Rape (PL 130.25, 130.30, 130.35) - New York Criminal Defense Attorney

What is rape?

In New York, you are guilty of rape when you engage in sexual intercourse with another person without that person's consent or when that person is incapable of consenting. Rape can be charged in degrees of severity with first degree having the highest penalty and third the lowest.

All degrees of rape are felonies in New York. Rape in the third degree is, generally, nonconsensual sex. Rape in the second degree is when the nonconsensual sex happens with someone who is less than 15 or incapable of consenting such as due to a mental disability or incapacity. Rape in the first degree happens when nonconsensual sex happens by reason of force such as because of a real or implied threat of violence or the victim is less than 13 years old (or 11 if the alleged rapist was a minor).

Rape and Penalty Summary

Rape in the Third Degree, PL 130.25

• nonconsensual sex or victim under 17
• Up to 4 years in prison but possibly probation for 10 years
• Sex offender registration

Rape in the Second Degree, PL 130.30

• nonconsensual sex or victim is incapacitated or under 15
• Up to 7 years in prison
• Sex offender registration

Rape in the First Degree, PL 130.35

• nonconsensual sex plus implied, threatened, or actual violence or victim is under 13
• Up to 25 years in prison
• Sex offender registration

Rape charges

Rape charges in New York City are, obviously, serious. A careful and thorough defense needs to begin right away. Important issues must be investigated including the nature of the relationship between the victim and the accused, the existence of any motives that the victim may have to lie, whether there is any forensic evidence, and the nature and sufficiency of the prosecutor's case. Because any rape conviction is a felony and carries the real risk of prison and mandatory sex offender registration, contact us right away if you or a loved one has been accused of rape in New York City.

Statutes (New York Penal Law)

Rape in the third degree

§ 130.25 Rape in the third degree.

A person is guilty of rape in the third degree when:

1. He or she engages in sexual intercourse with another person who is
incapable of consent by reason of some factor other than being less than
seventeen years old;

2. Being twenty-one years old or more, he or she engages in sexual
intercourse with another person less than seventeen years old; or

3. He or she 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.

Rape in the third degree is a class E felony.

Rape in the second degree

§ 130.30 Rape in the second degree.

A person is guilty of rape in the second degree when:

1. being eighteen years old or more, he or she engages in sexual
intercourse with another person less than fifteen years old; or

2. he or she engages in sexual intercourse with another person who is
incapable of consent by reason of being mentally disabled or mentally
incapacitated.

It shall be an affirmative defense to the crime of rape in the second
degree as defined in subdivision one of this section that the defendant
was less than four years older than the victim at the time of the act.

Rape in the second degree is a class D felony.

Rape in the first degree

§ 130.35 Rape in the first degree.

A person is guilty of rape in the first degree when he or she engages
in sexual intercourse with another person:

1. By forcible compulsion; or

2. Who is incapable of consent by reason of being physically helpless;
or

3. Who is less than eleven years old; or

4. Who is less than thirteen years old and the actor is eighteen years
old or more.

Rape in the first degree is a class B felony.