New York Penal Law Section 130.25: Rape in the Third Degree

In New York (and most other places), rape is characterized as engaging in sexual intercourse with another person without that person's consent. The varying degrees of punishment for this behavior are determined by the unique facts and circumstances of the sexual encounter. Generally speaking, people have a conception that the phrase "without that person's consent" entails the use of force or some sort of coercion, but this is not always the case. Under the law, a person can be raped even if they initiate the sexual contact and, in their own mind, are fully compliant with the encounter. This is possible because some people are legally incapable of giving consent due to reasons other than their unwillingness to engage in sexual activity.

A person commits Rape in the Third Degree (NYPL § 130.25) when they engage in sexual intercourse with someone who is incapable of consent. It should be noted that this statute does not apply to people who affirmatively indicate that consent is not being given, but rather to people who actually lack the capacity to consent. There are two main ways that the law deems someone incapable of giving consent to engage in sexual intercourse, the first is a person's age, the second is their level of intoxication.

If an individual is at least 21 years old and has sex with a person younger than 17, that person has committed Rape in the Third Degree. This is what is known as a "strict liability" crime. It does not matter if both parties are willing, engaged in a monogamous relationship, in love, etc. If one person is 21, and the other is under 17, and they have sex, the older party has committed statutory rape. Ignorance of the other person's age is also not a viable defense. It does not matter if they appeared older, or more mature, the law views children under the age of 17 incapable of consenting to contact with a person over 21.

Additionally, if two people have sex, but one person is extremely intoxicated, that person can later claim that due to their inebriated state, they did not have the mental faculties required to consent to sexual contact. This charge assumes that no force or coercion was used to compel sex, but rather that the person was not in the state of mind to provide consent, and that the other person knew, or should have known, and took advantage of the drunken state.

Rape in the Third Degree is a non-violent E felony, punishable by up to one and a third to four years in prison. While serving prison time for what is frequently a consensual sexual encounter is difficult enough to understand or accept, a conviction for Rape in the Third Degree will also require registering as a sex offender, which will make just about every aspect of a person's life extremely difficult. Finding a place to live, obtaining a mortgage, car loans, school loans, getting or keeping a decent job, and many other activities that most people take for granted become extremely difficult once a person is branded a sex offender. The societal stigma is the same for someone who was convicted of Rape in the Third Degree as if they had been convicted of Rape in the First Degree.

If you have been charged with Rape in the Third Degree, or any other sexually based criminal offense, you need to win and you need to win big. Sometimes even complete exoneration cannot fully repair the damage done to one's reputation due to these allegations. Being represented by a top attorney who understands how sex crimes prosecutors build cases and determine witness credibility could be the difference between getting your life back on track, or having to move so that your new home is not within 200 feet of a school.

At the Law Offices of Jeffrey Lichtman, our experienced New York sex crimes attorneys have successfully handled countless cases where consensual sex ended up leading to a Rape in the Third Degree charge. We know how to discredit witnesses and communicate with prosecutors to make sure you get the best outcome available. Call us today at (212) 581-1001 for a free case evaluation.