You likely do not need a sex crimes lawyer to tell you that an arrest for any degree of Rape – Penal Law 130.25, Penal Law 130.30, or Penal Law 130.35 – or another sex offense in New York City or the surrounding area, including the counties of Westchester, Rockland, Putnam, or Dutchess, can have long lasting and severe consequences even beyond a possible conviction. Sure, the disgrace and shame of an investigation, allegation or arrest can cost you friends, family, your career, or even your liberty as the case unfolds, but a criminal conviction will make those fears your new reality. From lengthy periods of incarceration to years of probation that far exceed that of non-sex offenses, and a potential lifetime on the New York State Sex Offender Registry (SORA), a failure to properly defend against First, Second, or Third Degree Rape will result in a lifetime of consequences. With an experienced sex crimes criminal defense lawyer at your side and an understanding of both the law and evidence needed to confront the allegations against you or to mitigate your alleged misconduct, only then can you implement the most viable defense that can mean the difference between guilt and innocence or incarceration and freedom.
Whether the issues or defenses in your case involve an alleged lack of consent, a delay in reporting, knowledge and intent on your part, a motive to lie or fabricate by your accuser, the level of potential SORA registration if you are convicted, or something else, gathering your own evidence, challenging your accuser, identifying inconsistencies or errors in police paperwork, and/or assembling a strong mitigation package is crucial. Make no mistake. When faced with any allegation of Rape, no matter the degree nor the accuser, if you fail to retain the right counsel and use all the tools at your disposal when the prospect of a criminal record, sex offender registration, and up to four, seven, or twenty-five years in state prison is on your doorstep, your regret will linger well beyond your days in custody or your probation has concluded. In fact, it will stay with you as long as you live with your non-expungable criminal history and your SORA registration’s “Scarlet Letter”.
Elements, Definitions and CrimesIf it is not clear already, Rape in the First Degree, Rape in the Second Degree and Rape in the Third Degre, as well as Sexual Misconduct, Forcible Touching, and Predatory Sexual Assault are, of course, taken extremely seriously by District Attorneys in every county throughout New York State. While each criminal statute differs in the particular language and elements, beyond the shared non-consensual piece of each of these offenses the following are some of the terms applicable to your case that you should have a general understanding of if you are to help advocate for yourself and assist in your own defense.
Consent
If you are going to start anywhere in understanding the three degrees of Rape, “consent” is the place to start. When a person is forced to do a sexual act, or they are incapacitated, consent is obviously lacking. The other common way that you might find yourself charged with Rape due to a lack of consent is where the other party is deemed by law to be incapable of consent because of their age. This is colloquially referred to as “Statutory Rape.” In New York, the age of consent is 17, meaning a person cannot be charged with an age-based Rape or another sex crime for a consensual sexual act with a person who is 17 or older.
Keep in mind that age-based Rape, in this regard, is what is called a “strict liability crime,” or a “strict liability” element of the crime. Stated differently, it is irrelevant whether you knew that the person was under 17 years of age or not. The mere fact that they were/are is sufficient enough. However, it is only a crime where you are 21 years of age or more, or if the accused is 18 years of age or more and there is a 4 or more year age gap between the parties (e.g. 19 and 14).
Forcible Compulsion
“Forcible compulsion” means to get another person to engage in a sexual act by using actual physical force as the term is commonly understood. Even if you are not accused of grabbing another person around his or her neck, prying open their legs, or using some form of weapon or dangerous instrument to strike them, explicit or implied threats are equal in the eyes of the law. “Forcible compulsion” applies to what most people normally think of as a violent, forcible sex crime and what many people think, right or wrong, when they first hear the term “Rape”. That said, you can find yourself charged and convicted of Rape without any allegation of this type of alleged behavior.
Physically Helpless
Some sexual acts are criminalized not because there was force or threats involved, but because the victim or complainant was incapacitated and could not consent to the act. As such, when someone is deemed “physically helpless” in the eyes of the law, it means that a person is unconscious or is physically unable to communicate an unwillingness to engage in the alleged act for some other reason. Of note, a complainant who is sleeping is “physically helpless” for the purpose of consenting to sexual intercourse, particularly where the sleep was drug and alcohol induced. People v. Dunham, 172 A.D.3d 1462, 1463 (N.Y. App. Div. 2019). Whether an accuser was “physically helpless”, if relevant to your case, is something you and your counsel should vet and review.
Sexual Contact
As of 2024, and the “Rape is Rape” law in New York, Rape is no longer limited to sexual intercourse and includes all forms of “sexual contact”. More specifically, this type of touching no longer requires a penis to penetrate a vagina. Certainly, intercourse is included in this “new” definition of Rape, but for the purpose of Penal Law 130.25, Penal Law 130.30, and Penal Law 130.35, prosecutors must only establish sexual contact between the penis and vagina or vulva, penis and anus, or mouth with anus, penis, vagina or vulva. These types of touching that qualify for Rape are defined in law as vaginal, anal, and oral sexual contact respectively. Other sexual contact, between penis and buttocks or breasts, or fingers and other intimate parts of a person’s body is covered by different criminal statutes including Sexual Abuse and Forcible Touching. Additional information on these offenses is available on Saland Law’s New York Sex Crimes information page.
Penalties & PunishmentAny arrest or allegation involving Penal Law Article 130, i.e. a sex crime, exposes you to as little as one year in local jail up to extremely lengthy mandatory minimum, and even maximum terms of incarceration that can go all the way up to life in prison. The prospect of spending even a small portion of this kind of time in state prison or a county jail such as Rikers Island or the Westchester County Jail in Valhalla, not to mention the prospect of 20 years or a lifetime on SORA, the sex offender registry, should motivate anyone to hire the best criminal attorney and defense counsel they can to defend themselves and protect their constitutional rights.
Remember, if the crime is statutorily defined as a “violent felony,” pursuant to Penal Law 70.02, as many sex crimes are, then no judge can ever seal your conviction, regardless of how long you stay out of further trouble and make amends for your past indiscretions. Though discussed in greater detail on the respective pages for each degree or Rape, Third Degree Rape carries a possible sentence of up to one and one third to four years prison while Second and First Degree Rape have mandatory minimums and maximums of two to seven and five to twenty-five years respectively.
SORA & Other Related Offenses & Collateral IssuesThe most noteworthy related collateral consequences of many sex crime convictions is mandatory registration on the New York Sex Offender Registry, aka, SORA. This law requires people convicted of certain sex crimes, including Rape, to register as sex offenders on a state-wide registry, and to report to the SORA administrators at the Division of Criminal Justice Services (DCJS) on a regular basis.
Upon your registration, as required by law, your name and address are maintained with DCJS. Not only must it remain current, there new crimes you can face for your failure to advise DCJS of changes, but your home address is available for the world to see. Yes, your neighbor, friends, colleagues, and anyone else can search out and find this information with a few clicks of a button. Depending on your conviction, SORA can be incredibly onerous with its requirements, but no matter your record, you should understand that you are not only being monitored but your days of living anonymously will be a thing of the past.
Your Case, Your Defense, Your FutureWhile you may contend that the alleged victim consented to the sexual act you are being charged with and he or she may have a motive to lie, or you may have had very good reason to believe the person was 17 years old or older, but in either of these situations, among many other scenarios, the law permits prosecutors to charge you with one of the most serious felonies that exists. With all kinds of complex intricacies in a sex crimes case, such as a past or even current intimate relationship between the parties, a lack of witnesses or other corroboration, or intoxication, among many other things, the sooner you identify those issues in your case with your attorney, the greater the chances that you will be able to put forward the strongest defense.
Just as an arrest or even an indictment is not proof of your guilt, you should not every allegation, narrative, or accusation is true. Even if there are elements of it that are accurate, in small part or almost in its entirety, you have rights and potential defense. Protect yourself and your future, and remember that when so much is at stake there is no substitute for Jeremy Saland’s knowledge of the law, advocacy inside and outside the courtroom, and experience as both a criminal defense attorney and former Manhattan prosecutor.
Call us at (212) 312-7129 or contact us online today to discuss your case and possible defenses.