Rape in the Second Degree: New York Penal Law 130.30

The “middle” or “mid-tier” of the three felony Rape crimes, Rape in the Second Degree, New York Penal Law 130.30, is an extremely serious violent felony charge that your criminal lawyer must be ready to capably and confidently confront and challenge. From New York City’s boroughs of Manhattan and Brooklyn to Westchester, Rockland and Dutchess County, there are few criminal charges and arrests less forgiving, and indictments more aggressively prosecuted than Rape in the Second Degree. In the simplest of terms, if you are accused of this or any other Rape offense, either you seize the opportunity to identify and implement the most viable defense or you become a statistic living out your prison sentence followed by life as a registered sex offender well after your case is closed.

Definitions & Elements

There are two main ways you can run afoul of the law and be found guilty of Penal Law 130.30. For starters you must be at least 18 years, and the other party less than 15 (provided there is a 4 or more year age gap between the parties). With that in mind, you must also obviously engage in the sexual act itself. That is, vaginal, anal, or oral sexual contact even without intercourse or penetration. Alternatively, you engage in this same vaginal, anal, or oral sexual contact as defined by statute, with a person who is mentally disabled or mentally incapacitated. Though these elements are more narrow than Third and possible even First Degree Rape as they are dependent on age and/or capacity to consent, the penalties and punishments are incredibly severe in their own right.

Penalties & Punishment

If you are convicted of this class “D” violent felony, the judge who presides over your sentence can incarcerate you for as long as seven years. By law, the minimum sentence is a non-discretionary two years, but if the court makes certain findings about you and circumstances of the case, your lawyer can potentially convince the judge to instead sentence you to probation or local jail time. However, keep in mind the following: “local” jail time is Rikers if your conviction is in Manhattan, Queens, Brookly, or the Bronx, and probation on a felony sex crime can be substantially longer than a non-sex offense. Typically, this term can last for ten years rather than three to five.

Example & Hypothetical Scenario

The age-based subdivision of Rape in the Second Degree is straightforward enough, and can potentially include an 18-year-old high school senior engaging in an otherwise consensual sexual relationship with a 14-year-old high school freshman. For the purposes of Penal Law 130.30, “mentally disabled” means that a person suffers from a mental disease or defect which renders them incapable of appraising the nature of their conduct, and “mentally incapacitated” means that a person is temporarily incapable of appraising or controlling their conduct owing to the influence of a narcotic or intoxicating substance administered to them without consent, or to any other act committed upon them without consent. This would, of course, include those mentally handicapped individuals, but importantly would also include the use of so-called “date-rape drugs” where the person might be capable of expressing consent (and therefore not a Rape in the First Degree) but not able to control their ability to understand their consent and fully grasp what is happening.

Related Offenses & Collateral Issues

As with most sex crimes, the additional significant penalty for a conviction of Rape in the Second Degree is registration with the New York Sex Offender Registry pursuant to SORA. This sex offender registration, which is non-discretionary, will result in your photo, name and residence being made easily accessible to your colleagues, new friends, and snooping neighbors…possibly for the rest of your days. More information about SORA is available on Saland Law’s main New York Rape Crimes information page and New York Sex Crimes information page.

Your Case, Your Defense, Your Future

To be sure, a Rape in the Second Degree accusation can be terrifying, to say the least, but that does not mean that a conviction is a foredrawn conclusion. Are there reasons to doubt the veracity or truthfulness of the complainant? Is this accusation a delayed attempt to come after your for some past “wrong” and or to hold you accountable because of a perceived bad break up? Can statements or identifications to the police be suppressed? Are there grounds for a motion to dismiss? These are just some of the questions that you, now a defendant, must ask your attorney ensure that all possible defenses have been explored and considered.

Be smart and thorough. Do your own homework and make an effort to understand the law and choose the right counsel you believe will identify the best strategies and put them into action to protect you from prison and keep your name, career, and family safe from the horror of your incarceration and shame from SORA. Protect yourself now and take the steps today to limit your exposure tomorrow. Remember, when your life and livelihood are at stake, there is no substitute for experience, knowledge and zealous advocacy. Jeremy Saland, a former Manhattan prosecutor and sex crime attorney, is ready to not just stand with you but find the best way forward.

Call the sex crime lawyers and former Manhattan prosecutors at 212.312.7129 or contact us online today.