Rape in the Third Degree: New York Penal Law 130.25

I do not know how many times it needs to be said or means to make it more clear, but as a sex crimes attorney and former Manhattan prosecutor, I am stating once again without any hesitation that Rape charges, including arrests and indictments for Third Degree Rape, Penal Law 130.25, are unequivocally some of the most significant and most aggressively prosecuted cases in all of New York criminal law. Whether you find yourself in a Manhattan or Brooklyn courtroom or outside New York City in a Westchester or Rockland County court, recognize that your arrest or indictment for Third Degree rape is nothing to take lightly. It is likely not lost on you that just hearing the word “rape” associated with your name is a bruise and stain on your reputation that can leave a permanent scar. Throw in the unfortunate presumption of guilt that sometimes follows these allegations and the very real potential for significant state prison time if found guilty, you need to put the right defense into motion sooner rather than later to stop what is bad on its face from becoming far worse.

• New York Rape Crimes Information Page
• New York Sex Crimes Information Page

With all the above in mind, as you begin your defense against what may be false claims or one born from strong evidence of guilt, keep in mind that law enforcement is relentless in their investigations and prosecutions. Fight strength with strength and take the time to understand the nuances of the law, and the substantial differences between this and other Rape charges and sex crimes as you gather your evidence to put your proverbial best foot forward.

You are guilty of Penal Law 130.25 when you either engage in vaginal, anal, or oral sexual contact – not just intercourse no matter how slight, aka, penetration – with another person who is less than 17 years old, and you are 21 or older. Another theory of this crime is where there is a lack of consent by the complainant for some reason other than their age or incapacity. Third Degree Rape is a class “E” non-violent felony.

If you are convicted of this class “E” felony, your sentencing judge in a New York can incarcerate you for as long as one and one third to four years in prison without any prior criminal history. State prison is not required, and a judge can sentence you for any amount of county jail, as opposed to the years in state prison, for up to one year. In New York City it would be served on Rikers Island. Further, probation, or a combination of both probation and county jail is also an option. Keep in mind, as briefly addressed below and with more depth on Saland Law’s New York Sex Crimes and New York Rape Crimes homepages linked above, no matter your sentence you will be required to comply with the Sex Offender Registration Act (SORA).

The age-based version of this statute is the most common section of Penal Law 130.25 seen by prosecutors and criminal defense attorneys alike. This is what is often referred to throughout the country as “statutory rape.” In other words, there is consensual sexual interaction, but one of the parties is below the legally defined age of consent in New York, which is 17, and there is a four or more years difference in age between the parties.

The more complex version of Rape in the Third Degree is where the charge is based on a lack of consent, but the lack of consent is not based either on incapacity to consent (but they are not incapacitated, otherwise you would also be charged with a higher degree of Rape) or a lack of consent but there is no force involved (otherwise you would, again, also be charged with a higher degree of Rape as well). This can occur in situations in which a person becomes voluntarily intoxicated to a great extent, but they are still conscious and not physically helpless but do not resist, or situations in which a victim is coerced, or the circumstances are such that they do not consent but also do not resist where you are not accused of threatening the complainant or using physical force.

The other enormously important penalty for a conviction of Rape in the Third Degree even if you never step foot in a jail or prison cell is registration with the New York Sex Offender Registry pursuant to SORA. This registration, which is mandatory, will result in your mugshot-like picture, and both your name and where you reside being publicly accessible. Yes, it can remain open and available for the rest of your days. However, if there is “good” news, Rape in the Third Degree convictions often, but not always, end up with a Level 1 SORA registration if advocated for in the right manner. This lowest level involves more limited access to the public to your name and location and lasts for only 20 years as a default rather than for life.

To state that any allegation of Third Degree Rape can be terrifying would be inaccurate. Why? An arrest and indictment are nothing short of horrifying. The possibility of being branded a “Rapist” in perpetuity demands that you leave nothing to chance nor take anything less than thoroughly vetted steps to identify and implement your best defensive strategy. What were the circumstances and the theory behind a lack of consent that was never actually expressed? Is this accusation being made by a jilted ex-partner or a vengeful girlfriend, or is really regret conflated as something nefarious and criminal? Are there evidentiary issues in the case? What is the corroboration for the lack of consent, if applicable? Is it solely your word against the other person’s? These are just some of the questions that need to be posed for a thorough assessment of your case.

Be smart, be engaged, and be mindful of the allegations and evidence. Yes, a lot can go wrong well outside the four corners of the courtroom in your personal life and career, but when you face the prospect of being indelibly branded a “Rapist” and seeing the inside of a jail or prison cell before leaving to walking the streets a registered sex offender for decades to come, there is no substitute for knowledge, experience and advocacy. Now is the time to not double down but be decisive and to move forward with confidence.

Contact Jeremy Saland, a criminal defense attorney, sex crimes lawyer, and former Manhattan prosecutor at 212.312.7129 or contact us online today.