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New York Rape in the Third Degree

Under the New York Penal Code you would have committed rape in the third degree if you have sexual intercourse with someone who was incapable of consenting, if you are at least 21-years-old and you have sexual intercourse with someone who is less than 17-years-old, or if you have nonconsensual sexual intercourse. While rape in the third degree is the least severe rape charge, it is still a felony. This means that you will likely end up in prison; you will have a criminal record; and you will have to register as a sex offender. These consequences will have a long-term negative impact on your life. Thus, it is imperative that if you are charged with rape or any other sex crime that you put your defense in the hands of experienced attorneys. The attorneys at Stephen Bilkis & Associates have years of experience successfully representing clients who have been charged with sex crimes and other serious crimes such as grand larceny, drug crimes, domestic violence, and other felonies and misdemeanors. Contact us to discuss the facts of your case.

Lack of consent

Whether the charge is rape in the third degree, second degree, or first degree, the prosecutor must have evidence that the sexual intercourse was nonconsensual. N.Y. Pen. Law § 130.05. Lack of consent means that the act was forced. For a third degree rape charge force does not mean physical force. It means that the other person lacks the legal ability to consent. 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, is physically helpless, or is in the custody of the Department of Corrections and Community Service and the assailant is an employee of that department. N.Y. Pen. Law § 130.05(3). 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 can be charged with rape in the third degree.

A person is mentally disabled such that he or she would be unable to consent to sexual intercourse if that person has a mental disease or defect that makes him or her unable to assess the nature of the sexual act. Being mentally disabled is different from being mentally incapacitated. A person is mentally incapacitated if he or she is intoxicated by a substance administered without his or her consent.

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 by other evidence. N.Y. Pen. Law § 130.16. In other words, a rape charge will not stick simply based on the word of someone who is mentally disabled or mentally incapacitated.

Many may believe that a woman cannot be charged with the rape of a male. This is not so. The New York rape laws do not specify that the perpetrator in a case of rape must be male and the victim female. If you are a woman, you can be charged with rape in the third degree. Particularly where the male is under the age of 17 and the woman is over the age of 21, there have been many cases where a woman has been charged and convicted of rape in the third degree.

New York is very concerned about inappropriate sexual contact between those in jail or prison and employees of the facilities who come in contact with such inmates. For this reason it is against the law for a prison employee to have sex with an inmate. An "employee" is defined as an employee of the New York State Department of Corrections and Community Service who at the time of the sexual act 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. An employee is also defined as a mental health employee who has duties at a state correctional facility or hospital. A person who is a volunteer at a correctional facility and who provides direct services to inmates is also an employee for purposes of sex crime statutes. N.Y. Pen. Law § 130.05.

Sentence Prison

The sentence for being convicted for rape in the third degree is up to 4 years in prison. The judge will look at any aggravating or mitigating circumstances when decided on our sentence. Even though third degree rape is a felony, it is possible for your sentence to be less than a year in jail. For example, in People v. Morey, 2013 N.Y. Slip Op. 07086, (2013), the defendant pleaded guilty to rape in the third degree after being accused of having sexual intercourse with a girl who was less than 17 years old. The defendant was sentenced to 6 months in jail, plus 10 years probation.


While a sentence that includes little jail or prison time, plus probation, or only probation may seem like an easy sentence, the probation time is to be taken very seriously. Violating probation carries serious consequences. If probation is part of your sentence, there are very specific “Conditions of Probation” that you must follow. Normally, the Conditions of Probation will include:

  • That the defendant will be subject to a warrantless search;
  • That the defendant will be subject to drug testing;
  • That the defendant be employed;
  • That the defendant follow all rules of probation, including undergoing drug treatment programs or psychological testing;
  • That the defendant cannot associate with disreputable people.

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. This is serious as the result of a violation could mean that you have to go to jail. You will have to appear in court before the judge who originally sentenced you. The Probation Department will urge the judge to revoke your probation and send you to jail. The judge may find that there was no violation, may find that there was a violation and send you to jail, or may find that there was a violation and add new probation terms. For example, in People v. Russell, 2014 NY Slip Op 02979 (2014) as part of a plea agreement the defendant, Noel Russell, plead guilty to the charge of rape in the third degree. Russell was accused of having sexual intercourse with his 16 year old sister-in-law. Russell received no jail or prison time, but was sentenced to 10 years probation. In 2012, Russell was convicted of several more sex offenses, and as a result was also charged with violating the terms of his probation. The judge violated Russell, revoked his probation, and ordered that he be sent to prison for 1 to 3 years.

Criminal record and sex offender registration

There are serious consequences for a rape conviction that go beyond a prison sentence or probation. If you are convicted you will have a criminal record. Even worse, 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 at least 20 years. 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. The sex offender registry is 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.

There are various defenses to a charge of rape in the third degree. For example, there may be issues related to consent. 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. N.Y. Crim. Pro. Law § 30.10. 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.

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 Stephen Bilkis and Associates has years of experience successfully defending clients in New York criminal courts who are accused of 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, as well as other crimes such as drug possession, domestic violence, and petit larceny. 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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