New York Penal Law Section 130.30: Rape in the Second Degree

Rape cases tend to stir up the community's emotions because they allege that one person engaged in sexual intercourse with another without that individual's consent. But while most people equate rape with a violent or forceful controlling act, many rape cases actually start with two individuals who freely engage in intercourse without any sort of coercion. Charges may later develop because the New York legislature has deemed one of those parties incapable of consenting to sexual activity because of some special characteristic of that person.

There are two ways that a person can be charged with Rape in the Second Degree, and neither one consists of the use of force, threats or coercion. The first has to do with the age of the parties engaging in intercourse. The second has to do the individual's state of mind at the time of the sexual contact. Both of these charges are considered strict liability, which means that a prosecutor does not have to prove that there was any intention or motive on the part of the defendant to commit a crime. If an individual is legally incapable of consenting to sexual intercourse, then even if they are a willing participant in the act, or even if they initiate the act themselves, the defendant can still be charged and convicted of Rape in the Second Degree.

Statutory Age Prohibition

Prosecutors will allege that a person has committed Rape in the Second Degree (NYPL § 130.30) when the defendant is 18 years old or older and engages in sexual intercourse with an individual less than 15 years old. It is important to note that the prosecutor does not need to prove, or even allege, that the defendant knew the age of the other party. If the underage person represents themselves to be 18 years old, and after intercourse it is discovered that they were under 15, then a prosecutor can file charges; ignorance is not a viable defense.

Mental Disability or Incapacity

The ability to consent to sexual intercourse requires a certain sound state of mind. If a person does not have that state of mind, then they cannot consent to sex and it is presumed that the other party is aware of this incapacity and will respect it. But frequently the line between capable and incapable is shaded in gray rather than black and white. Prosecutors will frequently allege that the "totality of the circumstances" demonstrated to the defendant that the other party was incapable of consenting. The two main ways that a person is deemed unable to frame consent in their mind are mental disability or incapacity through unconsciousness or intoxication.

It will come as no great surprise to anyone that the law attempts to protect people who are mentally disabled from being taken advantage of. But there is no bright line rule about when a person's disability renders them incapable. Prosecutors tend to use the subjective "reasonable person" test and claim that if a hypothetical reasonable person were asked to decide whether or not a person had the mental capacity to consent to sexual intercourse, that would determine whether or not a crime has been committed. The obvious problem is that what is "reasonable" is not the same to everyone, and as much as we all want to believe that as a society we can create standards which we should all adhere to, there will always be cases which are close, where the defendant feels that a person had the capacity to consent and the prosecutor feels that they did not.

It is also understandable that a person can be criminally charged for engaging in sexual intercourse with an unconscious person. They clearly lack the capacity for consent. But what about conscious people who are extremely intoxicated? Or even just mildly intoxicated? At what point does sexual intercourse between two drunk adults become a crime when both people are willing at the time? Ironically, that same intoxication which renders one party incapable of consenting to the sexual intercourse does not constitute a viable defense claim for the other, the defendant's mental state is irrelevant for a strict liability crime. So what stops a person from waking up after a night of heavy drinking, realizing that they slept with someone they probably would not have if they were sober, and claiming that they were taken advantage of? The honest answer is: very little. This is becoming more and more prevalent on college campuses and among co-workers at social events. Alcohol tends to fuel desire and reduce inhibitions, but at some point the law states that a person is past the point where they have the mental capacity to form consent. Sometimes these situations are obvious and it is clear a person should have known that their sexual partner was not able to make the mental connections required to consent, but frequently it is not so clear. Many defendants are in complete and utter disbelief when they are arrested because they genuinely believe they did nothing wrong and everything that happened was mutually desired.

Rape in the Second Degree is a class D felony, which is punishable by up to seven years in prison, even for a first offense. In addition to considerable jail time, a convicted rapist will also have to register as a sex offender, which will have extreme negative consequences for just about every aspect of a person's life. The everyday things that most people take for granted will become a continuous struggle. Finding housing or a job, going back to school, obtaining a mortgage or car financing, even just opening a bank account can become a complex and difficult process. Make no mistake, if these cases are not handled the right way, the consequences will be severe and permanent.

If you or someone you know has been charged with engaging in sexual intercourse without the other party's consent, hiring a top New York rape attorney is an immediate priority. These cases can be won and charges can be dismissed, but it generally requires a thorough investigation of the incident, interviews with people who had knowledge of the mental state of the parties just before or just after intercourse, a look into the complainant's history, and candid conversations with the prosecutors about what really happened.

While having an experienced New York rape attorney fighting for you is important throughout the case, it is essential to retain a top New York criminal attorney as quickly as possible, so that they can advise you from the case inception how to best protect yourself. Far too often our firm gets a call from a prospective client who has already been contacted by a case detective and who has gone down to the precinct to try to explain what really happened from their perspective. In reality, detectives frequently invite suspects down to the station to get them to make incriminating statements which can easily end up being the best evidence against them. Having an attorney who knows when to talk and when to say nothing can often be the difference between getting arrested and returning to a normal life.

At the Law Offices of Jeffrey Lichtman, our experienced New York sex crimes and rape attorneys have successfully litigated countless cases where sexual encounters led to a Rape in the Second Degree charge - and caused dozens of sex crimes investigations to end without a charge. Call us today at (212) 581-1001 for a free case evaluation.