NY Penal Law § 130.30: Rape in the Second Degree

Under New York Penal Code section 130.30 you will be charged with the sex crime of rape in the second degree if you are at least 18 years old and have sexual intercourse with someone who is less than 15 years old, or, regardless of your age, if you have sexual intercourse with someone who is not able to consent due to a mental disability or incapacity. It is a class D felony.

A man tells a drama student that he is a talent agent. He invites her to his hotel room to read lines from a script. During the visit he serves her a glass of wine. Without the student's knowledge the man placed ecstasy in her wine. She later woke up naked in defendant's bed at his hotel and realized that he had had sexual intercourse with her. The man could be prosecuted for rape in the second degree because he had sexual intercourse with the student while she was intoxicated from the ecstasy. Because she was intoxicated she was mentally incapacitated and did not have the ability to consent. The man could also be charged with facilitating a sex offense with a controlled substance under New York Penal Code section 130.90.

1. Criminal sexual act in the second degree: New York Penal Code section 130.45
2. Sexual abuse in the first degree: New York Penal Code section 130.65
3. Aggravated sexual abuse in the third degree: New York Penal Code section 130.66
4. Course of sexual conduct against a child in the second degree: New York Penal Code section 130.80
5. Facilitating a sex offense with a controlled substance: New York Penal Code section 130.90

If you can show that there was consent to the sex act, then you cannot be prosecuted for rape in the second degree. While under the statute if you are at least 18 a person under the age of 15 cannot legally consent to having sex with you, you cannot be prosecuted if there is less than a 4 year age difference between you and the other person.

Because rape in the second degree is a class D felony if you are convicted the judge can sentence you to up to 7 years in prison. Since it is also classified as a violent felony offense, the minimum prison sentence is 2 years. Part of your sentence may also be a probation term of 10 years.

Sex Offender Registration. You will also be required to register as a sex offender under New York's Sex Offender Registration Act (SORA). You will have to follow the registration rules for at least 20 years and perhaps for the rest of your life.

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

1. being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or
2. he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.

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 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.