Defending New York Rape Charges
New York Rape Charges apply to conduct of non-consensual sexual intercourse with another person. When you are accused of rape or another sexual crime in New York, the presumption of innocence goes out the window. In these charges, the accusation alone can destroy your life, your career and reputation. You are presumed to be guilty, until you are proven innocent. Until the dismissal of the charges against you or a not guilty verdict. In selecting an attorney to defend your New York Rape charges, it is essential that you take the attorney selection process seriously and find someone whose expertise you trust. The stakes in these New York Rape cases are too high for you to be represented by the wrong lawyer.
New York Rape Charges Explained
New York has three different rape charges, ranging from Rape in the First Degree, the most serious offense (Class “B” Violent Felony) to Rape in the Third Degree, the least serious offense (Class “E” Non-Violent Felony). Specifically, New York Rape charges are:
- Rape in the First Degree (PL 130.35)
- Rape in the Second Degree (PL 130.30)
- Rape in the Third Degree (PL 130.25)
All of these New York Rape Charges can result in felony convictions, jail time and sex offender registration. The differences in these charges: elements, potential penalties and sentencing ranges and frequent New York Rape Defenses is explained below.
Rape in the Third Degree
Under Penal Law Section 130.25, a person is guilty of Rape in the Third Degree when:
- S/he engages in sexual intercourse with another person who is incapable of consent by reason other than being less than 17 years old;
- Being 21 years old or more, s/he engages in sexual intercourse with another person less than 17 years old; OR
- S/he engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.
Date Rape Prosecutions
In New York, Date Rape (also called “Acquaintance Rape”) cases are usually prosecuted under Rape in the Third Degree statute – Penal Law Section 130.25(3). Date Rape or Acquaintance Rape are terms for non-consensual intercourse between people who know each other. Date rape or acquaintance rape is different from stranger on stranger crimes. New York Rape charges where the defendant and the victim are known to each other, especially where they have previously had a consensual sexual relationships are much harder for the Government to prosecute, because of the potential consent defense.
Consent in Date Rape Cases
The New York Court of Appeals has held that in date rape prosecutions, the Government has to prove that the victim clearly expressed an unwillingness to engage in the sexual act in a way that a neutral observer would have understood that the victim was not consenting. People v. Newton, 8 N.Y.3d 460 (2007).
Penalties and Sentencing for Rape in the Third Degree
New York Rape in the Third Degree is the least serious of all the New York Rape Charges. Nonetheless, it is a Class E Non-violent Felony. As such, this charge is punishable by up to 1 1/3 to 4 years in prison. However, probation is a possible sentence on a New York Rape in the Third Degree charge. Importantly, individuals convicted of New York Rape in the Third Degree are subject to registration under New York Sex Offender Registration Act (“SORA”).
Rape in the Second Degree
Under Penal Law Section 130.30, a person is guilty of Rape in the Second Degree when:
- Being 18 years old or more, s/he engages in sexual intercourse with another person less than 15 years old; OR
- S/he engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.
Penalties and Sentencing for New York Rape in the Second Degree
Rape in the Second Degree is a Class D Violent Felony. As such, this charge is punishable by 2 to 7 years in prison. If the judge determines that there are mitigating circumstances either because of the nature and circumstances of the offense or because of the accused’s personal characteristics, then the judge can sentence the individual to probation. New York Rape in the Second Degree charge is a registrable offense under New York Sex Offender Registration Act (“SORA”).
Rape in the First Degree
Under New York Penal Law Section 130.35, a person is guilty of Rape in the First Degree when s/he engages in sexual intercourse with another person:
- By forcible compulsion; OR
- Who is incapable of consent by reason of being physically helpless; OR
- Who is less than 11 years old; OR
- Who is less than 13 years old and the actor is 18 years old or more.
What is Forcible Compulsion and How Is It Determined?
New York Penal Law defines “Forcible Compulsion” as:
- By the use of physical force; OR
- By a threat, express or implied, which places a person in fear of immediate death or physical injury to himself or herself [or another person] or in fear that he or she [or another person] will immediately be kidnapped.
The “forcible compulsion” element of the Rape charges is viewed from the victim’s state of mind. People v. Lancaster, 121 A.D.3d 1301 (2014). To determine if there was forcible compulsion, the Courts also examine these factors:
- Age of the victim and the defendant,
- Relative size and strength of the defendant and victim, AND
- The nature of the defendant’s relationship to the victim.
Conduct Deemed to Constitute Forcible Compulsion
New York Courts have previously reviewed these cases and decided that the following constitutes forcible compulsion under New York Rape Criminal Laws:
- Pulling, dragging or otherwise transporting the victim to the scene of sexual act against the victim’s will;
- Forcibly pushing, pulling or striking the victim;
- Immobilizing the victim by laying on top of them or otherwise restraining the victim against their will;
- Laying on top of a pregnant female victim, so as to pose risk of injury to an unborn child;
- Forcibly removing or ripping the victim’s clothing.
Physical Injury is Not Required for Forcible Compulsion Under New York Law
Under New York Law, there is no requirement for Rape in First Degree that the victim sustains an injury as a result of the Defendant’s conduct. While evidence of trauma or injury in the genital or rectal area, or any other physical injury tends to establish forcible compulsion, absence of such injuries is not determinative. Rape prosecutions do not always involve physical injury to the victim.
Penalties and Sentencing for New York Rape in the First Degree
Rape in the First Degree is the most serious of New York Rape Charges. It is a Class B Violent Felony. As such, this charge is punishable by 5 to 25 years in prison. Unlike New York Rape in the Second or Third Degree charges, probation is not a permissible charge on Rape in the First Degree. Additionally, New York Rape in the First Degree is a registrable offense under New York Sex Offender Registration Act (“SORA”).
Defenses to New York Rape Charges
Defending New York Rape cases involves developing a persuasive narrative for the jury. Having tried numerous cases both as former prosecutors and as defense attorneys, we know how important it is to have an alternative explanation for the evidence in your case. Some common defenses raised in New York Rape Cases:
In preparing your defense on New York Rape Charges, it is essential that you also review all the discovery along side with your attorney. You are your attorney’s greatest resource in developing a defense. You know what happened (and what didn’t happen) and can guide your attorney and private investigators in where to look for additional evidence to help your case.
1. Consensual Sexual Contact
Consent is a defense that is frequently raised in New York Rape cases, especially those where the alleged victim knows the defendant. Especially those where they had a previous consensual sexual relationship. Lack of consent is even harder to prove in cases where no force, threat, or weapon was used. While only the consent surrounding the charged crime is at issue in a New York Rape case, the nature of the relationship is always taken into account by both the prosecution and the jury at trial.
You have a constitutional right to testify on your behalf at trial. The decision to testify is yours and yours alone. In cases New York Rape cases with a consent defense, we may be advising you to testify at trial on your behalf. Even if the alleged victim if claiming that the intercourse was not consensual, you are entitled to explain your side of the story to the jury. To let them know why you had a reasonable belief of consent.
2. False Allegations
Another possible defense for New York Rape charges is that the allegations are patently false. Unfortunately, just because people swear to tell the truth when they place their hand on the Bible in Court, doesn’t mean that they actually will. Sometimes, people lie about being victims of rape or sexual assault. This can happen because of:
- Financial incentive (i.e. subsequent civil law suit);
- Revenge against the accused;
- Desire for attention or sympathy from others;
- Trying not to get in trouble (i.e. teens with their parents);
- Mental illness of the accuser that makes them believe they were a victim of a crime.
Studies estimate that in the United States, 2 to 6 % of rape accusations are false. There are no specific studies done on the percentage of false accusations on New York Rape charges. It is essential that you retain an attorney who will leave no stone unturned in developing our defense and exposing all the lies and the alleged victim’s motive for lying. You need Top-Rated Sex Crimes Attorneys by your side with a formidable investigative team to tackle your New York Rape charges.
3. Technical Defenses
Each of the New York Rape charges explained above has elements that the prosecutor has to meet in order to secure the conviction at trial. As you may know, in criminal law, the prosecutor has to prove the case against someone beyond a reasonable doubt. Technical defenses involve the prosecutor not meeting their burden of proof with regard to at least one of the elements of a New York Rape charge. Meaning, the Government’s evidence either legally or factually falls short of a conviction.
Rape in the Second Degree: Age Difference Less than 4 Years
Additionally, there is a technical affirmative defense with regard to the New York Rape charge of Rape in the Second Degree. It is an affirmative defense under New York Penal Law Section 130.30(1), that the Defendant was less than 4 years older than the victim at the time of the act. If the defense establishes that affirmative defense, usually with birth certificates or other legal documents showing the age of the parties, then the Government will have to disprove it beyond a reasonable doubt.
Crimes Commonly Charged with New York Rape
Oftentimes, there are other crimes that are charged along with New York Rape Charges, such as:
- Weapons Possession
- Unlawful Imprisonment
- Facilitating a Sex Offense with a Controlled Substance
- Endangering the Welfare of a Child
In considering your sentencing exposure on New York Rape charges, it is also important to understand if any of your other charges have a higher sentencing range.
Statute of Limitations on New York Rape Charges
In September 2019, New York passed legislation extending the statute of limitations on the charges of New York Rape in the Second Degree and Rape in the Third Degree. Additionally, in February 2019, New York passed the Child Victims Act, which expanded the Statute of Limitations in child sex abuse cases.
Under the New York Child Victims Act, an underage victim is able to seek prosecution of their alleged abuser for a felony sex crime until they turn 28 years old. Additionally, child victims can file a civil lawsuit up until they turn 55 years old.
Statute of Limitations on Rape in the First Degree
There is no statute of limitations on New York Rape in the First Degree. That means that regardless of when the incident happened, it can be prosecuted at any time. The prosecutor and the police will likely inquire about the delay in reporting an incident. A delay in report, however, is not a bar to prosecution for a New York Rape charge.
Statute of Limitations on Rape in the First Degree with an Underage Victim
Under the Child Victims Act, a victim can bring a criminal charge against someone until their 28th birthday. As there is no statute of limitations for New York Rape in the First Degree charge, underage victims can decide to prosecute First Degree Rape charges at any time.
Statute of Limitations on Rape in the Second Degree
Under New York Law, there is a 20 year statute of limitations on Rape in the Second Degree charges. Thus, in New York, Rape in the Second Degree charge can be brought up to 20 years after the alleged incident.
Statute of Limitations on Rape in the Second Degree with an Underage Victim
Under the New York Child Victims Act, an underage victim is able to seek prosecution of their alleged abuser until they turn 28 years old. As the statute of limitations for New York Rape in the Second Degree is 20 years after the alleged incident, an underage victim is able to seek criminal prosecution until the later of (1) their 28th birthday or (2) 20 years after the alleged offense. Additionally, child victim is able to file a civil lawsuit against the accused up until their 55th birthday.
Statute of Limitations on Rape in the Third Degree
Under New York Law, Rape in the Third Degree has a 10 year statute of limitations. So the criminal prosecution of someone for Rape in the Third Degree needs to start within 10 years of the date of the alleged crime.
Statute of Limitations on Rape in the Third Degree with an Underage Victim
Similarly to New York Rape in the Second Degree, the statute of limitations for an underage victim for a New York Rape in the Third Degree is the longer of (1) 28th birthday of the alleged victim or (2) 10 years after the date of the alleged crime. Additionally, child victim is able to file a civil lawsuit against the accused up until their 55th birthday.
Contact Top Rated New York Rape Lawyers Today
If you have been arrested for New York Rape charges or suspect that you may be under investigation, it is essential that you find the right attorney. New York Rape charges are taken very seriously by the prosecutors and can result in a permanent felony record, significant jail time and sex offender registration (“SORA“). Please call us at 212-729-9494 or contact us today to schedule your consultation and decide if we are the right attorneys to defend your New York Rape case.