Nassau County Rape in the Third Degree

N.Y. Pen. Law § 130.25

Under New York law there are three crimes that are classified as rape: rape in the first degree, rape in the second degree, and rape in the third degree. Each crime involves having sexual intercourse without someone without that person’s consent. However, rape in the third degree is the least serious rape charge. You would have committed rape in the third degree if you have sexual intercourse with someone without that person's consent or if you have sexual intercourse with someone who was incapable of consenting. Another basis for a rape in the third degree charge is if you are at least 21 years old and you have sexual intercourse with someone who is less than 17 years old. Even though rape in the third degree is the least serious of the three rape charges, it is still a felony. As a Class E felony, if you are convicted you could face up to 4 years in prison. N.Y. Pen. Law § 130.25. Regardless of the degree rape is a serious sex crime. Even after you serve your prison term a rape conviction will have a damaging affect on many aspects of the rest of your life. In order to make sure you have the best representation to help you fight such a charge it is critical that you contact an experienced Nassau County Rape in the Third Degree Lawyer who will review the facts of your case and aggressively defend you against the charges.

What is lack of consent?

In order for you to be convicted or any sex crime, including rape in the third degree, the sex act must not have been consensual. In other words, if you can show that the sex act was consensual then the prosecutor will have a difficult time sustaining a rape in the third degree charge and may drop the charge or reduce the charge. However, it is important to understand what the term "lack of consent" means under New York’s sex crimes. If the other person says no or physically resists having sex with you, then there was no consent. Even if the other person consents to other physical contact such as kissing or touching intimate parts, that person may still express unwillingness to engage in sexual intercourse. In addition, if you are at least 21 years old and the other person is a minor who less than 17 years old, if you have sexual intercourse that person, you would have committed rape in the third degree. This is the case even if it appeared as of the minor agreed or even if the minor actually initiated the sexual intercourse. In other words, it does not matter who initiated the sex if the other person is a minor. Under the law, you still would have committed rape in the third degree.

While under other sex crime statutes, lack of consent may exist if the victim suffers from a mental incapacity, such is not the case for a charge of rape in the third degree. N.Y. Pen. Law § 130.25(3). A person is mentally incapacitated if he or she is intoxicated by drugs or alcohol. Thus, if you have sex with someone who has passed out or fallen asleep after taking prescription medication, illegal drugs, or after having consumed alcohol, you will be charged with a sex crime but it will not be rape in third degree. For example, in People v. Worden, 22 N.Y.3d 982 (2013), defendant Robert Worden was charged with two counts of rape in the third degree based on two incidents with his ex-girlfriend. At the time of each incident, Worden initiated sex with his ex-girlfriend while she was under the influence of a powerful psychotropic medication that had put her into a deep sleep. The victim awoke during the incidents and demanded that the defendant stop. Worden eventually pled guilty to a single count of rape in the third degree. However, upon appeal Worden's guilty plea was reversed. When Worden recited the facts of the incident, the fact as he stated them did not amount to rape in the first degree, as Worden stated that at the time of the sexual intercourse the victim was mentally incapacitated after taking medication.

What happens if I am arrested for rape in the third degree?

If you are arrested because you are suspected of having committed rape in the third degree you will be taken into custody at the local precinct. You will then be taken to Central Booking where you will await your arraignment hearing. In some cases where the charge is a misdemeanor, for example, the arresting officer would have the discretion to issue you a Desk Appearance Ticket (DAT), so that you would avoid having to go to Central Booking. However, because rape in the third degree is a felony sex crime a DAT is not an option.

The arraignment is a court proceeding during which you are will be formally charged. While you may be under the impression that you will be charged with rape in the third degree, it is quite possible that at your arraignment you will learn that you have been charged with a different crime or additional crimes. While you are in Central Booking waiting to be the arraigned, the prosecutor will have had the opportunity to review the details surrounding your case including the evidence as well as your criminal history. Based on this the prosecutor may decide to change the charge or add additional charges.

At the arraignment the judge will determine your bail status. Whether or not the judge will require bail and the amount of bail will be based on how much of a flight risk the court determines you to be. That determination will be based on several factors including the seriousness of the charge, your employment status, and whether or not you live in the area. The judge may set bail, decide that no bail is necessary and release you, or decide that you present a significant flight risk and require that you be held without bail.

After the arraignment, there will be a series of hearings and meetings. If you have been released in bail or on your own recognizance, then it is important that you return to court for each of your hearings. If you fail to do so, you the judge will issue a warrant for your immediate arrest. At some point you may be able to strike a plea deal with the prosecutor in which you agree to plead guilty to the original charges or to lesser charges. If no plea deal is agreed upon, then you will eventually go to trial.

What are possible defenses to a rape in the third degree charge?

While being charged with rape in the third degree or any sex crime is frightening, being arrested does not necessarily mean that you will be convicted. There are various defenses to a charge of rape in the third degree that you may be able to use to help you get the charges dismissed, reduced, or that may help you be acquitted of the charges. For example, since lack of consent is a necessary element for a charge of rape, if you can prove that there was indeed consent, then the prosecutor will have a difficult time make a case for 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. N.Y. Crim. Pro. Law § 30.10. If you are not prosecuted within 5 years the law states that you cannot be prosecuted. The exception to this rule is if the victim was under the age 18. In this case the statute of limitations period does not begin until the victim turns 18 or reports the incident to law enforcement.

What is the sentence I will receive if I am convicted?

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. In People v. Morey, 2013 N.Y. Slip Op. 07086, (2013), the defendant pled guilty to rape in the third degree and was sentenced to 6 months in jail, plus 10 years probation.

Probation. While serving your probation sentence you will have to adhere “Conditions of Probation” that may include:

  • You will be subject to a warrantless search
  • You will be subject to drug testing
  • You must be employed
  • You must support your family
  • You must stay away from disreputable people
  • You must stay away from disreputable places
  • You must not drink alcohol excessively
  • You must not use controlled substances
  • You must seek any ordered medical or mental health treatment

Most importantly, if you are on probation, you cannot commit another crime. In other words, you must stay out of trouble. If you fail to adhere to the terms of your probation your probation officer will violate you. A probation violation is serious. You will be required to appear before a judge who will decide if you did indeed violation your probation. If you did the judge may revoke your probation and resentence you to prison.

Sex offender registration. If you are convicted of rape in the third degree or almost any sex crime, you will be required to register as a sex offender. This means that law enforcement will maintain certain information about you in a sex offender database. This information includes your name, aliases, address, work address, school, photograph, email address, your crimes, and the attributes of your victims. You will be required to verify this information on a regular basis and provide a new photograph on a regular basis. You will have to follow these rules for at least 20 years. If the court feels that you present a high risk to the community, then you will have to follow these rules for the rest of your life.

Even though the possible sentence for a rape in the third degree conviction is lighter than for other rape charges, rape in the third degree is still a very serious charge. A conviction will not only impact your life, it will also impact the lives of your family members. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients who have been charged with rape. We understand the evidentiary and procedural issues involved as well as how to apply defenses. 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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