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New York Penal Code 130.35: Rape in the First Degree

By Spodek Law Group | May 2, 2017
(Last Updated On: July 26, 2023)

Last Updated on: 26th July 2023, 08:56 pm

Rape is often seen as a male forcing a female to have sex without her consent. While this is a component of the the crime, rape is any forced sexual act that takes place by either a male or a female. Rape is more than just forcing someone to have sex without that person’s consent. It’s a sexual act that could be demanded under duress, such as with threats or by using drugs. When there is one person under the legal age to consent to having sex, even if those two people are in a relationship, the crime is called statutory rape.
First-degree rape is the charge given when there is physical force used or an immediate threat to the victim at the time. If the person is physically unable to tell the defendant no, then this is considered rape as well. When the victim is under the age of 11 or when the victim is under the age of 13 and the defendant is 18 or older, then the charge of rape can stand up in a court room. First-degree rape is considered a Class B felony. Possible sentences can include up to 25 years in prison and fines of up to $5,000.
Examples Of First-Degree Rape
The act of rape is often simple and clear-cut in regards to the actions that take place. A defendant could be alone with the victim and hold the person down while engaging in a sexual act. Another example would be that the defendant has the victim in a vehicle. Without letting the victim get out of the car, the defendant would perform sexual acts. When someone is at a bar and slips a drug into the drink of someone else and then has sex with that person without the victim knowing what is taking place, then it’s considered rape. The victim could be unconscious because of an illness, injury or simply from drinking too much or taking a drug on the person’s own accord. If someone decides to engage in a sexual act with that person, then it would constitute a rape charge.
A spouse can be charged with rape if one person doesn’t want to engage in sexual acts and tells the other spouse no but is still forced to have sex. If one person in the relationship is 16 and the other is 18, it would seem that it would be consensual if the couple has a sexual relationship. However, the parents of the underage person can press charges for rape until that person is of the legal age to consent to the sexual aspect of the relationship. There are situations when the victim is of a young age, such as 10 or 11, and doesn’t understand the meaning of sexual acts. This is grounds for rape charges and is also referred to as statutory rape. Some states will classify this as sexual assault as well.
Rape Defenses
There are a few defenses that a NYC criminal attorney can use in the court room. One is that the two people were in a relationship at the time of the sexual act. Another is that there was someone else who committed the crime. Insanity is also an option if the defendant has a history of mental illness.
New York Penal Code 130.30: Rape in the Second Degree
There are qualifications that have to be met for someone to be charged with rape in the second degree. The second degree charges would be brought on if there was sexual activity and one person did not consent, or because of the age of one of the participants. If you are at least 18 years of age, and you had sexual relations with someone that is 15 years or younger, or if you had intercourse with someone who couldn’t consent because they weren’t in the right mental capacity, or they were incapable, these are instances of rape in the second degree.
Even if violence, harassment or force wasn’t used, second degree rape can be charged without the verbal consent or because of the partner’s age. If someone was physically incapable of stopping the intercourse, or if they had a mental health issue that prevented them from evaluating the situation properly or consenting, this could result in the other person involved being charged with second degree rape.
Anyone that is being accused of second degree rape, or any other type of sex crime, will be arrested and incarcerated. One cannot get out of jail until they have had their arraignment in front of a judge, where they will enter a plea, get their formal charges, find out the amount of their bail, and find out of it they will be able to be released until they have their next court appearance. It’s important to have a lawyer in place as soon as the accused is informed of the charges, or as soon as they are arrested. Talking with a lawyer before making any initial statement to the authorities is crucial, and finding an experienced lawyer that has dealt with rape cases increases one’s chances of fighting the charges and the case.
There are times when an experienced lawyer can negotiate a deal and stop the case before it even goes to trial. If the lawyer can prove that there isn’t significant evidence to show that the alleged victim did not consent to the act, or that the age of the alleged victim was believed to be older than 15 years, this could get someone out of the charges. The amount of time that has passed since the alleged incident can also have an effect on the case. If the event is over 5 years old, then that statue of imitations comes into effect and charges cannot be pursued. If it involves a minor, the incident couldn’t be brought back up 5 years after they turned 18 years old.
If convicted of second degree rape, the convicted will be charge with a class D felony. This could lead to up to 7 years in prison, and this charge requires that at least 3 years of that sentence be served. Probation could also be a requirement, and those charged have to put their name on the national sex offender registry, where anyone can see that they were charged with the second degree rape.
If you are facing second degree rape charges and you are yet to find legal representation, find an NYC criminal lawyer to start working on your case. You don’t want to give any information or details that could harm the case or your ability to get out of the charges, and a lawyer will start working on your defense right away.
New York Penal Code 130.25: Rape in the Third Degree
Under New York law, there are several different offenses that amount to rape in the third degree. All of the offenses generally have to do with having sex with someone who isn’t legally capable of consenting to the act. Rape in the third degree is a violation of New York Penal Code 130.25.
What constitutes rape in the third degree
There are a few different ways that a person’s actions can amount to third-degree rape in New York. For example, if you are twenty-one years of age or older and you have sex with someone less than seventeen-years old, that’s rape in the third degree. In addition, if you have sex with someone who is mentally challenged or mentally incapacitated to the extent that they can’t understand what they’re doing, that’s rape in the third degree, too. Third-degree rape does not involve the use of physical force. Rather, it involves a situation where the other person involved isn’t capable of giving consent.
Rape in the third degree is a class E felony. All rape charges in New York are felonies. While third-degree rape is the least severe, it can still bring you up to four years in prison, a fine and probation. In addition, if you’re convicted of this offense, you’re a sex offender. That means you have to register.
Four years is the maximum possible penalty. The amount of time that you actually serve can be less. The court looks at the entire circumstances and seeks input from the victim when they determine a sentence. If you don’t serve the entire four years in prison, you can expect the court to sentence you to a term of probation.
The court can order you to comply with very specific terms on probation. The court can order you to avoid having any contact with the victim in the case. The court can require you to submit to a search without a warrant at any time. You might have to maintain employment and seek treatment for psychological problems or addictions. A term of probation is an alternative to jail, so the court doesn’t apologize for giving offenders a long list of requirements to complete during a term of probation.
Sex offender registration
One of the serious consequences for rape in the third degree is mandatory registration as a sex offender. For this offense, you have to register your contact information with the state for the next twenty years. The sex offender registry is public. That means that a conviction can hurt your chances for employment or your chances of securing a rental property.
Because a conviction for rape in the third degree carries life-long consequences, it’s important to work with an NYC criminal attorney to present your best defenses if you’re facing this type of charge. A common defense to this charge is that you had the consent of the other person involved. Because the charge requires sex with a person who can’t consent, if you can show that the person did capably and knowingly consent to the act, you might have a valid legal defense to the charges.
You might also raise the statute of limitations as a defense. For rape in the third degree, the statute of limitation is five years. That means that the state has five years after the offense occurs to bring charges against you. In cases where the victim is under the age of eighteen when the offense occurs, the statute of limitations might not start until after the victim turns eighteen and reports the offense.

Rape is any forced sexual act that takes place by either a male or a female, involving physical force or immediate threat, occurring when the victim is physically unable to say “no”, or if the person is under the legal age to consent. First-degree rape is the charge when there is physical force or an immediate threat to the victim. Rape in the second-degree can be charged if there is sexual activity and one person does not consent or is under the legal age to consent. Third-degree rape involves having sex with someone who is not capable of legally consenting to the act. Rape charges can result in prison sentences, fines, and registration as a sex offender, with consequences to housing and employment opportunities.

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