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New York Rape in the Second Degree

Under the New York Penal Code you will be charged with rape in the second degree if you are at least 18-year-old and you have sexual intercourse with someone who is less than 15-year-old, or if you have sexual intercourse with someone who is incapable of consent due to a mental disability or incapacity. Like all rape charges, under the New York Penal Code rape in the second degree is a felony. As a class D felony, if you are convicted you will face a sentence of up to 7 years in prison. N.Y. Pen. Law § 130.30. After you complete your prison sentence your life will be permanently affected. Not only will you have a criminal record with a felony you may also be required to register as a sex offender for decades. This means that your photograph, name, address, and details of your conviction will may be listed in the public registry of sex offenders so that potential employers, friends, relatives, and anyone else can find you and learn about your history. Because of the consequences of being charged with rape, as soon as you have been accused of rape or any other sex crime it is critical that you contact an experienced New York rape in the second degree lawyer who will review the facts of your case and aggressively defend you against the charges. The attorneys at Stephen Bilkis & Associates has years of experience successfully defending clients accused of sex crimes, as well as clients charged with grand larceny, drug crimes, domestic violence, and other felonies and misdemeanors.

Lack of consent

The basis for any sex crime is that the sex act is nonconsensual. In the case of rape, the nonconsensual sex act must be sexual intercourse. Lack of consent does not necessarily mean that force or violence must have been involved. In the case of second degree rape, it means that the victim did not have the legal capacity to consent to sexual intercourse. Lack of consent exists if the victim is under 15-year-old, suffers from a mental disability or incapacity, is physically helpless, or is in the custody of the Department of Corrections and Community Service and the assailant is an employee. N.Y. Pen. Law § 130.05(3)

Mental disability or mental incapacity

Under the rape statute a person is mentally disabled if he or she does not have capacity to understand the nature of the sex act. A person is mentally incapacitated if he or she is intoxicated by a substance administered without his or her consent. In other words you gave the victim a drug without that person's knowledge. In order for a person to be charged with rape or any other sex crime based on the allegation that the victim was mentally disabled or mentally incapacitated, there must be corroboration by a third party or there must be other evidence of the rape. N.Y. Pen. Law § 130.16 In other words, a rape charge will not stick simply based on the word of someone who was at the time of the incident mentally disabled or mentally incapacitated.

Incarcerated victim

It is against the law for employees of correctional facilities to have sexual contact with inmates. For purposes of the rape statute "employee" is defined as an employee of the New York State Department of Corrections and Community Service who at the time of the sexual intercourse works in a facility in which the victim is confined. Such an employee's responsibilities must include custody, medical or mental health services, counseling services, educational programs, vocational training, institutional parole services, direct supervision to inmates, or supervising those released on community supervision. N.Y. Pen. Law § 130.05.

Arrest and arraignment

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 initially go to Central Booking where you will remain until you are arraigned. An arraignment is a hearing before a judge during which you are formally charged. 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 will learn the date of your next hearing. Several hearings and meetings may occur prior to your trial. While we are often able to negotiate a favorable resolution to criminal cases without going to trial, when necessary we are prepared to aggressively defend clients at trial.


One way to challenge a rape charge is to produce evidence that there was indeed consent. If the lack of consent was based on the age of the victim, then a defense to the charge could be that you had good reason to believe that the other person was over the age of 15 even if in reality the person was under the age of 15.

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. This means that if you are not prosecuted within five years of when the incident reportedly occurred, you cannot be prosecuted at all. However, if the victim 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. The longer it takes for the victim to go to law enforcement and for the prosecutor to decide to charge you, the more difficult it may be to present evidence that you committed that crime or that a crime even occurred.

Sentence Prison

Because rape in the second degree is a class D felony, if convicted you will be sentenced to up to 7 years in prison. Rape in the second degree is further classified as a violent felony offense. As such it carries a determinate sentence of at least 3 years in prison up to a maximum of 7 years in prison. You must serve 6/7 of the prison sentence before you will be eligible to be released on parole.


Your sentence may include probation. If you still have to complete the probation portion of your sentence after you are released from prison you must follow the terms of probation. The rules may include allowing law enforcement to conduct warrantless searches, having a job, supporting your family, agreeing to drug testing, undergoing drug treatment, if necessary, undergoing psychological testing or counseling, refraining from associating with disreputable people, refraining from patronizing disreputable places, refraining from possessing firearms, following a curfew, and not leaving New York without permission.

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 follow the conditions of your probation your probation officer will violate you. This is serious as the result of a probation violation could mean that you have to go to jail.

Sex offender registration

There are serious consequences for a rape conviction that go beyond a prison or probation sentence. If you are convicted you will also be required to register as a sex offender. N.Y. Cor. Law § 168. The New York Sex Offender Registration Act requires that a sex offender register for 20 years, or in some case for life. Having a criminal record and being required to register as a sex offender will impact almost every aspect of your life following prison. You will have a hard time getting a job as potential employers who may be willing to overlook a criminal history, may be unwilling to overlook a criminal history that involves a sex crime. Many landlords are unwilling to rent apartments to people who are on the sex offender registry. In some cases names on the sex offender registry are made public and easily accessible on the internet. If other residents of your neighborhood learn that you are a sex offender you may be harassed.

Contact Stephen Bilkis & Associates

Whether the charge is rape in the second degree, rape in the third degree, or rape in the first degree, defending rape charge can be very complicated. Defending a rape charge typically depends on understanding complex issues pertaining to proof as well as interpreting and applying the nuances of the rape statute. The staff at Stephen Bilkis and Associates has years of experience successfully defending clients in New York criminal courts who are accused of rape in the second degree as well as 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 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.

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