse with her against her will]; People v Cook, 186 AD2d 879 [3d Dept 1992], lv denied 81NY2d 761 [1992] [forcible compulsion was established by the victim's testimony that defendant pulled her down, restrained her arms, removed her clothing and laid on top of her, preventing her escape]; People v Jackson 290 AD2d 644 [3d Dept 2002], lv denied 98 NY2d 711 [2002] [forcible compulsion was established by evidence that the victim told defendant to leave and tried to sit up, but that he held her down and she was afraid for her safety and for the safety of her son in the next room]; People v Pepples, 135 AD2d 581 [2d Dept 1987], appeal denied 71 NY2d 900 [1988] [forcible compulsion was established where the victim was forcibly pulled into a vehicle occupied by four male assailants, transported to defendant's apartment against her will, physically held down by defendant and his accomplices during parts of the sexual attack, and repeatedly threatened with physical harm if she did not cooperate]).

"Forcible compulsion" by physical force has also been found where defendant, taking advantage of his superior physical size and strength, engages in a physical act directed against the victim (People v Oglesby, 12 AD3d 857 [3d Dept 2004], lv denied 5 NY3d 792 [2004] [forcible compulsion was established by evidence that defendant, who was 35 years old and 6 feet, 2 inches tall, entered the victim's bedroom while she was sleeping and tried to put his penis into her vagina, that she told him to stop and tried to move, but he covered her mouth and held her down]; People v Dorsey, 104 Misc 2d 963, 971 [Sup Ct, Bronx County 1980] [forcible compulsion was established by evidence that defendant was approximately seven inches taller and 70 pounds heavier than the victim, and he stopped an elevator between floors, thereby trapping her inside the elevator]).

Courts have also found "forcible compulsion" where the physical condition of the victim or the crime scene is consistent with a struggle (see e.g., People v Bailey, 252 AD2d 815 [3d Dept 1998], lv denied 92 NY2d 922 [1998] [forcible compulsion established where the medical evidence showed bruising of the victim's genitalia and there was large disparity in size and age between the victim and defendant]; People v Miller, 210 AD2d 724 [3d Dept 1994] [forcible compulsion found where the victim's shirt was pulled above her breasts, her pants and underwear were pulled down, and the crime scene was consistent with the occurrence of struggle]; People v Gilmore, 252 AD2d 742 [3d Dept 1998], lv denied 92 NY2d 925 [1998] [evidence was sufficient to establish forcible compulsion where defendant overcame the victim's physical resistance with his superior size and strength, by pinning her down and the medical examination showed deep vaginal abrasions]; People v Pace, 145 [*11]AD2d 834 [3d Dept 1988], appeal denied 73 NY2d 894 [1989] [evidence was sufficient to establish forcible compulsion where the victim was pulled into a bedroom by her brother-in-law who was older, bigger and stronger, and the victim's injuries were severe and painful]; People v Umber, 260 AD2d 722 [3d Dept 1999], lv denied 93 NY2d 1006 [1999] [forcible compulsion established where defendant punched and choked victim and the physical evidence showed bruising to the victim consistent with being held down and forcibly grabbed]).

Absent from the instant case is any evidence evincing the use of a physical struggle. Respondent has never suggested that her son hurt her or tried to hurt her. Nor, is there any hint that he utilized physical force against her or that he did or said anything to place her in fear of any immediate consequence — let alone fear of immediate serious injury, kidnapping or death. There is no evidence that he had superior size or physical strength — let alone that he attempted to use it — to prevent respondent from escaping or compel her to engage in sexual activity. There is no medical evidence of any injury or bruising to respondent. In fact, since she refused a rape kit, there is no medical evidence at all. The question, therefore, becomes whether he used a threat, express or implied, that placed her in fear of the same consequences.

B.There is no Evidence of an Express Threat

A review of the record reveals no such threat. Examples of express threats include displaying a weapon or threatening physical harm to the victim or another (see e.g., People v Locke, 70 AD2d 686 [3d Dept 1979] [lack of consent by forcible compulsion was established where two masked men broke into the home and told the victim to cooperate for the safety of herself and her children]; People v Williams, 302 AD2d 412 [2d Dept 2003], lv denied 100 NY2d 589 [2003] [forcible compulsion found where defendant threatened to break the victim's neck, while in position to do so]; People v McKenzie, 180 AD2d 827 [2d Dept 1992] [forcible compulsion found where defendant touched the victim's vagina, threatened to kill her as she was being raped by others, and forced her to perform oral sex upon him]; People v Gonzalez, 136 AD2d 735 [2d Dept 1988], lv denied 71 NY2d 896 [1988] [forcible compulsion can be inferred from the facts where defendant locked the victim in an empty apartment with him, threatened her, and ordered her not to scream]; People v Wakefield, 208 AD2d 783 [2d Dept 1994], lv denied 84 NY2d 1016 [1994] [forcible compulsion found where defendant told the complainant that he had a gun and that he would kill her if she tried to run away]; People v Phillips, 123 AD2d 792 [2d Dept 1986], lv denied 69 NY2d 715 [1986] [forcible compulsion found where defendant threatened to beat the victim and repeatedly reminded the victim that he had a gun]; People v Moore, 170 AD2d 847 [3d Dept 1991], appeal denied 77 NY2d 998 [1991], habeas corpus denied 908 F Supp 200 [NDNY 1995] [forcible compulsion found where defendant demanded sex and the victim complied after being threatened with a knife and warned by an accomplice that defendant "killed people"]).

Express threats of physical harm to members of the victim's family may also be sufficient to establish "forcible compulsion" (People v Nailor, 268 AD2d 695 [3d Dept 2000] [forcible compulsion can be established by evidence establishing that defendant threatened to harm the victim's mother]; People v Gomez, 112 AD2d 445 [2d Dept 1985], lv denied 66 NY2d 919 [1985] [forcible compulsion can be established by evidence showing that defendant threatened to kill the victim's family]; Liberta v Kelly, 657 F Supp 1260 [WDNY 1987], affd 839 F2d 77 [2d Cir 1998], cert denied 488 US 832 [1988] [forcible compulsion can be established by evidence establishing that defendant repeatedly threatened to kill his wife or their young son]).

[*12]C.There is no Evidence of an Implied Threat

A finding of "forcible compulsion" for purposes of the sex offense statutes can also be predicated on an implied threat which places a person in fear of immediate death or physical injury to herself, himself or another person, or in fear that she, he or another person will immediately be kidnapped (People v Rogner, 265 AD2d 688 [3d Dept 1999] [forcible compulsion can be established by evidence that defendant told the 13-year-old victim to perform oral sex on him and she complied because he previously kicked her in the stomach and because she was afraid of him and afraid of being hit by him, since he had hit and threatened her and her mother in the past]).

An implied threat sufficient to constitute "forcible compulsion" may also be established where defendant exploits his greater size and strength or his position of authority over the victim to intimidate the victim into submission (People v Shelton, 307 AD2d 370 [2d Dept 2003], affirmed 1 NY3d 614 [2004] [evidence was sufficient to show that defendant used forcible compulsion where the victim was 81 years old, she weighed 95 pounds and was five feet tall, and defendant pushed her into her bedroom and onto her bed]; People v Davis, 21 AD3d 590 [3d Dept 2005] [evidence was sufficient to show forcible compulsion where the victim was 11 years old and did not say anything during the sexual contact because she was afraid that defendant would hurt her, and he was significantly larger than her and more than 20 years older]; People v Ferrer, 209 AD2d 714 [2d Dept 1994] [defendant's use of his superior physical strength and implied threat of harm was legally sufficient to establish forcible compulsion]).

An accused's conduct is more likely to constitute an implied threat where there is a history of abusive or violent conduct towards the victim or the victim's family (People v Greene, 306 AD2d 639 [3d Dept 2003], lv denied 100 NY2d 594 [2003]; People v Rogner, 265 AD2d 688, supra ). Evidence of prior threats or violence to the victim may support a finding of forcible compulsion or it may explain the victim's failure to resist (People v Voymas, 39 AD3d 1182 [4th Dept 2007], lv denied 9 NY3d 852 [2007] [a finding of forcible compulsion was made although the victim, defendant's sister, did not fight back where defendant and his brother began to sexually abuse her when she was five-years-old, her initial efforts to fight them off were unsuccessful and she had learned from experience that the harder she fought, the more she would be hurt]).

Since unwilling submission may be the only alternative open to a victim as a means of saving her life or avoiding physical injury, the victim is not required to satisfy the "earnest resistance" requirement imposed under the former sex offense statutes, but need only offer so much resistance as is reasonable under the circumstances (People v Rodgers, 124 AD2d 1003 [4th Dept 1986]). As long as this requirement is met, the victim is not required to scream or cry out (People v Hodges, 204 AD2d 739 [2d Dept 1994], lv denied 84 NY2d 868 [1994] [the fact that the victim did not cry out for help or suffer from any physical injuries did not defeat a finding of forcible compulsion where she was 11 years old and awoke with the 26-year-old defendant sitting on her stomach, forcing her to perform oral sex and then laying on top of her and forcing her to engage in sexual intercourse]; People v Gonzalez, 136 AD2d 735 [2d Dept 1988], lv denied 71 NY2d 896 [1988] [evidence of forcible compulsion was sufficient even though the victim had no physical injury and did not cry out where defendant locked her in an empty apartment, knocked her to the floor, threatened her and ordered her not to scream because no one would hear her]; People v Smith, 302 AD2d 677 [3d Dept 2003], lv denied 100 NY2d 543 [2003] [evidence of forcible compulsion was sufficient, even though the victim permitted defendant to kiss and fondle her prior to the incident and did not struggle or cry [*13]out where the victim was afraid of defendant, who was much larger than her, and the medical evidence showed that she had a tear in her anus consistent with blunt force trauma]).

In the instant case, there is simply no evidence that Wesley ever did or said anything to place respondent in fear for her physical safety — let alone fear that she or someone else would suffer immediate serious physical injury, death or kidnapping. During the incident, Wesley did not hit, punch, slap, kick, restrain, pull or push respondent. He never attempted to prevent her from leaving the bed or the bedroom by holding her down. He never attempted to stop her from leaving by threatening her or someone else with harm. He did not curse at her. He did not yell at her. He did not raise his voice. In fact, he did not say anything at all. Nor, prior to that night, had he ever hurt or attempted to hurt her or any other member of the family.

Respondent was substantially older than Wesley; he was 14 and she was 34 years of age. She was also an authority figure to him. Officer Ignatz, who interviewed respondent and her son, testified that respondent was taller and heavier than Wesley. Respondent disagreed. She testified that he weighed about five pounds more than her. Even if the Court were to disregard the officer's testimony and accept that of respondent, it would not change the result since there is simply no evidence of physical force or an express or implied threat of any kind.

2.There is no Evidence that Respondent Clearly Expressed her Non-Consent in a way that a Reasonable Person would have Understood

Since the petition also alleges sexual abuse in the third degree (Penal Law § 130.55) and rape in the third degree (Penal Law § 130.25), the Court must also consider whether there was evidence that the mother did not "expressly or impliedly acquiesce in [her son's] conduct"(Penal Law § 130.05[2][c]). In addition, the Court must consider whether respondent "clearly expressed that... she did not consent in a way that a reasonable person in [her son's] situation would have understood"^[FN9] (Penal Law § 130.05[2][d]). A review of the record and the relevant case law establishes that these questions must be answered in the negative.

Respondent asserts that she attempted to convey her non-consent by turning toward the wall after Wesley first kissed her on the mouth. In the Court's view, this testimony fell far short of establishing that she failed to "expressly or impliedly acquiesce in [her son's] conduct." It was likewise plainly insufficient to establish a clear expression that she did not consent in a way that a reasonable person in her son's situation would have understood.

Although respondent insists that the entire encounter occurred without her consent, there was never any outward manifestation of non-consent. She never said, "no!," "don't!" or "stop!" She never screamed for help, although her husband was only several feet away. In fact, she said nothing at all. She did not hit, punch, push or kick Wesley. She did not get out of bed or stand up. In fact, she did nothing at all, although her subsequent actions demonstrate that she was perfectly capable of doing so. While her actions later that night were inconsistent with a consensual sexual encounter, she never expressed a timely lack of consent that would have been understandable to a reasonable [*14]person.

3.There is no Evidence that Respondent Acted under Duress or Coercion

The record likewise fails to establish that respondent engaged in sexual relations with her son as the result of duress or coercion. Duress or coercion constitutes a legal excuse for unlawful conduct when the accused acted unlawfully because, at the time the conduct occurred, "[s]he was coerced to do so by the use or threatened imminent use of unlawful physical force upon h[er] or a third person, which force or threatened force a person of reasonable firmness in h[er] situation would have been unable to resist" (Penal Law § 40.00). While the threatened force need not cause fear of impending death or serious bodily injury, as is required for a threat to constitute "forcible compulsion," it must create fear of immediate harm and the evidence must establish that there was no reasonable opportunity to escape other than to engage in the otherwise unlawful activity (People v Amato, 99 AD2d 495 [2d Dept 1984] [a defense of duress may not be used when the force or threat used was incapable of immediate realization or when defendant had numerous opportunities to abandon the unlawful activity and escape]).

"Duress in the sense of the statute means immediate physical force or immediate threat of physical force" (People v Brown, 68 AD2d 503 [2d Dept 1979]; People v Staffieri, 251 AD2d 998 [4th Dept 1998] [defendant's testimony concerning her husband's prior abuse did not support a finding of duress since she did not testify to any abuse or threats of abuse at the time that she acted unlawfully; prior threats or assaults support a claim of duress only when combined with a present and immediate ability to act and a threat of harm that is imminent]; People v Campos, 108 AD2d 751 [2d Dept 1985] [evidence that the co-defendant threatened defendant with a knife and threatened to destroy his car if he did not drive him to the site of the crime was insufficient since the co-defendant was not armed when he made the threat, therefore, the threat was incapable of immediate exercise]).

In the instant case, there is no evidence that respondent engaged in sexual activity with her son because she was coerced to do so by the use or threatened imminent use of unlawful physical force upon her or a third person. There is no evidence of an express or implied threat of force that created fear of immediate harm; nor, is there any evidence that respondent lacked a reasonable opportunity to escape other than to engage in sexual activity with her son. There is no history of violent and abusive conduct by Wesley towards his mother or any other family member.

Even if the Court were to credit the mother's testimony that Wesley once said that he hated her and her daughter and that he wanted to burn down the apartment, he said nothing on December 30, 2007, to place her in fear of immediate or imminent harm. Even if the Court were to view Wesley's comment as a threat, this would not support a claim of duress since the statements were made long before December 30, 2007, and were never combined with a present and immediate ability to act. Finally, whatever fears respondent may have had about her daughter, Rosaly was not even at home on the night of December 30, 2007.

4.Respondent Mother Abused her Son when she Engaged in Sexual Relations with him Whether or not he Willingly Participated

The Penal Law makes the forms of sexual relations it enumerates sex offenses when the victim is "less than 17 years old" (see Penal Law § 130.05[3][a]). The statute establishes that a person less than 17 years old is incapable of consent. The law considers a child who engages in sexual relations with an adult as victimized, regardless of whether or not she or he actually consents or even initiates the sexual encounter. In other words, the statutory scheme imposes liability on respondent mother [*15]for engaging in sexual relations with her son irrespective of whether or not he willingly participated. The entire rationale of an age of consent is based on the premise that a child who engages in sexual intercourse is victimized regardless of whether he or she sees themselves as a victim (In re Kevin S., 190 Misc 2d 80 [Fam Ct, Clinton County 2001] [although respondent did not see himself as a victim, his subjective opinion was irrelevant since individuals less than 17 years old do not accurately perceive the ramifications of engaging in sexual activity and, therefore, regardless of their intent to consent, the law presumes that they are unable to consent]; Maxwell v State, 168 Md App 1 [Md App 2006] [the fact that the sexual encounter was initiated by the 13 year old was no defense]; Guevara v State, 2000 WL 34410041 [Tex App Corpus Christi, 2000] [the fact that the 10-year-old victim was the instigator of the act of anal intercourse was no defense where defendant admitted his own participation]; Glover v State, 518 So2d 247 [Ala Crim App 1987] [the sixteen year old was a victim of sexual abuse since the statute provided that she could not legally consent and assent does not constitute consent if it is given by a person whose consent is sought to be prevented by the law defining the offense]; State v Rife, 733 So2d 541 [Fla App 5 Dist 1999], affd 789 So2d 288 [Fla 2001] [the willing participation of a 17 year old was not a defense to a charge of sexual battery on a minor]; Richardson v State, 256 Ga 746, 353 SE2d 342 [Ga Ct App1987] [stepfather's sexual exploitation of his stepdaughter was forcible and against her will, as a matter of law, because of her young age and familial relationship]; Hines v State, 173 Ga App 657, 327 SE2d 786 [Ga Ct App1985] [since a nine-year-old child is considered legally incapable of giving consent, it was not necessary to prove that aggravated sodomy was perpetrated against her will]; State v Weiler, 801 SW2d 417 [Mo App1990], cert den 502 US 905 [1991] [in a prosecution for sodomy and sexual abuse, the minor's consent to the acts with which defendant was charged, was no defense]; In re H.R.A., 790 SW2d 102 [Tex App Beaumont 1990] [in prosecution for aggravated sexual assault upon a child younger than 14 years of age, it was not necessary for the State to prove that the victim did not consent to oral sex]).

Accordingly, the Court finds that respondent voluntarily engaged in sexual relations with her son although she had the ability to stop him at any time. Her subjective belief that she did not consent is insufficient, without more, to establish that she did not expressly and impliedly acquiesce in Wesley's conduct. It is likewise insufficient to show a clear expression of lack of consent that would be understandable to a reasonable person. Moreover, absent expert testimony, her claim that she was "in shock" and "out of sync" is manifestly insufficient to establish a defense.

Derivative Findings of Neglect are Entered against Respondent Mother for the Remaining Children

Family Court Act § 1046(a)(i) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of ... the respondent." Even in the absence of direct evidence of abuse or neglect of the other children, a derivative finding is warranted where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care (Matter of the Dutchess County Department of Social Services o/b/o Douglas E., 191 AD2d 694 [2d Dept 1993] [direct evidence is not necessary to sustain a derivative neglect finding as to respondent's son where he sexually abused his 10-year-old daughter]; Matter of Rasheda S., 183 AD2d 770 [2d Dept 1992] [respondent's sexual abuse of his stepdaughter supported a derivative finding of neglect as to his eleven-year-old daughter since the direct abuse demonstrated a fundamental defect in [*16]respondent's understanding of the duties of parenthood]; In re Vincent L., 46 AD3d 395 [1st Dept 2007], lv denied 10 NY3d 706 [2008] [respondent's sexual abuse of children under the age of 14 demonstrated such an impaired level of parental judgment as to create a substantial risk of harm to the remaining children in his care]; Matter of Jasmine A., 18 AD3d 546 [2d Dept 2005] [evidence that one child was sexually and physically abused and that her brothers were physically abused, supported a finding of derivative neglect as to the remaining children since respondent's conduct demonstrated a fundamental defect in his understanding of parental duties relating to any child in his care]).

Depending on the nature of the underlying abuse or neglect, the court may make a finding of either derivative neglect or derivative abuse (Family Court Act § 1046[a][i]). A finding of derivative neglect is warranted where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment and fundamental flaw in respondent's understanding of the duties of parenthood as to place the non-target children's physical, mental or emotional condition at substantial risk of becoming impaired. Where, however, the evidence as to the directly abused child demonstrates such impaired parental judgment that it creates a substantial risk of protracted impairment to the non-target children's physical or emotional health, a finding of derivative abuse is warranted.

Although the statute requires that evidence as to the abuse of one child be considered on the issue of the abuse or neglect of other children in the home, such evidence is not conclusive and does not establish a prima facie case of abuse or neglect as to the other children (In re Abigail S., 21 AD3d 380 [2d Dept 2005]; Matter of Rasheda S., 183 AD2d 770 [2d Dept 1992]). The determinative factor remains whether the nature of the underlying misconduct, notably its duration and the circumstances surrounding its commission, evidences such a fundamental flaw in respondent's understanding of the duties of parenthood that it can reasonably be concluded that the condition still exists (Matter of Dutchess County Dept. of Social Services on Behalf of Brittany K., 242 AD2d 533 [2d Dept 1997]).

After considering these criteria in light of the facts at bar, the Court enters findings of derivative neglect against respondent for Rosaly and Marcos. These findings are based on the evidence of respondent's sexual abuse of Wesley and her ongoing refusal to accept responsibility for her actions, which demonstrate impaired parental judgment to such an extent that it placed the non-target children's physical, mental or emotional condition at substantial risk of becoming impaired.

In reaching this determination, the Court has carefully considered the order and decision of the Appellate Division, Second Departmentin Matter of Rosy S. (54 AD3d 377 [2d Dept 2008]), and prior case law, and has concluded that neither require a different result. It is the view of this Court that Matter of Rosy S. was intended to resolve only those issues raised and decided during the Family Court Act § 1028 hearing - - not to bind this Court to a particular result post - fact-finding. This view is supported by basic principles relating to appellate practice, including the general rule that matters which were not argued or considered on a prior appeal have no preclusive effect. This principle rests on the assumption that appellate courts adjudicate cases only on the grounds specifically raised and considered by the trial court. As a result, a prior decision of an appellate court establishes law of the case, binding in a subsequent proceeding, only on questions which were actually previously raised and previously decided (see Obrycki v Elliott, 130 AD2d 563, 564 [2d Dept 1987]). [*17]

These rules apply with particular force where, as here, the prior appeal involved a different legal issue, different witnesses and a different evidentiary standard. In addition, it involved an appeal from a hearing where hearsay was admissible and respondent did not testify. The limited issue that was actually raised and decided in Matter of Rosy S., was whether the two younger children would be at imminent risk if they were returned to respondent pending the conclusion of the fact-finding hearing. In answering that question in the affirmative, the Appellate Division, Second Department did not determine that the two younger children were derivatively abused since that issue was not actually raised, considered or decided by the order appealed from.

In reaching this conclusion, the Court has also considered prior case law and that the Appellate Division, Second Department has upheld derivative neglect findings- - rather than findings of derivative abuse - - under the circumstances presented here. Specifically, the Court has affirmed such findings where, as here, a parent commits an act of sexual abuse against one child while the other children were not present (see e.g., In re Ramsay M., 17 AD3d 678 [2d Dept 2005] [respondent's sexual abuse of one child warranted a finding of derivative neglect as to the other child in the home]; In re Ian H., 42 AD3d 701 [2d Dept 2007] [respondent's sexual abuse of children who had attended a day-care center operated by his wife at their home supported a finding that he derivatively neglected his twin sons]; Matter of Commissioner of Social Services on Behalf of Kanisha W., 233 AD2d 325 [2d Dept 1996], rev'd on other grounds, Matter of Sheena D., 8 NY3d 136 [2007] [respondent's sexual abuse of one child warranted a finding of derivative neglect as to the other child in the home]; Matter of the Dutchess County Department of Social Services o/b/o Douglas E., 191 AD2d 694 [2d Dept 1993] [direct evidence is not necessary to sustain a derivative neglect finding as to respondent's son where he sexually abused his 10-year-old daughter]; Matter of Rasheda S., 183 AD2d 770 [2d Dept 1992] [respondent's sexual abuse of his stepdaughter supported a derivative finding of neglect as his 11-year-old daughter since the direct abuse demonstrated a fundamental defect in respondent's understanding of the duties of parenthood]).^[FN10]

For each of the forgoing reasons, it is

ORDERED, that a finding of sexual abuse is entered against respondent as to the subject child, Wesley, based on rape in the second degree; and it is further

ORDERED, that a finding of derivative neglect is entered against respondent as to the subject children, Marcos and Rosaly; and it is further

ORDERED, the allegations of alcohol abuse are dismissed since the evidence fails to establish that respondent repeatedly misuses alcoholic beverages to the extent that it caused a substantial state of [*18]stupor, unconsciousness, intoxication, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality; and it is further

ORDERED, that a dispositional hearing shall be conducted before the Court on June 4, 2010 at 12:00 PM.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

DATED:March 26, 2010E N T E R:

____________________________

EMILY M. OLSHANSKY, J.F.C.