Nassau County Rape in the Second Degree

N.Y. Pen. Law § 130.30

Rape is the crime of having nonconsensual sexual intercourse. In New York there are three different rape offenses. Rape in the first degree is the most serious rape offense, while rape in the third degree is the least serious. The third rape offense is rape in the second degree. While it is not the most serious rape offense it is still a Class D felony. If you are convicted of this sex crime the judge may sentence you to up to 7 years in prison. N.Y. Pen. Law § 130.30. You will face a second degree rape charge if you:

  • Are at least 18 years old and have sexual intercourse with someone who is less than 15 years old
  • Have sexual intercourse with someone who is not able to consent due to a mental disability, or
  • You have sex with someone who is not able to consent due to a mental incapacity.

You should also beware that if you are convicted of any degree of rape not only will you likely spend time in prison you will also end up with a criminal record and be required to register as a sex offender. Having both the label of convicted felon and sex offender will negatively impact the rest of your life. Thus, if you are accused of rape in the second degree it is important that you are represented by an experienced Nassau County Rape in the Second Degree Lawyer who has the knowledge and resources to aggressively defend you against the charges.

The Issue of Consent

The critical element of any sex offense is that the victim did not consent to the sex act. Thus, the prosecutor will only charge you with rape in the second if there is evidence that the person with whom you had sex did not consent. N.Y. Pen. Law § 130.05. Under the statute there are three ways that lack of consent can be demonstrated.

Victim is a minor. The law has determined that generally speaking minors do not have the legal capacity to consent to sexual intercourse. If you are at least 18 years old and the complaining witness is a minor who is less than 15 years old, then you could be charged with rape in the second degree. It is important to understand that it does not matter if the minor initiated the sex or did not object to it. The only relevant issue is your age in relation to the victim's age.

Mental incapacity. Mental incapacity is a general term that means that the person lacks the ability to understand and appreciate the nature of the sex act. The person's mental incapacity can result from an injury, a disease, or some other problem.

The other way that lack of consent can be shown for purpose of the rape in the second degree charge is based on the age of the victim. Children cannot consent to sex. Thus, if you are at least 18 years old and have sex with someone who is under 15 years old, then under the law it was impossible for there to have been consent. N.Y. Pen. Law § 130.30(1)

Being Charged with a Sex Crime

If you are accused of a rape in the second degree or any other sex crime, you will be arrested and taken into custody. You will be processed at the local precinct and then be sent to Central Booking where you will remain until you are arraigned. An arraignment is a hearing before a judge at which you are formally charged. While at the time of your arrest you may be under the impression that you are being charged with rape in the second degree, by the time you are arraigned the prosecutor would have had time to review your case as well as your criminal background. As a result, the prosecutor may decide that you should be charged with a more serious crime such as rape in the first degree. Or the prosecutor may decide to add one or more additional charges. At your arraignment you will also find out the amount of your bail, if you will be held without bail, or if you will be permitted to be released on your own recognizance. Finally, you learn the date of your next hearing. Several hearings and meetings may occur prior to your trial. If you are unable to agree on a plea agreement with the prosecutor, you will ultimately have a trial.

Defenses to a Sex Crime Charge

Depending on the facts of the case, there are a number of possible defenses to a rape in the second degree charge. However, a notable defense relates to the age difference between the two people involved. Under the second degree rape statute if you are at least 18 a person under the age of 15 cannot legally consent to having sex with you. However, there is an exception to this rule. The exception is where there is less than a 4 year age difference between you and the other person. This defense is sometimes referred to as the Romeo and Juliet defense. This means that if you are 18 and the other person is 14.5 years old, then you cannot be charged with rape based on the age of the other person. However, if you are 18.5 and the other person is 14, then you can be charged with rape in the second degree.

Another defense could be based on the statute of limitations. The statue of limitations refers to the amount of time that a prosecutor can bring criminal charges against another person. The statute of limitations for rape in the second degree is five years. N.Y. Crim. Pro. Law § 30.10. While in many cases rapes are reported to law enforcement fairly soon after the incident, there are also cases where for various reasons law enforcement may not be contacted for some time after the event. If a prosecutor does charge you with rape or any other felony sexual assault within 5 years of the incident, the law says that the prosecutor is forever barred from charging you.

There is an exception to the strict 5-year statute of limitations rule. If the victim was less than 18-years old at the time of the incident, then the limitations period does not begin to run until the he or she turns 18 years old or until the incident is reported to law enforcement. However, if there is a long time between the incident and when a charge is brought, the prosecution may have other problems such as physical evidence of a sexual assault may be scarce and memories may have faded.

Sentence for Rape in the Second Degree Conviction

Because rape in the second degree is a Class D felony under New York law if you are convicted the judge can sentence you to up to 7 years in prison. To make matters worse, rape in the second degree is also classified as a violent felony offense. N.Y. Pen. Law § 70.02. Typically, if a crime is a Class D felony offense, while the maximum possible sentence is up to 7 years in prison the judge would have the option of giving a much lighter sentence if the situation warranted it. For example, if you are a first time offender, the judge could sentence you to 1 year in jail, or even to just probation. However, if a Class D felony is classified as a violent felony offense the judge must sentence you to at least 2 years in prison.

Your sentence may include both prison and probation. The mandatory probation term for a felony sex crime conviction is 10 years. You will serve your probation term concurrently with your prison term. Since your prison term for a conviction of rape in the first degree is no more than 7 years, you will have to serve the remaining years on your probation term once you are released from prison. While you are on probation, there will be several rules that you must follow or risk being sent back to prison. For example, rules that you must follow may include that you must not commit additional crimes, you must have a job, you must support your family, you must not associate with other felons, you must not drink alcohol excessively, you must not use controlled substances, you must not leave the jurisdiction without permission, and that you must report to your probation officer regularly. If you break any of the rules, you will have to appear before a judge who will decided whether or not you violated the terms of your probation such that you should be sent back to prison.

Sex Offender Status

If you are convicted of rape in the second degree or almost any other sex crime, you will be required to register as a sex offender. This means that you will have to follow onerous registration rules required by the New York Sex Offender Registration Act. N.Y. Cor. Law § 168. You will have to initially registration upon your conviction. The details that you have to register include your name, your aliases, address, work address, school address, email address, and internet handles. You will also have to provide your photograph. You will have to regularly verify this information and update your photograph. You will have continue to follow the registration and verification rules for 20 years, or for the rest of your life.

Whether the charge is rape in the second degree, rape in the third degree, or rape in the first degree, defending rape a charge can be very complicated, requiring an in depth understanding of criminal law. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts and has the in depth skill and knowledge to handle the complexities of defending a client accused of not only rape, but other sex crimes such as sexual misconduct, criminal sexual act, forcible touching, sexual abuse, sexual conduct against child, and facilitating a sexual offense with a controlled substance. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of sex crimes in the following locations:

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