NY Penal Law § 130.25: Rape in the Third Degree

Under the New York Penal Code section 130.25 you have committed the sex crime of rape in the third degree if you do any of the following:

• Have sexual intercourse with someone who was incapable of consenting,
• Are at least 21 years old and you have sexual intercourse with someone who is less than 17 years old, or
• Have sexual intercourse with someone without that person's consent

Lack of consent means that the sexual act was forced. Even if the other person appears to have consented, if under the law that person does not have the capacity to consent then there was no consent and you could be prosecuted for rape in the third degree. The victim lacks the capacity to consent if he or she is under 17 years old, suffers from a mental disability, suffers from a mental incapacity, or is physically helpless.

A 30 year old man goes to a party and meets a 16 year old girl. Later in the evening the two engage in sexual intercourse. The two begin a dating relationship and have sexual intercourse regularly over a period of time. Even though the man did not physically force the girl to have sex with him he still committed the crime of rape in the third degree because the girl was under the age of 17 years old and, therefore, lacked the legal capacity to consent to sex.

1. Criminal sexual act in the third degree: New York Penal Code section 130.40
2. Sexual misconduct: New York Penal Code section 130.20

Since lack of consent is a necessary element for a charge of rape in the third degree or any sex crime, it will be necessary for the prosecutor to prove that you did not have consent to have sexual intercourse with the other person. If it can be shown that there was indeed consent, you cannot be convicted of rape in the third degree.

Another defense could be based on the statute of limitations. The statue of limitations refers to the amount of time that a prosecutor has to bring criminal charges against a person. The statute of limitations for rape in the third degree is five years. This means that if you are not prosecuted for rape in the third degree within five years of when the incident reportedly occurred, you cannot be prosecuted at all. However, if the person who accuses you of rape in the third degree was less than 18 years old at the time of the incident, the limitations period does not begin to run until he or she turns 18 years old or until the incident is reported to law enforcement.

If you are convicted of rape in the third degree, the maximum prison sentence the judge can give you is 4 years. If you are a first time offender the judge may give you a significantly lighter sentence depending on the facts of the case and your personal background. If your sentence includes probation, the mandatory probation term is 10 years since rape in the third degree is both a felony and a sex crime. You will also be required to register as a sex offender under the New York Sex Offender Registration Act (SORA).

A person is guilty of rape in the third degree when:

1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old;
2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or
3. He or she engages in sexual intercourse with another person without such person`s consent where such lack of consent is by reason of some factor other than incapacity to consent.

Because of the problems you will undoubtedly encounter from merely being accused of rape in the third degree, you should immediately contact an attorney who is familiar with defending people accused of or charged with rape. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with sex crimes such as aggravated sexual abuse, criminal sexual act in the first degree as well as other sex crimes such as sexual misconduct, criminal sexual act, forcible touching, sexual abuse, sexual conduct against child, female genital mutilation, and facilitating a sexual offense with a controlled substance. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.