There is a great degree of social stigma attached to statutory rape in the United States. Aside from the harsh penalties including long prison time and being ordered to register with the National Sex Offender Registry, it can make it difficult for you to hold a job, get a house or apartment, use the internet, and even restrict who you can live with. The nature of the crime is that of taking advantage of someone who is not legally able to give consent. While often thought to be a crime that is solely about adults having sex with minors, New York law takes it further than that.

Once people know that you are a registered sex offender – which is public information – and that your crime is statutory rape, you will be treated differently in the community. That is just human nature. Some people will refuse to associate with you or allow their children around you regardless of the circumstances. Not all people will treat you this way, but many will. Rape is already a hot topic in our society with the “Me Too” movement. Statutory rape only adds fuel to the fire.

Statutory rape convictions carry stiff penalties, including prison. As with any sex crime, even those already incarcerated for other crimes look unfavorably on this type of rape. If you are sentenced to prison, they can make your life very difficult.

This particular charge sometimes seems harmless, mainly because it is often consensual and the parties are close in age. But make no mistake, there is nothing harmless about it. There is a victim, there is a penalty, and there are serious negative attitudes attached to it.

Overview of Statutory Rape Offenses

Statutory rape is a crime that occurs when a person takes advantage of another person who is not in a position to legally give consent and has sex with them. While this is typically thought of as a crime where someone older than 18 has consensual sex with a minor who is younger than the age of consent, there are other instances where it applies as defined under New York Penal Law § 130.25. There are several other charges that can accompany a statutory rape charge, and this can compound your penalties even further.

The key here is not only the age of the victim but their ability to legally give consent. If the victim is younger than the age of consent, then they are not legally able to provide consent. So even if the victim agrees to the sex or initiates it, they are not in a position to give that consent, so it becomes rape. It is statutory rape because there are statutes or laws that protect minors and those in vulnerable positions – those who are not old enough or have the capacity or ability to give legal consent on their own.

The very nature of statutory rape makes it difficult to prove, but in cases where a minor is involved, it is often the parents who will file charges on behalf of the minor. Consent can also become an issue. If consent had been given but the victim changed their mind, proceeding with the act can escalate the charge to something more serious that carries harsher penalties.

Statutory rape is most often handled at the state level which means that the state where the offense occurred will determine the definition, age of consent, acceptable defenses, and penalties. Each of these can differ from state to state.

Federal Statutory Rape Offenses

Most of the time, statutory rape falls under the purview of the state in which the offense occurred. Rarely will it be escalated to the level of federal statutory rape unless there are other federal crimes attached to it and/or the offense crossed state lines.

Some possible charges that may lead to a federal statutory rape charge include:

  • Sexual assault of a minor or child
  • Rape of a minor or child when associated with child pornography
  • Sex trafficking of a minor or child
  • Aggravated sexual abuse
  • Abusing a minor sexually
  • Sexual abuse resulting in death
  • Exploitation of a child in a sexual manner

New York Statutory Rape Offenses

Under New York Law, 17 is the age of consent for having sexual relations. According to New York Penal Law 130.25, statutory rape, or “Incapacity to Consent by Person Subject to Care and Custody” is a crime of Rape in the Third Degree. 

The law defines “sexual intercourse” as:

…any penetration, however slight, of the penis into the vaginal opening. In other words, any penetration of the penis into the vaginal opening, regardless of the distance of penetration, constitutes an act of sexual intercourse. Sexual intercourse does not necessarily require erection of the penis, emission, or orgasm.

New York Statutory Rape laws are very complex. There are several charges that fall under these laws:

  • First Degree Rape – This is a Class B felony and is defined as sexual intercourse (even very slight penetration) involving a minor who is:
    • Younger than 11 years old and the defendant, regardless of age
    • Younger than 13 years old and an adult
  • Second Degree Rape – This is a Class D felony and is defined as sexual intercourse between a minor who is younger than 15 and the defendant who is 18 years old or older. Exemption: The minor is less than four years younger than the defendant
  • Third Degree Rape – This is a Class E felony and is defined as sexual intercourse between a minor who is younger than 17 years and the defendant who is 21 years old or older.
  • Criminal Sexual Act in the First Degree – This is a Class B felony and is defined as sexual contact such as anal or oral between a minor who is 
    • Younger than 11 years old and the defendant, regardless of age
    • Younger than 13 years old and an adult
  • Criminal Sexual Act in the Second Degree – This is a Class D felony and is defined as sexual contact such as anal or oral between a minor who is younger than 15 and the defendant who is 18 years old or older. Exemption: The minor is less than four years younger than the defendant
  • Criminal Sexual Act in the Third Degree – This is a Class E felony and is defined as sexual contact such as anal or oral between a minor who is younger than 17 years and the defendant who is 21 years old or older.
  • First Degree Sexual Abuse – This is a Class D felony and is defined as sexual contact of any type including but not limited to sexual touching under or over clothing, and any touching in a way that is sexually gratifying, stimulating, or arousing involving a minor who is:
    • Younger than 11 years old and the defendant, regardless of age
    • Younger than 13 years old and an adult
  • Second Degree Sexual Abuse – This is a Class A misdemeanor and is defined as sexual contact of any type including but not limited to sexual touching under or over clothing, and any touching in a way that is sexually gratifying, stimulating, or arousing involving a minor who is younger than 14 years old and the defendant of any age.
  • Third Degree Rape – This is a Class B misdemeanor and is defined as sexual contact of any type including but not limited to sexual touching under or over clothing, and any touching in a way that is sexually gratifying, stimulating, or arousing involving a minor who is 15 to 16 years old and the defendant who is five years or older than the victim.
  • Sexual Misconduct – This is a Class A misdemeanor and is defined as sexual intercourse or sexual contact (anal or oral) involving a minor who is younger than 17 years old.

Offenses Related to Statutory Rape Charges

There are other offenses that can be attached to a statutory rape charge. These include but are not limited to:

  • Contributing to the delinquency of a minor
  • Sexual assault of a minor or child
  • Child pornography (if any sexually explicit or suggestive photos taken)
  • Distribution of child pornography (if sexually explicit or suggestive photos were shared or transmitted via the internet – can incur federal charges)
  • Rape of a minor or child when associated with child pornography
  • Sex trafficking of a minor or child
  • Aggravated sexual abuse
  • Abusing a minor sexually
  • Sexual abuse resulting in death
  • Exploitation of a child in a sexual manner

Crossing state lines can further compound the charges and may include federal involvement.

Penalties for Federal Statutory Rape Offenders

The penalties for federal statutory rape charges would typically be associated with the action that brought the federal government into the case. This is typically not simply statutory rape. It may include crossing state lines which can bring kidnapping charges or distribution of child pornography if any sexually explicit photos of the victim were shared on the internet via Smartphones or other file-sharing means.

Penalties for Statutory Rape Offenders in New York

Under New York law, statutory rape can incur some serious sentences and penalties. For instance, First, second-, and third-degree rape all carry prison sentences as well as up to $5,000 in fines. The sentences and penalties for statutory rape in New York include:

  • First Degree Rape – Class B felony. Minimum 5 years in prison with a maximum of 25 years.
  • Second Degree Rape – Class D felony. Maximum 7 years in prison.
  • Third Degree Rape -Class E felony. Maximum 4 years in prison.
  • Criminal Sexual Act in the First Degree – Class B felony. Minimum 5 years in prison with a maximum of 25 years.
  • Criminal Sexual Act in the Second Degree – Class D felony. Maximum 7 years in prison.
  • Criminal Sexual Act in the Third Degree – Class E felony. Maximum 4 years in prison.
  • First Degree Sexual Abuse – Class D felony. Maximum 7 years in prison.
  • Second Degree Sexual Abuse – Class A misdemeanor. Maximum 1 year in jail.
  • Third Degree Sexual Abuse – Class B misdemeanor. Maximum 3 months in jail.
  • Sexual Misconduct – Class A misdemeanor. Maximum 1 year in jail.

Certain sex crimes trigger a requirement under New York law to register as a sex offender. Those with statutory rape convictions fall under this umbrella so, in addition to the fines and imprisonment, they must also register with the National Sex Offender Registry.

Statutory Rape Defenses

There are several viable defenses for statutory rape charges in New York. Under the law there are two legal exceptions that may be applied:

  • Marital Exception – If the defendant and the minor are married then consensual sex is allowed even if the ages of the two parties would not be legal if they were not married. However, if the defendant forced the minor to have sexual relations, even if they are married, then the defendant can be charged with rape because marital rape is recognized in New York. In addition, in 2021 New York State banned underage marriages, which eliminated the previous exception of allowing 17-year-olds to get married to adults with the consent of parents and the courts. Starting in August 2021 all marriages to minors are banned in New York State. 

  

  • Romeo and Juliet Defense – This exemption is a little more complex but provides an exemption for consensual sex between two teenagers who are close in age. Under New York law there are circumstances where partial exemptions are applied. They are partial because while the defendant may escape the harsher penalties of a felony Statutory Rape charge, they may still be subject to a misdemeanor charge of sexual misconduct. It should also be noted that any sexual contact with a minor who is under the age of 11 is always a felony with a maximum of 25 years in prison. 

The partial exemptions include:

    • Partial exemption – Minor who is 15 or 16 with someone under 21 years old
    • Partial exemption – Minor who is 11 – 14 with someone who is under 17 years old.

Mistake of Age Defense is a common attempt to escape a felony statutory rape charge. The defendant may claim that they did not know the person they were with was underage and that they had no reason to believe or know that person was a minor. However, the mistake of age is not a viable defense under New York law, even if it is a reasonable mistake.

If you are facing statutory rape charges, do not try to handle them on your own. These laws are extremely complex and require the counsel of an experienced, educated attorney who understands the ins and out of Federal and New York statutory rape laws and can navigate the court system. Call the Litvak Law Firm at (718) 989-2908. Your initial phone consultation is free. Mr. Litvak can help you protect your rights and ensure you have the best possible outcome in your case. Call today.