Nassau County Statutory Rape

In New York it is illegal to have sex with a minor who has not reached the age of 17, which is the statutory age of consent. If you do so, you would have committed a sex crime. This is the case even if the minor appeared to have consented or initiated the sex act. This type of sex crime is commonly referred to as "statutory rape." While under the New York Penal Code rape has a specific definition. It refers to the penetration of the vagina with the penis. However, the term statutory rape may refer to not just rape any of several different types of sex crimes such as criminal sexual act. The necessary element for any sex crime is for there to have been a lack of consent. The lack of consent element of a sexual assault is often physical force or the threat of death or physical harm. However, a lack of content will also exist if the other person does not have the legal ability to consent because he or she is a minor. Thus, even if the minor appears to have consented to the sexual act or even if the minor initiated it, you still could be convicted of statutory rape due to the minor's age. A sex crime conviction usually carries a prison sentence. Such a conviction will also result in you being required to register as a sex offender for at least 20 years, and possibly for the rest of your life. Because a statutory rape conviction has such severe consequences if you are accused of any type of sex act with a minor, it is critical that you contact an experienced Nassau County Statutory Rape Lawyer who will review the facts of your case, explain the legal process, and aggressively defend you against the charges.

What are the different statutory rape laws?

There are several types of sexual assault that can be the basis of a so-called statutory rape charge. While they all prohibit sexual conduct with a person who is under the age of 17, in some instances there are exceptions for cases where there is a not a significant age difference between the accused and the minor. Furthermore, while you may think that only a man can be charged with statutory rape that is not a case. The statutory rape laws apply regardless of the gender of the adult and the minor.

  • Rape in the third degree. Rape in the third degree is the least severe statutory rape charge. You will be charged with rape in the third degree if you are at least 21 years old and have sexual intercourse with someone who is less than 17 years old. It is a Class E felony. N.Y. Pen. Law § 130.25. This means that if you are 18 or 19 years old, for example, and have sexual intercourse with a 16 year old, you cannot be charged with statutory rape under the rape in the third degree statute.
  • Rape in the second degree. You will face this charge if you are at least 18 years old and have sexual intercourse with someone who is less than 15 years old. For this charge you also must be four or more years older than the other person. It is a Class D felony. N.Y. Pen. Law § 130.30.
  • Rape in the first degree. Rape in the first degree is the most serious rape charge. You will face this charge if you have sexual intercourse with someone who is age 11 or younger, or if you are at least 18 years old and have sexual intercourse with someone who is less than 13 years old. It is a Class B felony. N.Y. Pen. Law § 130.35.
  • Criminal sexual act in the third degree. You will face this charge if you have oral or anal sex with someone who is younger than 17 years old. N.Y. Pen. Law § 130.40. It is Class E felony with a possible sentence of up to 4 years in prison. Oral sex is defined as sexual contact between the mouth of one person and penis of another person, the mouth and the anus, or the mouth and the vagina or vulva, while anal means contact between the penis and the anus. N.Y. Pen. Law § 130.00(1).
  • Criminal sexual act is the second degree. You will be charged with criminal sexual act in the second degree if you are at least 18 years old and the other person is younger than 13 years old, or you are at least 4 years older than the victim. N.Y. Pen. Law § 130.45. It is a Class D felony with a possible sentence of up to 7 years in prison.
  • Criminal sexual act in the first degree. Criminal sexual act includes oral or anal sex with someone who is younger than 11, or with someone who is younger than 13 if you are at least 18 years old. It is a Class B felony. N.Y. Pen. Law § 130.50. The maximum possible prison sentence is up to 25 years.
  • Sexual abuse in the third degree. Sexual abuse in the third degree involves having sexual contact with someone who is 15 or 16 years old and you are at least 5 years older than that person. N.Y. Pen. Law § 130.55. Sexual contact is defined as the touching of the intimate sexual parts of another person for the purpose of sexual gratification. Sexual abuse in the third degree is a Class B misdemeanor with a possible sentence of up to 3 months in jail.
  • Sexual abuse in the second degree. You will face this charge if you have sexual contact with someone who is less than 14 years old. N.Y. Pen. Law § 130.60. It is a Class A misdemeanor with a possible sentence of up to 1 year in jail.
  • Sexual abuse in the first degree. You will face this charge if you have sexual contact with someone who is less than 11 years old. N.Y. Pen. Law § 130.65. It is a Class D felony with a possible sentence of up to 7 years in prison.
  • Sexual misconduct. You would have committed sexual misconduct if you have oral sex, anal sex, or sexual intercourse with someone who is less than 17 years old. N.Y. Pen. Law § 130.20. It is a Class A misdemeanor with a possible sentence of up to 1 year in jail.
What are possible defenses to a statutory rape charge?

While there are several defenses to a statutory rape charge that may be available to you, the rape, criminal sexual act, and sexual abuse statutes specifically provides a defense based on the difference in ages between the accused and the minor. This defense is sometimes referred to as the Romeo and Juliet defense. Another defense is marriage.

Romeo and Juliet defense. The purpose of the so-called Romeo and Juliet exception is to protect adults and minors who are close in age and who engage in otherwise consensual sex from being charged with certain sex crimes. For example, under the rape in the third degree law it is illegal for someone who is at least 21 to have sex with someone under the age of 17. However, it is not illegal for an 18 year old to have sexual intercourse with a 16 year old. While the various New York sex crime statutes have slightly different rules, no sex crime statute has Romeo and Juliet exemption that legalizes having sex with someone who is under 11 years old.

Marriage defense. In cases where you and the minor are legally married and the rape charge is based on lack of consent due to age, then the marital defense applies and you cannot be charged with statutory rape. N.Y. Pen. Law § 130.10. However, this defense would only be valid if the marriage itself is valid in the State of New York. In People v. Ezeonu, 155 Misc.2d 344 (1992) the defendant was charged with rape based on having sex with a 13 year old girl. The defendant's defense was that he was married to the girl. The court rejected this defense because the defendant was also married to another woman, and polygamous marriages are not recognized in New York.

No defense. It is important to understand that in instances where the Romeo and Juliet defense or the marriage defense would otherwise apply, if the sex act was nonconsensual due to the use physical force, the victim being physically helpless, mentally disabled, or mentally incapacitated.

What are the consequences of a statutory rape conviction?

If you are convicted of statutory rape, your sentence will depend on several factors including the specific sex crime you committed and your criminal history. You sentence may include incarceration, the payment of a fine, the payment of restitution, and probation. You will also be required to register as a sex offender and you will have a permanent criminal record.

Misdemeanors. There are 3 statutory rape sex crimes that are misdemeanors: sexual misconduct (N.Y. Pen. Law § 130.20), sexual abuse in the second degree (N.Y. Pen. Law § 130.60) and sexual abuse in the third degree (N.Y. Pen. Law § 130.55). Sentences for misdemeanors are for up to a year in jail. They are served in local jails and not state prisons. Sexual misconduct and sexual abuse in the second degree are all Class A misdemeanors. If you are convicted of one of these crimes, the maximum sentence is up to one year in jail. N.Y. Pen. Law § 70.15(1). Sexual abuse in the third degree is a Class B misdemeanor. The maximum possible sentence is up to 3 months in jail. N.Y. Pen. Law § 70.15(2)

Class E Felonies. If you are convicted for a sex crime that is classified as a Class E felony you could be sentenced to prison for up to 4 years in prison. The Class E felony statutory rape crimes include rape in the third degree (N.Y. Pen. Law § 130.25) and criminal sexual act in the third degree (N.Y. Pen. Law § 130.40)

Class D Felonies. A conviction for a sex crime that is classified as a Class D felony will result in a prison sentence of up to 7 years. There are 3 Class D felony statutory rape sex crimes including rape in the second degree (N.Y. Pen. Law § 130.30), criminal sexual act in the second degree (N.Y. Pen. Law § 130.45) and sexual abuse in the first degree (N.Y. Pen. Law § 130.65). Each of the 3 Class D sex offenses are also classified as violent felony offenses, requiring a minimum sentence of 3 years in prison. You must serve 6/7 of the prison sentence before you will be eligible for release.

Class B Felonies. A conviction for a sex crime that is classified as a Class B felony will result in a prison sentence of up to 25 years. There are 2 statutory rape sex offenses that are Class B felonies: rape the first degree (N.Y. Pen. Law § 130.35) and criminal sexual act in the first degree (N.Y. Pen. Law § 130.50). Each of these crimes is classified as a violent felony offense, requiring a minimum sentence of 5 years.

Financial consequences. In addition to being sent to prison, as part of your sentence the judge may order you to pay fines, fees, and restitution. For felony statutory rape the fine would be up to $5,000, while for a misdemeanor offense the fine would be up to $1,000. Fees include a "mandatory surcharge" of $175-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If your sentence includes probation you will be required to pay a monthly supervision fee of $30. There are also fees associated with sex offender registration. The amount of restitution you may be ordered to pay will be based on the losses suffered by the victim such as medical bills. Generally, the maximum amount of restitution is $10,000 for a misdemeanor and $15,000 for a felony. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

Failure to pay a fine, fee or restitution may result in you being charged with yet another crime that could mean a year in prison. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Sex offender registration. If you are convicted of statutory rape, in addition to a sentence of probation, jail or prison, you will be required to register as a sex offender under the Sex Offender Registration Act (SORA). This means that you will have to provide certain information to a designated law enforcement agency that will be added to a special database. Such information includes your name, home address, the crime you committed, your sentence, your email addresses, your online screen names, and your photograph. You will be required to verify such information on a regular basis. If you move to a new jurisdiction, you will have to register with law enforcement in your new jurisdiction. In some cases, this information will be available to the public. This means that anyone could go online and find out that you are a sex offender and also find out where you live and other details about you. Under the SORA you will have to register for at least 20 years. Some will have to register for life.

If you or a family member are facing a statutory rape charge based on any type of sex crime, you should immediately consult an experienced Nassau County Statutory Rape Lawyer. Keep in mind that the earlier in your case that you are represented by someone with experience the better. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of rape as well as other sex crimes such as sexual abuse and criminal sexual act. 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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